8 r ^V &} EESE LIBRARY UNIVERSITY OF CALIFORNIA. Received, Accessions No.. KX*^-liS8^ Shelf 'No. ._ THE NATION: FOUNDATIONS OF CIVIL ORDER AND POLITICAL LIFE IN THE UNITED STATES. E. MULFORD. NEW YORK: PUBLISHED BY KURD AND HOUGHTON. Catworittgc: 1877. Entered according to Act of Congress, in the year 1870, by E. MULFORD, IB the Clerk's Office of the District Court for the Eastern District of Pennsy iTanfe. B1VEBSIDE, CAMBRIIXU : T1BBOTTPBD AND PRINTED II H. 0. QOUGQTON AND OOMPAHT. To THB MEMORY OF MY FATHER, IX THE HOPE THAT HIS FAITH SHALL LIVE IN HIS CHILDREN'S CHILDREN, / DEDICATE THTR WORK. PREFACE. THE purpose of this book is to ascertain and de- fine the being of the nation in its unity and con- tinuity. There is moving toward its realization in national laws and institutions, the necessary being of the nation itself. The nation thus becomes an object of political knowledge. It is no abstraction, but in this alone is the avoidance of abstractions. It avoids, on the one hand, an empty empiricism, that with the recogni- tion of no consistent principle makes the nation only a formal organization, and politics only a suc- cession of random experiments, hits, and ventures ; and on the other hand, avoids an abstract idealism, which, regarding the state also as only a formal organization, would shape all things after an im- aginary polity and an abstract design. It is this conception of the state as involving unity and con- tinuity which is the condition of political science, that is to be set forth alike against the political empiric and the political dogmatist. It is this alone which can avert the danger which there is in the application of formal and abstract concep- tions in politics. It is a logic which is presumed in politics, if politics be an object of knowledge, vi PREFACE. but a logic formed in the necessary conception and manifest in the realization of the nation, not the barren forms of logic as it is held in the no- tions of the schools. In this conception that cer- tainly is to be retained which works well, but polit- ical science is to apprehend the law and condition of its working. The apprehension is of the realization of the nation in the United States, its substance, its rights, and its powers, underlying but manifest in its whole form and organization. This book had its beginning in a purpose to rep- resent the nation in its moral being; to assert this moral being in its true position in politics; but the aim has been throughout as the conception widened, to define in their relative and positive character those principles which are the ground of political science. I do not believe that the teacher of ethics can avoid the subject of politics. I do not believe that there can be a separation of them in the thought of a people, but ethics will be- come abstract and formal, the dry product of the schools ; and politics be bereft of all its power to become at last even a name of reproach. The book may thus serve to indicate, perhaps, in some measure the sources of the power of American in- stitutions in the formation of character. I have written in the conception that holds politics itself as a science which is the ground of political education. In its apprehension of the be- PREFACE. Vll ing of the nation, its unity and laws, which form the condition of science, political history, juris- prudence, political economy, and social statics, are separate and subordinate departments; political history is concerned with the rise and growth of institutions, and the comparative value of political constitutions; jurisprudence is the science of the jural law and civil organization ; political economy is the science of wealth, of the relations of labor and capital, of the laws of production and ex- change ; social statics is the science of the laws of health and population ; international law may be regarded also as subordinate, since it presumes the existence of separate nations, and is formed mainly in the conception in which the nation is held. A larger space has been given in some instances to subjects of special interest in the immediate condition of affairs, as the jural and the economic representation of the nation, the relation of nat- ural and political rights, the distinction of civil and political rights, the representative principle, the method and dangers of a representative con- stitution, and the relation and difference of the civil and the international state, a particular State, and the United States. I have written with an obligation, which I am glad to acknowledge", to the Eev. Mr. Maurice of London, and to Hegel and Stahl, to Trendelen- burg and Bluntschli ; while I have sought by ref- viii PREFACE. erence to them to indicate this, it has been larger than mere notes of reference can trace; and I am never sure but their words may have mingled un- awares with my thought ; I shall not regret this if it may lead any who may trace them to traverse those rich and ample fields, or if it may be an aid to larger knowledge. This only can be the aim of the worker; and it is much to contribute to the knowledge of the people in any form and in however slight a measure. The saddest of words are, the people perish for lack of knowledge. -The slight references to the Alabama question I may say were written before the recent discussion of the subject, but I have seen no reason to change them. The words "nation" and "state" are used as synonymous, and a particular State in the United States is written "State" and is described as a commonwealth, as the commonwealth of Massa- chusetts or Virginia. I have sought, however imperfectly, to give ex- pression to the thought of the people in the late war, and that conception of the nation, which they who were so worthy, held worth living and dying for. I know how far it falls short of that concep- tion which went with them to battle and sacrifice ; yet I would most care to connect, if I may, my work with theirs, and trust it may be received by Him, who is the head of all, to whom their service was done. CONTENTS. CHAPTER I. PAOB THE SUBSTANCE OP THE NATION ... ... 1 The nation 1. Is founded in the nature of man. 2. Is a relationship. 3. Is a continuity. 4. Is an organism. 5. Is a conscious organism. 6. Is A MORAL ORGANISM. 7. Is a moral personality. Its definition in the history of political science. CHAPTER H. THE NATION AS DEFINED IN THEORIES . .... 34 The nation is represented as 1. A necessary evil. 2. An historical accident. 3. A jural society. 4. An economic society. CHAPTER m. THE ORIGIN OF THE NATION AS DEFINED IN THEORIES . 37 It is said that its origin 1 . Is in the development of the family. 2. Is in mere force or might. 3. Is in some instinct or emotion of man. 4. Is in the social contract : historical genesis of this theory. 5. Is in popular sovereignty. CHAPTER IV. THE ORIGIN OF THE NATION 54 1. The nation is of divine foundation : analogy with the family. 2. The evidence of its origin : CONTENTS. a. In its moral being and personality. 6. In its government. c. In its authority and powers. d. In the facts which indicate the consciousness of the people. e. In the facts which indicate the conscience of the people. CHAPTER V. THE PEOPLE AND THE LAND 61 The interrelation of the people and the land. 1. The unity of the people. 2. The entirety of the people. 3. The political people. The influence of the land on the people. The origin of the nation in local contiguity : theory ol Mr. Maine of Mr. Buckle. CHAPTER VI. THE NATION THE INSTITUTION OP RIGHTS 72 The law of rights. The distinction of natural and positive rights. a. Natural rights. b. Positive rights. The law of the relation of natural and positive rights. a. The theory which defines their isolation. 6. The theory which defines their identity. The distinction of civil and political rights. 1. Civil rights, a. Of life. 6. Of liberty, c. Of property; its repre- sentation in legal formulas of Savigny, of Blackstone ; its rep- resentation in political speculations of Locke, of Considerant, of Hegel. Criticism of Proudhon. d. Of equality before the law. 2. Political rights. The rights of the political people. The rights instituted in the nation as a moral organism. The correspondence of rights and duties. Rights as defined in legal and political forms. a. Original and acquired rights. 6. Absolute and relative rights. c. Rights of persons and things. The realization of rights in the nation. CHAPTER VII. THE NATION THE REALIZATION OP FREEDOM .... 108 Freedom, the realization .of personality. The freedom of the people subsists in the nation, in its moral per- sonality. The law and condition of political freedom. The defect in the common definitions of political freedom. The nation the realization of freedom. The political order is to conform to the will of the political people. CONTENTS. PAQB It is the assertion of the self-determination of the people in the nation as a moral organism. The realization of Freedom in Rights. a. It is construed in Rights. 6. It is formed in institutions. On the representation of political freedom in different theories. On the assumption of freedom as existent before the organization of society. CHAPTER THE SOVEREIGNTY OF THE NATION ...... 129 The organic will of the people. The notes of sovereignty, a. Supremacy. 6. Authority, c. In- dependence. d. Unity, e. Majesty. Its substance, a. It is inalienable. b. It is indivisible, c. It is ir- responsible to any external authority, d. It is the power in the political people to determine the form and order of its own political life. The sovereignty in law. Definition of law : The necessary elements in civil and political law : note on the distinction of public law and private law. Government. CHAPTER IX. THE NATION AND ITS CONSTITUTION ...... 144 The twofold character of the constitution, a. The historical consti- tution. b. The enacted constitution. The convention. 1. The nation precedes the constitution. 2. The constitution has the form and style of law. 3. The nation may amend the constitution. 4. The nation is to apprehend in the constitution, its conscious object and aim. 5. The right of revolution. On the relative and positive character of the political constitution. CHAPTER X. THE NATION AND ITS RIGHTS OF SOVEREIGNTY .... 159 1. The right to self-preservation : the habeas corpus. 2. The right to declare war and to conclude peace. 3. The right to form international relations, by treaty, etc. 4. The right to coin money. 5. The right. to eminent domain. CHAPTER XI. THE NATION AND ITS NORMAL POWERS . . .171 The legislative, executive, and judicial powers : note on the historical definition of these powers in political science. Xll CONTENTS. These powers are: a. Organic, b. Coordinate, c. Coexistent. a. Correlative. The distinction in these powers. The defect in the representation of their division : the argument of "the Federalist." The relation of these powers to the physical force of the nation : the military. The declaration of martial law, or the suspension of the habeas corpus. a. The legislative department. b. The executive department. c. The judicial department. On the relation of the judiciary to the legislative power : the polit- ical province of the judiciary. CHAPTER XII. THE NATION AND ITS REPRESENTATIVE CONSTITUTION . . 210 The representative government. The principle of representation as defined in theories : that the gov- ernment is formed : a. In the representation of interests. 6. Of families, c. Of numbers, d. Of properties or accidents attaching to men. The Republic formed in the representation of persons. The law of representation. o. Its historical justification. b. Its realization of the sovereignty of the people : self-government. c. Its realization of the nation as a moral organism. The Republic formed in the Democratic principle. On various qualifications, a. A property qualification. 6. A lit- erary qualification. On the representation of public opinion. On the representation of minorities. CHAPTER XIII. THE NATION AND ITS RELATION TO OTHER NATIONS . . ,251 The external sovereignty of the nation. The right of recognition. The authority and province of international law. CHAPTER XIV. THE NATION AND THE INDIVIDUAL 258 The ancient and modern representation. The laws of their relation and development. The freedom of the individual. On the defect in the representation of individualism in some theories. CONTENTS. Xlll CHAPTER XV. MM THE NATION AND THE FAMILY 276 The necessary and moral interrelation of the nation and the family. The obligation of the nation to maintain the moral order of the family. Note on the representation of the relation of the family and the na- tion in Shakespeare. CHAPTER XVI.' THE NATION AND THE COMMONWEALTH 283 The formation of society in, a. The family, b. The commonwealth. c. The nation : Note on the historical growth of this conception in political science Aristotle. Hegel. The commonwealth is a. The civil organization : it is defined in the jural relations of so- ciety. b. The economic organization : it is defined in the necessary rela- tions of society. It is constituted in the maintenance of civil rights and civil order. Its procedure is in the common law. a. The unity of the commonwealth. 6. The scope of the commonwealth. Its historical growth. Its illustration in the constitution of the Com- monwealth of Pennsylvania. The institution of courts. The civil court. The constabulary. The relation of the nation and the commonwealth. a. The nation is immanent in the commonwealth. 6. The nation is external to the commonwealth. The commonwealth is the civil corporation. Its formal rights. The concurrent powers of the nation and the commonwealth. The law of their relation. The commonwealth as defined in theories, a. They are vast corpo- rations having their origin in some charter and continuing with certain vested powers, b. They are separate political so- cieties, each existent in the original sovereignty of an inde- pendent political power, c. They form an organic whole, in whose complex political organism the States exist each as an original integer : theory of Mr. Hurd and Mr. Brownson. On the distinction of a central government and a local administration. CHAPTER XVII. THE NATION THE ANTAGONIST OP THE CONFEDERACY . . 321 The confederate principle. Its definition by Montesquieu ; by Freeman. Its appearance in the formal constitution in an age of political trans- ition. The conflict of the confederacy with the nation in its organic and moral unity. The historical conflict in the United States. xiv CONTENTS. CHAPTER XVIH. PAOI THE NATION THB ANTAGONIST or THE EMPIRE .... 342 The imperial principle. The law of aggrandizement in the empire. The subversion of the moral life and development of the people. The subversion of the freedom of the people : its fatalism. Its illustration in Spain ; in Austria. The conflict of the empire with the nation in its organic and moral unity. The confederate principle in Greece. The imperial principle in Rome. CHAPTER XIX. THE NATION THE INTEGRAL ELEMENT IN HISTORY . . . 355 The vocation of the nation in history : history a development in the realization of the moral order of the world. The nation formed in the conditions of history. The conflict of the nation with slavery. The conflict of the nation for humanity. The moral order of the world, the fulfillment of humanity in God. The church and the natio'n. The Protestant principle. The nation, the Christian nation. CHAPTER XX. THE NATION THE GOAL OF HISTORY 383 Conclusion. LTBBA RY ! r.\uv' n TON? CHAPTER I. THE SUBSTANCE OF THE NATION. THE premise of political speculation has been the as- sumption of the existence of man apart from the state. It has portrayed an age when the conflict of right and wrong was unknown : there was in the lives of men no care, nor toil, nor endeavor ; there was neither chief nor law, neither soldier nor battle ; there was no judge nor police, no plaintiff or defendant ; there was neither mar- riage nor homes ; property was unrecognized, no bound- aries of land were traced, and the ample gifts of the earth were held by all in common ; the individual existed in the fullness of all his powers, while yet, as in the traditional, and the ancients say derisive, line of Homer, 1 " No tribe, nor state, nor home hath he." 1 This imaginary state is drawn by the old counselor, in the Tempest: " Gon. I would by contraries Execute all things; for no kind of traffic Would I admit; no name of magistrate; Letters should not be known; riches, poverty, And use of service, none-; contract, succession, Bourn, bound of land, tilth, vineyard, none; No use of metal, corn, or wine, or oil; No occupation; all men idle, all; And women too, but jnnocent and pure; No sovereignty. All things in common nature should produce Without sweat or endeavor: treason, felony, Sword, pike, knife, gun, or need of any engine, Would I not have ; but nature should bring forth, 1 2 THE NATION. But this scene, as it is traced in political speculation, soon closed, its course was interrupted and disturbed ; the impulses of men arousing, brought them in collision ; strong desires came to clash with each other ; there was the necessity for toil, and the lives of men were harassed with care ; there was division, and distrust was provoked ; then some power was required to maintain the imperiled security, to punish fraud and restrain violence ; and thus the state came into being ; its origin was in necessity, and its form was that of a repressive force in the institution of an external order. The same premise, in the assumption of the contrasted picture, has represented the primitive condition as char- acterized by every evil. It was a constant warfare ; fear and self-interest directed human action ; the grasp of avarice brooked no limit; hatred was the habitude of men ; tumult and violence alone prevailed. Then it is conceived that the state came into being, as an evil also, but slighter and sooner to be borne than those which ex- isted apart from it, and as before in the form of a repress- ive force. These imaginary pictures divest man of the actual cir- cumstance and the actual relations of life. They are only abstractions. There is no trace of the natural man, and of the primitive age which they portray. They are assumed as the necessary material out of which to construct the Of its own kind, all foison, all abundance, To feed my innocent people. "Seb. No marrying 'mong his subjects? "Ant. None, man; all idle: whores and knaves." The Tempest, act ii. sc. 1. In contrast to this, Shakespeare has represented the actual condition of man apart from society, in the Caliban. This condition is not ascertained from the fragmentary traces of savage life, for in the lowest stage of the actual condition of man, there is the recognition of some relations, some principles of associ- ation, and some authority, in the will of a chief or the sanction of custom. The most exact representation of this condition is thus in some assumed character as the Caliban. THE SUBSTANCE OF THE NATION. 3 artificial systems of political schools. They have no foundation in the nature, or in the history of man. The position of Aristotle is the necessary postulate of political science, " Man is by nature a political being." The elements of the nation are in his nature, and its prog- ress is in the development of his nature. The earliest and the widest records of his existence disclose a condition in which there is the recognition of some common relation, and men appear as dependent upon each other, and as seeking association with each other ; they make sacrifices for it, and accept obligations in it. The nation has its foundations laid in the nature of man. It is the normal condition of human existence. There is in it, as the organization of human society, the manifestation of human nature. The nature of man, apart from the nation, is unfulfilled ; and in the individual, in his isolation, the destination of humanity is unrealized ; the old words are verified, unus homo, nullus homo. The nation, therefore, is not to be regarded as an arti- fice which man has devised, nor as an expedient suggested by circumstance, to secure certain special and temporary ends. It has other ground and other elements. It is often described as a contrivance of human skill, and gov- ernment as the cunning or clumsy device for the accom- plishment of certain objects in certain transient periods. A recent writer, identifying government with the nation, says it is " a machine for applying certain principles," etc. ; but even as an illustration, this conveys a misconception. The machine, when it is made, is apart from the maker, and complete in itself, and separate from the power which impels it ; but the nation never exists as a complete construction, and always is in identity with the people. The nation, moreover, cannot be moved as a machine, but has in itself thought and will and power to do or not to do, and capacity to suffer or rejoice. The nation exists, 4 THE NATION. only as men are lifted out of a mechanical existence ; in it there is the assertion of their determination, and their free endeavor. And man does not owe the conception of the nation to the genius of an individual, nor is it the in- vention of a separate age. The highest ingenuity could not have compassed it, and it is not to be counted among the achievements of human wisdom. The machine also wears out, with time and use, when another is made in its stead ; but it is not thus with states, and t there is no law of physical necessity which thus limits them. This representation of the nation as a mechanism the work of human craftsmen is the root of the confusion which appears in the definition of man's savage or rude condition as the " natural state," and the emergence from it into civilization, as the " artificial state." It is the dis- tinction, on the assumption of which so many social schemes and such vast social theories of natural and artificial society have been built. The law of Aristotle has here its appli- cation in political science, " The nature of that which is, is to be ascertained from its mature condition ; " not in its germ, nor yet in its decay, but in its fullness and its perfectness do we discern the true nature of a thing; or, what every being is in its perfect condition, that cer- tainly is the nature of that being. 1 i Aristotle's Politics, bk. i. ch. 2. R. von Mohl, in one of his later works, represents the state as only one in the successive spheres of human life which he enumerates as the sphere of the individual, of the family, of the race, of society, of the state, and of the association of states in their international relation. The special characteristic of this description is the distinction of society and the state; the former is described as the common, yet the unorganized and the unformed life of man. But this dis- tinction has no justification, and in it society in itself is undefined, and every trait which is drawn to give to it a positive substance and form is derived from what is represented as another sphere either that of the individual, or of the state. When it is further said that there is a law and rights belonging to society, as apart from the state, which yet have the character of neither national nor common law, and of neither political nor civil rights, the absence of all ground for the distinction becomes still more apparent, for law and rights presume -an organic life and an organized society. R. von Mohl, Encyklopadie der Staatsiois- esnschaften, p. 17. See also Bluntschli's Geschiehte, p. 616. THE SUBSTANCE OF THE NATION. 5 The nation is a relationship. They who exist in it are not held only by some external force, and are not bound only by some formal law. In the sketches given of ex- istence apart from society, the state was represented as if men entered it from a condition of individual isolation, and as itself the resultant of their individual accession. This isolation is unreal ; it is the atomy of the state, which regards it as the collection of so many units. It is a premise which is devised to sustain political systems and political abstractions. The isolation of men presumes a conception which is inhuman, and it is not in its separation but in its relations that humanity is comprehended. If, moreover, this isolation be allowed, it does not furnish the elements out of which the state can be formed, and it can suggest no law in which the transition to the state may be made. The origin of the state is not in some speculative theory nor in some formal scheme. The entrance to it is not through a reflective process, nor by an act of individ- ual volition. It has the characteristic of all relationships, in that it has not its beginning in a reflective or a volun- tary act, while in it the individual is conscious of existence as a person. It is not, in its normal course, out of a condition which is external that men enter the nation, but they are born in it, and it has the natural condition of relationship. The recognition of its law, and the obedience to its au- thority, is not then conditioned upon the arbitrary choice of those who constitute it, but in reference to it the arbi- trary action of the individual is precluded. It is a common relationship, and there are none exempt from its conditions, and none in the nation can make their lives to be as if it had not- been. There are none unaf- fected by it, but each is involved in every moment of its existence. In the politics of Aristotle, human relationships the 6 THE NATION. man and woman, the father and mother and child are ap- prehended as the sign and suggestion of society, by which its existence is suspected, and in which its principle is con- tained. Then the constituents of society are sought in a house, but the family is not therefore the lesser state, nor the state simply a collection of families, since each has its own nature and end, while each as a relationship has therein its elemental principle. It was in the visionary republic of Plato that all relationships were swept away as antagonistic to its ideal unity, but as the nation is ap- prehended as itself a relationship, these are apprehended as integral in it and correspondent to it. There is for the family, apart from the nation, a neces- sary imperfectness, as also they will hold best the relation of citizenship who hold best the relation of brothers and husbands and fathers. The nation is subject to the conditions of all relation- ships. If the consciousness of them perish, the art of man can devise no substitute. Their strength can be supplied by no artificial bond, however subtly forged. They are deep as life, and in their mysterious power there is the holiest communion, so that their only illustration in the phvsical world is in the vine and the branches, and the body and the members. It is thus that citizenship has its significance as a rela- tionship. It is not carelessly that human lips have called their country the father-land ; nor is it with vague and idle phrases, but in a spirit of holy and son-like sacrifice and in solemn crises, that men have turned to their country as the mother of all. The nation is a continuity. It no more exists complete in a single period of time than does the race ; it is not a momentary existence, as if defined in some circumstance. It is not composed of its present occupants alone, but it em- braces those who are, and have been, and shall be. There THE SUBSTANCE OF THE NATION. 7 is in it the continuity of the generations, it reaches back- ward to the fathers and onward to the children, and its relation is manifest in its reverence for the one and its hope for the other. The evidence of this continuity is in the consciousness of a people. It appears in the apprehension of the nation as an inheritance, received from the fathers, to be trans- mitted unimpaired to the children. This conviction, that has held the nation as an heritage worth living and worth dying for, has inspired the devotion and sacrifice of a people. The evidence of this continuity is also in the fact that the spirit of a people always contemplates it. The nation has never existed which placed a definite termination to its existence a period when its order was to expire and the obligation to its law to cease. It cannot anticipate a time when it shall be resolved into its elements, but con- tends, with the intensity of life, against every force which threatens dissolution. Those who have represented the state as a compact, have yet held it to be a perpetual one, in which the children are bound by the acts of their fathers. This continuity is the condition of the existence of the nation in history. The nation persists through a form of outward circumstance. Judaea was the same under the judges and under the kings ; Rome was the same under the kings and under the consuls. The elements of the be- o * ing of the nation subsist in this continuity. In it, also, the products of human effort are conserved, and the law of human production conforms to it. The best attainments pass slowly from their germ to their perfectness, as in the growth of the language and the law, the arts and the liter- ature of a people. Chaucer and Spenser, through intervals of slow advance, precede Shakespeare, as Giotto and Peru- gino lead the way to Michael Angelo and Raphael. The nation is a continuity, as also in itself the product of succeeding generations. It transcends the achieve- ment of a single individual or a separate age. The life of 8 THE NATION. the individual is not its measure. In its fruition there is the work of the generations, and .even in the moments of its existence the expression of their spirit, the blending of the strength of youth, the resolve of manhood, and the experi- ence of age the hope and the aspiration of the one, the wisdom and repose of the other. There is the spirit which is always young, and yet always full of years, and even in its physical course the correspondence to an always re- newed life. 1 This continuity has found expression in the highest po- litical thought. Shakespeare has it in his historical plays ; the continuity of the nation is represented as existing through the years with the vicissitudes of the people, in the changes of scene, with the coming and going of men ; and there is as in the nation the unity of the drama in which so many actors move, and whose events revolve from age to age ; and thus these plays hold an attraction apart from the separate scenes and figures which present some isolated ideal for the poet to shape. Burke has rep- resented this continuity in the nation as moving through generations in a life which no speculative schemes and no legal formulas may compass : " The nation is indeed a partnership, but a partnership not only between those who are living but between those who are living, those who are dead, and those who are to be born." The life of the individual is brief, but in the nation it may become a continuous power. The character of Achilles may have a worth for all in its abstract ideal, but in the history of Greece it was always a living energy. They who have been the leaders of a nation in the strength and nobleness of their lives are always in a vital relation to it. The traditions of valor and sacrifice in the memory of a people become the inspiration of its hope. The work of the individual is brief also, and in its isola- 1 Nee temporis unius, nee hominis, esse constitutionem Reipublicae. Cicero, De Republica, bk. iii. ch.- 21. THE SUBSTANCE OF THE NATION. 9 tion would be almost vain, but in the continuity of the na- tion it is enwrought in the longer social development. Thus, also, a single generation, in its furthest advance, achieves but little in comparison with the long line of the generations in the nation, and if there is laid on any the necessity of battle, still the holiest triumph is that in which the life of the nation in its continuity is maintained. The nation is an organism. It has an organic unity, it is determined in an organic law, and constitutes an organic whole. There is a political truth whose worth may be measured against the sciolism of many recent theories, in the ancient words, " As the days of a tree are the days of my people." The nation is shaped by no external force, but by an inner law ; its changes are those of a develop- ment ; its strength appears in its regarding all division as the sundering of life ; and the glory of the people has been not in the uprooting, but in the maintaining and advancing of the work of its ancestors. This imparts to the people an energy which does not wholly perish in the waning of its years, it breaks the external bonds which fetter it, and flourishes amid the vastest historical changes. The nation, as an organism, has the characteristic of every organism unity and growth and identity of struc- ture. It has not merely an apparent sequence, nor a con- structive force, but is a development after an organic law. It is not a confused collection of separate atoms, as grains of sand in a heap, and its increase is not through their ac- cumulation. It has the unity of an organism, not the aggregation of a mass ; it is indivisible ; its germ lies beyond analysis, and in it is enfolded its whole future. This unity is the postulate of the existence of the people as a nation, and the condi4ion of its independence. An identity of structure also pervades the whole. Thus the defect of a part injures the whole ; and if a part be sev- ered it ceases to exist, as the limb which is cut from the body, or the branch from the tree. 10 THE NATION. The nation, therefore, is not something which can be torn down, and then from the old material built up again in other nations. It is planted, it is not made. It is not constructed out of preexisting parts, but is an whole, and the law of Aristotle holds, the whole is before the parts ; that is, a whole cannot be made of parts, but the whole is predetermined, to which the parts belong, or it is only in the conception of the whole that the parts appear. A sum or aggregate can be composed of separate units, but it is only their mass, and there can be predicated of it neither unity nor growth, nor identity of structure. The law of an organism defines the relation of the indi- vidual to the nation. They who form the organic whole, in their relation to it, and to each other, are its members. Its bond is not formal ; its action is not mechanical. The members are formed in and through it, as they form it, and are not as the wheels in mills, and the shuttles that slide in looms, but the members of a living body. They are affected by it, not as by an external force, acting on component particles, but as by a living spirit working through the whole. The laws of life in the physical body do not act with more unvarying certainty than in the body politic. The consciousness of this organic relation, is the ground, also, of the normal action of the individual. Hegel says, the mob in a nation is the force which acts without or apart from the organization of the whole. There may thus be an ignorant or a learned mob, a mob^f men of fashion or of men of science, but the spirit is the same, and in its severance from the organic people there is the same essential vulgarity. This has an illustration of singular force in one of the political plays of Shakespeare. When Caius Marcius turns to the crowd in Rome and denounces them as the detached and disorganized rabble, in whom there is nothing of the organic unity of the people, the dis- dain of the Roman is in the words, " Go, get you home, you fragments ! " and those who in the conceit of culture THE SUBSTANCE OF THE NATION. 11 or of wealth, or of higher interests, or of spiritual endow- ments, withdraw from the normal political action of the na- tion, are obeying the impulse of the mob, and are as the very fragments, for whom the Roman patrician felt such unmeasured scorn. 1 The antithesis to the nation as an organic unity, is in the conception which frames it upon abstractions. It as- sumes a certain scheme of rights, or system of laws, and then proceeds to construct the state out of these rights, or sets it forth as the product of this formal law. These assumptions are destitute of an historical foundation, and arise in the empty notion that men by a reflective act can constitute the nation, and that it exists as the sequence of an abstract conception. The most disastrous of political falsehoods is this, which in any form holds the nation in identity with a legal or dialectical system, and then pro- ceeds to its construction, after the design of the abstract reason. It is destructive, and the whole existent order is constantly liable to be razed, in order to substitute an imaginary polity in Tts stead. The apprehension of the nation as an organism, is the condition of political science. It involves the distinction of an art and a science ; there may be, for instance, an art in building heaps of stones, but there is no science of stone- heaps. The unity and identity of structure in an organ- ism, in which a law of action may be inferred, form the condition of positive science. This is the source, also, of constructive political power, and of all that is enduring in the work of the statesman. In the recognition of this fact of the organic being of the state the most is gained, says Bluntschli, for the practical study of political subjects. And it is significant that political writers of grasp and wide influence, as Spinoza and Hobbes, proceeding from a premise which precludes the organic unity^ or being of the state, have yet 1 See Maurice, The Workman and the Franchise, p. 9. 12 THE NATION. been led to represent it as a living body, and have de- scribed it as some colossal man. This conception, when presented by those whose postulate is the contractual ori- gin and definition of the state, indicates the reality of its existence as an organism. It is also significant that the assertion of the nation as an organic unity, in modern political thought, should have proceeded from the historical political school. Savigny, who may be named as its representative, describes the na- tion as " the organic manifestation of the people." l Yet, the necessary conception of the nation as an organism transcends the limits of an historical school, and while the roots are traced in the past, there is necessarily a continu- ous development, and it passes into the future in the un- folding of its own ^erm. In the forgetfulness of this, the historical school reverts only to the past to dwell among its forms, and, as the sense of a living continuity and en- ergy fades away, it becomes of all schools the most dry and barren. But although the nation is organic, it is not limited to the definition of a physical organism. Its description in this logical limitation is often repeated ; 2 it is said, for instance, that the nation, as the individual,, passes through the necessary periods of youth, manhood, and age ; that it flourishes, and after maturity ceases to exist its bloom is followed by inevitable decay. The deeper truth is in 1 Savigny's Syst. des Rom. Rechts, vol. i. p. 22. " In every separate people the universal spirit of man manifests itself in an individual way, and the growth of rights has a common social ground." Syst. des Rom. Rechts, vol. i. p. 20. See Bluntschli's Allgemeinen Statsrecht und der Politik, p. 568. 2 "As men are born and live for a certain period, and at last die of age or in- firmity, so also states are constituted ; they flourish for some centuries and then at last cease to exist." Frederick II., Antimacchiavelli, ch. ix. Mr. Spencer says, " We find not only that the analogy between society and a living creature is borne out, but the same definition of life applies to both.'* Social Statics, p. 490. It may be doubted if the elaborate analogy which Mr. Spencer draws, carried as it is through the detail of a minute anatomy, has any justification. The description of an exact correspondence to the physical or- ganism often serves as a display of anatomical science. The literature of poli- / v / / THE SUBSTANCE OF TH -NATION. /> / x 13 7 /' > 3TAe nation is a conscious organism. Tfr-is the- /dotis life of the people ; it knows its own object and the pu*rpf>se which is given it to fulfill. Its action does not proceejj^/ from mere impulse, and it is not directed by a merely aim- less energy, but there is in it that conscious spirit which apprehends an object before it, and apprehends it as its own. " The nation," says M. Thiers, " is that being which reflects and determines its own action and purpose." It has a determinate end, and apprehends in its own conscious purpose its vocation in history. This conscious- ness of a vocation enters into the spirit of every his- torical people, and is the basis of its historical life. The nation has in correspondence to its vocation a de- terminate character : its character is the manifestation of the purpose it has realized in its vocation. Its character becomes thus as clearly outlined as that of its foremost men. Rome has a character as distinct as that of CaBsar, and Greece as that of Pericles. The conscious life and vocation of the nation appear in the spirit with which it invests its members, and those who are called to the execution of its purpose. There is a quality in its membership which is distinct from that in a life withdrawn from it, and there is a spirit in the fulfill- ment of its trusts and offices which it alone imparts. When the thought and action of the members and officers of a nation become empty routine, the mere work of functionaries, there is the sign of the loss of a living energy, tics has many monograms on this correspondence, in which for instance the members of the political society are compared to the cells, and the legislative power to the head, or the economy to the stomach, and so on; but they are mainly subject to the criticism of von Mohl, " These conceptions of the state and its correspondences based upon physical science appear from time to time, partly through an altogether sickly tendency of thought, and partly through a mystical and fanciful conceit." Etieylclopadie der Staatswissenschaften, p. 84. 1 " Debet enim eonstituta sic* esse civitas ut seteraa sit." Cicero, De Repub- Kca, bk. iii. ch. 3. 14 THE NATION. and the decadence of a people. It has been said that there was in the office of a Roman consul an inherent majesty, which often gave dignity to a person of ordinary character, and ennobled him with its spirit ; and there is in the office of a representative of the people a power which may lift the possessor above the divisions of party and the interests of factions, so that he is made to stand in a living relation to the nation, whose work and pur- pose is to be wrought through him. It is thus, also, that one who is called to a public trust or office in the nation, is not simply a private person, nor to be so re- garded. The conscious life of the people appears in its literature and arts, its manners and laws. These are moulded in the type of the individual life of the nation, so that with the universal element in literature and art and law there is the individual element in which the characteristic of the peo- ple is traced. These not only bear the impress of its pe- culiar type, but there is in its being the field of their growth. The constructive polity, and the art and litera- ture of a nation, thus terminate with its historical course. There may be great works produced after its close, but their root was in the past, and with its decay they soon cease ; as there were solitary great Grecians and Romans after the loss of the national life of Greece and Rome, but the line soon expires. Their spirit can survive in no other people, and their work can be resumed by none. The Turks gain possession of Greece, and the French of Egypt, but the monuments and arts do not belong to them, they do not recognize their spirit in them, and can- not continue' them. All that England can do with the sculptures called the Elgin marbles, is to place them in a museum. This consciousness of the vocation of the nation, how ever reluctantly acknowledged or dimly apprehended, has been stronger than the individual intention of its members. THE SUBSTANCE OF THE NATION. 15 It has determined the course of the greater in the succes- sion of its leaders and its kings, and has turned them from their individual bent, when they could not warp it to their own use. In England and France the greater rulers, as Henry VIII. and Louis IX., have been those who have held the best apprehension of and given the clearest expres- sion to this vocation ; and kings and ministers who have sought to thwart it, or even failed to be penetrated by it, have been set aside, or, as illustrative of its weakness in some ages, are left to stand as passive figures in its lines. In the conscious life and vocation of the nation, there is the ground of its identity of purpose, through the suc- ceeding generations. Its purpose is transmitted from the fathers to the children. The consciousness of its destina- tion becomes clearer in the advance, as it fades in the degeneracy of the people, and is obscured in the prece- dence of selfish interests, and at last blotted out in stu- pidity and slavery. Thus, also, the early incident of a peo- ple may contain the premonition, and its historical epochs and crises the revelation, of its vocation. There is through all the same great promise, the same memories, and the same hopes. The longer years alone are its measure. The calling of the nation thus may endure through hu- miliation and defeat, and through evil days, when there is only a remnant left who keep its ancient faith and guard its errand from forgetfulness. This is held slightly by the teachers of the technic of po- litical art, and by those who would limit politics to political economy, but the consciousness and the fulfillment of the vocation of the people are the condition of its power ; this vocation is the postulate of national character and national freedom. The people has in it no external limitation which impairs action, but is strong and free only as it works it out. The people that fails to hold its calling carefully and reverently cannot attain a strong national life, and weakness and inevitable disaster result when its 16 THE NATION. purpose is but feebly grasped, and servility and degradation when it becomes the imitator or the copyist of another. The nation is a moral organism. In the necessary ele- ments of its existence in history it transcends the merely physical conditions of a physical organism ; and in free- dom, and law, and order, in the fulfillment of a conscious purpose and vocation, and in the obligation to law, are the very elements of a moral being. It is a moral organism ; that is, its members are persons who subsist in it, in relations in the realization of person- ality. It is the condition in which a person exists in the fulfillment of the relations of life with those who are per- sons. There is in it the assertion of a justice, which is the affirmation of a person in the recognition and institution of these relations between the moral whole and the moral parts of the whole. Its law is regulative of the moral whole, and of the parts, in these relations. It is as a moral organism that the nation is the field of the action of man, in law and in freedom. There is, therefore, in it the education of the individual, the growth and formation of character. There is in its normal devel- opment the coming into the world of that which is laid in the nature of humanity, in its true and original constitu- tion. It is as a moral organism that there are in the nation the conditions of the moral life of the individual. In the assumed isolation of man there is the negation of the moral life which is formed in moral relations. Thus all the re- lations of life in its moral order are constituted in the nation, and are to be maintained through its institutions and by its enactments. 1 It is as a moral organism that the nation is the sphere l " Whosoever lays violent hands upon the state, assails the conditions of all moral life, and therefore the crime is regarded as the greatest." Trendelen burg, Naturechte aus dem Grande der Ethik, p. 286. THE SUBSTANCE OF THE NATION. 17 of the individual person. The fact of a vocation cannot consist with his isolation. It presumes an existence in a conscious relationship, and its fulfillment is in the relations of a moral order. It is thus that there is formed in the nation the consciousness of the relationship of humanity, and the moral life of the individual is apprehended in it as the life which is truly human. The process of the nation is only as a moral organism. It is not constituted in the necessary process of the phys- ical world, but it is constituted in the order of a moral world. Its course is defined in law, and in law as pre- scribing the actions and relations of men as moral agents. Its attainment is in freedom. Its goal is peace, and that not in the barren conception in which there is the nega- tion of purpose and energy, but peace as the conquest of man, in which there is the satisfaction of his spirit and the achievement of his aim. The conditions of history presume the being of the na- tion as a moral organism. History is not a succession of separate events and actions, but a development in a moral order, and in the unity and continuity of a life which moves on unceasingly, as some river in its unbroken current. But it is only as the nation is an organism that this unity and continuity is manifest in it, and as a moral organism that this moral order is confirmed in it. The nation thus cannot be comprehended in the defini- tion in its logical limitations of a physical organism. The distinction of a physical and a moral organism is necessary, and becomes the illustration of the being of the nation, in its necessary conception. It is as follows : The physical organism is determined in itself by a law of necessity, as the tree which cannot be other than it is : the ethical organism is determined in a law of freedom, which is the condition of moral action. In the physical organism, each member exists only in its relation to the whole, as, for instance, the* hand is nothing without the 2 18 THE NATION. body, and has no separate significance : in the ethical or- ganism, each member has in itself a necessary significance, and each member, furthermore, has the destination in itself, for which the whole exists, and which the whole has in itself. The whole subsists in the same relation and has the same destination as the individual, and neither the whole nor the individual has a secondary existence, nor can be made only a means to the end of another. In the physical organism, the elements which are atomic, under a law of combination, are taken up and separated again, and as they pass back into unformed nature, it is only to reappear in other and manifold forms : in the ethical or- ganism, the members are individuals existing each in his own identity, and each is so related to the whole that instead of a construction after the exclusive type of the whole, it is indifferent to say that the individual has his type in the whole, or the whole its type in the individual. In the physical organism, the changes are through neces- sary periods, as youth and age, or spring and autumn, and the elements which are chemical, and so on, are formed after the law of these periods ; but in the ethical organ- ism the process is not through the periods of a necessary sequence, and its members exist in each moment of its ex- istence in uninterrupted relations of youth and age. Its life consists in the constantly unfolding life of humanity. 1 1 The logical fallacy of defining an ethical by a physical organism, and limit- ing the one to the conception of the other, appears in Draper's Civil Polity. The description of the growth and maturity and decay of nations is repeated with a solemn monotony, as if history was an unbroken succession of funereal pag- eants. But the nations do not exist in history in this limitation in a physical sequence; they appear under the conditions of amoral life, and their growth or decay is traced not in necessary, but in moral causes. There is in the same school the utter denial of the real freedom of the individ- ual and the nation, when it aims to define freedom only in the limitations of a physical necessity, and the mind of man is regarded only as involved in the physical process of nature. Yet not infrequently exhortations are made in the same school on the beauty, or the duty, or the excellence of political morality, and these may be often the expression of an emotive fervor or of prudent counsel ; but they can avail little when they are connected with a merely economic con- ception of the nation, and are separated from their only consistent postulate in its organic and moral being. THE SUBSTANCE OF THE NATION. 19 The nation is a moral personality. This is the condi- tion of its vocation, as in the fulfillment of its vocation there is the formation of its character. The moral personality of the nation is determined in its consciousness ; in its conscious purpose subsists its independence of other na- tions, that it is not to be necessarily what they are nor as they are. Its object is before it, which it knows as its own; its freedom is in the working out of its vocation, and in its goal there is the satisfaction of its desire. The condition of the realization of personality is the same in the nation as in the individual. This condition in each is the clearness and fullness in which it comprehends its purpose and is centred in it. The source of strength is, as with the individual, in working faithfully after the type of its own individuality, and bringing this to its free and clear development. The being of the nation is, therefore, not merely in an apparent sequence, but in conformance with the law which is laid in its being. The scope of the nation thus is not exhausted by, and its powers are not derivative from a sphere of outward cir- cumstance ; it is not comprehended in a summary of enact- ments nor defined in an abstract system. The only limit- ation is its self-limitation in its being, as a moral person. In this is the postulate of its law and the line of its progress. There are no bars or barriers before the course of the free spirit of the people, and the nation moves in its advance towards the higher personality which is realized in its vocation, which is of God, in history. 1 The nation is a moral person, since it is called as a power in the coming of that kingdom in which there is the moral government of the world, and in whose comple- tion there is the goal of history. It is a power in the moral conflict and conquest which is borne through history, to the final triumph of the good. It is a power manifest in 1 "National character ist der gottliche Beruf, einer nation." Stahl, Philo- aphie des Rechts, vol. i. p. 365. 20 THE NATION. the judgment of history. But in the formal and artificial conception of the nation this power becomes a fiction, and in the mechanical conception it has no moral ground. The nation is a moral person, since its development is in an integral moral life. Its character is its own, it is not derivative from any powers on earth ; it does not proceed through them, and its responsibility cannot be transferred, nor its obligation rendered to them. It is not the vehicle O in which another and a separate power is carried to its end, nor the frame-work in which another life is to be built, nor the shadow which in a disturbed economy falls from some other order or organization that alone is lifted into the clear light, and alone knows the triumph of the good. It is not the instrument for the pursuance of the vocations of separate individuals, which are to be held before it as separate and special ends, nor in the formation of the char- acter of certain individuals, does it alone have its end; but as its vocation is its own, and it is judged in it, it has its own end. Its ground is not in the individual, but in the historical life of humanity. It has for its end not the speciaFbut the universal ; its assertion is not of the indi- vidual will, but of law which is the universal will ; its in- stitution is not in the right of one, nor of a few, but in the rights of man. The nation is a moral person, since it is formed in a moral conflict. It is not merely phenomenal in its moral being. It is not the perfect image, nor yet the passive reflection of righteousness, as of something external to it, but its being and the condition of its being is in righteous- ness. Yet it is not therefore a self-righteous power, but exists in the institution of righteousness in the moral order of the world. It is formed in a real conflict. The nation, in the attainment of its being, is to strive. There is always in its freedom the possibility of evil, but in evil there is also the negation of its being. The being of the nation as a moral person has its witness THE SUBSTANCE OF THE NATION. 21 in the consciousness of men. It has awakened the higher moral emotion, and its response has been from the higher moral spirit. It has called forth the willing sacrifice of those who were worthy. The life of the individual has been given for the life of the nation. The offering has been laid upon that, which in the holiest spirit has been held as an altar, and life has been given in that sacrifice in which life is found. If the nation had only a formal existence, this moral spirit could have no justification, and if its origin was in self-interest, to call for self-sacrifice would be the negation of it; and if its end was only in the protection of the life and property of the individual, this surrender of them would be the immediate defeat of its end. The nation is a moral person, since it is the organized life of society, and society is formed in the spirit and in the power of a personal life. It is to be governed in the conscious determination of the will, and to act as one who looks before and after. The strength which is to be wrought in it, exists only in rectitude of thought and of will ; wisdom and courage, steadfastness and reverence, faith and hope are attributes of it ; the highest personal elements become its elements and are moulded in its spirit. The relation of the individual to the nation presumes, as its necessary condition, the existence of the nation as a moral person. The individual becomes a person in the nation, and this involves the existence of the nation as also a person ; for personality, as it is formed in relations, can subsist only in an organic and moral relationship a life which has a universal end. The nation is thus the sphere of a realized freedom, in which alone the life of man fulfills itself, and it is to give expression to all that is compassed in life. It moves toward the development of a perfect humanity. Its symbol is the city of an hundred gates, through which there passes not only the course of industry and trade, but the forms of poets and prophets 22 THE NATION. and soldiers and sailors and scholars man and woman and child, in the unbroken procession of the people. Its warrior bears the shield of Achilles, on which there are not only the figures of the mart and sea and field, the loom and ship and plough, but the houses and the temples and the shrines and the altars of men, the types of the thought and endeavor and conflict and hope of humanity. The condition of the being of the nation, as the power and the minister of God in history, is in its moral person- ality ; in this it is constituted in history as the moral order of the world, and for the fulfillment of that order. The assertion of the moral being of the nation has been the foundation of that which is enduring in politics, and has been embodied in the political thought and will which alone have been constructive in the state. Aristotle, who gave the furthest attainment of the ancient world, says, " The end of the state is not merely to live, but to live nobly." 1 Hegel, who has given a yet wider expression to modern thought than did Aristotle to the ages before him, and tliere is no other name with which the parallel may be drawn, represents the state as the realization of the moral, and in the moral alone it has its substance and be- ing. He says, " The state is the realization of the moral idea," 2 and " The state is the realization of freedom, and it is the absolute end of reason that freedom be real," 3 and " The state is no mechanism, but the rational life of self- conscious freedom, the order of the moral world ; " 4 and again he says, " There is one conception in religion and the state ? and that is the highest of man." 5 There is no other conception which has such power in the thoughts of men, and in this age it has the greater significance when it is drawn, not from a school of puritan 1 Aristotle's Politics, bk. i. ch. 2. 2 Hegel's Philosophic des Reehts, p. 312. 8 Ibid. p. 31T. 4 Ibid. p. 340. 6 Hegel's Philosophic der Religion, vol. i. p. 170. THE SUBSTANCE OF THE NATION. 23 politics, but from those most widely separated from histor- ical puritanism, and finds its expression in the literature of a people which is rising to great political might. 1 But those who have been the masters of political science, and it has perhaps fewer great names than any other science, all repeat this conception. Milton says, " A nation ought to be but as one huge Christian personage, one mighty growth or stature of an honest man, as big and compact in virtue as in body, for look, what the ground and causes are of single happiness to one man, the same ye shall find them to a whole state." 2 Burke says, " The state ought not to be considered as a partnership agreement to be taken up for a little temporary interest and dissolved at the fancy of the parties. It is to be looked on with other rev- erence, because it is not a partnership in things subservi- ent to the gross animal existence of a temporary and perishable nature. It is a partnership in all science ; a partnership in all art ; a partnership in every virtue and in all perfection." 3 Shakespeare says, " There is a mystery with whom relation Durst never meddle in the soul of state ; Which hath an operation more divine Than breath or pen can give expressure to." 4 1 See Rothe's Theologische Ethik, vol. iii. sec. ii. p. 900. Stahl's PhilosopMe des Rechts, vol. ii. sec. 2, p. 181. Bluntschli's Allgem Stats Rechts, vol. i. p. 140. 2 Milton's Reformation in England, Preface to bk. ii, 8 Reflections on the French Revolution, p. 368. * Troilus and Cressida, act iii. sc. 3. CHAPTER II. THE SUBSTANCE OF THE NATION AS DEFINED IN THEORIES. THE conduct of affairs in the nation is shaped after the conception which men may have of its origin and end, and yet it does not subsist in the individual and arbitrary conception, and cannot be made the exponent of that. It exists in its necessary conception, and every divergence from that is the building of some abstraction, or, as the French phrase is, " in the air," and through vagueness will result in feeble action, or, through defect, in negative action. The error in thought can involve only disaster in fact. The representations 'of the nation, which most frequently recur in politics, and especially in its later phases, are mainly as follows : The nation is represented as a necessary evil. It is a sequence of the evil which is in the world, and is incident to that. It is imposed on man to control the desires and lusts, and to curb the tendency with which it is said the inclination of his nature is toward evil. It is made neces- sary by the disorder and violence, the fraud and enmity of men, and the antagonism of self-interest, and is itself to be endured as only a less evil than these, and to lose its power as they abate, and to cease with their termination. It is simply repressive, and is the restraint which is neces- sary to check the evil drift of the world. This defines the state as the resultant of the existence of wrong, and neces- sitated by that ; it is to be apprehended only as involved THE SUBSTANCE OF THE NATION. 25 in the sequence of evil, a manifestation .of an estate of sin and misery. This makes a destructive force the constructive cause of society. But evil in its necessary character is not forma- tive. It creates nothing and produces nothing, it only consumes and destroys. It has in itself no elements of order, and can bring forth none. It holds no type after which things are to be fashioned, but only changes and dis- turbs them. Therefore the nation, its unity and order and progress, cannot be derivative from evil and an evil condition. Government, which is the central organization of the nation, is im^aii evil. Its substance is in itself good, and is implicit in the conception of the good. Law, which is the ground and expression of its authority, is in its ulti- mate apprehension the manifestation of the divine will, as has been said of it in imperishable^words, " Its home is the bosom of God, and its^voice is the hl^fcony of the world." l And freedom, which in the nation is constituted in law, is the sphere of the normal development of man. And the nation is not a mere negation, only a restriction of evil ten- dencies and an impediment to evil courses, as this theory assumes. It has a positive character and content. It is the manifestation of the life of the organic people, after a moral order, and in the institution of justice and of rights. It is a constructive power in history. It is not a local and temporary expedient, and its elements are not those which the scientific culture of another and a later age may set aside. It is not a fetter and a burden imposed upon the race, in an evil necessity, which it may gradually come in 1 Mr. Brownson says of government, " It would have been necessary, if man had not sinned, and for the good as well as for the bad. The law was pro- mulged in the Garden, while man retained his innocence. It exists in heaven as well as on earth, and in heaven in its perfectness." The American Republic, p. 18. " The nation is not only revealed as ffie power in conflict with evil, but even the beginning (Paradise) looked toward a development into a perfect kingdom." Stahl, Philosophic des Rechts^ vol. ii. sec. ii. p. 81. 26 THE NATION. its progress to discard, and from which it may be ultimately wholly emancipated. It is itself the condition of progress, and in its course there is the striking off of fetters, and the deliverance from burdens, and a constantly increasing freedom. The representation of the nation as a necessary evil, ap- pears through many periods, and in many forms. It was the prevalent notion of the mediaeval age. It arises often from a want of satisfaction in the merely jural and eco- nomic representation of the state. The spirit of man de- mands something more and better than that, his hope and purpose look to something ampler and worthier, and that offers no sphere in which he can fulfill his vocation or unfold his energies, and when thus conceived it comes to be set aside as a necessary evil in the evil of this world, and also as transient in its nature. 1 l Mr. Calhoun makes this conception the base of his political structure. He defines the end of government, " to repress violence and preserve order." He says, " The powers must be administered by men in whom, like others, the individual are stronger than the social feelings," and therefore, "since they may be used as instruments of oppression, that by which this is prevented is called constitution." While this is the postulate of the argument of Mr. Calhoun's essay, it is significant that he should write, in one of its first sentences, " To man the Creator has assigned the social and the political state as best adapted to develop the great capacities and faculties, intellectual and moral, with which he has endowed him" but the thought lies upon the page, and has no further consideration, nor does it enter into his construction of the state. Calhoun's Works, vol. i. pp. 7, 15, 52. Mr. Spencer is the most recent advocate of this theory, and presents it in its extremest shape. * He says, " Nay, indeed, have we not seen that government is essentially immoral ? Is it not the offspring of evil, bearing about it all the marks of its parentage? Does it not exist because crime exists? Is it not strong, or, as we say, despotic where crime is great? Is there not more liberty, that is, less government, as crime diminishes? and must not government cease, when crime ceases, for very lack of objects on which to perform its functions? Morality cannot recognize it. " Social Statics, p. 230. He says again, " Government is a necessary evil " (Social Statics, p. 25), to terminate with the evil which is assumed as the ground of its exist- ence; "it is a mistake to assume that government must last forever. The insti- tution marks a certain stage of civilization, is natural to a particular phase of human development. It is not essential, but incidental. As amongst the Bush- men we find a state antecedent to government, so may there be one in which it shall have become extinct." Social Statics, p. 24. It would scarcely be neces- sary to notice these statements of this theory, but if they be received in th > THE SUBSTANCE OF THE NATION// / 27 The nation is represented as an historical fyccident. "'It /j is the outward circumstance of th$ life 'of man'i^jJp^n the } earth ; it is a phenomenal phase of society, ttie/fpr.m Whfclj . society in its manifold nature, in some places antl/ ome Oy ages may assume. But the nation has not been in history an indifferent, phase of action in certain places, and a transient inci dent of certain ages, which this implies. As there is in the nature of man the evidence that he is constituted for the nation, so also his normal development has been in it, in the historical life of humanity. It is not the characteristic of a single epoch, as would follow if it were only an incident in the life of the race, but it is a power in the continuous development of history. It \ is no ephemeral mode of existence, and instead of being the incident, it is the substance of history, It is not the circumstance of the existence of man upon the earth, but in it there is the determinate power in which man controls circumstance, and maintains through events the persistent expression of his aim. It is formed in the assertion of a dominion over the external world. Its prog- ress is as it lifts man above the force of circumstance and the subjection to circumstance. Man is weak and de- pendent as he is isolated or withdrawn from it. It is not the occurrence of some fortuitous scene, to come and go, in the unlimited play of events, some single strand which is caught and woven in the loom of the years, with thought of a people, they must work inevitable disaster, alike to the individual and the nation, and their repetition of the mediaeval conception of the state, which in that age was always given with a certain sadness and regretful sense of loss, involves in this age wider consequences. The characteristics of ; ' the state among the Bushmen antecedent to government," are not further described, and there is no positive presentation of facts on which to rest these " other stages of civilization," which also were rid of government, whose existence the writer assumes, except as the " state among the Bushmen," may be also illustrative of them. When these assumptions are prwented, with the pretension of a school that it always keeps a foothold of facts and is characterized by a scientific exact- -*- ness, they may justify some surprise. X fl 28 THE NATION. their ceaseless changes, and then not to appear again, but it is the fabric in which events are wrought. This representation of the nation apprehends it as only an apparent order ; not an end in itself, but incidental to the attainment of some other and separate ends ; only a scaffolding for some interior structure, which it is to sup- port, or an association for the advancement of the private ends of the individual. But in its vocation and the moral obligation which it cannot transfer nor evade, there is the condition of an immediate moral being. It has not the indi- vidual in himself and his advancement as its separate and special end, but in its aim as the universal, it constantly elevates the individual above a separate and special end. It has a life which may call for the sacrifice of the life of the individual in the higher, the universal aim. There is a false egoism, which has its root in selfishness, in this representation of the subordination of the state to private ends, whatever their disguise and whether they be of a so-called spiritual, or of a temporal character, and the necessary sequence of the principle it asserts is the dis- solution of society. - In this representation it is common to regard the organ- ization of government as identical with the nation, and to limit it to that conception. Thus the dynasty or the mu- nicipality, the tribal, or patrimonial, or imperial power, may be regarded as substantially the nation. But it is not comprehended in the simple fact of government. There is government in the family, and yet the family is not the state. There may be* the recognition of and the subordination to authority, in an association which is or- ganized for plunder, as in the brigand's band or on the pirate's ship. 1 When the nation is apprehended as only an external order, the recognition of a certain authority, in a certain locality, and by a certain association of men, 1 " Quae est enim civitas ? Omnisne etiam ferorum et imraanium V Omnisne fugitivorum ac latronum congregata unum in locum multitude? Certe negfc- bis." Cicero, De RepubUca, bk. ii. ch. 2. THE SUBSTANCE OF THE NATION. 29 then it may indeed be assumed as the transient circum- stance in a continually changing condition, but there can be for human society no reel stability. The nation is represented as a jural society. Its sole object is the maintenance of private interests and the pro- tection of private rights. Its end is effected in the keep- ing of the peace among a certain number of men in a cer- tain locality. Its process is a system of police. It is a vast constabulary force, which is to prevent disorder within certain limits of the earth. The nation is only a judge and warden, and that government is best which governs least. Thus one's country is a larger bailiwick, whose boundaries some convenience of administration has de- termined ; the father-land is the circuit of the judge and the sheriff. The exponent of national power is the tip- stave. To be a citizen, to be the member of a nation, has no other significance than a certain relation, in which each is held and bound over for the keeping of the peace. The only association recognized in the state is a jural re- lation, and the nation is only a jur x al society. This conception is obviously imperfect, and while, as R. von Mohl says, it is so narrow as scarcely to need crit- icism, it is yet constantly recurrent. The state certainly has to secure the civil order of society, to repress violence and to punish crime ; but this is not its sole nor its whole end. Every state, simply to maintain its existence, em- braces a wider sphere and exercises larger powers. The aim of society, in its most meagre form, could not be ac- complished in so contracted a principle. This also regards the maintenance of the necessary rela- tions of the individual, and private rights and interests, as the end of the state. Its law is in necessity, and in the relations which conform to this law, but it subsists no longer in a real freedom. It is no longer the growth of national character and spirit. There is no organic and 30 THE NATION. moral continuity, and its citizenship is no longer a living relation. There is no principle in which it can animate the spirit of man, and it can awaken no reverence for the past nor hope for the future. It cannot inspire the gen- erous sacrifice of the present to the future, by which alone the life of nations is conserx jd. There is no place for the self-devotion which is the source of public spirit, and in its whole scope there is no ground for public rights and public duties. This also confounds civil and political rights, or rather the whole province of political rights is denied, and the nation is limited to the definition of the civil organization. It is constituted only of persons in private relations, and only for their protection in these relations. But this is inconsistent with the essential constitution of the political people, and there is no principle in which it can apprehend the people as organic, and therefore as invested with po- litical power, in the will of the political whole. This conception is also destitute of an historical foun da- tion, and does not serve to describe any historical nation. It is a low and imperfect representation which fails to de- fine the life of the people in its organic unity and organized relations, and makes no history possible in its own limita- tion. There is no ground for an historical unity and continuity. The historical course of every nation has 'elements which transcend it. It fails to represent, for instance, the life of Greece or Rome, of England or France, and eliminates from their history all their spirit and all that gives dignity and grandeur to their action. This proposition has for its postulate necessarily a false conception, both of the origin of society as only an associa- tion of men, and of the nature of men as impelled only by selfish interests and toward selfish ends ; and when it reaches its conclusion, as it merges the nation into the civil corporation, it indicates the beginning of a false civilization. The highest organization of the civil corporation, and THE SUBSTANCE OF THE NATION. 31 the most perfect jural system, would still not satisfy the spirit of a people. It could not attain toward the destina- tion of those powers which are immanent in humanity. There is in it the apprehension of no moral relationship, and in its last analysis it could apprehend its members only as plaintiff and defendant. The long result of human so- ciety it would represent in the institution of a civil court, and the close of history in twelve men sitting in a jury- box. Its final achievement it would reduce to a codifica- tion of the laws. The better conception of society and of the individual perishes, and the largeness in the fore- thought of the statesman, and the heroism in the devotion of the soldier have no place in it, but its representative is only the civil lawyer. The civil corporation presumes the existence of the po- litical people, that is, the nation in which it subsists ; and it has in itself no element of continuity, nor even of con- tinuous action. There is no fact more significant than that the life of the Roman citizen had lost all its strength and nobleness, when it came to be apprehended under rela- tions and distinctions defined only by the civil system. There was no longer in Roman citizenship a vital and a moral spirit, and the individual discipline which had been the secret of her conquest, and her vast organization, per- ished. It was in the decadence of Rome, and in the later days of the empire, that the thoughts of the greatest of her sons turned only to the civil law, to its system and its cod- ification. It allows no sphere for the maintenance in it of the relationships of life. They cannot in their normal concep- tion subsist in it, and when the nation is apprehended as only a civil corporation, an administration of the police, then the family, which is organic and is in itself sacred, is elevated above it, only at last, in its necessary relation to it, to be reduced to th6 same low conception. The nation, merely as a society of jural relations, cannot com- 32 THE NATION. prehend the family thus as organic and as sacred, and . whenever the one has been represented as a civil corpo- ration, the other has come to be held as only a civil con- tract. This proposition has been assumed in the assertion of a necessary separation of the moral and the legal, and the identity of the nation with the latter. It is correct in the assertion of a distinction of the moral and the legal, and the former has never in the latter its perfect expres- sion nor its comprehension ; but the proposition assumes their isolation, so that in the state the conception of the one excludes the other. This has its illustration, and has obtained in some respects its more recent influence, through the aphorism of Kant. 1 Kant represented the state as deriving its content and its powers from a formal law, and defined it as, "the association of men under a system of laws." He asserted that the moral cannot be external, since it requires that duty shall spring from the conscience which is within man, and proceed through an inner motive, while the order of the state regards only the conformance of the external act to the law, and to it there is attached also compulsion, the physical force, which be- longs to the authority of the state. This was the argument for the definition of the state as formal, not organic and moral, and for its representation as only an external order. It is correct in the assertion that the conscience is within man, and that the inner life is beyond the invasion of physical force, and over it the state has not, nor has any save only God control, but with this it does not follow for one moment that the external act must be separated from the conscience, nor that the external order has no moral substance, nor that the formal law has no moral content and no moral end. The physical force, also, which this asserts as existent in the state, must, as a right, have a higher sanction than this allows, since there is no ground i Kant, Rechtslehre, sec. 45. [THEJSUBgTXHCE^OF THE NATION. \ 33 on which a number of men are justified in the act itself, in compelling one man. The state also acknowledges as legally binding without express enactment, a moral rela- tion and obligation, and the primary obligations, for in- stance, of patriotism, which in no state have been defined in its system of laws, and cannot be so defined, are neces- sarily assumed and asserted by every state. In this argu- ment, also, the laws have necessarily no other content than that which is derived from the external relations of life, but if the state is apprehended only in these relations, it becomes merely an external and formal order, and in the institution of these relations as external and formal it would fail of their end, since they presume a moral unity and obligation. And the legal becomes something poor and empty, when it is separated from the moral ; and the law, when its invisible sanctions in the conscience are withdrawn, becomes only the contrivance of legislators, and society only the scheme of politicians. The very conception of law as the affirmation of justice, and its uni- versal aim, is lost sight of when it-is apprehended as existent only for the individual, and to subserve his private end. It has, indeed, for the individual, no such egoistic place. This, also, necessarily excludes all consciousness of a divine obligation in the nation to execute justice and to punish crime, to repress violence and to maintain order. The state is merged again into the civil corporation, and in the assumption of the isolation of the legal and the moral, and the subsequent foundation of the nation in the merely legal, society becomes only the form of legists, and its action the precedent of a political pharisaism. The nation is represented as an economic society. It is a temporary organization for the promotion of the physical well-being of man ; it exists only for the satisfaction of certain physical wants ; it has its ground in the necessities which arise in the coexistence of men. 34 THE NATION. This is the merely economic state ; its law is in neces- sity ; its relation has a material basis ; its existence is con- tingent upon the securance of certain temporary ends. The bond by which it is attached, is in production and exchange, and its permanence is to provide security for material accumulations. The nation is apprehended only as a joint stock concern, a board of trade, an insurance shop, or a produce exchange. The continuity in which it unites the generations, is the inheritance of their accumu- lated capital contracts and wills. The record of its achievement is in tables of commercial profit and loss, and the relation of its members is defined by regulations in bargain and sale. It exists for the protection of persons and property, and is, at the most, only the external and temporary form in which some interior and spiritual struc- ture is built, but it has in itself no corresponding character, and no apprehension of the purpose and spirit of that, and no enduring principle nor universal aim. It is true that the nation has in its scope the organi- zation of the civil order, in the protection of persons ,and property, but this is not comprehensive of it. There is to this the same objection which applies to the representation of the state as simply the jural society : it is obviously de- ficient. It fails to define any historical nation, and there is none in its limitation which could find a place in history. There is no people which has attained an historical exist- ence, but it has necessarily held a moral purpose and aim, beyond any material interest, and in the crisis of its history, it has been called to sacrifice material interests that the nation might live, and has maintained its calling in the re- jection of apparent material advantages. This proposition fails, also, since it necessarily involves the formation of society after a selfish principle, or in self- interest. There is not in this a formative social energy. There can be no unity, since the principle it assumes is the very root of division. It can issue only in disintegra- THE SUBSTANCE OF THE NATION. 35 tion through self-antagonisms, and the result in fact, as it is the necessary sequence of the principle, is the dissolu- tion of society. There is not in this assumption the condition of per- manence ; and when the security of material interests has become the supreme end, it indicates the decay of the state. If it has failed to recognize a principle of righteous- ness, that still has not swerved to allow a way for it, nor fallen to be passed over in its streets. This conception does not correspond to the apprehension of the nation, in the consciousness of men. It divests its life of all sacredness, and its authority of all obligation. There is no ground left to the people of reverence for its ancestors or of hope for its children. There is for justice no solemnity. It cannot call forth that devotion from its sons, whose measure is the pledge of life and fortune, and their sacrifice would be the subversion of the end ascribed to it. It has no place for the courage of the soldier, nor the wisdom of the statesman, nor even for the love of its * children, but exists for the promotion of trade, and is the copartnership of men in a secular concern. But the defect in the limitation of this conception is apparent. The nation has elements which are not deter- mined in its economy. It is not exhausted in the sched- ules of its produce and exchange ; its unity is not in material interests ; its history is written in other books than the tables of its census ; its capital is other than the centre of its trade. This proposition has had a various support, and has de- termined the position of the most opposite parties, and has united each holding the state in moral indifference the secularist and the ecclesiast. The latter has assumed for himself alone the work of righteousness on the earth, to result often in indifference to actual righteousness, and the former has denied the presence and the power of righteous- ness in history. The inference of each has been the being 30 THE NATION. of the nation, as only an association of individuals in an external order, for certain temporary ends ; an existence subsisting only in the secular, and each, therefore, has re- garded its course as profane, and the crises of its existence too often have seen their latent or avowed alliance. The principles of economy have a common ground and application ; the laws of commerce and exchange are as wide as the seas on which their ships sail. They are laws which are applied by every nation, but they are not immanent in the organism of the nation, nor determined in its individual existence. Thus the nation may form a treaty of reciprocity in trade, but it can form none of reciprocity in political rights ; for the nation, as an organic and moral power, is subsistent in these. There is nothing in the principles of political economy which can become the ground of the separate life of the nation. 1 This conception, in its premise and conclusion, corre- sponds to the preceding ; and the characteristic of all is the identity of the nation with the civil corporation, and the rejection of its organic and moral being. These theories become the source not of the constructive energy, but involve the elements of the dismemberment of society. They can apprehend the nation only as the field of indi- vidual ambition, and selfish interests, and private ends. 1 " Die burgerliche gesellschaft rein als solche, ist eine Kosmopolitin." Rothe, Theologische Ethik, vol. ii. p. 123. CHAPTER III. THE ORIGIN OF THE NATION AS DEFINED IN THEORIES. THE conception of the origin of the nation is necessarily presumed in the conception of its unity and its substance. They alike shape the action of men in the conduct of aifairs, and there has been in modern history no more manifest illustration of the relation between the thought and the work of a people. The response has been given in various theories, to the inquiry, Whence does the nation, that is, the organization of society, derive its being, and its unity, and the authority in its government, and its rights, and its powers. It is not the beginning of the nation, in its historical cir- cumstance, which is the object of this inquiry ; and this has been the same, in no separate nations. Their inception, in their external phases, has been as varied as the infinite life of history. The historical beginning may be, for in- stance, in the growth of a family, and the accession of other families, or in the planting of a colony, or in the migration of a race, and so on. But there is in this only the incident of their historical inauguration, and we do not attain to the origin of the nation, nor of its unity, nor the authority in its government, nor its rights and powers. The characteristic of these various propositions in review is their lack of consistence with the necessary conception of the nation ; they are mere abstractions, and their worth is only in their illustration of the necessary conception. It is said that the nation Has its origin in the development of the family : the family is the unit of human society, 38 THE NATION. and of its organic process in the nation ; and in the expli- cation of the family the nation is formed. The right in which the government of the nation subsists, is then also the right of the father, and the people who form the nation are related to the government as its children. It is true that the family is the unitary form of soci- ety, but it is not therefore the only form, nor determin- ative of the whole. The nation is not the continuation of the family, nor is it the result simply of its extension, noi is it in its form necessarily correspondent to it. The organism in its perfectness cannot transcend its germ or spore, and the family in its widest development is still only the family. The nation is not necessarily implanted in the family, but it is itself an organism ; it has its seed in itself, and the condition of its development is in its own organic unity and the conformance to its organic law. The rights and powers which belong to the nation also transcend those of the family. The authority in each is different from the other, and while the latter in its form is absolute, and obedience is rendered to it as to an im- perative, the former is the determination of the organic will as law, and obedience to it is in the conscious obliga- tion to law. The rights of the former, also, are private rights, and its power is private power as an estate, as it is also indeed when power is held as the property and entail, of a patrimonial prince or an hereditary aristocracy ; but in the nation there are public rights, and its power is vested as a public trust. The duties of the family are also in implicit obedience to one, who is the father of the house, but in the nation there are public duties. The right which is the ground of the government of the family, cannot become that of the government of the nation. The government of the family rests in the right of the father to govern his child, but this is necessarily limited to those who are his children, and cannot justify the extension of his authority over those who are not his THE ORIGIN OF THE NATION. 39 children. When it is thus extended over the children of another, it conflicts with the unity of the family and its authority in its natural head, and wherever, in the organi- zation of society, it has been transposed beyond its natural limits, it has sought its justification in a civil conception, and in some legal fiction, as that of adoption. The nation is over the family, and the latter in its rela- tion to it is subordinate. The father is responsible to the nation for the manner in which he may exercise his authority in the family, and the relations of the latter, and the obedience of the child, are to be sustained and enforced by its law. It prescribes the age when the child may be withdrawn from the formal authority of the father, and even in earlier years it may take the child from him when it deems necessary, and institute a guardianship over it. 1 The right of the nation, therefore, instead of residing in the right of the father, holds the latter in subjection. This proposition is often stated thus, that the nation has its origin in the association of certain separate families. It is derived from the existence of a certain number of fami- lies, separated from all others, and connected by marriage among themselves. But this does not necessarily trans- cend the limits of a tribal relation, and does not attain to the nation. It does not correspond to its historical institu- tion and course. It is, for instance, descriptive of the ple- beian or the patrician organization in Rome ; but neither of these was Rome. The evidence of history is, that where society has not passed beyond the development of the family, there has been no national existence. With the long dynasties and vast populations in Asia, where society has adhered to the patriarchal type, there has been no nation, no citizenship, 1 " Society must suffer if the child is allowed to grow up a worthless vaga- bond or a criminal, and has a right to intervene both in behalf of itself and of the child, in case his parents neglectfto train him up in the nurture and admo- nition of the Lord, or are training him up to be a thief, a drunkard, a murderer, a pest to community." Brownson, The American Republic^ p. 41. 40 THE NATION. and no political freedom. Their life has been character- ized by the absence of political spirit. There is yet a truth which underlies this conception of the origin of the nation; and while the latter does not exist in identity with the family, and is not formed simply in its continuance, there is still a necessary connection ; their origin and end is not diverse. They exist in an organic and moral interrelation, and the nation has its fruition in the life of humanity, in the universal family. It rests in the unity of humanity in the divine fatherhood ; and therefore not with vague and unmeaning phrases, but as its end, it looks to the brotherhood of men and the fra- ternity of the nations, in the order of the world. It is said that the nation has its origin in mere might : it is founded upon force ; it is the* right of the stronger, as superior, to control therweaker, as inferior. But this involves the immediate contradiction to the being of the nation. The nation is constructive of an order in law and freedom. There is the subjection of barren force to right, and authority in it is wrested from the rude hand of power and placed in the hand of justice, and the con- quest of civilization is in the manifestation of power no longer, as mere force, but in the recognition of a law of righteousness. The conception is subversive of rights, for these necessarily presume another postulate than mere force. There is in mere force no element from which progress can be evolved, but in the prospect of its prevalence there is the awakening of dread, and by it man is not ennobled but subdued. There is the rejection of a principle of hu- manity. The law of justice is unrecognized, and the pro- cedure of justice is leveled beneath its iron tread, and in a condition in which no asylum is sacred from its invasion, the place of equity is usurped by its authority. It is so immediate a contradiction to the being of the THE ORIGIN OF THE NATION. 41 nation, that the element of law disappears, and there is only the mandate of power, and the relation of a common citizenship is lost, and it is transformed into that of the master and the slave. The conception, if it were to become actual, would re- sult, not in the institution of the order, but in the constant disturbance of society. The right of the stouter, the claim of the champion, would claim a trial, and as in the lead of a herd of buffaloes, it would involve an incessant struggle. If then the nation, as also an individual or family or race, in any moment be stronger than another, it is at once the justification of the conquest and the subjugation of the weaker. It is the justification of absolutism, but also of anarchy, when that is strong enough to get uppermost. This proposition has sought an historical justification, but in the empty and superficial notion of history which it as- sumes, there has not been in mere physical force the insti- tution of the nation. The external circumstance of the nation at its beginning, has not infrequently been in war, and it has had to pass through a struggle for existence ; but it has not therefore been the product of violence, and war has been the incident of its beginning, only as war was in the assertion of the right. The right, then, has not beem born of force, but has been asserted and maintained by| force. If force has been severed from right it has been/ not the inception of the order of society, but its devasta^ tion, and the progress of civilization has been in the in- creasing direction of physical force to a moral end. It has not been strong enough to regard the weakest and the lowliest with indifference, and in its course the things which are not have brought to naught the things which are. Yet there is also a truth in this conception. It is a pro- test against the notion which apprehends justice as abstract, and denies the power of righteousness. It is the rejection of a spectral idealism, and the recognition of the fact that 42 THE NATION. i the right is manifest, and is not the dream of the spirit, but moves to the conquest of the world. The right is no faint apparition, and no flimsy conceit, but a power. It is said that the nation has its origin in some instinct or emotion in man : there is some element in his nature in the action of which he is impelled toward the nation, and it exists as the product of this impulse. It is the result of a faculty in man, and is constructed as the bee builds his cell and the beaver his dam. This capacity has been variously described as a special faculty, or as sympathy or self-interest or fear, or as their common ac- tion . It is the psychological notion of the origin of the nation. But there is in this no cause from which the being of the nation can be derived. The nation has an integral life, a positive and substantial content, and can have its or- igin and foundation in no subjective phase. It is as far from the attainment of the instinctive and emotional, as it is from the reflective and volitional act of the individual. The nation, moreover, cannot have its origin in an impulse or emotion, whose action is necessary, since it has a moral being, and it exists not in necessity but in free- dom. There is, furthermore, in the nation, in its unity, its rights and its powers, that which cannot be derived from the action of an impulse or emotion. There is no power in the nature of man which could result in the right to gov- ernment which is in a political order and is over men, nor in the organization of law and freedom. As the self-government of the individual is in the sub- jection of impulse to the determination of the will, in con- formance to a law of right, the principle also obtains in the government of the people. The individual, in so far as he makes a natural impulse his master and obeys that, is not free, and in the yielding to mere impulse there is the deg- THE ORIGIN OF THE NATION. 43 radation of man. It is an animal existence, and the action for man is ignoble and unfree. Civilization which is formed in the development of the state, is the subjection of the impulses and passions of man in a moral order, and is the elevation above the rude condition of untamed and unrestrained impulse and passion which hold the elements of barbarism, and can issue only in violence and anarchy. Yet there is in this proposition also a truth, and while there is no identity in the spirit in which man is related to the state of which he is a citizen, and the instinct with which the bee or the bird builds his cell or nest, there is yet in the physical order of nature the correspondence to the order of the state. It is also a protest against the merely artificial conception in politics, and illustrates the truth that the foundations of the nation are laid in the na- ture of man, and it is formed in the realization of his true constitution. It is said that the nation has its origin in a convention : it is founded in a contractual law, in the social contract. The historical genesis of this theory has a separate con- sequence, and affords the significant illustration of the strength of a legal fiction, of its use, and then also of its risk. It has been the premise for the most opposite schemes and speculations upon society, and has mustered in its sup- port in succeeding periods the most extreme men and parties, serving now as the defense of the established order, and again as the summons to revolution. It has prevailed in countries the most diverse in their political spirit and constitution. It fills the political literature of the last two centuries, and the association of nearly all their great names with it indicates alike the character of the age, the source of the strength and the weakness of its great thinkers and workers. In Germany it claims the names of Grotius, of Puffendorf, of Kant ; in England it was with Hobbes the staff of authority, and with Locke 44 THE NATION. the shield of liberty ; but its clearest assertion was in France, and its highest influence was obtained through the Oontrat Social of Rousseau. It became the scholastic tra- dition of American legal and political theorists. The phase which it took in the French school corresponds more nearly with the thought of Jefferson, while the influence of the form given to the theory by Locke, is apparent in the po- litical writings of Adams. The inception of the theory has been traced by Mr. Maine, to an imperfect apprehension of the Roman form of contracts, denominated Contracts juris gentium. " It was not until the language of the Roman lawyers became the language of an age which had lost the key to their mode of thought, that a contract of the law of nations came to be distinctly looked upon as a contract known to man in a state of nature." * But this is its scholastic and legal der- ivation, and it could-not have obtained its great historical place, had there not been involved with all its error a great truth as to the being of society and the foundations of the state, which was struggling for expression, and which con- fronting precedents in the confusion of the age, took the form of a legal fiction. The discussion is mainly of inter- est as an historical study. It has a certain dryness as "a theory which though nursed into importance by political pas- sions, derived all its sap from the speculations of lawyers." 2 The theory assumes the existence of man in a pre-social condition, which is described as the state of nature. The imagination lays the boundaries of this province, and then peoples it with its unlimited conceits, as the island of the Counselor, in " The Tempest." From its occupancy by a joint contract, men emerge into the social or political state ; the latter is thus constituted as the voluntary association of certain individuals who enter it and hold it as the contract- ing parties. The proposition presumes a universal appli- cation ; the origin, and in a certain form the continuance 1 Maine's Ancient Law, p. 299. 2 Ibid. 'THE ORIGIN OF THE NATION. 45 of all states that have been in all ages, are referred to a social contract. The proposition in its assumption is arbitrary, and pro- ceeding from a condition which is unreal, in its induction it carries the state necessarily into an abstract and formal sphere, and because it has its inception in an assumption, it results necessarily in a political system, and not in the nation in its organic being. It is this which has limited its recent advocacy to the most barren of political schools, although of itself not the most dangerous, a technical school of lawyers. It has assumed the existence of the precedent condition, which is called the state of nature. There is of this pre-social state no report, but it appears upon the chart of lawyers, who hold authentic tidings of it, and within it find stable footing'. It advances, then, through a continuous series of assumptions, each of which is introduced to prop the preceding. After the assump- tion of this state of nature, there is assumed to exist in. it one who personates the natural man, a fictitious character, costumed with the conceits of the theory. It is, assumed that there is, antecedent to the existence of society, the rec- ognition of some law of society, or of some authority in society, and on this exit is made and the passage is bridged over from the state of nature to the social, that is, the civil and the political state. The principle or the authority here consistently assumed is that of a contract or a contract- ual law. The validity of a constructive consent for the parties who in succession are to be bound by it, and by whom it is to be continued, is then also assumed. The resultant in the social, that is, the civil or political state, is represented as the artificial state whose precedent was the natural state, which man has left. The necessary in- ference in this antithesis is allowed, and the social state is represented as the unnatural, or more strictly, the abnor- mal condition of life. The theory, in its exposition of the nature of man, contra- 46 THE NATION. diets at its outset the fact which is the postulate of Aris- totle, that " man is by nature a political being." He is con- stituted for society, and his nature has its development in it. There is in his being, the rudiments of the state. The fact in the existence of man, which it also contradicts, is that he has no existence apart from society. The archaic condition is everywhere one of dependence, and there is, however dimly apprehended, the recognition of some rela- tionships, and obligations are acknowledged and sacrifices are made for society. The postulate of the proposition is a historical fiction. There is moreover no illustration of the origin of a nation in the voluntary agreement of individuals who enter it from a condition of previous isolation. There is the con- stant record of contracts or alliances, where two or more communities or nations are the parties, but these exist already as civil or political powers, and enter into obliga- tions for a certain object ; but there is no record of a nation itself established by the voluntary pact of separate indi- viduals. The conception of a contract, or of a contractual origin of law, itself appears only at a later stage of civil society, and in its more definite form, is the attainment of a long and elaborate legal culture. The nation being the natural and normal condition of existence, the individual, instead of entering it with the stipulations of a contract, is born and educated in it. His spirit and purpose are shaped in it, and its influence in his determination may be traced before he is capable of the voluntary choice or agreement which is the condition of a contract. The theory fails to substantiate its assumptions, which are necessary to it, and leaves them involved in inextri- cable contradiction. It assumes that the people form a contract, but they are not yet a people, nor even an asso- ciation of men ; it is to ascertain the ground for obedience to law, and yet the contract it assumes is the most definite THE ORIGIN OF THE NATION. 47 of laws ; its object is to establish the foundations of the state, and yet, in its conclusion, it falls short of the con- ception of the state. The individuals enter the associa- tion, as contracting parties, but the resultant, by the condi- tions of a contract, is private property. That, for instance, which one obtains by exchange, or holds subject to contract, he owns ; it is his property, and as he acquired it, he also may alienate it for a certain equivalent, but the state can- not be found in this conception. The theory fails alike as it carries into the state the notion of a private contract, and as it derives the state from a private contract. The asso- ciation of individuals, however numerous, is not the state ; and the stipulations of the contract, however wide, have not the majesty of law ; the concession of private rights, however extended, is not the institution of public rights. The parties to the contract, at the most, are private persons, and it is not possible to arrive therein at the conception of public rights and public duties. The necessary being and end of the nation, moreover, cannot be brought within the scope of a contract. A con- tract proceeds from and through a voluntary act, and there- fore is in the alternative of the parties, something which may or may not be. But the process of justice, and the institution of rights, and the conformance to a moral order in which the state is constituted, cannot be thus optional ; they must be, and therefore the state is existent as a power, and is invested with authority. The contract furthermore cannot comprehend the spirit, the allegiance, the obedi- ence to law, the apprehension of and the devotion to pub- lic ends, which are integral in the state. There is not in it even the moral spirit in which the civil ends can be construed. Beccaria denied the right of capital punish- ment, on the ground that, as society is formed in a contract between the state and its members, the consent of the party to his possible extinctioji becomes then one of the terms of the contract, and it is not to be presumed that it 48 THE NATION. would be accorded. The position is good, says Hegel, in the conception of a state founded on a contract, for the conception has no place for punishment in the divine or in the moral sense. The contract cannot become the ground of the unity or the continuity of the nation; not of the unity, for it is the agreement of parties in the exchange of equivalents, and each remains a possessor, or as the phrase is, " it takes two to make a bargain," and in the result the parties remain the several proprietors; not of the continuity, for a contract presumes the positive consent of the parties, but the constructive consent of succeeding, generations evades this, while yet the continuance of the formal con- tract is conditioned upon this contingency. But finally, the conception does not make valid its own claim, and limited to its own definition, it has no founda- tion ; the contract is good for nothing as a contract. It does not substantiate the agreement of the parties, which is the condition of a contract. The contract which is not clear as to the identity of the parties, and then also as to its extent and character, is a nullity. It could only bring contradiction into the ordinary affairs of life. It could not be recognized or enforced in any court of law. The principle is not the foundation, but the dissolution of the organization of society. The contract, if it were allowed, would be obligatory only upon those who deliber- ately and voluntarily entered as parties into it, and unless renewed it would expire with them. It could form only a temporary obligation which could be suspended, and only a joint concern which could be closed up to go into. the hands of a receiver. Then any number of individuals could sep- arate or withdraw, and there would be no power inherent in society to justify its prevention. There is then in gov- ernment no authority, but only an agency limited to the securance of the private interests of the contractors, and in society no permanence beyond their formal bond, and no nation which lives on although the individual dies. THE ORIGIN OF THE NATION. 49 The falsehood in this proposition becomes apparent when it is confronted by the peril of the state. The permanence of the whole, and the supremacy of law, is conditional upon the option of the individual. It is subject to the unlimited play of individual caprice. The state may be rent asunder in the willfulness and whim of one, and beyond this it has no defense in internal disorder or external assault. The proposition is the postulate, not of the unity and order, but of the dissolution of society. It has been truly said, that the social contract should be called rather a theory of an- archy than the doctrine of the state. 1 The truth which the proposition subverts, as it sweeps to its perilous close is, that the nation proceeds in the divine guidance of the people in history. " And yet there is," says Bluntschli, " in this conception, involved in the most deceptive and perilous error, a certain truth. In opposi- tion to the notion which sees in the state only the neces- sary product of nature, it asserts the truth that in its nor- mal process the human will can and must act positively and determinately upon the form of the state, and in con- trast with an empty empiricism it vindicates the reason of the state and the right in human freedom." 2 1 Bluntschli's Allgemeinen Statsrecht, vol. i. p. 260. * Ibid. 263. See on some of these theories, Ibid. vol. i. pp. 250, 270. Hooker has a statement of the social contract, and the institution of govern- ment in it: u Men knew that strifes and troubles would be endless, except they gave their common consent, all to be ordered by some whom they should agree upon," "for the manifestation of the right to govern, the assent of them who are to be governed seemeth necessary." Hooker's Works, vol. i. p. 187. But this proposition lies upon the page of Hooker in a fragmentary shape, and is the contradiction of the profound conception of law as organic and not formal, which is the fundamental thought of his great work, and places him among the great politicians of his own and of every age. His work is a treatise of laws, as rest- ing in the eternal and divine reason. Dr. Tulloch has justly said, the expression of laws " valid in authority both in their substance and direct origin, in their conformity to reason and the national will and position. He not only opposed a special church theory which then sought to dominate in Protestantism, but he showed how every such theory must break against the great laws of historical induction and national liberty. It was the rights of reason and of free and or- derly national development in the face of all preconception of whatever kind, that he really vindicated." Tulloch's Puritanism, p. 29. There is an impassa- 4 50 THE NATION. It is said that the nation has its origin in a sovereignty inherent in the people ; the people in its own native might is supreme ; its power is of itself, and its responsibility is to itself; its right has no limitation, and it recognizes no authority over it and allows none separate from it. This proposition postulates the very object to be ascer- tained. It presumes the existence of the people, but obvi- ously it is not of tke sovereignty of the people to will its own existence. In its failure to define the political people, whose political action it avers, it is destitute of a founda- tion, and there is nothing, in the phrase of Locke, " to bottom it on." The description of the people, which is commonly as- sumed in this theory, presents the immediate contradiction to the political people. It represents the people as a col- lection of individuals in a certain locality, but there is nothing in this to distinguish it from the mob. It is des- titute of the consciousness of the unity, and of the order in which the political people is formed. It is also devoid of the elements of political sovereignty, since there is wanting the will of the organic people whose affirmation is law, and whose freedom consists in an or- ganism determined in law. In its conception any collec- tion of men possessing a certain collective force, may assert their intention, and their action is to be regarded as law, and is obligatory upon all, and may rightly be imposed on the whole. Then also any collection of men may sever themselves from the existent political organization, and interrupt its relations, and rend its whole order in the demonstration of their power. The proposition allows no conception of a country, since in describing power as existent indefinitely in any locality it avoids the necessary relation in its physical condition of the people to the land. We way from the position of Hooker to the inferences of Laud, or to the corre- sponding inferences, in another form, of the ecclesiasts of a recent puritanism THE ORIGIN OF THE NATION. 51 The state moreover is not derived from the sovereignty of a mere collection of men, since its origin is not in a re- flective act. It is not the result simply of choice and de- sign. It would be consistent with this to refer the exist- ence of justice on the earth to the formal deliberation and conclusion of men. And historically, man does not exist apart from the organization of society, that is, the nation, and from that antecedent condition determine its being. The will of man is certainly a necessary element in it, but as jt has not its inception in thought, it has not its origin in the individual nor in the collective will. This proposition merges the nation into the conception of a bare sovereignty. It is the institution of a power which allows no limitation, and acknowledges no responsi- bility beyond itself. Its sole mandate is law, and in this alone the whole political order subsists. The merest ca- price of the multitude is the only authority. In another form it is the foundation of society upon mere might. There is in it no recognition of the state as the institu- tion of justice. It cannot comprehend the rights of the individual. As in the contractual theory, the assumption of the absolute sovereignty of the individual, by whose private act society was determined, could not arrive at the conception of public rights and public duties, so also the absolute sovereignty of the mass cannot consist with pri- vate rights, or the freedom of the individual. It is the assertion of unlimited power, the grasp from which it has been the effort of civilization to wrest the supremacy, and to substitute in its stead a moral force. It is not the tyr- anny of the one, but the tyranny of the multitude ; and yet the latter passes indifferently into the former, and in the degradation of the individual through the subversion of individual freedom the way is open to imperialism ; the domination over men in one form succeeds to another. The sequence to the assumption of political power which this proposition involves, has been always the same in 52 THE NATION. ( every form. The inevitable result of political atheism has 'been a political absolutism. But the consciousness of the divine principle in political power cannot be wholly effaced, and there follows the apotheosis of the dominant authority. The Roman emperors are worshipped as divine. In the rejection of the moral obligation in political power, with the overthrow of all freedom, and the degradation of the individual, there invariably will come the apotheosis of the emperor or the apotheosis of the people. The sovereignty, as the freedom of man, neither in the individual nor in the people is absolute. It can consist only with the recog- nition of a divine relation and the consequent obligation to a divine law. The freedom of the people has its postu- late only in the organic and moral being of the people, and this is the precedent of sovereignty. As the sequence to political atheism has been political absolutism, so also it is only as it has a divine origin, and is formed in a divine relation, that freedom exists. This has had the clearest expression in the crises of humanity. The voice of free- dom, the mighty voice of nations, has not been " The ruler is absolute," " The people is absolute," but it has been " God and the people," and it has confessed its deliverer in Him. It has not been the shout in the host, but in the name of the Lord of hosts. The truth which this proposition controverts is, that the origin of the nation is not in the will of the individual, nor in the will of the whole, but in the higher will without which the whole can have no being, and its continuity is not in the changing interest of men, but in the vocation which in a widening purpose from the fathers to the chil- dren joins the generations of men, and its unity is not in the concurrent choice of a certain number of men, but in the divine purpose in history which brings to one end the unnumbered deeds of unnumbered men. And yet the truth which underlies this proposition also comes into clearer light in the higher development of the THE ORIGIN OF THE NATION. 53 nation. The sovereignty of the nation is from God, and of the people. The representative of its sovereignty is therefore responsible to God and accountable to the peo- ple. The power is transmitted through no intermediate hands, the people is invested with it, in all its majesty, in the nation founded in the law of a moral person and derivative from God alone. 1 i The people holding their authority from God, hold it not as an inherent right but as a trust from Him, and are accountable to Him for it. It is not their own. Brownson, The American Republic, p. 127. CHAPTER IV. THE ORIGIN OF THE NATION. THE nation has a divine foundation, and has for its end the fulfillment of the divine end in history. It has its is- sue in the divine prevision, that is, in the moral nature of man. It is not the continuance of the family, nor the product of force, nor the working of instinct, nor the re- sult of the social compact, nor the creation of the sove- reignty of the people ; while the truths which underlie these otherwise false assumptions, in the course of prov- idence, illustrate in a greater or less degree the rise and growth and conservation of the nation. 1 The origin and foundation of the nation has, in certain aspects, its illustration in its analogy with the family. The family is a divine institution, and so also is the nation ; the family is the natural condition, and so also is the nation, and as natural it is not of human construction although a human development, its constituent elements are implanted in the nature of man, and as that nature is unfolded in the realization of the divine idea, there is the development of the state. The family also is rude and imperfect in its form in the early period of the race, and it slowly de- velops into the true and the normal, that is, the mono- gamic form ; thus also the nation slowly develops into the more perfect type. 1 I assume in this argument, from the outset, the being of God and His con- nection with the world, and the origin and derivation of the personality of man from Him, that " in Him we live and move and have our being," subjects which belong immediately to another province of thought ; the statement how- ever may be scarcely necessary, since the work would not perhaps have detained so long any reader who may deny these propositions. THE ORIGIN OF THE NATION. 55 Tne nation exists as an organic and moral being ; its existence is a fact, and the apprehension of its existence in its beginning, is in the conscious life of man. There is therefore, outside of this consciousness, evidence which is only indicative of its origin, as of the origin of the individ- ual and of the moral life of the individual. 1 The evidence of the origin of the nation is in its neces- sary nature. The nation is an organic unity ; it is not an artificial fabric nor an abstract system, but it has a life which is definite and disparate, and has a development ; therefore it has not its origin in the individual nor the collective will of man, but must proceed from a power which can determine the origin of organic being. The nation is an organic whole ; but the whole, in which there is the conception of the parts, cannot be determined by the parts, since there must be the predetermination of the whole to which the parts belong ; but the whole cannot de- termine itself, and must therefore proceed from a power beyond itself. The evidence of the origin of the nation is also in its being as a moral person. There is and can be for person- ality, as it transcends physical nature, only a divine origin, and its realization is in a divine relation. The subsistence of the human personality is in the divine personality, and its realization is in its divine relations, and as with the individual personality, so also with the moral personality of the nation, its origin and its consistence can be only in God. The origin of the nation has its illustration in the various aspects in which the nation in its necessary conception may 1 Plutarch says, in a citation by Haller, "In my judgment, a city could be more easily built without ground, than a state could be founded or exist without faith in God." Cicero says, with a singular and reverent beauty of language, " Nihil est illi orincipi Deo, qui omnem mundum regit, quod quidem in terris fiat, acceptius quam, concilia coetusque hominum jure^sociati qua? civitates appellantur." Somn. Scipionis, ch. iii. 56 THE NATION. be regarded. Thus the personality of the nation is in- dicative of its divine origin. The necessary elements of personality are freedom and justice, and wisdom and cour- age, and the like, but these are not physical powers, and as moral, they are in their origin above the sequence of phys- ical nature. Thus the freedom, which is the substance of the nation, is not the mere creation of law, and it is no more in the power of preachers and assemblies than of priestly and imperial hands to bestow it ; it is of no man or collec- tion of men to confer it as a boon, it is a gift which is not in the power of earth. Thus also the justice which is incor- porated in the state is higher than the enactment of the law, and more than the impulses of the people ; it is pre- sumed to be the content of the law, and controls the im- pulses of the people. It is not the device of legislators, and as it exists in the nation, there is manifest its divine origin. The illustration may be traced further in all the necessary moral elements of the nation, as wisdom and courage. The powers with which the nation is invested, are also indicative of its origin. It is clothed with an authority, and has a majesty which no power of earth may assume. The affirmation of its will is law, but apart from it, the will of no man and no collection of men, is law for another. The right of government is its right, but apart from it no man and no collection of men have the right to govern another, and it belongs to the nation only as it is of di- vine right. There is no human ground on which it can rest. They who are intrusted with it hold it as the representatives of the nation, and as the ministers of the divine purpose in the nation. The President and the Congress, as the Crown and the Parliament, rule by the grace of God. The elements which are manifest in the government of the nation, in its moral being, can have only a divine ground. The power, which is in the people forming the / THE ORIGIN OF THE NATION. v / /J , 57 /> J fo Y * A nation, is over the people, and while the indtyidual acts* in/^ j the government of the nation, it is ove/f the indiVifti^l.and he is subject to it, and this is a power whlc^ v y and can4i in the nation only as it is a moral person, ana fe Deriva- tive from God. This alone in government, is the condi- tion also of the reconciliation of law and freedom. 1 The character of the authority of the nation also indicates its origin. It has authority, and is invested with power in the maintenance of a moral order on the earth. But the right thus to maintain authority over men, belongs in itself to no man and no collection of men, and is existent in the nation only as it has a divine genesis. There is evidence, also, of the divine origin of the nation, in the historical facts which bring out the consciousness of the people. Its expression may be traced in the greater historical nations, and in their greater ages, the crowning centuries of their civilization. It appears in the symbols of all their power, and is reflected in their laws and litera- ture and art. In Judaea it was the central principle of national existence, and was held through all the changes of its institutions as a law of life, which through the vi- cissitudes of its course exaltation could not bring into for- getfulness, nor humiliation into denial. In Greece it was shaped in the beginning of its history in all its traditions, and is the last word of its philosophy ; it was joined with the sacredness of the family ; it united in one aim its he* roes and its poets ; it was wrought in its architecture, and in the faultless lines of the sculpture of its temples ; it gave the type of victory to its art. In Rome the very religion was the witness to the sacredness of the family and the state, and the divine obligations in the relations of a father and a citizen. This moulded all her institutions. The recognition in these nations of a divine origin was also 1 " Government like man himself participates of the divine being, and de- rived from God through the people, it at the same time participates of human reason and will, thus reconciling authority with freedom, stability with prog- ress." Brownson. The American Republic, p. 126. 58 THE NATION. clearest in the ages of their strength. It was not in pe- riods characterized by superstition, by prostration and ab- ject fear, when the powers of man were dwarfed by the impending vastness of nature, before he had discovered the harmony in the wide sweep of her courses, and the uniformity in her cycles, and 'the imagination was bewil- dered by an apparent discord, but it was in the manhood of the people, when there was the highest self-respect and self-assertion, in periods whose colossal monuments attest the triumph over physical nature, whose noble monuments attest the higher triumph over foes in the spiritual nature. It was not in what are called the pre-historic ages ; in these nations there is the constructive course of history. It was held in no individual conception, but the very names Roma and Athene were the names of divinities as well as nations. There was for each in its name a twofold significance, and it denoted not only a political organiza- tion, but was the sign of a divinity in whom it was con- ceived that the people stood. This spirit in the most varying forms may be traced in every historical nation. In the unity and continuity of the nation, there has been the consciousness of the divine guidance in history. It has united the generations, and the nation in its battles has drawn its inspiration from no lower faith. The great events in its history become the witness to the divine presence, and in the crisis through which it passes there is manifest a divine judgment, con- suming the evil which was destroying it, and gaining for it a divine deliverance from the evil. Therefore in Judaea all the great testimonies in its national history, through the procession of its centuries, were repeated, of Him that en- dureth forever. The conscience of man also gives the evidence of the origin of the nation. The moral spirit of the people recog- nizes the life of the nation as sacred. It is apprehended as a life which cannot be trifled with, nor weighed lightly, THE ORIGIN OF THE NATION. 59 nor judged indifferently. Its inviolability is affirmed, and the obligation of its members to it. And as there is in the conscience the witness to a divine relationship, if the na- tion had merely an external or a physical being, there would be no ground in which the conscience could ac- knowledge a relation and obligation to it ; there would be only the individual obligation which one may hold to an- other. The conscience testifies also to a judgment as coining upon the nation, because formed in a relation in- volving an immediate and a divine obligation. 1 There is no thought which has had a more intense expression as reflected in literature and art. In Rome and Greece as they recognized in the disaster of the individual a moral judgment, it was still more apparent that the wider disaster that came upon the nation could not be divested of a moral condition. If the divine origin and foundation of the nation is de- nied, the authority of its government is resolved into mere force. The power in the nation, as self-subsistent, is neces- sarily absolute. It may take the form of the absolutism of the individual or of the people, but its principle and result are the same. In a popular absolutism there may be a more utter degradation of humanity and destruction of personality, until all that gives a moral elevation to the life of men and of nations shall expire, and there remains only a level sweep as in bleak and desolated fields. There is, it is said, in the reign of the despot, still one that is free, but here there is freedom neither for the ruler nor for the peo- ple. The ruler who recognizes and follows only the popular voice and the popular opinion, becomes himself a slave. And he only is truly a ruler and truly free, who recognizes 1 Mr. Brownson says of a recent political school, " it has rejected the divine origin and ground of government, and excluded God from the state. They have not only separated the state from the church as an external corporation, but from God as its internal Lawgiver, and hy so doing have deprived the state of her sa- credness, inviolability, and hold upon the conscience." The American Republic p. 122. 60 THE NATION. in the sovereignty of the nation the divine source of its unity and power, and whose action in it is therefore in im- mediate responsibility to God. If there is for the nation no divine origin and ground, and the ruler is to listen only to the voice of a people in itself supreme, and sepa- rate from God, then in that awful absolutism his strength is broken, and his power is resolved in those living atoms. The ruler is silent in the popular clamor, as he is swayed by the agitation of the crowd, and is blind as he is hurried by the popular impulse and passion. But the nation, when it is conceived as separate from God, can have no realiza- tion, for in that separation the ground of all unity and con- tinuity is lost, and there is no more a people. 1 1 Bluntschli cites the language of President Washington the first inaugu- ral of the first President as among the strongest assertions of this principle in modern political literature. Allgemeinen Statsrecht, vol. i. p. 253. While it is denied by popular schools, and avoided by ecclesiasts and pro- nounced enigmatic by newspapers, there has been no age in which it has been more clearly recognized in the thought of statesmen. Napoleon III. said at Rouen, June, 1868, " We cannot separate our love of country from our love of God." " The human authority in the state can never again be confounded with the divine authority (the theocracy), but it must necessarily be founded on the divine authority." Stahl's Philosophic des Rechis, vol. ii. sec. ii. p. 184. CHAPTER V. THE PEOPLE AND THE LAND. THE people and the land form the natural elements of the nation, in its physical unity and circumstance ; they exist in a necessary inter-relation. The people in its organic unity, constitutes the nation. It is not a sum or an aggregate of men, a chance collec- tion accumulated as an heap of fragmentary atoms; it is not a mob, but a people ; not a vulgus but a populus. It is not a party nor a sect, nor a mere association of parties and sects, nor a combination of separate corporate interests, nor of individuals in the partnership of their private inter- ests, and there is in none of these the consciousness of the unity and of the order which belong to a nation. With the mob, a detached and unformed mass of isolated indi- viduals, it has nothing to do, and they can have nothing to do with it. 1 The people is not determinate in any enumeration of individuals. It is the people, not the population, which forms the nation. It is not ascertained in any arithmetical notation, and the political order has not this nominal basis. It is a mechanical conception which assumes a certain nor- mal number as its true condition. Rousseau estimated the normal number for the people at ten thousand, and at peri- 1 French and German publicists, the former constantly and the latter mainly, use these terms, the people and the nation, in this significance. The organic people in its physical condition, as the natural element of the state is called the people (Peuple, naturvolk), in its political condition it is called the nation (Na- tion, statsvolk). But the terms in German political literature are wide away from any other. Bluntschli adopted the above distinction in his earlier writings, while in his later, against the common use, he has followed the strict derivation of the words. 62 THE NATION. odic intervals it was to be changed to conform to this cen- sus, but it has no more an arbitrary ground in the num- bers of statistics than in the formulas of lawyers. It may change with successive generations, and in the prosperity and the adversity of its years. It may exist in " numbers as the stars for multitude," or in only a remnant who keep its calling and guard its ancient faith, and endure through captivities, and at last triumph over every conquest. The national type is not obliterated in the vicissitudes of events, nor overborne by the migrations of races, and does not perish, although the individual die. The people in its wholeness constitutes the nation, and it is to comprehend in its political aim the purpose, and in its end to realize the destination of the people as an whole. It is not of the one, nor of the many, but of the people. There is no individual, as Louis XIV., who can assume to be the state, and no hereditary class, and no party or sec- tion can say, it is in us alone. There is no sect and no faction that can claim it as an exclusive possession. The spirit of a party, or a class or a sect in its isolation, subor- dinates the state to a special or a private end. Thus when he who comprehends only a party or a class or a sect, a mere fragment, comes to work upon the whole, not com- prehending in his purpose the people as an whole, but only the parts and nothing beyond, his work is that of inevitable weakness and corruption. The people in its normal and moral relations constitutes the nation. There is no arbitrary principle in which the people can define its existence, as if society had an indi- vidual or artificial basis. And it is not simply the physical condition which conforms to a tribal law. It cannot make a physical condition the principle of its being. 1 There is i " America, though the best representative of the social and political gains of the eighteenth century, was not the parent of the idea, in modern civilization, that man is a constituent member of the state of his birth irrespective of his ancestry. It was become the public law of Christendom. Had America done less, she would have been not the leader but the laggard of nations." Ban- THE PEOPLE AND THE LAND. 63 not among its powers any by which it may elect those who shall be in it, but as the normal and moral condition men are born and live and act in it. It is not to restrict itself to those who may be rich or learned. There is no human imperfectness that can be made the ground of exclusion from it, and no human greatness that can justify an exalta- tion over it. The isolation from it can result only through crime, and this is in the law that crime is in its nature the severance of the relations of a moral order. The people in its conscious unity, embodies its aim in the nation. Then it apprehends its object in it, and it is set before it in its moral order as the aim of all. It is then reflected in the political spirit of the people, and moulds its character. There is in a mere mass or aggregate, a frag- mentary collection of individuals or parties, no ground in which the unity, apparent in political spirit and political character, can subsist. The people is to work out its own political conception in the nation, after the type of its own individuality. The external circumstance, the limitations and conditions in which it is to act, are as varied as in the development of the individual type in nature, while its life which runs through human cycles, has a wider range than in the sequence of physical nature. The forms through which its spirit is to work, are more manifold than those written in nature's book of infinite secrecy. The life of history is the more opulent in its types ; and the forms of the bud and the tree in limitless forests, are not so individual or so diverse as those wrought in the spirit of the people in history. It is to work out its own purpose in a moral world, and in it alone it has the satisfaction of the spirit. It can no more conceive the desire to be another people, than the individual can conceive the desire to be another croft's History, vol ix. p. 449. " Der zustand der Barberei besteht darin dass eine menge ein Volk ist ohne zugleiqja ein Staat zu sein." Hegel, in Rose- Icranz Leben, p. 244. 64 THE NATION. than himself, that is, to lose his own identity. The spirit of the people is thus reflected in, as it is formed in and through, the individual and the generation, while its perfect type is in no single individual and no separate generation, but in the work of the people in its continuity. The people alone in the nation, constitutes in its inte- gral and moral life the political order. It belongs to none separate from it to prescribe its political course. The peo- ple can acknowledge no control beyond its own organic law save only that of God, and the law of its being as a moral person presumes that, as its freedom subsists in that. The power belongs of itself to no individual and no family and no class, separate from the nation, as there is also no indi- vidual and no family and no class belonging to the nation that is exempt from its authority. 1 The people, in the nation in its moral being, alone has the right of government. It is in the nation only, of di- vine right. Its power is from God and of the people. Its authority is therefore in the name of God and the peo- ple, and the responsibility of those who bear its authority is to God and the people. The government therefore can claim identity with no special and divine majesty, and can assume no special and divine appointment. It is only as representative of the nation that it is clothed with author- ity. The right of government is in the will of the people, while it is only in its being in the nation, as a moral per- son, that the will of the people subsists. Its authority apart from this, has no foundation, and can refer for its postulate only to a fiction ; it can be held then only in an arbitrary assumption, and defined only in an abstract and vacant conception. The being of the nation as a moral 1 " This authority is not ' the governed,' from whose ' consent ' it is so often in a false sense declared 'every government derives its just powers,' but a po- litical people, having the power as sovereign to govern every natural person within a certain territory without reference to his consent." Mr. Kurd's article on " Reconstruction," American Law Review, January, 1867. THE PEOPLE AND THE LAND. 65 person, is alone the positive and substantial ground, apart from which the will of the people is only formal, and its freedom only the empty sphere of outward circumstance. The will of the people in the nation thus is not compre- hended simply in its collective act, nor in its momentary act, and these may not always embody the moral aim, nor represent the continuous purpose of the people. It obtains a clearer expression in the exclusion of the caprice, the whim and willfulness of men, and in the latter there is confusion and not order, the creation of chaos and not the state. The assumption of the caprice of men as the con- dition of power subverts government, and resolves the state into its atomy. The will of the people in the being of the nation as a moral person, is the organic political power. It is the only unbroken succession. The ruler who is over and separate from the people, is he whose right is disputed, whose au- thority is transient, whose succession is subject to accident. The will of the people in its succession in the nation, is not limited to the individual or to the generation, but it is transmitted through the individual and the generations of men. The people forming the nation exists in its physical unity and circumstance, in a necessary relation to the land. The land is the outward sphere of the organization of the political people. The people and the land thus, in common language, become a synonym. Greece is a name which represents a certain definite geographical limit, and again the complex political life of a people. The possession of the land by the people is the condition of its historical life. The land is the field of its work in history. Nomads may form a horde, but not a state. The historical work of the people has an immediate relation to the land in which its fortunes %YQ unfolded. The right to the land is in the people, and the land is 66 THE NATION. given to the people in the fulfillment of a moral order on the earth. It is ' the possession of the political people. Thus it can regard it only as a robbery, when it is de- prived of any part of the domain given to it and associated with it in its history. The crime is the same when it is undertaken by the treachery of a faction from within, or by marauders from without, but in the complicity of evil in the former, the guilt is enhanced and it becomes the greater crime of history. The people has in its development, the definite deter- mination of the national domain. The description ' of its boundaries is to indicate its political organization and to conform to its historical destination. The exact designation of its boundaries is also neces- sary in its political administration, for the maintenance of its authority and the, enforcement of its laws, and the insti- tution of its order, and without it there would be a source of constant confusion. The boundaries of the nation are laid in nature and in the historical course of the people. This law is universal, and the nations which have violated it, again have been compelled to acknowledge it. Italy has never passed her boundaries so clearly defined in nature and in history, but she has been driven back again with loss ; and Ger- many in its aggressions has overstepped these limits, only after disaster to withdraw again. The law has its illus- tration with every people. Its boundaries are not as the artificial lines which trace within the nation the occupation and possession of private property. There is in nature and in history the evidence, that God has appointed the boundaries of nations. They are to be held in the faith that the land is appointed for the people, and the right to it is in its moral order and its his- torical vocation. In this faith the people will assert them reverently and carefully, will guard them steadily and well. The integral unity of the land will be maintained against THE PEOPLE AND THE LAND. 67 alienation and division. The bounds of the nation which are written in the courses of the mountains and the lines of the oceans, are written also upon the hearts of its . children. In their natural distinction these boundaries may be mountains or oceans and seas, and sometimes also rivers and valleys ; but rivers and valleys, which are the wide highways of a nation, may become bonds of union rather than of separation, and in the associations of the people, may aid to forge it together. In the words of President Lincoln, it was after the victories of General Grant and Admiral Farragut, that the Mississippi ran fc ' un- vexed to the sea." The boundaries in nature become, also, lines of defense, and in the strength with which they are held, form a guaranty for the peace of the people. It may be only gradually that the people enter and oc- cupy the land which is open before it, and is necessary to its manifest historical vocation. The boundaries thus may be modified in its history, but it can allow no change to weaken it in the centre of its power, or to impair the inte- gral unity of its territory, and no change which will en- croach upon the historical domain, or subvert the integral unity of another nation. The change which would have this result would imperil the whole, and would necessarily fail of permanence. As the land is the possession of the people it cannot be held as the patrimony of a prince, or the monopoly of a class. The land belongs to the people constituted as a na- tion, and the right to it is in its moral order. The exclu- sive possession and entail of the whole domain by a few may prevent this object and subvert the moral order, as it destroys, for instance, the life of the family. In England there are those which are called great families, but as its homes are swept away the family life of the people is destroyed. One half of the land is owned by one hun- dred and fifty proprietors, and the whole number of pro- prietors is reduced to thirty thousand, while the majority /^ 68 THE NATION. of the people subsist on wages. " The yeomanry," says Mr. Disraeli, " has vanished from the face of the land, while the tendency of business has been to introduce a condition to consist only of wealth and toil." There is a common conception in which the land is so re- garded, as to make simply a geographical position the origin and condition of the existence of the nation. Mr. Maine attempts to establish the state upon the fact of local conti- guity. 1 But in an existence in a local contiguity there is not the origin nor the foundation of the political life of men. While the fact of residence and coexistence is necessary in the historical course of the nation, it does not bear in itself its germ, nor is it the source of its integral unity. It is not the circumstance of neighborhood, but the consciousness of relations to one's neighbor that is indicative of the origin of the nation. The unity of the nation is not in the existence of man in a certain contigu- ity, but in a conscious purpose and a relation which is necessary to the destination of each and of the whole ; its condition is not a merely physical relation, but a mora. relation ; and it has not merely the existence of the in- dividual for an end, but the whole for an end. There are thus, for instance, vast contiguous populations which have existed for centuries on the plains of Asia and Africa, and in the most diverse geographical positions, and yet they have not formed a state. There are populations by the Rhine strictly more contiguous to the French, in their bulk, than to the Germans, but they would go to battle rather than be wrested from the unity of the German nation. This definition of the origin of the nation in local contiguity, has also no historical justification. There was a people dwelling by the banks of the Tiber before the beginning of that national development which was to de- termine so widely the world's history, but they were not Rome. There is a population in Judaea, but the stones i Maine's Ancient Law, p. 128. THE PEOPLE AND THE LAND. 69 of its temple are broken, and it is not there that we seek the continuity of Israel. The relation of the people and the land is consistent only with the existence of the nation in its necessary con- ception. The proposition which represents the people as a mere collection, an aggregate of men, and the proposition which defines the origin of the nation in a contract, cannot embrace this conception of a country, and when the nation is regarded as only the creation of a formal law, it no longer comprehends the necessary relation of the people and the land. The influence, in this interrelation, which the land has upon the people is apparent, but there is a tendency in a certain school to ascribe to the land a determinative influ- ence, and to refer the constructive and formative power of the people to external circumstance and physical condition the climate, soil, geology, minerals, fishes, etc. This had a fair consideration in Montesquieu, but there is a school which comprehends nothing beyond. The denial of the reality of human freedom, the assertion of a bare necessitarianism, has its consistent sequence, in the refer- ence to physical influences of a controlling power, in what it yet calls history. With the denial of human freedom it passes immediately to the study and computation of cli- matic conditions, the soil, the climate, the agricultural prod- ucts, and the like. g The writings of Mr. Buckle illustrate this. But in the existence of the nation, which is the sub- stance of civilization, there is a power higher than the necessary process of the physical world. It exists in the order of the moral world. This cannot be determined by physical elements. The history of the world cannot be deduced from its geography. In the political course of the nation the land is a necessary element, but it is not the creative nor the controlling element. The future of the nation will not be concluded by its relative nearness to the equator. The nation exists historically in the realization of 70 THE NATION. the freedom of man, and his consequent dominion over nature. Mr. Buckle, when he stood in Judaea, avowed that his only interest was in the agriculture of the country ; but the soil is the same upon which a people lived who stood in the continuity of a nation, which long captivity in strange lands and under strange skies did not destroy, whose unity was lost in the grandeur of no imperialism, and whose lines of kings and prophets looked to the coming of One in whom was the hope of humanity ; but the physical process of na- ture does not renew that life. The mountains of Attica are the same upon which the Parthenon was built, and their quarries the same which furnished the marble for the sculpture of Athene, and the windy plains are the same upon which an army was mustered at Marathon, and the sea is the same whose waves were parted by their ships at Salamis, but the conflict which in its moral interest made these names immortal, has closed. 1 Since the land is necessary to the historical development of the people in the continuity of the nation, the nation has supreme authority over it. It is in its integral character the domain of the people. Within its limits, therefore, the people can allow no possession exempt from its control, and no individual beyond its law. The people and the land exist, in their interrelation, in the historical realization of the nation as a moral order. The land becomes associated with the spirit and the des- tination of the people. Since it is the external sphere and condition of the life of the people in its moral order, it is holy ; and since it belongs to the people in its continuity, it is inalienable. There is thus attached to the land a sa- credness which is derivative from the moral being of the nation, and it is held as inviolate. The land in its integral unity is thus a divine gift, a 1 Comte has a more exact statement of the influence of the physical world upon man: " The world," he says, "furnishes the materials, and man deter- mines the form." . . . . " Man is not a result of the world, and yet he de- pends upon it." Catechisme Positivisle, pp. 37, 42. THE PEOPLE AND THE LAND. 71 habitation of the people for all generations. It shares in the sacredness of the life of the nation, historical associa- tions grow up around it, and blended with their traditions it passes sacredly from the fathers to the children, and constitutes in its wide domain the heritage and the home- stead of the people. 1 1 " The land is the essential condition of the normal and moral development of the state, and therefore it is absolutely holy and inalienable. It is here that the real moral spirit of the love of the father-land rests: originally it is a love of one's native land, and always retains this natural element, but in its complete- ness it is wholly interpenetrated with this consciousness of a moral relation. Therefore the true love of the father-land exists only when a people has alreadv attained to the life of the nation. The merely economic society has nothing of this." Rothe's Theologische JEthik, vol. ii. p. 123. CHAPTER VI. THE NATION THE INSTITUTION OF RIGHTS. THE nation is a moral person. This prescribes the province of rights and the province of freedom. The ground of these is in no formal system of laws, and no abstract system of thought. On this ground alone, their provinces are removed from the arbitrary limitations of for- mulas and abstractions. Personality has its condition and its realization in free- dom. Personality is constituted in self-determination ; one whose action is self-determined is a person. 1 The human personality subsists in the divine personality ; as it is realized in the moral life, it is derivative from God, and has its fulfillment in God. It comes not in entire for- getfulness ; whether it looks within or without, it gazes into no abysmal depths. It is not attained through negations ; its necessary being is not ascertained in a law of thought, as in the formula of Spinoza, nor by a rule of subtraction, as in the resultant of Comte. It does not recede into nothingness, it does not pass into vacancy. In its begin- ning it is formed in relationships, and in its development it is not severed from them, but there is the fuller expres- sion of them. These relations are not the result of the reflection, nor of the volition of man, and man is not their centre. In the realization of these relations man is always brought nearer to Him in whom they have their consistence, and in whom is the perfect unity. The central attribute of personality is the will. The will in its freedom is defined in no formal or empty notion ; it 1 " A being endowed with self-consciousness, reason, and freedom, is called a person, or has personality." Ahren's Naturrecht, p. 83. THE NATION THE INSTITUTION OF EIGHTS. 73 is the self-determination of a person, and that alone is free. The determination, in the realization of personality, acting in freedom, is in the fulfillment of law, but the law thus is necessarily not abstract nor formal ; it is not external, it is a law implied in the being and the realiza- tion of personality, and the fulfillment of which is the end of its being ; it is in its highest conception the will of God. The mere formal notion of the will and of its freedom, which separates it from its substance in personality and empties it of all content, could not form the principle of rights. It could produce a scheme concerning rights, but not the realization of rights ; it could result in a system, but not in the nation. Rights belong to man, since in his nature he is consti- tuted as a person. Personality, since it has its origin in God, has an infinite sacredness. This is the ground of the sacredness of the rights of man. The individual personal- ity can therefore be apprehended rightly only in this con- ception, the life of each must be held sacred, his worth must be allowed, his dignity must be regarded, his freedom must have in the nation its maintenance and its sphere. It is only in his personality, in his moral being and freedom, that man has rights beyond the other animals. In the necessary sequence of physical nature there is no ground for rights. It is because man exists also in a moral world, which is in freedom, that he has rights. The realization of personality is manifested in the am- pler institution of rights. For rights in the nation are the asserting and the positing of personality, in the external sphere, through its self-determination which is its freedom. They are the process in which personality affirms itself and attains recognition in the nation. Thus also, reverse- .y, the decay arid loss or abandonment of rights is con- nected with a low and a false conception of man, and presumes always the degradation of personality. Rights belong to man, as tnan is made in the image of God ; they are his by nature ; they belong to him in 74 THE NATION. his original constitution. Thus the condition of their ex- istence, as of their sacredness, is in the nature of man, as it is in the divine image. Rights have their foundation in the nature of man. Personality manifests itself in the realization of rights ; all rights are of a person. Rights express and define the relation of a person in the nation, to the nation, and to other persons. The fundamental law of rights is, Be a person, and respect others as persons. 1 The nation is the institution of rights. The primary distinction of rights is of Natural and of Positive Rights. Rights are natural, as laid in the nature of man ; rights are positive as defined in the nation. Rights are natural as immanent in the nature of man ; rights are positive as emanent in the nation. Rights are natural, as founded in human nature. They are inherent ; they are written in the law and the consti- tution of the being of man. These rights are variously denominated in the various representations of their con- tent and form. Blackstone calls them absolute rights. But this is inex- act and indefinite ; the freedom of man is not absolute, and no rights are absolute. The rights which Blackstone enumerates are all subject to modification. There are none which may not be abridged or yielded or interrupted, and none which have a perfect realization. 1 Hegel's Philosophie des Rechts, p. 72. Stahl's Philosophiz des Rechts, vol. ii. see. i. p. 331. Michelet's Naturrecht, vol. i. p. 143. " The ultimate ground of the rights of a person is therein that man is made in the image of God." Stahl, vol. ii. sec. i. p. 331. This law is the ground of social laws, the unwritten laws of manners and the substance of the character of the gentleman. It is the assertion of a person- ality, and a deference for it in others. This has had, perhaps, its finest illustra- tion in the character of the Quaker. It has no ground in a formal distinction of classes, and the very quality of vulgarity is a respect for the accidents of life and a deference to them. THE NATION THE INSTITUTION OF RIGHTS. 75 They have been called inalienable rights, but there is no right which has its institution in the external sphere, that is, the sphere defined by law, that is inalienable. The right of the nation is necessarily precedent to the rights of the individual, and they are all limited by it in its sut preme necessity. They must yield also to its force, as, fof instance, life is subject to the call of the state in war and its calamities, property is subject to its claim in taxation, liberty may be interrupted in the peril of the whole, and is forfeited by crime or the suspicion of crime, and in its simplest phase is restricted, as when one is compelled by the police, in a stoppage in the street, to retrace his steps, or take another route. The phrase inalienable, as applied to rights, had its source in the theory of the social com- pact, in which certain rights are regarded as alienated for a certain consideration to society, in order to secure the balance. It had a certain advantage against governments which were denying all natural rights, and encroaching arbitrarily on positive rights, but its consistence is only in the legal fiction which it presumes. Mr. Hurd describes these rights, while limiting them to the civil sphere, as individual rights, and Dr. Lieber, as primordial rights. But neither phrase is comprehensive of them, and neither has passed into common use. They have no historical justification, and the assertion of these rights in history has not been from academies or courts, but from the common people. The term natural rights is the more simple and the more exact. It is the less likely to allow injury to rights through arbitrary notions. It in- dicates the origin and the content of rights. It has a better place in the common Jhought of men, and may be trusted to hold its own, in the long run, against a more scholastic term. 1 1 Kurd's Law of Freedom, etc., vol. i. p. 36. Lieber's Political Ethics, vol. i. p. 281. The declaration of principles at the close of the War of the Revolution was, 76 THE NATION. These rights cannot be referred to the assumed existence of man in an imaginary state of nature, which is repre- sented as the presocial state. Blackstone refers them to an antecedent state of nature, and describes them as rights -which every man is entitled to enjoy, whether out of society or in it. 1 But this assumed state is unreal, and if man be represented as out of society, there is no limit to his action which can be defined in rights, and no power by which the title to rights can be conferred. The title to these rights is affirmed and acknowledged only in the organization of society. This definition has its consistency also only in the fiction of the social compact. These rights cannot be referred to the assumed exist- ence of man in an atomic state. Thus Kent describes them as rights which belong to individuals in a single un- connected state. 2 But this atomic state is also unreal. Man does not exist in this isolation and cannot be rightly conceived apart from relations, and as these relations had not their origin in the volition or reflection of the indi- vidual, he cannot make them as though they had not been. The conception rests also upon a fiction. There is no necessity of assuming an imaginary state of nature in order to ascertain the foundation of natural rights. The consistent result of its assumption has been in the words of the Continental Congress to the people, " Let it be remem- bered, that it has been the pride and the boast of America, that the rights for which she has contended were the rights of human nature." April, 1783. Journal of the Continental Congress, vol. viii. p. 201. 1 "The rights of persons are of two sorts, absolute and relative: absolute which are such as appertain and belong to particular men, merely as individu- als, or single persons ; relative, which are incident to them as members of so- ciety, or standing in various relations to each other. *' By the absolute rights of individuals we mean those which are so in their pri- mary and strictest sense ; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy whether out of so- ciety or in it." 1 Bl. Comm., 123. 2 " The rights of persons in private life are either absolute, being such as be- long to individuals in a single unconnected state ; or relative, being those which arise from the civil and domestic relations." 2 Kent's Comm. 1. 7 r THE NATION THE INSTITUTION OF EIGHTS. 77 [ways the construction of an abstract system. These flits in their origin and their content can be referred ily to the nature of man. Their foundation is in no >here of external circumstance, and in no estate or con- don of life, but in the constitution of man. They are rights of human nature, and their derivation is signi- fied in the image in which that nature is made. They are the primal prerogatives of humanity. They have not their origin in human enactments, but determine the just con- tent of those enactments. They are imprescriptible ; the image in which they are given is effaced by no priestly illusions, and is extinguished in no imperial obscurantism ; they are not wholly buried beneath the most artificial of policies, and are worn out by no continuance of customs, although lying " heavy as frost and deep almost as life." Rights are positive, as enacted in the law and em- bodied in the institutions of the nation. Positive rights are the determinate expression of natural rights, in the formal Civil and Political process. They are rights as they receive the recognition of the state and are affirmed by it and in it. Positive rights are therefore the institutes in which the progress of the people is actualized, and they define the extent of its advancement. Rights are positive, since their necessary definition and institution is in law. It is only as they are affirmed in law, that rights obtain their necessary obligation and their common recognition. Their permanence is secured and they become binding . upon all. It is because there is in law this authorization of rights, that the law itself in the course of the organic people is never stationary ; it does not reach a final enactment ; it is not closed in an imperial code. Yet in law there is only the formal recognition, the deposition of rights, it is not creative of them. Rights are positive, since their attainment is in the his- torical progress of the people. They are apprehended and 78 THE NATION. then actualized in its development. They are affirmed in the growth of its self-assertion and self-respect. There is in the nation a continuous advance, and in no single mo- ment of its existence can it be conceived as the ultimate and perfect state. The spirit of the people perishes in that oriental immobility. The rights which are asserted in the nation become thus the signs of its progress. They are the landmarks of the march of the people ; and since its rights are the realization of an organic and moral being, there is no definite terminus to its advance. Rights are positive, since every nation has its own voca- tion in history, and in each, rights are formed in its course, and become the reflex of its aim. They are wrought out in its vocation, and bear the clear imprint of its character. They have in every people the same universal ground and end, as this in each is the fulfillment in a moral order of the life of humanity ; but in the purpose and the free- dom of the people their manifestation has a definite type, and they are moulded in conformance to it. Rights are positive, since they are instituted in the na- tion, in a certain sphere of external circumstance. They are thus affected by the external relations of the people. The laws in which they are established are modified by the age, the race, the association with other peoples, and then also by the physical condition, the soil, the climate, the products ; by agriculture, and commerce, and trade ; by all those elements which, in the necessary relation of man in physical nature, so clearly affect, while they do not de- termine, national and individual development. But it is only a recent school which has held this in so narrow and exclusive a notion as to make all human freedom a fic- tion, and to leave to man only the poor pretense but not the reality of rights. Positive rights, therefore, are natural rights, as they are ascertained and affirmed in the normal Civil and Political process. It is only in law, in which this process consists, THE NATION THE INSTITUTION OF RIGHTS. 79 that natural rights obtain their necessary form. They have apart from this neither the requisite precision, nor the ob- ligation which secures their authority and validity. They are the principle to determine the action of the whole people, but in law alone they become the necessary form for the action of the whole people. In certain rights there is always a vagueness, since that which in itself, for in- stance, is determined in the development of the individual and the nation, is to obtain a formal determination in law. Thus the time when the majority of the individual begins, and the qualifications by which an elector is ascertained, are illustrations of this. But the principle to be regarded in these instances is, that the state shall not determine them arbitrarily but in the reason of the state. The relation of Natural and Positive rights has been represented in two opposite conceptions, each of which involves an error. 1 The one proposition isolates the sphere of natural from the sphere of positive rights ; they are defined as existent in an external and formal separation. The ultimate ground of natural rights is assumed in the nature of per- sons, or the nature of things, and from it they proceed ; the ultimate ground of positive rights in the determination of the state, and from it they proceed, but there is no nec- essary relation between them, nor do positive rights, in the normal process of the nation, exist in the recognition and institution of natural rights. This conception has its source in the antithesis of natu- ral and political society, in which a definite existence is assumed for the former, and the latter is held in its sepa- ration as an artificial existence ; the foundation of society 1 Aristotle distinguishes between a natural right which is everywhere alike *ulid, v ' ^ I The right of personal liberty is. th^ right OP ^xternal have taken deep root in your minds and hearts, there will not be long wanting one who will snatch from you by treachery what you have acquired by arms ; i unless by the means of piety, not frothy and loquacious, but operative, un- i adulterated and sincere, you clear the horizon of the mind from those mists of superstition which arise from the ignorance of true religion, you will always have those, who will bend your necks to the yoke, as if you were brutes, who notwithstanding all your triumphs, will put you up to the highest bidder, as if you were mere booty made in war ; and will find an exuberant source of wealth in your ignorance and superstition. You, therefore, who wish to be free, either instantly be wise, or as soon as possible cease to be fools; if you think slavery an intolerable evil, learn obedience to reason, and the government of yourselves; and finally bid adieu to your dissensions, your jealousies, your superstitions, your outrages, your lusts. Unless you will spare no pains to effect this, you must be judged unfit both by God and mankind to be intrusted with the pos- session of liberty and the administration of government, but will rather, like a nation in a state of pupilage, want some active and courageous guardian to un- : dertake the management of your affairs." Works, ii. 295. 116 THE NATION. people, its freedom perishes although its external condition and its sphere of external circumstance, for the individual, may not at once be materially changed. The form and external institutions of society may remain as before in so far as individual action and individual pursuits are con- cerned, but the freedom of the people expires with the national being. It was not in this form nor in these insti- tutions, and it cannot be perpetuated in them alone. The external structure of society in which the individual moved was not immediately subverted nor destroyed in the disso- lution of the national life of Greece and Rome, but their freedom, which was of their spirit, immediately perished. The freedom of the people, or political freedom, is formed in the self-determination of the people. This precludes all external constraint, since an action which is constrained by a power or influence external to the will, is not free. This precludes also the conduct of the people itself, from mere impulse or passion, for since these are external to the will, in so far as it is controlled by them, there is no freedom. The course which is the result of mere whim or willfulness, the caprice of men in its desultory play, is not of the freedom of the people ; in it personality is overborne, and the very unity which is the condition of the freedom of the people is lost, and there appears the agitation of the popular tumult, but not the conscious order of the state. 1 The freedom of the people, or political freedom, involres the assertion of law. It subsists in the nation in its nor- mal being. There is in it, therefore, the assertion and the manifestation of law, but it has not therefore a formal 1 Bluntschli says, " Natural freedom is the power to do whatever one likes. Moral freedom is the manifestation of the will, and the power to do what is be- coming to one's own nature and in accordance with the divine economy in the world. Freedom in its political conception presumes the organization of rights, of which it is a part. It is the power and warranty protected and secured by the law to exercise a self-determined end." Allgemeinen Slatsrechts, rol. ii. p. 487. THE NATION THE REALIZATION OF FREEDOM. 117 ground which would follow if the law was merely external and definitive only of a formal order. The law which is asserted in it, as the norm of its action, is the law in the foundation of its being and is realized in its being, in its self-determination, as a moral person. There is thus in law and freedom an inner unity. In the limitations defined in law, there is, therefore, no bondage, but they become the evidence of the emancipation of man. This emancipation is not indeed in the institution of mere external limitations, which are devoid of all content and may be only obstruc- tions, nor in the mere limitations of formal laws, but in a life which is formed in moral relations, and the laws which are asserted are those which define and regulate those re- lations. Freedom, in the assertion of law, assumes re- straint and accepts obligations in the relations of an or- ganic and moral being, and in these there is no limitation in the sense of hindrance, or as the mere impediment to action. There is in them no barrier, but freedom is wrought through them. It is a divinity that doth hedge us in. The law in the being of personality, instead of the terminus of freedom, is its postulate. The freedom of the people, or political freedom, is the realization of the self-determination of the people in the nation as an ethical organism. There is in it the expres- sion of the self-determination that is the freedom of a per- son, in an order which is formed in moral relations. There is in it the assertion of the individual person. The . order in which he is to act and to which he is to be sub- ject, is to correspond to his own inner being, to accord with his own real and true self. The sphere in which he is to work must consist with his own aim and endeavor, It is thus that every polity, and all laws which are im- moral are destructive of freedom, as they are subversive of the true being of men, and are repressive, and hold the elements of tyranny. But in the increase of the freedom of the nation, its political order becomes always the more 118 THE NATION. perfect expression of the moral being and longing of the individual person, and therefore of his own true and in- ner self. Then as the self-determination of the people is manifested in the nation, the individual person in his action attains in it his determination, and in his obedi- ence to it he is obeying his own true and inner self. There is in it the correspondence to his own being, and the embodiment of his own aim. That this attainment is at any moment imperfect, is because the individual and the nation have a life which for each is a development ; and then also the life of each is subject to the conditions of a moral conflict. But every polity which avoids this end and neglects to regard or to build upon it, or to strive constantly for its attainment, is itself inherently weak, and only increases the action of disturbing forces, and clogs and thwarts the course of the people, and delays, while it cannot prevent, its inevitable coming, in the development of the nation. The freedom of the people, or political freedom, presumes that the political order shall conform to the will of the po- litical people. It is not to be restricted by forms and insti- tutions which are alien from it, nor compressed into the cast of some exotic mould, and these limitations, while they impede the free course of the people, may induce a spirit not of law, but of legality, which may be the worst tyranny. It is not to be directed by the exclusive aim and interest of an individual or a family or a class, which are over but' not of the nation, and in this there is the inception of a despotism, not the freedom of the people. The freedom of the people, or political freedom, pre- sumes also that the political order shall express the con- scious spirit of the people. It is to be open to the knowl- edge of the people. The policy and laws are not to be kept as the mystery of a craft, or the tradition of a caste, nor as the speciality of a class. The political design is not to be locked up as a state secret, nor to be conducted THE NATION THE REALIZATION OF FREEDOM. 119 by hidden bureaus. The laws are not to be withheld, as if written only in volumes where the people cannot have access to them, but the whole course and action of the state is to be open to the knowledge of the people, and its loyalty and its obedience is to be the assertion of a con- scious spirit. The realization of the freedom of the nation, or political freedom, is in rights. Freedom embodies itself in rights, as in rights also there is the manifestation of personality. The institution of positive rights defines in the nation the sphere of a realized freedom. There is in freedom the right which is fundamental in the rights of man ; freedom is the eternal right of a man to be himself. It is not the exclusive claim of an individual or a family or a class, but of man, as the nation has no lower nor special end, but a universal end in the rights of man. The freedom of the people as it becomes determinate establishes itself in rights, and in its advance it raises bar- riers in the institution of rights against alien forces and evil influences, the principalities and powers that hinder and thwart it. It is only in rights that freedom is actual- ized in the nation ; it is only in positive rights that it gains a sure foothold in its progress ; they alone afford the requisite strength and security for it. In rights freedom is guarded against denial, fortified against fraud, shielded against conspiracy and surprise and sudden overthrow. In the same measure in which freedom fails to establish itself in rights, whose institution is in law, it is liable to the whim and the caprice of men, and the highest interest is left to the adjustment of changing circumstance. This secure institution and organization of freedom in positive rights is the work of the statesman. It demands the more comprehensive political sagacity. Freedom does not gain much while it is held in an ideal conception, and is left to the pages of scholars, or the rhymes of poets, or the voices 120 THE NATION. of orators. These are not laws, and the condition of every advance in freedom is its assertion in laws and its organiza- tion in rights. It has in their strong guaranties alone pro- tection against selfish interests and private aims. The identity of freedom and of rights in the nation is implied in their subsistence in personality, and thus we rannot conceive of the actual existence of an individual in a civil or political relation, or of a nation in which there is freedom but no rights. 1 The second clause of the thir- teenth article of the Constitution is not superfluous, and the nation necessarily can only enforce the declaration of freedom by the institution and the maintenance, through laws, of rights. To grant freedom but no rights would be fit subject for the fool who is always about the king's court in Shakespeare, and fit work only for some king's jester. The freedom of the people never attains its perfect ex- pression in the organization of rights. It may strive un- ceasingly toward this end, and with toil and energy it may shape them in their clearness and strength, and yet in its spirit it is always beyond them. They can thus, in no moment in the history of a people, be regarded as having obtained their ultimate form, nor can the people have in them the perfect satisfaction of its aim. Its endeavor is always to mould the organization of rights toward the ex- pression of its ampler and fairer freedom. As the freedom of the people is established in rights, these rights, through laws, may be embodied in institu- tions. There may thus often be traced in the form and growth of these institutions the progress of rights and the line of their advancement. These institutions often have thus of themselves an historical increase, and are wrought into shape and use in the history of the people. They are 1 " Freedom in its civil and political conception, can never be separated from the process of rights which is its ground and its support." Bluntschli's Allgem. Statsrechts, vol. ii. p. 488. THE NATION THE REALIZATION OF FREEDOM. 121 guaranties in which rights are fortified and stand as the i barriers against the betrayal of freedom from within, or its i invasion from without. They endure against the assump- | tions of arbitrary power, and in them, as in a retreat, free- dom may hold out through evil days of apathy, and is secure against overthrow alike from the agitation of the many and the conspiracy of the few. . The illustration of these institutions is, for instance, in the organization and administration of the township ; in the trial by jury ; in the office of the justice of the peace ; in the common law. These institutions have often also their expression, while i their exact form is of slight significance, in some sturdy maxim of the people, some " words that have hands and feet," some sentence in whose clear light the way is seen through dangerous channels, and whose signal is the alarm of freedom. An illustration of this is in the phrase which denotes the right to the sanctity of home, " every man's house is his castle." There are certain conceptions of political freedom which, in their error and their defect from its necessary concep- tion, can tend only to thwart or delay its progress. It is represented as in itself a negation, and as appear- ing in the check or balance of opposing forces, or in the restriction of adverse power. This has its postulate in the assumption that power is in itself essentially dangerous in the state, and that freedom is manifested in the construc- tion of certain other powers to stand against the current and keep it back ; and these, then, since danger is inherent in power, require the building of others to offset them, and so the erection is to go on indefinitely, and the degree of freedom is graduated by the successive and alternative re- strictions of power. It is indeed true that freedom, in the conditions of history, presumes an unceasing conflict, and must overcome adverse elements, and at every advance intrench itself in positive rights. But freedom is in itself 122 THE NATION. a determinate power, and of itself advancing ; rights only denote in their institution its line of march. And checks and guaranties have only the strength which they may obtain from the power which shapes and holds the check, and asserts and maintains the guaranty. Freedom is no negation as is assumed in this conception ; it is not found in the construction of the most exact and formal balance of opposing interests or classes or factions. The balance in itself could effect nothing, and instead of the living unity, which is the condition of freedom, it implies the disintegration of society which it regards as only the com- bination of certain separate interests which are to be pitted against each other. Freedom is not in this negation, but in the positive determination of the people, and conversely the weakness which appears in the decay of national power is in the loss of freedom, when the people canj assert no rights, and even in its spirit can apprehend none. ! Freedom is alone the power of the people in its organic and moral life ; it is the might of the living people ; it may break in one moment the fetters which centuries of oppression have forged, and throw down prison walls in which evil dominations have labored to immure the spirit] of man. Political freedom is represented also as existent only asj some spectral ideal, some remote abstraction. It is de-j scribed as some imaginary figure, if it have shape or form, which exists, in its perfectness, in isolation from the body politic, and distant from the organization of the nation.! But the ideal is not the contradiction of the real ; it is in identity with it, and is striving always toward a more per- fect embodiment in it ; the ideal is not the unreal. There are sometimes those who-, in the guise of a specious devo-j tion to freedom, are ready to consent to the dismember-j meat of the nation, and for some spectral and abstract; presentation of freedom would conspire for the destruction; THE NATION THE REALIZATION OF FREEDOM. 123 of the whole organization in which it has toiled toward its realization, however imperfect its advance. This is that blind fanaticism, that weak egoism, which is the unreason of the state. These visionaries cannot build again in the ruins it was so easy to make ; it is only destructive forces that work thus swiftly ; freedom will not follow at their behest, nor go and return at their beckoning, nor enter the abodes to which they invite it, and it is only with long and patient toil and sacrifice that the organization is won by the people in which it dwells. Political freedom is represented as a power formed in external limitations, or as construed in the formal relations of the individual and the nation. Mr. Emerson says it is the largest liberty compatible with the liberty of every other man. But freedom is not described in this ex- ternal limitation, nor is the freedom of one the restriction of the freedom of another. This confounds freedom with arbitrariness, and it is only willfulness that is incompatible. Freedom is not thus attained through infinite individual antagonisms. The largest freedom in each is consistent with the same in all. This conception empties freedom of all moral content, and it could be constructive only of a formal, not a real freedom. It could not be the postulate of the freedom of the people in its organic and moral be- ing and relations in history. The freedom of one is no limitation to the freedom of another, but an aid toward his emancipation. Political freedom is represented as something which may be bestowed or withheld by some external power. It is apprehended as the circumstance of a formal law, the consequentjn a formal order ; ifc is described as the boon of some priest or emperor, some preacher or convention. It is true that a power on earth may acknowledge or deny it, and may do much to aid its growth or to crush it 124 THE NATION. in the spirits of men, but it belongs to none, neither priest, nor preacher, nor president, nor congress, nor emperor, nor armies, to bestow it. It is not received as a gift ; it belongs to the spirit of man, and therefore is only of God ; and only as the personality of man has its subsistence in God, is emancipation wrought in it ; and only as the nation is a moral person, in the crises of its deliverance, is He recognized as its deliverer. There is a representation of the origin and nature of political freedom which, as affecting the conception of the moral being of the nation, involves the most false" of polit- ical sophistries. It is the theory which is built upon the postulate that man possesses a real freedom in a condi- tion precedent to the nation, and that he then surrenders a certain part of it upon his entrance into it. Freedom is represented as existent in this condition which is prece- dent to society, in its perfectness, and as diminished when man enters society, and to that extent he suffers a depri- vation of it in consideration of certain other advantages which are secured to him in its stead. Blackstone says, " Every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a pur- chase." 1 This part is regarded as surrendered in order to secure the residue, or as exchanged for certain other advantages, held at an equal valuation. This representation of the origin and nature of freedom proceeds on the assumption of the social contract. It is implied, also, in the position of Mr. Emerson, which was also the position of Kant, when the liberty of one person in society is the possible limitation or restriction of the lib- erty of another person. But this condition in which man is represented as exist- ing anterior or exterior to society, and in which freedom is conceived as flourishing, has no reality. It is a fiction, and l 1 Bl. Comm. 125. THE NATION THE REALIZATION OF FREEDOM. 125 is only a repetition of the picture sketched so many times, and for so many uses, in the imagination of political theo- rists. In the actual condition of man, in so far as he is withdrawn from the organization of the state, there is no freedom. The records of the actual condition are of a life in which man is most of all a slave, and a slave to the lowest and meanest wants. He seems the subject of na- ture, and not one who is to assert dominion over it. It is a stage of abject dependence. There is no freedom, and the recognition of no rights, but each is exposed to the open wrongs of every enemy. There is no security for life, or liberty, or property; The freedom, then, which man is supposed to barter away in a certain part, upon entering society, in order to keep the remainder, has no existence. It is an imaginary possession which then afterwards, by an imaginary transfer, is conveyed to the state. The prop- osition falls with the fiction of the social contract in which it has its premise. It bears also the conception of private property into the state, and makes freedom itself a concern of formal trans- fer and exchange. It contradicts the necessary concep- tion of freedom, which is no longer a living and moral power, but apprehended as something which the owner can parcel out and traffic in ; and it is by trade in freedom that man is represented as entering the state, and he not only buys but sells out. To this there are also the same objections as to the so- cial contract ; and men do not from a precedent condition enter the state voluntarily, nor with specifications in this style. It contradicts also the necessary conception of freedom as involving law, when it is thus represented, for the nation is the sphere of law. It could then also, if it were an actual occurrence, result only in a formal free- dom, since the amount which is retained in the state would have its formal reduction in the amount of the 126 THE NATION. entrance fee, which is the condition of the purchase or exchange. This proposition is inconsistent also with the common language of men, and there is scarcely any fact of deeper significance, or capable of wider illustration, than that which makes a synonym of citizen and freeman. This proposition implies also a conception of natural freedom which is not a real freedom, but the arbitrari- ness of the individual, and the freedom of the whole is then only in the limitation of the arbitrariness of each. The contrast to this false conception of freedom, was given in words worthy of an inaugural, in the begin- ning of the history of the nation, by a governor of one of the early commonwealths, " There is a twofold liberty, natural I mean as our nature is now corrupt and civil or federal. The first is common to man with beasts and other creatures. By this man, as he stands in relation to man, simply hath liberty to do what he lists ; it is a lib- erty to evil as well as to good. This liberty is incompati- ble and inconsistent with authority. The exercise and maintaining of this liberty makes men grow more evil, and in time be worse than brute beasts : ' omnes sumus licentia deteriores.' This is that great enemy of truth and peace, that wild beast, which all the ordinances of God are bent against to restrain and subdue it. The other kind of lib- erty I call civil or federal ; it may also be termed moral, in reference to the covenant between God and man, in the moral law, and the political covenants and constitutions amongst men themselves. This liberty is the proper end and object of authority, and cannot subsist without it ; and it is a liberty to that only which is good, just, and honest. This liberty you are to stand for not only with the hazard of your goods, but of your lives if need be. Whatsoever crosseth this is not authority but a distemper thereof. This liberty is maintained and exercised in a way of subjection THE NATION THE REALIZATION OF FREEDOM. 127 to authority ; it is of the same kind of liberty wherewith Christ hath made us free." l The great epochs in the lives of nations in the modern world, have been the realization of the freedom of man. It has been said that what the German Reformation whis- pered in the closet, the French Revolution shouted on the house-tops, that man should be free ; and the end of the American War was the assertion that the nation in its conscious spirit is the realization of freedom, and that in the freedom of humanity the nation has its conquest and its end. In the nation freedom is real, and as freedom has its subsistence in the nation, so also in slavery is the re- sistance to the being of the nation. The nation and slav- ery cannot abide in one house, but at last the one or the other must be driven out. The nation must overcome and destroy slavery, or at last be destroyed by it. There is in history the evidence of this, and as it appears in the an- cient and in the modern world, in the fall of Rome and the uprising of America. The antagonism with slavery is in the being of the na- tion. For as the nation is a moral person, and personality is realized in freedom, slavery is its necessary antagonist, and as it is the realization of rights, and in its universal aim of the rights of humanity, slavery with the denial of these rights and with the consequent degradation of hu- manity, is its immediate antagonist. There is always a tendency in those withdrawn from the battle, and its " confused noise and garments rolled in blood," to bear its issues into some ideal and abstract sphere. Thus the war is represented as the immediate conflict of the antagonistic ideas, freedom and slavery. The reality is other than this ; the hosts are mustered in no intellectual arena, and the forces called into its field are other than spectral ideas. This tendency to resolve history into the 1 Winthrop's Journal, vol. ii. p. 13. 128 THE NATION. conflict and progress of abstract ideas, or the development of what is called an intellectual conception, can apprehend nothing of the real passion of history. It knows not what, with so deep significance, is called the burden of history. It enters not into the travail of time, it discerns not the presence of a living Person in the judgments which are the crises of the world. It comprehends only some intellectual conflict in the issue of necessary laws, but not the strife of a living humanity. The process of a legal formula, the evolution of a logical sequence, the su- premacy of abstract ideas, this has nothing to compensate for the agony and the suffering and the sacrifice of the actual battle, and it discerns not the real glory of the de- liverance of humanity, the real triumph borne through but over death. There was in the war, in the issue which came upon us, " even upon us," and in the sacrifice of those who were called, the battle of the nation for its very being, and it was the nation which slavery met in mortal strife. The inevitable conflict was of slavery with the life of tho nation. There is no vague rhetoric, but a deep truth in the words, "liberty and union, now and forever, one and inseparable." They are worthy to live upon the lips of the people, for there can be no union without freedom, since slavery has its necessary result in the dissolution of the being of the nation, and there can be no freedom with- out union, for it is only in the being of the nation that freedom becomes real. CHAPTER THE SOVEREIGNTY OF THE NATION. THE freedom of the nation has its correlate in the sov- ereignty of the nation. Pojitical sovereignty is the asser- tion of the self-determinate will of the organic people, and in this there is the manifestation of its freedom. It is in and through the determination of its sovereignty that the order of the nation is constituted and maintained. 1 The existence of the sovereignty of the nation, or polit- ical sovereignty, is indicated by certain signs or notes which are universal : these are, independence, authority, supremacy, unity, and majesty. The sovereignty of the nation, or political sovereignty, implies independence ; it is subject to no external control, but its action is in correspondence with its own determina- tion. It implies authority ; it has the strength inherent in its own determination to assert and maintain it. It implies supremacy ; this does not presume the presence of other powers which are inferior, but it is itself ultimate and can be subordinate to none ; it is suprema potestas. It im- plies unity ; this belongs to the necessary conception of the will from which sovereignty proceeds, and in the will 1 The necessary correlation of sovereignty and freedom was expressed in the common illustration of the old Protestant theologians, "Liberum et volunta- rium stint synonymia, ac voluntatem non liberam dicere, est perinde ac si quis dicere velit, calidum absque calore." Hegel has a very beautiful statement of the proposition (Philosophic des Rechts, pp. 20-60). " Denn das frei ist der Wille. Wille ohne freiheit ist ein leeres Wort." Ibid. p. 23. Stahl says, "Desswegen fallen auch Freiheit und Wille in ihrem urbegriff vollig zusammen, der Wille ist frei, und es ist nichts Anderes, frei als nur der Wille." Philosophic de Rechts, vol. ii. sec. 1, p. 116. 130 THE NATION. alone, in which there is the highest and essential unity, is the postulate of sovereignty ; the presence, thus, of sep- arate supreme powers, to which equal obedience is to be rendered, involves a moral contradiction. It is character- ized by an inherent majesty ; it is a majesty which manifests itself in all the symbols of the state ; it is not simply the dignity of noble action, but it is the conscious possession of powers and obligations, on which depend the highest j issues in the history of humanity. This has had its ex- pression always in the historical nations, appearing in the purpose and action of the people in its higher national de- velopment. 1 These are the indices by which the presence of political sovereignty is indicated, and in them there is its external manifestation. There are in its content also certain ca- pacities. It is inalienable ; the state cannot transfer it to another nor divest itself of it, except that in the act itself its own existence and its own freedom terminates. It is indivisible ; a divisive sovereignty is a contradiction of that supremacy which is implied in its necessary concep- tion, and inconsistent with its subsistence in the organic will. It is indefeasable ; 2 it cannot, through legal forms and legists' devices, be annulled and avoided, nor can it be voluntarily abdicated to be voluntarily resumed, but in- volves a continuity of power and action. It is irresponsible to any external authority; there is 1 The peoples which were made subject to Rome, were thereby divested of a separate sovereignty, and to all terms made with them, the Romans added, " Imperium majestatemque populi Romani, conservato sine donomalo. Livy, bk. 38, sec. 2. " Majestas est amplitudo ac dignitas civitatis. Is earn minuit, qui exercitum hostibus populi Romani tradidit, minuit is, qui per vim multitudinis, rem ad seditionem vocavit. Cicero, De, Oratore, bk. ii. sec. 38. 2 It is incapable by any juggle based upon legal analogies, of being defeated or abrogated. In the expression of James Wilson, " sovereignty is and remains in the people." Jamison's Constitutional Convention, p. 20. THE SOVEREIGNTY OF THE NATION. 131 none on earth over it to whom it has to justify its course, or in whose conclusion it has to abide. It is comprehensive of the whole political order ; it acts in its determination as organic through the whole political body, arid its authority is conterminus with the whole ; it works through all the members, and in all the offices and all the organs of the state. The sovereignty of the nation, or political sovereignty, primarily presumes the power in the political people to de- termine the form of its own political life. This cannot be imposed upon it from without. It cannot be referred to the dictation of any power over and separate from the na- tion, as some imperator. It cannot be restricted to certain special formulas, and the nation is not to be compelled to shape its order and organization after some theory and pre- conception of state forms which may be alien from it, and thwart the purpose or defeat the hope of the people. The oppression of a mere form or system in politics, may be- come the extremest tyranny, and far more crushing than an imperial power ; for the will of the solitary tyrant can- not have so universal a sway, and there is always hope of change, but the tyranny of a form or a system of itself precludes change, and prevents progress, while it outlives men and generations. In its own sovereignty and in its own free spirit, the political people is to mould its own po- litical life, and to embody in it its own ideal, and to appre- hend in it its own aim. There have been certain theories, which have only a formal and historical interest, as to the residence of the sovereignty of the nation in its normal process. These assume the identity of its sovereignty with a certain form, fop which then a universality is claimed, and in their con- clusion, they have become the assertion of a sovereignty external to and against the nation, which in any form, whether of an individual or a system, is the very defini- tion of despotism. Their interest is merely illustrative. 132 THE NATION. It is said that the sovereignty is inherent in a family or a certain number of families constituting the special aristo- cratical or regal organization, or caste, whom the possession of certain qualities or some circumstance may at the out- set have designated, and thereafter it is to remain contin- uous in them by the necessary and organic law of the state. This is the contradiction of the real sovereignty of the nation and its freedom, and is the assertion not of a sov- ereignty in and of the nation, but a sovereignty external to it. It is this which has dragged the people to war after war to decide a disputed succession, where the whole was em- broiled with individual claims and family divisions. There is no family or number of families which have an original and indefeasable right to govern. It is not subsistent in the ancestry of a family, or a tribe, or a race, but contin- ues only in the nation. It belongs to no individual or family save only as they are invested with its exercise of and by the nation. The right of government, which is alone of divine right, the right in the nation as a moral person, is of no uncertain succession and of no transient tenure. It is not the exclusive heritage of a family, and is not transmitted in the entail of its estates. "The pat- rimonial doctrine of the state," says Bluntschli, "'which regards it as the property of the prince, and therefore as- cribes sovereignty only to him, and the absolutist doctrine of the state which identifies it with the individual ruler, both forget that all the might of the prince is only the combined might of the people, and that the people and the nation as the organization of rights remain, although princes and dynasties change and perish." 1 The recent justification of this proposition has been in some represen- tative principle, as for instance the sovereignty is regarded as representative of the unity of the nation, Coleridge ; or of the permanence of the family in the nation, Mau- rice ; or of the personality of the nation, Hegel. 1 Attgem Statsrechts, vol. ii. p. 11. THE SOVEREIGNTY OF THE NATION. 133 t is said that the sovereignty of the nation is resident in certain abstract ideas or principles, as justice or reason. This has been assumed by publicists who have sought thus to modify the conception of popular sovereignty. Koyer Collard gave a definite statement to the theory : " There is an individual and a moral element in society. To make the majority of individuals sovereign, is popular sove- reignty. When, with' or without their consent, this blind strong sovereignty passes under the control of an individ- ual or a class, without changing its character, it becomes a wiser and more temperate authority, but it is yet rude force, and remains always such, and becomes the root of absolute power and privileges. If, on the contrary, soci- ety be founded on the moral element, that is," on justice, then is justice sovereign, for justice is the law of rights." This assertion of sovereignty as existent in an abstract principle or law, whatever its quality, as justice, or reason, or love, is illustrative of the tendency to convey the whole subject of politics into a realm of mere abstractions, and to merge the state into a formal idealism. The nation has certainly in justice, the law which is implied in its being as a moral person, and the condition of its being, and must conform to the reason of things, but the nation is itself an organic being, and invested with actual powers. Sove- reignty is existent in the nation only as it is an organic and moral person, and in it and through it, justice is as- serted and realized in a moral order. This proposition is the assertion of a specious and ab- stract ideal, and becomes the substitution of a law or a system for the determination of the organic will. It is inconsequent, since an abstract conception, however high, which is thus asserted, can have no real strength. It is moreover perilous, since it avoids the foundation in an organic being, of the organic and moral relations of the nation. It creates a tendency to regard with indifference the real life and conflict of the nation, in comparison with 134 THE NATION. the barren conceptions of the idealist, and to consent, on the pretense of an abstract reason or justice, to its destruc- tion and to conspire with its dismemberment. This proposition is also sometimes connected with the assumption of popular sovereignty in its lowest and crudest form ; in disregard of the being and government of the whole, the assertion of what is represented as the re- served sovereignty of the people, is assumed by some in- dividual, on the ground of his subjective conception of justice, which is exalted in this unlimited egoism. This was the attitude of those who regarded the battle for the nation and its unity and authority, at least with indiffer- ence, and as devoid of moral content, until it should be- come an immediate war against slavery. It is said that the sovereignty inheres in the people sim- ply as the collective people, in a certain locality. This is the premise in certain phases of the preceding proposition, and, as in each of them, in its ascribing sovereignty to the collective mass in a certain locality, it is the assertion of a sovereignty apart from the organic people. This proposition, as before stated, postulates the power of the will of the people in its organic unity, and ascribes it to the inorganic mass. This formless crowd is destitute of the consciousness of unity which is implied in the will and is the condition of sovereignty. The state is resolved into its atomy. There is no ground for the continuity which is presumed in government and in law, and as sovereignty is apprehended as existent in the momentary action of the multitude, then in some momentary change the authority in government and law expires. As sover- eignty is represented as resident in a mass of individuals who may coexist in any locality, and as determined by their momentary action, the conception of the whole is precluded, and any section, or faction, or sect, may with- draw if it have the momentary strength. The proposition fails, also, because it cannot make clear THE SOVEREIGNTY OF THE NATION. 135 iat the will of the many is, nor by what law its sove- reignty or its reserved sovereignty is to be ascertained, nor how it is to be exercised. The existence of a law, giving authority to a political majority, cannot be assumed in the multitude, sice the proposition places before us only a collection of individuals, an inorganic mass, in whom there is no consciousness of a common political principle, nor of the authority of a common political law. It is, as before, the assumption of the mob and not of the people. These theories are the assertion of a sovereignty, ex- ternal to the nation, not in it nor of it, and identical only with a formal organization. The sovereignty is of the organic people, constituted as a nation. It has its condition in the consciousness of the people, and it is the manifestation of the nation in its moral personality, and therefore, as subsistent in person- ality, it is from God; it is from God and of the people. The form and the circumstance of sovereignty in the beginning of the historical life of the people, are as mani- fold as the incidents of the individual existence. But in whatever form, and however slow the development of its power, the sovereignty subsists in the organic people, who in the consciousness of their unity and order form the nation. The sovereignty has not its ground in the empty con- ception of the people with no conscious unity nor A'ocation in history. There is no conception of sovereignty, and none of the state, attaching to this mass. The numerical accumulation of men by no multiplication could attain to the sovereignty of the organic people. The sovereignty whose normal expression is law, and whose realization is freedom and order, is not in the multitude, nor in the momentary action of the multitude, 1 but in the will of the 1 When Rousseau asserts an absolute sovereignty as resident in the momen- tary volition of the individual, and regards it as always justified by the act it- 136 THE NATION. organic people ; it is the majesty of a people, the sov ereignty of a nation. The sovereignty of the nation is the original power through whose self-determinate action the political order is established, and in it all the other powers subsist and from it they proceed. It is not merely the supreme power, in respect to which others are subordinate, but it is the origi- nal power which determines all others. Its affirmation is the supreme law. The sovereignty of ike nation has an external and an internal manifestation. The external sovereignty is man- ifest in its independence of, and in its relation with, other nations. It is its own right to be and to be itself; it exists as a power on the earth, with other powers, equal and self-subsistent. In its external sovereignty the nation is manifest as a power in the historical order of the world. It is its highest being ; it is conscious of the authority with which it is invested, and the obligations in which it is involved, but it recognizes no human control, and acknowl- edges none nearer than very God, none over it but only God. The internal sovereignty is manifest in its assertion in its self-determinate action, of its political order and organ- ization. It ordains its constitution and laws, and pre- scribes its political course. As all the powers of the nation, as an organic whole, proceed from and in conform- ance to its sovereignty, so its constitution and its laws de- fine the order and administration of the whole. self, in setting aside the whole existing organization, and renouncing obedience to the whole existing authority, and repudiating all obligation which has its source in a past action, it contravenes the necessary conception, both of freedom and sovereignty. The will is emptied of all moral content, and apprehended as identical only with a transitional action the immediate power of choice. The will in this conception is not sovereign and is not free, when its whole determination is construed in a momentary action, and its freedom is exhausted in the play of caprice. Thus, also, the repudiation of past national obligations has its precedent in the denial of the being of the nation in its continuity. THE SOVEREIGNTY OF THE NATION. 137 The sovereignty of the nation in its determinate form is law. Law, in its political sense, is the formal assertion of the will of the political people. The common defini- tion is thus, a rule of action made obligatory by the state upon all who are subject to its authority. It is the formal affirmation of the will of the people as regulative of the action of the whole in its civil and its political process. 1 The ground of law is not formal nor abstract. It is the affirmation of the will of the people, and therefore conse- quent from no empty conception of the will. It is the will of the people in the nation, as organic and moral. It is the formal expression of the purpose of the nation, but it is none the less the continuous purpose which is implied in its being. The conception of justice, the reason and law of right is implicit in the nation as a moral person. It is in the will in its sovereignty and the realization of its freedom, and therefore all willful and arbitrary action is in its nature lawless. The law is laid in the foundation of the being of the nation. It is then the assertion of justice, which is the fountain of all law, not as the illusion of vis- ionaries, nor as the scheme of theorists, nor as the device of legislators, nor as the compromise of interests, nor as the trade of parties, but as implied in the being of the na- tion in its necessary constitution, and the realization of its being. Law, in its political determination, has certain charac- teristics which are necessarily presumed. There are, in 1 Rome, through all the successive periods in her history, represented as the source of law, the " majestas populi Romani," and asserted as the law, the "voluntas populi Romani." " The will of the state, indicated in some form of expression, is the law, and no natural rule which may exist forms a part of the law, unless identified with the will of the state so indicated. What the state wills is the coterminous meas- ure of law; no preexisting rule is the measure of that will." Kurd's Law of Freedom, etc. vol. i. p. 4. "Law is the direct or indirect, explicit or implied, real or supposed, positive or acquiesced in, expression of the will of human society represented in the state; or it is the public will of a part of human society constituted into a state." Liebers Political Ethics, vol. i. p. 98. 138 THE NATION. the distinction of laws with reference to their object, gen- eral and special laws, but there are certain elements im- plied in all law in the civil and political order. 1 The law presumes the being of the moral person from whom it proceeds : it presumes a consonance with reason and justice. It cannot contravene the nature of things, this would involve the unreason of the state ; an incon- gruous law is inoperative. 2 1 The definition, which is most prominent in the history of law, is that which, after the Roman law, defines the provinces of public law and private law. The distinction of these departments, as given in the Digest, would serve as the definition of the nation and the commonwealth, the political and the civil order. "Hujus studii (juris) duse sunt positiones; publicum et privatum. Publicum jus est quod ad statum rei Romanae spectat; privatum quod ad singu- lorum utilitatem." Dig. lib. 1, tit. 1, sec. 2. But with the apprehension of society only in its civil relations, that is, as the commonwealth, these boundaries, in fact and then in law, became obliterated, and the conception which underlies their distinction was lost: the division has been held by later writers vaguely and again not inconsistently rejected by some, and its reason denied. The Roman juridical writers thus regarded public law, in the imperfect de- velopment of this distinction, as inclusive of criminal law. Savigny, Heut Rom. jRecht. bk. i. ch. 2. Austin rejects the distinction, but his definition of public law is worth noting: " Public law, in its strict and definite significance, is con- fined to that portion of law which is concerned with political conditions ; that is to say, with the powers, rights, duties, capacities, and incapacities, which are peculiar to political superiors, supreme and subordinate." Lectures on Juris- prudence, vol. ii. p. 435. Mackeldey describes the province of each, " The public law comprehends those rules of law which relate to the constitution and government of the state; consequently it concerns only the relations of the peo- ple to the government. The private law comprehends those rules which per- tain to the juridical relations of citizens among themselves." Civ. Law Comm. Introd. p. 8. Falck, as cited in Pomeroy's Constitutional Law, p. 3, has defined them with more precision. " Public law embraces those precepts which im- pose duties or confer rights upon the political superiors in the state, those who organically represent the state. Private law includes the civil law proper, po- lice law, the law as to crimes and punishments, the law as to civil and criminal procedure. It embraces the rules which define the rights, powers, capacities, and incapacities of various classes of persons, private, domestic, or professional ; the rights of property; the rights which flow from contracts and obligations be- tween private persons; the description of the delicts and offenses called crimes; the means by which civil rights are secured and enforced; the means proper to maintain good morals, order, health, etc., in general all those means which aug- ment the convenience and promote the tranquillity of social life." Courc (T Introduction Generate a V Etude du Droit, ch. i. These citations indicate the historical scope of the distinction, and in its application to the relations of the political and the civil order the nation and the commonwealth it has the ut- most value for American publicists. 2 "Lex spectat naturae ordinem." The law respecteth the order of nature. Th( THE SOVEREIGNTY OF THE NATION. 139 e law is personal ; its presentation is to persons, and its obligation is imposed upon persons. Its direct assertion in its simplest expression is, thou shalt, and thou shall not. It takes every man apart by himself, and appeals to him, and evokes his responsibility. 1 The law has in its conception a universal aim. It pre- sumes a principle of action which is applied in it ; it is then set forth as regulative of all action and appertaining to all cases which fall within this conception. The law is the definition of relations to be maintained as constituent of a moral order and is regulative of them. The law assumes the existence of man in moral relations, as of the family. The law has no retrospective action, it is the on-going determination of the organic will. There is an injustice in an ex post facto law ; when one in conformance to ex- isting laws has done his whole duty, and certain conse- quences have ensued, it would be manifestly wrong to adjudge him and reverse the procedure, because the law- giver had changed his mind. The law is subject to amendment, to change or repeal. It is not immutable ; it is not stationary, but always pre- sumes a progress toward the more perfect attainment of its end. The law is inclusive of the nation in its physical unity and being, as a whole. The nation is the domain of law ; the law is of the nation, for the nation. It is thus, in its inclusive character, an authority over the individual law- giver through whom it is set forth. It is even its own " Lex non cogit ad impossibilia." The law compels not to the impossible. The argument " ab impossibile," is valid in law. " Impossibile est quod naturae repugnat." Dig. lib. i. tit. 17. " Law is always in its nature personal, or a law for certain persons." Kurd's Law of Freedom, etc., vol. i. p. 22. " The law relates to persons as its basis and aim, that is, it has an essentially personal character. All law is throughout a law of persons. The law necessa- rily has also reference to things, since these Compose the physical conditions of human development. But the law in reference to things, constitutes only a eubordinate division of the law relating to persons." Ahren's Naturrecht, p. 83. 140 THE NATION. necessary interpreter, and while the private judgment of the law-giver may be allowed as an aid to ascertain, it cannot absolutely determine its import ; the reference to it, is only private judgment. The law is an affirmation ; it is positive. The sub- jective apprehension of right and wrong cannot assume-, the place of an objective rule. Private opinion is not to be elevated into the position, nor invested with the authority of the nation. 1 The law itself is the standard by which the will of the nation is to be ascertained. This is requisite to the necessary obligation and validity of law. While the antithesis is superfluous, the aphorism of Hobbes is valid, " authoritas non veritas, facit legem." There is in law alone the formal assertion of the will of the nation, and through it alone its will is ascertained, and the private judgment of no man can be the authority for another, nor control his action. The sovereignty of the nation, in its affirmation in law, and acting through its normal powers, constitutes the government. The government is the institution in which the sovereignty of the nation is realized. It is the order in which the will of the political people is inaugurated and established. 1 This applies also to the practice in equity, and the procedure in it is based upon the assumption that k is the will of the nation. Of the application of nat- ural law in jurisprudence, Mr. Hurd says: "Whatever rules or principles, tribunals may apply as law, they apply them as being the will of the supreme authority, and as being themselves only the instru- ments of that will. " The will of the state is to be ascertained by the tribunal in one of the fol- lowing methods: " First, direct and positive legislation is the first and ruling indication of the will of the state, whether it acknowledges or refers to any rule of natural origin or not. Second, since the will of the state is to be presumed to accord with natural law, when the positive legislation of the state does not decide, the tribunal must ascertain the natural law which is to be enforced as the will of the state. But this law can only be determined by such criteria as are supposed to be recog- nized by the supreme power of the state, if such criteria exist ; and this law when so determined becomes identified in its authority with positive law." Kurd's Law of Freedom, etc., vol. i. p. 24. THE SOVEREIGNTY OF THE NATION. 141 The government is of the people and it is over the peo- ple. There is in this no contradiction, but it is predicated in the being of the nation as a moral person. The govern- ment is therefore, in its highest conception, the self-gov- ernment of the people, of but over the people in every moment of its action. It is the will of the people in its self-determination, that is its sovereignty and its freedom. The government is the representation of the political people as a whole. It asserts the authority of the whole over the individual ; then only the will of the whole is law. The government is often described as a government de facto and de jure. The former is strictly the force which at a certain moment may get and hold possession in the state, without reference to its origin or character, and it may maintain itself by foreign influence or by fraud ; the latter is the power in the state which exists in conform- ance to its organic law, although the term is sometimes more narrowly applied to define a government which has an antecedent claim in mere legality. This is strictly described as a legitimate sovereignty or government. This, as the claim of a pretender, may contravene the sovereignty of the people, that is the nation, and that government in the higher sense is only legitimate, which is the exponent of the will of the people, and in conform- ance to its organic law. 1 The term has been mainly con- nected with the patrimonial conception of the state. If the government is deficient in its power, and its authority is no longer in the security of rights, and of free- 1 Bismarck says of these minor pretensions of sovereignty in the German nation, in reference to their claims of legitimacy, and it applies as well to the theory of legists of separate sovereignties here : " There are many pedantic people who want Prussia to protect the principle of legitimacy. But this principle of dy- nastic and conservative legitimacy is a fiction, and that a most pernicious one. Unless the conservative party renounce this principle we shall have to go the length of applauding the hallucinations of the pett}' potentates, who supposing they are powers, avail themselves of the pedestal of our own might to play at kings. And yet all this swindle is unauthorized by the history of the past, is quite new, unhistorical, and equally opposed to the teachings of God, as to the rights of mankind." September 10, 1861. 142 THE NATION. dom, it is consequent on the decay of its internal sover- eignty, and while then through certain changes its external form may remain, the ultimate result is the overthrow also of its external sovereignty. If the domain of law is not maintained, and crime is left unpunished, and justice is not executed, and everything falls into disorder in the lapse of internal sovereignty, there is no basis for an external sove- reignty. It can no longer claim recognition as a nation by other nations ; the self-determination, the moral spirit in the people is gone, and the government perishes in se- dition and crime. The government cannot be imposed upon the nation by any power which is external to it, nor can it be inaugu- rated by a clique, nor instituted by a bureau, nor by the decree of an individual, and in none of these is there the assertion of the organic law. If in some transition, when the order is interrupted by the violence of revolutions, the authority is assumed by these powers, as in events recently in Spain, it yet can be only temporarily, and the ultimate reference must be to the people. The government is the manifestation of the sovereignty of the people. It rests on no contract. The nation and the government are not two separate parties who enter into a joint agreement. The people ordains and establishes the government, but does not contract with it. The de- scription of it as only a party to a joint agreement repeats the fiction of the social contract, in which some ground was sought to establish the obligation of the feudal prince to his subjects. When it is applied to the government of the people, instead of a constructive principle, it becomes a source of division and is inconsistent with the unity of the people. The government as the representative of the will of the people as a moral person, has its strength in the will. The strongest government is that in which there is the higher assertion of personality, that is, the realization THE SOVEREIGNTY OF THE NATION. 143 of the freedom of the people. In the common phrase a strong government is too often identified with an arbitrary rule, which is inherently weak. The government which is without strength, lacks the constituent principle of gov- ernment. It is in its true conception stronger in the de- velopment of the people, in the maintenance of law, the institution of rights, the realization of freedom. For this it is clothed with power and with majesty on the earth. CHAPTER IX. THE NATION AND ITS CONSTITUTION. THE constitution of the political people has a twofold character : there is a real and a formal constitution. The one is the development of the nation in history, the historical constitution ; the other is the formula which the nation prescribes for its order, the enacted constitution ; the one is the organism ; the other is the form for the or- ganization of the nation ; the one is in identity with the nation in its organic being, it is written only in the law in which the members are fashioned ; the other is the method which the nation establishes for its procedure, and the order to which the whole is to conform. 1 1 When it is not otherwise mentioned, the term is used strictly of the constitu- tion in its formal character, the constitution as a legal instrument, and the in- stitute of the government. " The written constitution is simply a law ordained by the nation or the peo- ple instituting and organizing the government. The unwritten constitution is the real or actual constitution of the people as a state or as a sovereign commu- nity and constituting them such or such a state. It is providential, not made by the nation but born with it. The written constitution is made and ordained by the sovereign power and presupposes that power as already existing and constituted." Brownson's American Republic, p. 218. See Kurd's Law of Freedom, etc., vol. i. p. 296. Jamison's Constitutional Convention, p. 67. " The more we examine the influence of human agency in the formation of constitutions, the greater will be our conviction that it enters only in a manner infinitely subordinate, or as a simple instrument, and I do not believe there remains the least doubt of the truth of the following propositions: "1. That the fundamental principles of political constitutions exist before all written law. " 2. That constitutional law is, and can only be, the development or sanction of an unwritten preexisting right. " 3. That which is most essential, most intrinsica!!}' constitutional and funda- mental, is never written and could not be without endangering the state. "4. That the weakness and fragility of a constitution are in direct proportion) to the multiplicity of written constitutional articles." De Maistre, On the Generative Principle of Political Constitutions, Boston, 1847. The comparative value of a written constitution has been the subject of wide! THE NATION AND ITS CONSTITUTION. 145 The sovereignty of the nation has its first formal ex- pression in the convention. The convention represents the constructive power and intendment of the people in the formation of its constitution. It is the assertion of the will of the people in the ordination and institution of its government. The power existent in it is not then with- drawn, but as has been truly said, the convention persists in the constitution and never expires. It is the people forming the nation that ordains and establishes the consti- tution, and acts in and through it. The nation is before the constitution. It precedes and enacts the constitution as the determinate form of its polit- ical life ; it establishes the constitution as the order in which it will realize its determination. The constitution, which defines the formal organization of the nation, is the law which is regulative of its normal action, and then also of the institutions which are its normal powers. The law is the formula of its process, the institutions are the structure of its process. The law and institutions, in their positive character, become the firm support of order, and the muniments of free- dom. They are established, and in them the people rec- ognizes its own stability. The constitution stands as the continuous expression of the sovereignty, the freedom, and the rights of the people. It has the authority of law, and there is the defense of the whole from arbitrary ac- tion ; it has the stability of institutions, and there is the defense of the whole from individual action. It is con- structive of the course of the people in its entirety, and in the constitution in its true significance, " we stand alto- gether, and we march altogether." It is the impregnable barrier against the assault of a mere individualism, and discussion, but, if the proper limitation of a constitution be regarded, as simply the definition of the order of the nation, and if it does not assume the functions of the legislative power, the argument for it may be justified, and at least has the higher historical support. 10 146 THE NATION. the stable basis of the whole against the strife of factional, and the pretension of provincial supremacy. It remains while parties rise and disappear, and while systems change, as the constitution of the whole, stable in the power and supreme in the majesty of the people. The constitution, as established by the will of the people, is of the nature and authority of law, and in its necessary process is the supreme law of the land. As law it is the assertion of the will of the people, and yet it is over the people, and obedience is to be ren dered to it. It is instituted in the self government of the people. It has therefore, as the law which is the expres- sion of the moral being in the nation, the sacredness of law. But this sacredness is derivative from its content. There can be no sacredness attaching to the abstract form, and neither devotion nor sacrifice for the constitution when it is regarded only as an abstract formula ; it is sacred only in so far as it is affirmative of the law which is implicit in the nation, or as the life of the nation may be affected in its maintenance. The constitution is to have the style and language of an instrument of law ; it has the intendment of positive law. It is ordained of the people as the law of the land, the will of the whole people, and the authority over the whole land. It is not in its scope, since it is an instru- ment of law, to present any theory or speculative notion of the origin and substance of the nation. The presenta- tion of any theory is superfluous, in the presence of the being and sovereignty of the nation itself. The constitution defines the formal organization of the normal powers of the government. But while these pow- ers are established in conformance to the constitution, it is not to be so construed as to become the substitute for their normal operations. The distinction between the conven- tion and the congress, the constitution and the laws, is fundamental ; the one is the definition and construction of THE NATION AND ITS CONSTITUTION. 147 these powers, the other is their action in the condition and circumstance of the people. The nation forms the constitution, in its own conscious determination. It is not a necessary physical sequence, as if the product of physical causes ; it is not the result of aimless forces ; it does not come into existence apart from the conscious thought and action of the people, as if it were to be had without effort, and sustained without vigilance, or as if it were to be held in a superstitious rev- erence. It is not attained without thought ; it does not increase as the trees in the wood. It is not formed, and it cannot be sustained in the lethargy and passivity of the people. It is the assertion of the will of the people, and it subsists in the conscious and continuous determination of its will. It consists in an ethical and not a physical organ- ism, and proceeds from, as it is maintained by, the sove- reignty which exists in a conscious freedom. The nation is to realize in the constitution the determina- tion of the sovereignty of the people. It is not to be formed in the working of some sect or party. It is not to express the intent only of certain individuals ; and while in isolated individuals there may be the longing for a better constitution, it must pervade the whole and be- come a common conviction before it can be realized. The constitution thus also in its completeness, cannot be the work of a single generation or separate age ; it can be promulgated on the adjournment of no convention, as ample to embrace all events and all times. This is the oriental conception, and could result only in Chinese sta- bility, not national permanence. It cannot consist with the existence of the people as a living power, and civiliza- tion as a living principle. It belongs to oriental immo- bility, not occidental spirit. The nation is to apprehend in the constitution its object and aim. The formal constitution must correspond to the real. It is the order in which the people are to act, and 148 THE NATION. the people must find therefore in the constitution the expression of its spirit, and its purpose must not be fet- tered nor perverted by it ; but it must be able to act in and through it with entire freedom, in the furtherance of its aim. There must be reflected in it its own spirit, and in so far as it fails of this it has elements of weakness or of peril. The life of the people cannot be sacrificed for a political form, or a political dogma. The nation is not to perish that a political theory or a political abstraction may strive vainly for realization. There is thus danger if some conception which belongs only to the past is adhered to, and none the less, if some which is too far in advance is insisted upon. The value of the constitution is relative as well as positive. Napoleon I. gave to Spain a constitution which was abstractly better than she had before ; but it worked badly, for it was not adapted to the people, and they held it as something strange and alien. In modern English politics there are the most frequent illustrations of the neglect of this principle. They have furnished con- stitutions ready made for all communities. They are the same empty and stereotyped form, and struck in the same mould, and with the same trade stamp. The spirit of all peoples is to find embodiment in Anglican forms and institutions, and to realize an Anglican freedom. England, which never has apprehended the spirit of another people, and holds forms as immutable when of her own cast, has always had those which she regarded as the only hope of other countries. In the organization of society in India, the native farmers of the revenue, as the best ma- terial to be had, were taken by force to be made into squires. It was necessary to society that there should be squires, and that they should be of the Anglican type. In the last century an English minister proposed a plan for the introduction of the whole feudal system into St. Johns ; in this century the Dominion of Canada has been designed in the same device. The constitution is to be the exponent THE NATION AND ITS CONSTITUTION. 149 of the will and spirit of the people, and that which is over it, but is not of it, or no longer of it, has elements of weakness or of tyranny. It is the weakness of an empty form, or the hard tyranny of an abstraction or system, and repressing but hot expressing the spirit of the people, it crushes its energies and consumes its freedom. The neglect of the distinction between the real and the formal constitution and the consequent identification of the nation with its formal organization, becomes the most dan- gerous of political falsehoods. The nation not only is before the formal constitution, but the events in its history, which it holds in highest honor, may be precedent to it ; as the war of the Revolution was fought and brought to its close before the adoption of the existent formal consti- tution. The nation continues in its identity, while constitutions are changed or abolished. Rome was the same under her o kings and under her consuls. France is the same through all her revolutions, and under her feudal and republican and imperial organizations. The nation, in her formal con- stitution, has not always even the indication of her real condition, but under the same constitution may advance or decline. The constitution has, in itself, no inherent power and no abstract virtue to deliver the people. It is not for the individual nor for the nation to be saved by any system, however complex, nor any dogma, however subtle. The constitution may become itself only the mask which hides from an age its degeneracy, or the mausoleum which conceals its decay. The pedantry of systems may be made the substitute for living forces. The nation is not comprehended in its formal organization. There is a political truth in the rude verse of a poet of the Republican Age in England : " Let not your king and parliament in one, Much less apart, mistake themselves for that Which is most worthy to be thought upon ; 150 THE NATION. Nor think they are essentially the state. Let them not fancy that the authority And privileges on them bestowed, Conferred are, to set up a majesty, Or a power or a glory of their own ; But let them know it was for a deeper life, Which they but represent ; That there 1 s on earth a yet auguster thing, Veiled though it be, than parliament or king." The nation may amend or alter the constitution which it has formed. The course of history in which the nation stands is a development ; and there is to be in it always the better institution of rights, and the broader domain of freedom, and these are to have their assertion in the con- stitution. The constitution must be open to recognize the advance in each age, since in each the work of the people is to be carried on under the changed conditions of an his- torical life. Neither the individual nor the nation can in any moment regard its course and order as perfect ; and, with entire subjection to the constitution, there must be in it always the expression of an higher historical development. It is here that the relation of the per- manent and the progressive element in the organization of society becomes apparent; the one involves the other, and is even its condition. The new is to be built in the old. It is not to be the isolation from the old ; but it is wrought out of the old into the new. The change which comes is to be ingrooved in that wliich flies. The reten- tion of all that is good in the past is to be held as no hin- o Jr drance to advance, but its precedent. There is to be no divergence from the old, as if it were necessary to take from the outset a new start. The wise change is not in the weak conceit of the ability to construct out of one's own political materials the best constitution, but with care- fulness, lest, from the acquisition of the past, anything of worth shall be allowed to perish. While Rome has bequeathed to the world the universal terms of law, and her civil law has become an institute in history of the THE NATION AND ITS CONSTITUTION. 151 world's civilization, she yet held, in undying deference, the tables on which her first law was written. There must he thus always in the constitution itself forms to enable its amendment, and, while it is open to no sudden change in the momentary action of the people, it is not to prevent the freedom of the people. It is to assert the con- tinuous will of the nation in its organic continuity, and it must, therefore, possess permanence. It is to be open to the expression of progress, also, for it is to be the institute of freedom and of rights. 1 If there be in the constitution no provision whereby the political people in its normal action can effect an amend- ment, or if the mode provided be such as to obstruct its action, there yet subsists in the people the right of reform ; and if, while yet there is no way open to it or only some inaccessible way is indicated, the hope of reform shall fail, and the constitution and the government which is instituted in it be wrested from their foundation in the consent of the organic will, there is then, at last, the right of revolution. This, in the supreme peril, is the supreme necessity of the people. If the people no longer finds the correspondence to its aim in the constitution which it has once established, if its advance is thwarted and it is being deflected from its course, and its life is being deformed, although under the form it once enacted and alone has the right to enact ; if the government becomes thus subversive of its ends, and the future holds no hope of a reform which may effect those ends, then revolution is a right. This maintenance 1 President Washington, in his farewell to the people, which, in its political wisdom has, in modern political literature, no parallel, asserts, as a fundamental / right, " the right of the people to make and to alter their constitutions of gov- / ernment;" but, since the constitution has the form of law, the mode of amend- ment which it provides may be so intricate or so difficult, as to so restrict the action of the people, that this fundamental right shall be more effectually irrested from them, than by the most consummate tyranny. " A constitution which has no place for amendment is absolutely immoral, for it sets itself forth as absolutely perfect ; it is far more immoral than the anlimited power of the monarch." Schleiermacher, Ckrislliclie Sitte, p. 270. 152 THE NATION. of the continuous life and continuous development of ilio nation, against that which is hindering its growth, or sap- ping its energy, is not strictly a revolution. It is rather the reverse, since there is in it the maintenance of the organic being of the nation and it is in conformance to the organic law. It is not anarchic, for it is the only possi- ble pursuance of the order of the nation, and its vindication from the false order which is interrupting it. It is the spirit of the people in its real strength which breaks through the system by which it is gyved. But it is only to be justified in the supreme necessity of the nation, and as itself the act of the nation as an whole, the work of the political people. It is not to be the act of a part only, as a section or faction. The development is only of the nation as an organic whole, and conditional in its organic unity, and it is this alone that is thwarted or imperilled, and in this alone the right subsists. Thus a revolution is not an insurrection, since the one presumes the action of the people as an organic whole, and is justified in proceeding from the people, whose determination is law ; the other is the act of individuals, a section or a faction, in revolt from the will of the whole. 1 The revolution which is thus a necessity is not the dis- cord, but it is more strictly the concord of the nation, and when thus a necessity, the order which is set aside will be 1 " The moral condition of a revolution is that it express the conviction of the common people and the common will." Fichte, Naturrechte, p. 238. " The right of revolution must be grounde4 in the living conviction of the whole." Schleiermacher, Ghristliche Sitte, p. 265. " Regarded abstractly, revolutions are always moral anomalies; but actually they are to be regarded as unavoidable and therefore only apparently moral anomalies. For in human history, through the power of sin, the development cannot continue to proceed in a continuous sequence, but only through many throes and crises. The revolution which is really the work of the nation itself, can only be regarded as such a crisis, which, through external impediments, becomes the condition of the maintenance of the moral life of the nation; and such a revolution therefore can only be justified when it rests on the living con- viction of the people in its totality." Rothe, Theologische EtJrik, vol. iii. sec. 2, p. 984. THE NATION AND ITS CONSTITUTION. 153 succeeded immediately by the real order of the nation, in its new form, with the return of the energy of the people, and its ampler freedom. It is not therefore of any to glorify revolution, which can appear only in a disturbed order ; but when in the mystery of evil, the energy of the people is impaired and its life withering, although its path can be only through violent struggle, it is yet to rejoice in the power which may resist and overcome the evil. It is thus that epochs of national revolution have been those not of despair, but of hope and exultation, and there has been in them, as there is not in the triumph of parties or factions, the renewal of the strength and spirit of the people. The nation thus may be the stronger in the crisis in which its constitution is swept away, and there may be in it the evidence of a power which opposing evils could not wholly destroy. It is the life which could not be utterly crushed, and the strength which could not be entirely con- sumed by fetters forged through lapse of time, in which privileges assumed to be alone the precedents of action, and were girt by legal forms and devices, until they barred out the rights of men. The transition from the feudal constitutions of Germany, has been in every crisis the development in its higher unity of a national life. The age of the commonwealth, when the same result in part was effected in England, was the last great age in her history. The French Revolution bore throughout the deepest devotion to the nation, and in its tumultuous changes no voice was lifted against the -unity and glory of France. The American Revolution was the act of the political people of the whole land, in the endeavor toward the realization of the nation. These crises were in the development of national life, and the constitution displaced was foreign to the political people. The constitution is primarily to define the structure and the mode of action of the normal powers in the nation. 154 THE NATION. It is the enumeration and the limitation of these powers, and is then simply the norm of their action. It is to reg- ulate the form, but it is not to specify the content in their action. It is to prescribe the organization of the nation, and not that which shall be in the action of the organs. It is as the chart of a ship, and the order of its company ; but it knows not the voyage it shall make, nor the storm nor mutiny it may encounter, nor those whom it shall carry, nor the seas it shall sail. The prescription of the action of the people in all events and circumstances, is not in the scope of the con- stitution, and it would not be possible. It is not requi- site to its stability, nor to the firm order of the gov- ernment; but in the effort of the past to control the future it would induce elements of conflict which would impair the whole. The constitution which sought to predetermine the future, and to forestall the conduct of affairs in the infinite change of time and circumstance, would presume that a people was already beyond the con- ditions of history. If the people possessed a living energy, and was not itself as dead as the past, the object, if at- tempted, would be as vain as the insistance that men in a real battle should listen, for the word of command, only to the echoes of the voices of commanders on some battle- field of the past, whose banners are folded, and from w r hich the ranks have long since marched away. It would be, against the inevitable current of events, which still would sweep on resistless as time, the building of " parchment tmrriers," and in the real crises they would be thrown aside, as the impediment in the path of a free people in its necessary course. To attempt to make the constitution the formula which not only shall define the order of the people but mould the events in its history, to make it determinative of the course of the people in these events as they arise, to make it the substitute for the process of laws and statutes which THE NATION AND ITS CONSTITUTION. 155 ome in their immediate enactment the embodiment of a living will, is itself possible, only as the nation is no longer a living power, and has no longer a living will. The constitution which the convention has formed, and which has been adopted, is in its nature the supreme law, but in its own provision, to make its amendment difficult or well-nigh impossible, and then to assume that it shall be exclusively and exhaustively definitive of the action of the people in all events, involves the denial of the organic and moral being of the people. It is directly immoral, since in its necessary inference the people no longer exists as a power in the moral order which is the life of history. It does not honor the past, nor is it joined with it in liv- ing relations. Thus in the strict historical school there is always a regretfulness, as that the convention of 1787 should have adjourned, and that there is now no Hamilton and no Madison ; but this deference does not honor them. We may only know of them that they had the strength to do, knowing that things were to be done, and that their strength was as their days. Of this spirit, which may become a weak superstition, the age has to learn, in the words of another, that the bones of the giants of old have been found and they measure no more than ours. This concep- tion enslaves the present to the past instead of emanci- pating it with the past. It is the worst tyranny of time, or rather the very tyranny of time. It makes an earthly providence of a convention which has adjourned without day. It places the sceptre over a free people in the hands of dead men, and the only office left to the people is to build thrones out of the stones of their sepulchres. The spirit is immured in the walls it has built. It is in politics the thought which in history had its expression in Egypt. It is said by Hegel, that as it is reflected in her monu- ments, the Egyptian was in love with death, and thus there was always a skeleton at the banquet, but this places the same image not only in the assembly of the people, 156 THE NATION. but in the power of the majority in it. It elevates the past to a throne over the present, of irreversible de- crees. 1 The constitution determines the order, but it cannot predicate the course and destination of the people. It is not providence, nor destiny. The years and what they bring, are withdrawn from the gaze of conventions as well as of men. They have no more a horoscope to forecast the future in the lives of nations than of individuals, nor can they outmaster time, nor wrest the secret from the years. The constitution is to provide that the people shall stand together, and march together, but their line of march is hidden from it. The nation is formed in the changing conditions of history. It must pass through conflicts which the prescience of no assembly can anticipate, and they will not regulate their coming by the action of any convention, nor conform to its project, nor abide in its provision. The aim of the constitution is to leave each generation free to do its own work to which it is called, but in the continuity of the nation, and in its normal pro- cess, and therein, it becomes the assertion of the unity of law, with the realization of the freedom of the nation in its being in history. The constitution, when it transcends its province, and, from the enumeration of powers and the exposition of rights proceeds to the specification of their content in the immediate direction and adjustment of events, becomes imbedded in political theories, which are introduced to sup- plement its literal articles, or encumbered with minute detail. Since it is in its form a positive law, it becomes, then, through judicial interpretation, complicated with pre- cedents and opinions, and is tortured by judicial decisions, until, instead of representing the will or the freedom of 1 " Whosoever will have a government that cannot follow its living conviction, gets the dead over the living, and denies the moral development of the state." Schleiermacher, Christliche Sitte, p. 273. THE NATION AND ITS CONSTITUTION. 157 the people, it is only the field ground for lawyers; the people no longer recognize their aim nor their stability in it, and its intricate and complex character tends to produce ignorance of, and then indifference to it. The constitution has a positive and a relative value. It has the elements of a universal as well as an individual character, since the nation has a universal aim as it has an individual life. In the critical study of a consti- tution its comparative advantages are therefore to be regarded, and there is to be applied to it a common as well as special estimate. There is thus a high value in the comparative study of the constitutions of nations. The constitution is to become in the progress of the peo- ple the institution of an ampler freedom, and a more perfect organization of rights. As the sovereignty of the people attains a more determinate expression in it, that which is vague and incomplete, or inconsistent and incongruous, is set aside. The arbitrary can find in its vagueness only the cloak for tyranny, and the treacherous the mask for secession and anarchy. Its language is, therefore, to be plain, to express the purpose of the people. It is in its high conception, the evidence of the stability and the instrument of the freedom and the assertion of the sov- ereignty of the people, in whose will it is ordained and established. The more perfect constitution is always to be the aim of the whole as it is the indication of its advance. But the formal constitution is not to be an end in itself, and its worth is derivative only from the life it conserves. To reverence it for its own sake, may create a spirit not of law but of mere legality. The superstitions of lawyers are more perilous than the superstitions of priests. It is the adherence to a political formtda, to which it attaches a separate sanctity, and refuses all change, while its spirit is wasting and decaying. It holds the form above the life and being of the nation which it was instituted to 158 THE NATION. maintaiii. There is here the contrast of a righteous and an evil conservatism ; the true conservatism aims at the main- tenance of the being and the unity of the nation, although the form be changed or destroyed; but there is a false conservatism, there are those who, in their regard for the constitution of the nation, deny the nation itself. 1 They would sacrifice the nation to maintain the constitution. They hold the constitution as something above and sepa- rate from the people, to be looked upon with another rev- erence. They place the symbol above the reality, and adhere with a blind attachment to the letter, when it is dead to the spirit. It is at last the conservatism of a polit- ical hypocrisy. It is the conservatism of the scribes and pharisees and lawyers ; but they neither knew nor cared for the calling of the ancient nation. It is busy reading the inscriptions and repeating the legends upon the stones, while the fires upon the altar are dying, and it will build and adorn the sepulchres of the prophets, while the great Prophet of humanity stands unheeded in the streets of its Capital. l " Conservatism consists not in that the old form be retained, but that the substance be maintained." Stahl, Philosophie des Rechts, vol.'ii. sec. 2, p. 200. " Conservatism, when it rightly understands itself, will in no way hold on to the exact form of the state as hitherto existent; but will hold fast the preser- vation of the state itself, under the development of its form." Kothe, Theolo- gische JEthik, vol. iii. sec. 2, p. 995. " We have heard of the impious doctrine in the old world, that the people were made for kings, not kings for the people. Is the same doctrine to be received in another shape in the new, that the solid happiness of the people is to be sacrificed to the views of political institutions of another form ? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object." President Madison, The Federalist, No. xiv. CHAPTER X. THE NATION AND ITS SOVEREIGN RIGHTS. THE nation, in its sovereignty, is possessed of certain necessary rights. These are rights which are involved in the attainment of its necessary end in history. They sub- sist in the unity of the nation, and in their historical manifes- tation, they become the indices of its sovereignty. They have thus an integral character ; they are not an indiscrimi- nate and incongruous collection of powers, but are formed in a necessary correlation, as the sequence of the unity in which they subsist. They exist in the correspondence of rights and duties, and there is resident in them the neces- sary responsibilities of the nation. Firstly ; the sovereignty of the nation involves the right to its own existence. The right which is precedent to all others is the right of the nation to be ; the law which, in the conflict of laws, abrogates all others, is the law of its supreme necessity. It may, therefore, in its necessity, interrupt and suspend the ordinary course of rights in their reference to the individual or the commu- nity. The supreme object of the government is to care for the preservation of the nation. In this end, it is justified, in its necessity, in the suspension of the ordinary procedure of its law and order, which then becomes the assertion of its higher law, and the maintenance of its enduring order. The principle of action is them, solus populi^ suprema lex. When the necessity of the nation thus demands it, it is not the negation of rights and of laws, but in the deeper sense and sequence their maintenance. But in 160 THE NATION. this action, the necessity of the government is the expo- nent of the necessity of the nation, and of and for itself, the government has no right to interrupt the process of laws. It is justified only as the peril of the nation is ac- tual or imminent. There is no consideration of a result- ant advantage that can become its ground, since then it would presume to be itself the normal law and condition of the land. It is a power so high, and yet so imperative, that there should be in the constitution itself the careful provision for its exercise, and the protection from its abuse. The right has been recognized as necessary by every historical people. In Rome, it was asserted in the words, " videant Consules ne quid detrimenti capiat respublica" ; in England, it is construed in the right to suspend the habeas corpus ; in France, Italy, and Germany, in the right to declare martial law ; in Rome, it could be formally exer- cised only by an act of the senate, and in England, by an act of parliament. The nation may call for the willing sacrifice of the life and property of its members, and this has its precedent in the being of the nation as a moral person, to whom is given a vocation in the moral order of the world. The sacrifice of the individual is for the longer life, and the surrender of material wealth, is for that in which the moral acquisitions of humanity are conserved. But this is consistent alone with the being of the nation as a moral person, and when the nation is assumed to exist only as a necessary evil, or only for the protection of property and persons, this right becomes a contradiction, since in the one instance it would be the deference to a mere fate, and in the other its exer- cise would presume an immediate negation of its end. Secondly ; the sovereignty of the nation embraces the right to declare war and to conclude peace}- The nation i Bothe says, " Every war which is morally justifiable, is a national war " Theologitche EthiJe, vol. iii. sec. 2, p. 958. THE NATION AND ITS SOVEREIGN RIGHTS. 161 is the investiture on the earth of right with might ; it is constituted as a power in the moral order of the world and for the maintenance of that order. The right to declare and make war belongs only to the nation, and to that only as the minister of righteousness, the power which in its normal being is to assert justice against vio- lence, and law against anarchy, and freedom against op- pression. The nation in its sovereignty alone can declare war, and alone can conclude peace, to which all surrender is made. The nation has therefore the supreme command of the physical force of the people, its military. In the armed might of the nation there is the manifestation of its power, but the might is to be one with the people in its unity and its totality, and then there can be no danger to the freedom of the individual or of the whole, but there is the immediate security of that freedom. Therefore every member of the nation that can bear arms, and not a sepa- rate order and organization, must be trained to arms. 1 This belongs to the education of the whole people, and should be the instruction of its schools and universities ; there is in this the moral significance of the world discipline, which the study of the technic of science and of abstract propositions inclines to forget, and which always has so singular beauty in its significance in the pages of Roman literature. This discipline is presumed in the nation in its being as a moral person, and is inconsequent in edu- cation only as instruction is limited to a formal or an in- dividual conception of the nation. It is as one army that the people becomes conscious of its power as a nation. There is then the apprehension of righteousness as no ab- stract principle or spectral ideal, but as invested with might on the earth. Then there appears that spirit of sacrifice in which the unity of the nation* is laid, and in which its tU The army must not only be national, but be the nation, the nation in so far as it is capable of bearing arms, in its totality, must form the army." Rothe, Theologische Ethik, vol. ii. sec. 2, p. 964. 11 162 THE NATION. life is gained. Then the prophecy of the future of the nation is not in those that are, but in those that have given themselves for it, and its continuity is in those that died that the nation might live. 1 The declaration of war, therefore, can be justified only as it is national, or the act of the nation. Its end is to be . that which is involved in the being of the nation, and in its vocation in a moral order. This indicates the spirit in which war is to be conducted. It is to be waged with no individual hostility, nor against private persons, nor with a subordination to private ends. It is not the destruction of the lives or of the property of men that is its object ; it is not the destruction, but the defeat of the enemy that is sought ; and all destruction is justified only as necessary to its prosecution, or to the public defense, or as effecting a more speedy termination, and a more sure peace. 2 The formal declaration of war and conclusion of peace must be the act of the nation in its sovereignty ; a com- pany or a division of an army may, with no immediate authorization, in certain circumstances, commence hostili- ties, but it cannot declare war ; and the enemy may lay down its arms, before a company or a division of an army, but it cannot conclude peace. Since there belongs to the nation the supreme command of the physical force of the people, the nation can allow, within its limits, the accumulation of no force which is not subject to its ultimate authority. The commonwealth 1 " The meaning and the end of the military power of the nation, is found not merely in the conquering of enemies, and the suppressing of rebels, and the preservation of an undisturbed order, but in that the nation itself in its might shall stand forth as a righteous warrior." Stahl, Phiksophie des Rechts, vol. ii. sec. 2, p. 180. "This might is not merely the outward means, for the maintenance of public order, but it is also in itself the moral energy of the nation." Stahl, vol. ii. sec. 2, p. 140. 2 A very striking definition of war is cited by Rothe from Wirth, "the power of one people against another people in its whole might, its totality." Pomponius, "hostes sunt quibus bellum publice populus Romanus decre- vit; coateri latrunculi vel praedones appellantur." THE NATION AND ITS SOVEREIGN RIGHTS. 163 necessarily cannot declare war, nor conclude peace, and it lias in its direction the physical force, only as a con- stabulary for the maintenance of internal order, and for operations only within its confines. The nation, in its sovereignty alone, can appeal to the issues of war, in which the existence of the whole is involved. The nation, in its physical as in its moral unity and being, is a power over the individual, and must effect its purpose, notwithstanding individual caprice or intent. But in the basis of the state, in a mere individualism, there is the foundation for none of its rights of sovereignty, nor can it justify their necessary action. It is not the security of property and persons which is primarily in- volved in war ; but it is the direct reverse ; and the call of the nation, in its right in war, belongs to no individual and no collection of individuals, but it is an authority in and over the whole. The end of war is peace, "a peace that will come, and come to stay." A universal peace is the goal of the nations in history. But it is assured only in the realiza- tion of the unity and of the being of nations, and in their higher development and power there is the advance toward peace and its surer prophecy. 1 1 Napoleon III. has often expressed this, but it is not in the empire. Rothe says: "That end which is a universal peace is approached in the same degree in which the idea of the nation the political idea, fills and penetrates the consciousness of the people." Theologische Ethik, vol. iii. sec. 2, p. 954. The recognition of the Rebels as belligerents, by England, and their conse- quent investiture with the rights of war, indicated the spirit of an hereditary aristocracy, a governing caste toward the nation, and its want of all con- sciousness of national rights and duties, and the subordination of national to private interests. It was not the act of the people of England, if there be a people. The neutrality, which England professed between the nation and the ebels who were seeking to destroy it, in the nature of things and in the moral order which is the precedent of the laws or*nations, was no neutralitj*; but her recognition of them as belligerents, and their investiture with the rights of war, threw around them the protection of rules and regulations which were formed in international law only for nations, and placed a rebel force, in the view of Roman law latrunculi vel prcedones on t'he same footing with a nation, and the ad- vantage was secured to them of the rights of nations, while the hazard of their political recognition as a nation was avoided. 164 THE NATION. Thirdly ; the sovereignty of the nation embraces the right to form and sustain international relations. This is in history the immediate sign or note of political sovereignty. It is the formal manifestation of the external sovereignty of the nation. It belongs to the nation alone to enter into those relations with other nations which are in the prov- ince of international law ; it alone can make treaties with them, and send ministers and embassies to them, and re- ceive them in turn. Thus, also, the members of a nation can have no public or official communication with another nation, excepting through the representatives of the nation to which they belong, and can receive from another no mark of honor or consideration without its consent. Thus, also, no repre- sentative of another nation can be accredited to, nor recognized by, nor in his official character hold com- munication with any individual or section of a nation, excepting through the constituted authority of the nation. Fourthly ; the sovereignty of the nation embraces the right to adopt in its citizenship, and to invest with political rights and powers, those whom it may for this object elect, of those who may emigrate to it. Thus, also, each citizen has the protection of the nation, in the rights it has con- ferred, not only through its whole domain, but among other nations in so far as these rights are defined by treaty ; and, wherever he may go, he may claim, in his integrity, its defense. It throws around each its entire majesty, and an injury to the least who is its citizen is an injury to the whole. There is for every person who is in the nation, or may travel or reside in it, security in civil rights, the protec- tion of life, liberty, and property, in conformance to its civil administration and subjection to its civil authority, since these rights subsist in the necessary relations of life ; but it belongs only to the nation, in its sovereignty and its free- dom, to invest those who may come to it with political rights, its citizenship and its freedom. THE NATION AND ITS SOVEREIGN RIQWjfy 165 But the citizens of another nation, wnV g^ay travfel or, reside in it, or acquire and hold ^ropeWy,in it, jfy subject / " to the conditions of its civil order. Tne/jbdd prtfjpepty on the same conditions with its own citizens/^* 4 - 1 -* * with theirs to loss incurred by accident, by 4{ie pbf&ble interruption of order in social crises and by the yicissi- tudes of war. No nation can invade the domain of^ffl-^ other on the pretense of the maintenance of the civil rights of its citizens, nor obtain any reparation for loss or injury to persons or property which may arise in these circum- stances, except that which is allowed by the nation itself to its own citizens. The opposite principle would involve not only an unequal preference of aliens, but would con- cede to them an increased security, that of the land to which they belong, in addition to that of the land in which they choose simply to reside and hold possessions. Fifthly ; the sovereignty of the nation embraces the right to coin and issue money the representative of all values within it. The signature of the nation which is stamped upon the money it issues, is the sign of its power in its original right of possession, and of the maintenance of prop- erty, as an institute of the nation, whose value it is to sus- tain. The description of money is not limited to a single style, as gold or silver or copper, which form in common the accepted standard of values, and which in the trans- action of exchange are less rude than an exchange in cat- tle, but are not of themselves stable. But the nation, in the exercise of this power, does not and cannot by any formal act create values, and as it is to maintain the institution of property by its laws, so in the issuing of money there is to be the representation of actual values. The issue which does not represent actual values, but is made a legal tendeV in the formal exchange of values, as in the liquidation of contracts, may be and is justified in the temporary destruction of war, while yet it A destructive of actual values and can have no justification 166 THE NATION. in peace. It becomes then, not an appropriation of a part by the nation, in its supreme necessity, when the nation in its original right owns the whole, but a fraud, and involves the robbery not only of the poor but of all men. The crime of issuing counterfeit money is also twofold, and is not only a fraud and a robbery, but in a higher degree is a crime against the state. Sixthly. The sovereignty of the nation involves the right which is described in its formal phrase, as the imperium or eminent domain. The organic people holds the possession and inheritance of the land, as one and indivisible. The supreme authority over the whole land belongs to the people in its organic and moral being, and it has a right correspondent to its authority not only over persons but over the land and all things in it. It is to maintain the authority and the supremacy of its laws through the whole domain. In this rests the right of the nation to interdict the assumption of authority or the exercise of power by another nation within its ter- ritory. Therefore no foreign government can perform within it an office, even of civil police, without its con- sent, and can hold no possession or private estate within it, but as subject to its authority. This is the occasion for treaties of extradition. The right appears also in the levying of taxes, which are a prior lien upon all property within it. A tax is not, as in false representations of the state, primarily a certain amount paid to the nation in consideration of the advantages obtained from it, nor as an equivalent for its protection, nor is it a certain sum donated to it in order to secure the remainder, but it is the taking by the nation, for its own necessary use, of that which it alone holds in full in its original right. This right forbids the alienation of any part of that which by nature and in history constitutes the domain THE NATION AND ITS SOVEREIGN RIGHTS. 167 of the people in its integral unity. 1 In the barbaric con- stitutions and in the feudal system, the ruler could divide or transfer the domain, as in the administration of a private estate ; but, in the public character of the domain of the nation, it is held, as constituted in nature and in history, as one, and as inalienable and indivisible. This right includes the immediate, that is, the pro- prietary right, to certain places and parts which are the immediate possession of, and are to be held by, the nation in its sovereignty. This includes, Firstly, All that which by its nature is withdrawn from private possession, or is of immediate necessity for the public use. The rivers, lakes, bays, and harbors or* ship-homesteads, and the great highways, the military and post-roads and telegraph-routes, are of this description. The line, for instance, of the Ohio or the Mississippi, the bay of New York or San Francisco, or the passes of the Atlantic and the Pacific Railways, are the possession of the whole people, and belong to the nation. They do not belong to those who are resident by them, but are the domain of the people. Secondly, This includes all places and parts which by nature are formed for the defense of the whole. The cliffs or outlooks which are suited for forts or signal-stations, or the lines adapted to military for- tifications, or places for naval yards are of this descrip- tion. Thirdly, This includes all waste and unoccupied lands and places throughout the whole ; thus, the ter- ritories are in the immediate ownership of the nation. Fourthly, To this may be added the immediate possession, by the nation, of its capital. This is not a city simply of certain municipal privileges, but belongs to the nation, and, in its central position, should be free from immediate social and commercial influences and their agitation. It is 1 " The mere rectification of a boundary is not to be regarded as the alienation of the domain of the state. A part of the domain of the state is not alienated thereby, but the whole is more exactly defined." Bluntschli, Allgemeines Statsrechts, vol. i. p. 217. 168 THE NATION. the place of the government and of the ordained and repre- sentative majesty of the nation ; it is the witness of its unity ; it is connected with the long line of its presidents and representatives, and judges ; and around it gather the armies of the nation ; and over it, always, the nation's flag is floating ; to it the ministers of all other nations must proceed ; from it there goes forth that law which is an authority over the whole people and through the whole land. It is around its capital that the deepest associations gather ; its peril stands for the peril of the people, and its deliverance is the sign of the deliverance of the people. In the necessary correlation of rights and duties, there is also attached to this right the duty of the nation, in its physical progress, to undertake and execute those works which are necessary to the well-being of the people, and which by their nature are beyond private enterprise, and are removed from the immediate scope of individual inter- est and individual power, such, for instance, as the con- struction of military and post roads, the improvement of rivers and harbors, the survey of coasts, the building of lighthouses, the planting of forests, etc. The fact that whenever the nation may assume pos- session of any place and part, compensation is rendered, involves no contradiction of the right of eminent domain. The national right is asserted in the right to effect a ces- sion of the property, and the private right the nation itself sustains, in the allowance of an adequate compensation to those in immediate possession. This right comprehends, also, the right in the nation to the extension of its domain by purchase, by occupancy, or by conquest. The extension of its domain is the act of the nation in its sovereignty. When another nation is affected, it may be by treaty, and this is a free and peace- ful cession. To this Grotius first added as a condition, the consent of the present occupants of the parts annexed ; but the interests of the nation are in no comparison with those THE NATION AND ITS SOVEREIGN RIGHTS. 169 of an isolated and detached territory in which there is no political organization and no political life, and the former cannot- be conditioned upon the latter. The requisition of an inquiry, as to the consent of the existing occupants, has only a formal justification, and is a pedantic compliance with a formal political theory. 1 The inquiry as to the residence of the right of eminent domain in the United States has an interest for lawyers, as the phrase is strictly technical ; but it has only a formal interest, and the fact is determined in the political being of the political people. The evidence of the subsistence of the right in the people of the United States rests in the fact, firstly, that the organic and historical people is, and can only be, the dominus or lord : secondly, that the de- fense of the whole domain is in and of the United States alone : thirdly, that all acquisition of territory, by purchase or conquest, is by the United States alone, and the imme- diate transferal is to the United States, as in Louisiana and Alaska: fourthly, that all rectifications and deter- minations of boundaries are made in and through the United States alone : fifthly, that treaties of extradition are made by the United States alone, and from it alone can the extradition of any person be obtained: sixthly, that all vacant and unoccupied territories are held by the United States alone: seventhly, that taxation by the United States is a prior lien upon all property throughout the whole : and finally, on the other hand, the fact that no commonwealth can enter upon or effect an acquisition of territory, nor alienate territory to a foreign power, and that no common- 1 The principle which is to govern territorial extension has been stated as follows: " The government has long since laid down its principles in respect of territorial extension. It comprehends, it has comprehended, those annexations which are commanded by an absolute necessity, uniting to the country popula- tions having the same manners and the same national spirit as ours. France can only desire such territorial aggrandizements as do not impair her territorial cohesion, but she should always labor for her moral and political aggrandizement by using her influence to advance the great interests of civilization." Napoleon "UI. Circular. 1868. 170 THE NATION. wealth can of itself determine its own boundaries or effect their rectification ; these considerations, from a simply legal position, are decisive. But if there is a legal doubt, let it be supposed that, in fact, some commonwealth begins a course of territorial aggrandizement, or attempts the aliena- tion of any portion of territory to a foreign power, and the error in the claim becomes apparent. The legal confusion has arisen from the fact that while o the right of eminent domain is in the United States, the formal administration of the power implied in the right, as a civil procedure, is referred to the commonwealth in con- formance to its normal constitution. The evidence as- signed for the residence of the right, primarily and exclu- sively, in the commonwealth, has been in the fact that all private escheats fall to it, but this conforms to the province of the commonwealth, since private interests are consti- tuted in it ; but no general or public escheats fall to the commonwealth, and it has within its confines the right to vacated lands, but it has no right to vacant lands. There is the fact of the possession of unoccupied lands by Texas, but this is anomalous and ought not to be allowed to remain. 1 1 " The dominus is the United States, and the domain of the whole territory, whether meted into particular States or not, is in the United States. The United States do not part with the domain of that portion of the national do- main included within a particular State." Brownson, American Republic, p. 300. CHAPTER XI. THE NATION AND ITS NORMAL POWERS. THE sovereignty of the nation has its institution in the j powers in which the government is constituted. The will of the organic people, in its normal action, works through different members, to which are attached different func- . tions. The nature of these powers and these functions is implicit in the nation in its organism, their manifesta- tion is in the process of freedom and of rights. The formal organization of these powers has obtained its higher construction in the modern age. The distinction of their different organs and their functions, is illustrative of its higher development. In the political body, as in the physical, each organ has its separate use for which it is ! formed, and each has no separate existence, but they sub- sist as the organs of one body. The distinction of these powers, although in imperfect outline, is traced by Aristotle. He describes, firstly, the assembly for public affairs ; secondly, the chief magistracy, the executive power ; thirdly, the judicial power. The decision in regard to all crimes of a public character is re- ferred to the first or the legislative power and the chief magistracy or the executive power is made subordinate to it. "It is the proper work of the popular assembly to determine concerning war and peace ; to make or termi- nate alliances ; to enact laws ; to sentence to death, ban- ishment, or confiscation of goods ; and to call the magis- trates to account for their behavior* when in office." * In modern politics the distinction has been held in a i Politics, bk. iv. ch. 14. 172 THE NATION. clearer and firmer conception, and obtained a wider ac- tualization through Locke and Montesquieu, but it has been defined by none with greater fullness than by the earlier American publicists, and especially in the writings of President Madison. Its genesis forms one of the most significant pages in the history of modern politics. The assertion of legislative and judicial powers, as original in the civil and political organization, against the sole and ex- clusive prerogative of a king, to the exercise of all powers, has been indicative of the advance of freedom ; and the assertion of the distinction of all these powers, and their ampler development, has been indicative that the more perfect organization of the nation is in the realization of freedom. The distinction of the normal powers of the nation in its civil and political organization has been prin- cipally as the Legislative, the Executive, and the Judicial. 1 1 There have been various analyses of these powers, but their value is chiefly illustrative, and they have no correspondent historical justification. The de- scription of Locke, and of Montesquieu, and also of Hegel is, I. Legislative. Pouvoir Ugislatif. II. Executive, Pouvoir executif. III. Judicial, Pou- voir judidare. B. Constants added to these, IV. An intermediate power, Pouvoir moderaleur. This was an attempt to define more clearly their unity. The executive power has also been further divided into (a.) An administrative power, Pouvoir administralif ; and (b.) A supervisory power, Pouvoir in- spective. Trendelenburg designates four powers, vier functionen, I. The Govern- ment, Die Regie-rung. II. The Military power. III. The Legislative power. IV. The Judicial power. But it is obvious that the Military is not a power cor- responding to the other powers, since it is simply the organization of the physi- cal force of the whole; it is in subjection to the political power, and its neces- sary principle of action is that of entire subordination in the political whole. Trendelenburg. Naturrechte, p. 160. Bluntschli's description indicates the tendency of recent German publicists. The common distinction is criticized as too formal and abstract, as something \\ry and pedantic, and this also is the criticism of Stahl. In Bluntschli's state- ment the legislative power is necessarily precedent, and is over against all others and is regulative of them, but in the organization of this power, the Crown and the Parliament, or the President and the Congress form each an in- tegral and inseparable element. The powers are thus defined, as, I. The Gov- ernment, Die Regierungsgewalt, das Regiment. II. The Court, Die Richter- Hchegewalt, das Gericht. III. The Public Instruction, Die Statscultur. IV. The Public Economy, Die Wirthschaft. The presentation of these powers is given with great fullness of historical illustration. Allgemeines Statsrecht, vol. i. pp. 446, 503. THE NATION AND ITS NORMAL POWERS. 173 These powers in their origin and content are not deter- mined in some historical accident ; nor are they merely the expedient of human ingenuity, for which some substitute may be found in some other and better expedient, whereby, for instance, legislative or judicial functions shall be super- seded; nor are they the sequence of some formal law. They are the manifestation of that which is immanent in the organism of the nation. 1 These powers represent the will of the organic people in its civil and political organization. Their origin is in the necessary being of the nation, and their action is its normal process. The necessary characteristics of these powers may be traced in their structure. These powers are organic. They are not the mere inci- dent of the action of the state, their distinction is not acci- dental nor arbitrary. They are not merely an artificial contrivance ; their connection and their action is not as in some ingeniously devised mechanism, but as subsistent in the civil and political organism their action is unitary and organic, and in the civil and political development is their ampler organization. There is an abstract conception which represents the state as simple not complex, as arbitrary not natural in its structure, but the law of organic life appears in it also " More complex, is more perfect, owning more Discourse, more widely wise." 1 Kant finds the source and the necessity for these powers in the formula of logic, and they are presented as corresponding to its sequence. But they can have their ground in no formal or empty conception, either in logic or law ; their ground is in the organism of the state, that is, the political organism, and their correspondence is to its real constitution. The presentation of Kant is consistent, however, with his formal conception of freedom and of rights. Rechtslehre, sec. xiv. " The exercise of power, whether by an individual or a nation, is naturally divided into thinking, judging, and doing. Action implies all three : thought to originate, will and force to execute a conceived purpose, judgment to compare it with rules of conduct" Fisher. The Trial of the Constitution, p. 41. 174 THE NATION. The tendency which this conception constantly induces, in its correspondence with an empty and barren concep- tion of freedom, is to eradicate those institutions which have been established in the ampler organization of the state. 1 The substitute, when all are swept away, is the reconstruction of the whole after some abstract scheme or some formal design. But freedom is not found in the vacant spaces which this devastating force has opened, nor in the sweep of their bleak and windy plains; the as- sumption again combines the conceit of individual egoism with the limitless caprice in which freedom is feigned to exist. There is also a representation of these powers, as simply a well adjusted balance, when each is of itself negative or merely restrictive of the other. A trivial and superficial description of their origin and relation is formed after this pattern. The nation is represented as identical with the formal construction of its government, and described as simply an association of men under laws ; then a power to make its laws must exist ; and as some power is required to execute them, an executive is established ; and then as an arbiter is required between them to regulate and settle their differences, a judiciary is established. This repre- sentation is defective, since it fails to define the content of these powers and their relation to each other and to the nation, and their subsistence in the unity of the nation. It is also destitute of an historical justification ; there has been no people the process of whose government it could presume to describe. Its postulate i a formal and mechan- ical conception of the state. 1 " Nothing is more deceptive or more dangerous than the pretense of a desire to simplify government. If we will abolish the distinction of branches and have but one branch, if we will abolish jury trials and leave all to the judge ; if we will then ordain that the legislator shall himself be that judge ; and if we place the executive power in the same hands, we may readily simplify government. We may easily bring it to the simplest of all forms, a pure despotism." - Webster's Works, vol. iv. p. 122. THE NATION AND ITS NORMAL POWERS. 175 These powers are coordinate; that is, neither is so related to another, that it could be defined as in itself a negation, and as existent only as the instrument of another. Such a definition would make the action of a power mechanical, and would leave but one or two actual powers in the state. It would be incorrect to represent the judiciary as existing to receive the opinions and to justify the actions of the legislature, or to represent the executive as only the pas- sive agent and pliant tool in the hands of the legislature, and neither of them as having a determinate character of its own. Since these powers subsist in the organism of the whole, one cannot proceed from another, nor derive its content from another ; each subsists in the being and immediately in the sovereignty of the nation. They are, each in its own sphere, invested with the power and formal sover- eignty of the nation. Each is not determined from or through another, but, within the limitation of its necessary sphere, exists in the determination of the whole. Neither can assume to represent, in its isolation from the others, the sovereignty of the whole. 1 These powers are coextensive; they do not exclude each other, but each implies the other and the action of the other; and each acts in and through the whole. Thus, no individual and no section can be entirely isolated from them. These powers are correlative; not only neither has its ground in the other, but neither has its ground in itself; its ground is only in the whole. Since they subsist in the nation they cannot be regarded as isolated and self- subsistent, but as existent in a necessary correlation. They are not separate sovereignties, but each is subsistent in 1 "It should be remembered as an eternal truth, that whatever power ia wholly independent, is absolute also ; in theory only at first, while the spirit of the people is up, but in practice as fast as that relaxes." President Jefferson, Letters, Sept. 6, 1819. 176 THE NATION. the sovereignty of the nation in its unity. They are con- stituted not in a formal but an organic unity, and there- fore each is in necessary relation to the other, and is necessary to the completeness of the other. The common phrase, " a division of powers," may be- come the source of error and disaster. An actual division would imply the division of the nation itself, and the sever- ance of its sovereignty. The very assumption of a sole and entire sovereignty, by each or either power, would tend toward the dismemberment of the nation, through the ulti- mate strife of the one necessarily to subject the others to itself. The isolation of powers, neither of which subsisted in the sovereignty of the nation, but each of which, as com- plete and self-subsistent, held a barren sovereignty in itself, would make the realization of a national unity impossible, since the unity involved in sovereignty, would still strive to attain its necessary realization ; but this would become the occasion of conflict, and the actual and entire sover- eignty of the one power would be attained only in the subversion of the others. In the constant recognition of this fact there is the strength of each, and each is sustained in its normal action. 1 1 The argument in The Federalist has for its object the refutation of the as- sumption of the entire isolation and severance of these powers, it is the asser- tion of their necessary correlation. President Madison stated as its aim the prop- osition, " that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires as essential to a free government can never be duly maintained." The Federalist, No. xlviii. Of the consequence of their entire division Calhoun savs, " Instead of a gov- ernment it would be little better than the regime of three separate and con- flicting departments, ultimately to be controlled by the executive in consequence of its having the command of the patronage, etc." Calhoun's Works, vol. i. p. 374. There is no exception to this statement in the writings of any eminent mod- ern publicist. Bluntschli says, " The entire division of powers would involve the dissolution of the unity of the state, and the dismemberment of the political body." Allgemeines Statsrechts, vol. i. p. 450. " The error involved in the maxim * a division of powers ' is almost universally recognized in the science of politics, but it has not been until it has wrought the THE NATION AND ITS NORMAL POWERS. 177 There is thus in the government, no aggregate of powers, but the manifestation of an inner and an ideal unity as it exists in the sovereignty of the organic people. These powers are the distinct powers of tjie civil and political organism. There is for each a distinct func- tion. As the error which would isolate them is destructive of unity, so also the error which would identify them is destructive of freedom. They are distinguished in their nature, in their content, in their form and object of action, and in their institution. They are also vested in different persons. To identify one with another, so that its own normal action should be suspended and its content determined by another, would subvert the development of the whole. The distinction of these powers, in the organization of the nation, tends toward the realization of freedom. It is in the formation of these relations that the freedom of the people is established. When the organization is imperfect, when, for instance, the sole power is vested in a popular assembly which enacts the law, and then enforces and administers order under it, and judges all cases that arise from it, the result, in the construction of a power of unrelated and unlimited action, is an absolutism. And greatest confusion in theory and disaster in practice. It is refuted alike by the facts which have been adduced to sustain it, by logic and by the prudence of the state. Instead of the common endeavor toward the common good, it would result in conflict, and the antagonism of divided powers, and instead of stable freedom it would lead to anarchy." R. von Mohl, Encyklopadie der Staats- wi.ssenchaften, p. 112. See also R. von Mohl's Lilerateur und Geschichte der Staatswissenschaften, vol. i. p. 397. Stahl, Philosophie des JRechts, vol. ii. sec. 2, p. 198. Hegel, Philosophie des fiechts, p. 272. The interrelation of these powers in the constitution of England, in some re- spects, is one of its best results. The obligations of Montesquieu and of Hegel V) its study are well known. It is to be noticed that, their closer interrelation in- creases the actual power and capacity of the Parliament, through its ampler or- ganization. Thus the Parliament and the Crown together constitute the govern- ment ; and the ministers of the Crown are the members of the Parliament, and the judges sit also as members of the Parliament, but with no vote, and the action of each may modify but does not control the action of the other, and the realized sovereignty of the state is only in their unity. 178 THE NATION. when one power destroys the others, or assumes their offices and capacities, or usurps their functions, and there remains only the unrelated and unlimited action of a single and separate power, the consequence is again the same, the destruction of freedom. 1 In the French Revolution, the legislative destroyed the executive power, and then the executive in turn destroyed the legislative, and this subversion of the organization of the whole left the way open to an imperialism. The distinction in these powers is illustrated in the fact, that while in each there is a field for the highest attain- ment, the special qualifications for each are different. He who excels in deliberation, is often lacking in executive force, and a speculative breadth of thought often brings a larger hopefulness than is justified by events ; and he who is clearest and firmest in action may often be without largeness of discourse ; and each may be wanting in that fair judicial spirit which is open to all sides. These powers therefore are not to be vested in the same persons, since they are so distinct that each demands for itself an exclusive vocation, and their offices in the modern state are obviously beyond the capacity of the same per- sons. Their reference in their offices to different persons, who are resident in different chambers, is itself, in the careful maintenance of their distinction, a guaranty of freedom. These powers in their organization cannot be too strong nor too great, since they have their origin in the civil and 1 " Through Locke and Montesquieu, the great truth has been won, and it con- stitutes their undying renown, that the participation of the different ele- ments, in the exercise of the power of the state, and that too in its threefold functions, is the foundation of civil and political freedom; and on the other hand, when one and the same power, whether a prince or a popular assembly: alone exercises all functions, despotism is the inevita'ble result." Stahl, Philosophie des Rechts, vol. ii. sec. 2, p. 203. " The accumulation of all powers, legislative, executive, and judicial, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." President Madison, The Federalist, No. xlvii. THE NATION AND ITS NORMAL POWERS. 179 political organism ; but it is a merely formal conception, which is the premise of the phrase u an equality of powers." It assumes their division and then aims to establish their equilibrium, regarding them as external forces to be pitted against each other. This predication of a formal equality, as if between mechanical forces, fails of the necessary conception of the nation as organic. The phrase has no real significance nor consistent appli- cation, and it has to learn again the wisdom well nigh as old as the state itself, of the political fable of the belly and the members. In the political as in the physical organism, each member has its own functions, and the full and normal action of each is necessary to the normal action* of the other and the normal being of the whole. The representation of the equality of these powers has moreover no historical justification, and when they have been thus held and balanced against each other, the bal- ance has always been a varying and disturbed one, until in their entire separation, which the proposition assumes, an inevitable conflict has demonstrated the greater strength of some one power. Thus in periods when the people is summoned to meet insurrection or invasion, the strength of the executive is more manifest, while in the subsequent construction of order the strength of the legislature ap- pears. In these succeeding periods, the assumption of a formal equality of powers would tend to produce weakness or conflict, or to impair and retard the action of the whole. In the prudence of the state it is not the feigned or the constructive equality of the powers which should be sus- tained, but their necessary^ correlation, so that the action of each may promote and modify and not subvert the normal action of the other. The representation of these, powers each as the neces- sary restriction to the other is imperfect. It has its premise in the distrust of power as in itself evil, and implies not a 180 THE NATION. spirit of unity but of latent hostility and dread of each other. This proposition, as Hegel says, makes ill-will and aversion the foundation of the powers of the state. The result is also negative ; there is only the formation of a system of checks, which also require other checks with- out end. The object set before each power is to reduce the other to a negation ; their construction is the adoption of the economy of a political house that Jack built. Since each, to use the common illustration, is the offset to the other, each is to be placed as a makeweight in the opposite scale, but the balance, if evenly held, is a dead weight. It is constructive of nothing. Power implies energy, and each must act in its own normal conception, and is not to be apprehended primarily as restrictive of the action of the other. The character of these powers, and of their necessary relation to each other, appears in their relation to the physi- cal force of the nation, its military. This embraces some of the most important principles in politics, and in the administration of the state. It is evident at the outset, that the organized physical force of the nation does not constitute, in correspondence with these powers, a distinct power in the government, since instead of being constituted in the moral organism of the nation, it is the physical force wielded by the nation, and it is not existent in a sphere in which it is self deter- mined as are the necessary and normal powers, and the law of its action is that of subordination. It is the organized might of tjie whole, the nation in its unity and entirety ; in it men move in the highest personal spirit and freedom, and this is the root of valor, but the many as one, and therefore they march as an host, and with the accordance of music, and the ensigns and symbols of the unity of the nation. But its determination is in the nation in its political or- THE NATION AND ITS NORMAL POWERS. 181 ganism. Its members are citizens before they are soldiers ; if they were not citizens they would not be soldiers. Its action is in conformance to a strict discipline. The au- thority which immediately directs it is by command. Of the normal powers of the nation, it is evident that the judiciary has no immediate relation to the military, and the military has none to it. The action of the judiciary, is only through a constabulary. The executive is the head of the physical force of the nation, the commander-in-chief of the army and navy. This belongs to his office as the representative of the unity of the nation, and of its external sovereignty. The army and navy in actual service must also have a single com- mander-in-chief, since it cannot be directed in the field by a council or an assembly. But the executive, as com- mander-in-chief, is a part of the army, and in that capacity, as entirely in identity with it as any officer or private, and thus all that refers to the army and navy refers to him as officially included in it. If now this power of the executive as commander-in- chief were sole and supreme, the whole force of the na- tion would be constituted no longer necessarily in con- formance to law which is the normal expression of the will of the nation, but in subjection to a single individual will, and the result would be the institution in and over the nation of an imperial power. There would be in the formal constitution only a formal but not an actual limitation to this power, since on this assumption it could suspend the actual operation of the other normal powers. The power instituted would be imperial, whether hereditary or elect- ive in its origin. Its possessors might succeed each other as rapidly and irregularly as the elective emperors in the catalogues of the annalists of Rome, or each continue for a certain term of years or for lifo, but this would not change the character of their power. The subjection of the physical force of the nation, whose 182 THE NATION. principle rightly is that of subordination, to a single individ- ual will upon whose action there is in the organization of the whole no limitation, would tend to the subversion of the nation. It would no longer exist as an organism whose subsistence was in freedom, but there would be the sway of an individual will, to whose intent there was no limitation. The nation is constituted not in subjection to a single individual will, but in the organization of and the obe- dience to law. Its freedom and rights have their institution in positive law. Its force is to stand in and maintain the authority of law. To open before it another course would be the construction of a power which, in the exercise of its private opinion and fiat, would be above and separate from the law. The only and the ultimate authority which the nation recognizes is the law, and no citizen, nor soldier, nor lawgiver, nor ruler can be above and separate from the law. The clear discrimination of the military from the civil and political powers, appears first in the later periods of Roman history. In so far as it places the soldier before the citizen, or makes the duty of the soldier precedent to the duty of the citizen, it indicates the utter destruction of national life and the construction of a physical force which had no ground in a moral order. But in the higher organization of the nation, the relation of. the military the organized physical force to the law must be clearly defined. The imperialism which would leave it to the ulti- mate and unlimited control of a single individual will, also separates the soldier from the citizen, and is necessarily the subversion of the nation and its freedom. The military is therefore constituted and organized by law. Its immediate direction, which is by word of com- mand, is necessarily with its comniander or commanders, but the ultimate direction of the whole, as the organized force of the nation, must be through law, and by no com- THE NATION AND ITS NORMAL POWERS. 183 id can it be carried outside of the law. The ultimate di- ction then must be with that power, which, in the normal >rocess, alone can affirm its will as law. The legislature jrtainly cannot assume executive functions, and the im- lediate direction is necessarily with the executive, but the tecutive in the capacity of a military commander is in [entity with the army and navy and simply a soldier of the nation, although in rank the first soldier. The igislature is not to command the army, since its action in the form of law and not of command, but since the ssertion of the will of the nation is in the form of law id not of command, the ultimate direction must still be dth the legislative power, and the military can never be :ied beyond nor removed from its ultimate control. This object has been guarded and secured in many rays, and its constitutional guaranties and securities form amplest illustration of the relation of the legislative >wer to the military. The legislative power alone can leclare war 1 and as implicit in this, alone can conclude jace. The military in all its ranks, and in the person of a >rivate or captain or commander-in-chief, is immobile, until, regards the operations of war, it is called to act by the leclaration of the Congress. The legislature alone can provide for the common defense," 2 and " raise and sup- >rt armies." 3 The army and navy has no existence until the Congress shall form it. The legislature alone can pro- vide for the " organizing, arming, and disciplining " 4 of the army, and alone can "make rules for the government and regulation of the land and naval forces." 5 To its gov- ernment and regulations the whole force is necessarily sub- ject. There is no officer, who by command can authorize their violation, and no member, either officer or private, is exempt from their operation, and as a soldier the executive is subject to the government .and regulations which the Congress may adopt. The President certainly is the exec- i Art. I. sec. 8, cl. 2. Ibid. cl. 1. 8 Ibid. cl. 12. 16. 184 THE NATION. utive before lie is the commander-in-chief, and has power which is external to the latter office ; and no action by Congress in reference to the latter can encroach upon the sphere, or interfere with the immediate action of the presi- dential office. The legislature also alone can provide for the calling out of the military to " execute the laws, suppress insurrections, and repel invasions." 1 It alone has control " by exclusive legislation, in all cases, over forts, maga- zines, arsenals, and dockyards." 2 There is certainly in the executive the power necessarily in every nation, to call out its force to execute laws, to suppress insurrection, or to repel invasion, and this becomes his immediate duty in the supreme necessity, but the constitutional limitations to this authority become the evidence of the residence of the ultimate direction of the military in the legislature. The Congress alone can maintain the army, and furnish the means and munitions of war; it alone can "support armies," 8 and make all appropriations for their sustenance, and thus the very condition of their existence is in the act of the Congress, and in the house which is in the more immediate control of the people. It is thus only by an act of the legislature that any soldier of the nation, from the commander-in-chief to the private, may obtain a single requisition of the war-office, or own a sword or carry a gun. Then also the appropriation which the Con- gress may grant is restricted to the term, when it again is subject to the election of the people ; " no appropriation for that use shall be for a longer time than two years." 4 The legislative power alone has the ultimate determina- tion, as to the declaration of martial law, or what in sub- stance corresponds to it, the suspension of the habeas cor- pus. Martial law, in the celebrated charge of Cockburn, i Art. 1. sec. 8, cl. 16. 2 Ibid. cl. 17. Ibid. cl. 12. 4 Ibid. In the constitution of England, to which this clause correspon< the army and navy in this respect is subject to the Parliament, and Mutiny Bill, by which the army is organized, is limited in its operation one year, and is annually enacted at the session of Parliament. THE NATION AND ITS NORMAL POWERS. 185 C. J., is defined as u either the law of necessity, which will always warrant the use of violence by a state in self- defense, although the imperative nature of the case must be shown as a justification of the act, or on the other hand, military law to which soldiers alone are liable, and which is a system of fixed rules laid down by the articles of war ; beyond this," he adds, " there is no such law in existence as martial law, and no power in the Crown to proclaim it." i The power to establish martial law, in the latter sense, belongs expressly and exclusively to the Congress, since it alone can " make rules for the government and regulation of the land and naval forces." The power in the former sense must belong also in its ultimate determination to the Congress. The declaration of martial law in this sense, is in substance the same as the suspension of the habeas corpus, since each is the formal assertion of the right of the nation in its supreme necessity, the one being the form in which it is established in Germany, France and Italy, while the other is its form in England and the United States. The declaration of martial law, or the suspension of the habeas corpus, is the intermission of the ordinary course of law, and of the tribunals to which all appeal may be made. It places the locality included in its operation no longer under the government of law. It interrupts the process of rights and the procedure of courts, and restricts the independence of civil administration. There is substi- tuted for these the intent of the individual. To this there is in the civil order no formal limitation. In its immediate action, it allows beyond itself no obligation and acknowledges no responsibility. Its command or its decree is the only law ; its movement may be secret, and its 1 The Queen vs. Nelson and Brand. London : 1867. Martial law is defined as " the will of the general who commands the army." Digest, p. 130. Wai Department, 1866. 186 THE NATION. decisions are open to the inquiry of no judge and the in- vestigation of no tribunal. There is no positive power which may act or be called upon to act, to stay its caprice or to check its arbitrary career, since judgment and execu- tion are in its own command, and the normal action and administration is suspended, and the organized force of the whole is subordinate to it. The power which appears in the suspension of the habeas corpus is a necessary right. It is the assertion of the right in the supreme necessity of the state and in the imminent or immediate peril of the people to suspend the ordinary process of rights. It is the right of the nation which is precedent to the rights of the individual or the community. The inquiry has been, as to its residence, in the legislative or the executive power. The evidence of its ultimate residence in the former, appears in its nature, in its historical institution, and in the conditions in which it may be formed. It is a right of the nation in its sovereignty. But there is always implied in sovereignty the conception of law, and the legislative power is the only one which in its action can affirm its determination as law. Thus Blackstone says ; "sovereignty and legislation are convertible terms, and one cannot subsist without the other." This power, more- over, is the only one, the nature and method of whose action tends in itself to exclude the arbitrary. Thus, as the act of the sovereignty of the nation in its highest expression, it is to be presumed that this is not wholly withdrawn from the legislative power. Its reference to the legislature would also correspond with the residence of the sovereign rights of the nation, in immediate analogy with it, as for instance, the declaration of war. The government is, morever, in its normal structure, a government of laws. If then the legislature by its own enactment suspends the ordinary action of the government, there is still, in its ultimate conception, the continuance of THE NATION AND ITS NORMAL POWERS. 187 iw, and as the power from which the law proceeds de- by its enactment, the suspension and then the resto- tion of the habeas corpus, there appears still, in the per- lent and substantial order, the maintenance of law. act is divested of its apparent antagonism, and wears 10 longer the appearance of a civil cataclysm. But to the suspension of the habeas corpus to the executive, seems an immediate contradiction to the normal process of the nation and the subversion of its order. To refer this office to the executive might, in fact, occasion the negation of the other normal powers, as in their process they became subject to the single power in whose exclusive control this act was placed, and by whom it might alone be exercised. The form might remain, and the judicial power could still open its courts, but the act of the executive would decide if any might seek their pro- tection, and the legislative power could continue its ses- sions, but all laws might be rendered inoperative by the sole actual power, the executive, " the will of the com- mander-in-chief as general, commanding the army." It is not implied that, if the action were vested in the executive power, it would remove the other powers, since this would be the subversion of the organization of the nation, and the destruction of its constitutional order ; but this would not be requisite to its design, since the act of the executive, in so far as it might elect, would be, in fact, an absolute veto upon the action of the other powers, and would en- able the executive to avoid all laws enacted by the legisla- ture and all decisions of the judges. . If, moreover, the executive alone held this office, it would allow an individual to originate a condition of affairs, in which not only an individual will could act without control, but the will would be the same which originated the con- dition. The act and the whole subsequent power resultant from it, would be referred to the same department of gov- ernment, and that resident in an individual. It would not 188 THE NATION. be possible for a people to construct a broader highway for a tyrant to come in. It would concede the assumption of all power beyond all actual limitation, to an individual. The political body can scarcely contemplate the possibility thus, of the accumulation in the hands of one person of all its powers, beyond its normal control and in the cessation of its normal process. The whole body of rights, moreover, in which freedom subsists, both civil and political, is in the process of positive law, and to allow its suspension to an individual who then could alone determine the continuance of the period of that suspension, is not only what the nation could not concede, but it is a power which no member of the nation should possess, since the inevitable disaster which follows all arbitrary action is too great and the contingency of such action in the weakness and the aberration of the individual is too near. The highest guaranty of the freedom of the nation, and the prudent limitation to this act is in its being so con- strued that the suspension of the habeas corpus by one power shall require the immediate transfer of all authority under it to another and separate power. The legislature in suspending the habeas corpus does not assume the re- sultant authority, but refers it to the executive, from whom in its discretion, it may withdraw it. There is the necessity for the most careful and yet the most ample provision, for this act and the exercise of this right, in the constitution. It is a right of the nation in its sovereignty, and it has been held and exercised by every historical nation. There has been none but has been called to pass through crises, when the evil forces assailing its life and unity were so many, or their attack so sudden, that the omission to exercise it would be the abandonment of the plainest political obligation, and the impotence and crime of government itself, and might involve the ultimate and lasting subversion of all rights. And yet, since the THE NATION AND ITS- NORMAL POWERS. 189 legislature cannot always act with the immediate energy which may be demanded, and does not act continuously, in its supreme necessity, in the actual or in the imminent peril of the nation, it becomes not only the office but the imperative duty of the executive to assert it. But the action of the executive in its assertion is here subject to certain definite limitations ; firstly, it should assume under no pretense whatever control over the legislative and ju- dicial powers, to obstruct their organization, or to approach the persons of those in whom these powers are vested by the people ; and secondly, the legislature should be sum- moned, if not in session, it may be by the act itself, and the imperative necessity of it should be made to appear, and its justification presented ; and when the latter has been rendered, an act of indemnity may be granted by the legis- lative power, the process of whose action has been sus- pended, and the further conclusion as to the continuance of the suspension of the habeas corpus revert to the legis- lative power. 1 But the investiture of the legislative power with this right illustrates, also finally, the residence in it, of the ulti- mate direction of the military, since, excepting as the duty, with definite limitations, is for the moment imposed upon the executive, the legislature alone can call the military into action. There can be between these normal powers indeed no actual conflict, except in the most awful crime, 1 In the constitution of England, the Parliament alone has the power to sus- pend the habeas corpus, but, in the interval of its session, or if necessity demanded sudden and secret action, during its session, the ministers of the Crown have exercised the power; but it has been always followed by the solicitation of a bill of indemnity, and the consent of the Parliament has been held requisite to justify it, and since the statute 31 Charles II., this has been always asked and allowed. Sir Edward Coke said in the first Parliament of Charles I., of the king's claim of a .right to imprison, and of the decision of the judges, " What is it but tc declare upon record that any subject committed by such absolute command may be detained in prison forever? What dotn this tend to but the utter subversion of the choice, liberty, and right belonging to every freeborn subject in this king- dom? A Parliament brings judges, officers, and all men into good order." 190 THE NATION. and then, in the destruction of the organization of the nation by the very powers called to act in its constitutional order, the individual is thrown back upon himself, and each has only to remember that he is a citizen before he is a soldier, and only a soldier because he is a citizen. The more perfect organization of the legislative, ex- ecutive and judicial powers in the government is attained in the long historical development of the people, but their institution is the first object of the constitution. The immediate aim is that they shall not be severed, so that there shall be an isolation that induces alienation between them, and that they shall not be merged, so that their separate functions shall be impaired, but their con- struction is to conform to their nature and correlation. Since they are the manifestation of that which is immanent in the civil and political organism, the constitution may define, but, as it did not create, it cannot change their nature nor their attributes. They are not the product of a polit- ical empiric, and the ingenuity of no individual and no con- vention can make them other than they are. The change of these powers in the being of the nation would presume the change of the nature of the reason and judgment and will in man. They are as in a musical notation, where the separate notes are necessary to a full harmony, and yet these notes are not the creation of art, nor could art change them, and it is thus that the powers of the state are de- scribed by Shakespeare, "as converging to one natural close, like music." The constitution is to describe these powers and their limitation, but their strength, in which each is involved with the other, is in their construction, according to their unity and necessary correlation, and their formal description apart from this will not avail much. Their action can be determined in the words of President Madison, by " no mere demarcation upon parchment." Mr. Hamilton says, also, THE NATION AND ITS NORMAL POWERS. 191 *'as all external provisions are found to be inadequate, the defect must be supplied by so contriving the interior struc- ture of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their places." l The sphere of each in its limitations is to be so construed, that the legislature shall not execute its own laws, nor de- cide in a conflict of rights under the laws; and the ex- ecutive shall not decree its own will as law, nor decide in a conflict of rights ; and the judiciary shall not establish its opinions as laws constructive of the political order. The legislature alone can enact laws, and its act, by the veto allowed the executive, is detained and restricted, but it is not imperatively determined, and its enactment is to be thereafter enforced by the executive, and to be applied by the judiciary in judgment on cases where controversy arises under the laws, but the legislature cannot assume the ex- ecution of laws, nor intervene to conduct their immediate administration ; it can not render judgment between parties, nor forbid a judicial procedure so as to impair the vindica- tion of rights, and the only case which can be brought before it, is that in which the sejiate is constituted as a court, if the people shall appear With charges against the executive or the judges. The executive is to execute and administer the laws, and it has in its veto the qualified restriction of legislative action, and is to communicate to the legislature whatever may concern the state of the nation, but it can- not be summoned before the legislature, except on the pres- entation of charges for its impeachment. The judiciary has its province most clearly defined, since its action is in judg- ment, and judgment is only of force as the expression of conviction, and as subject to no external control; its decision in all cases is final of those cases, and in its final judication is open to no revision. These powers in their organization are to be shaped l The Federalist; No. ii. 192 THE NATION. through history, in the patient toil which will care most that nothing of value received from the past be allowed to perish, but will hold their construction in any moment as very far from perfect. The interrelation of the powers is to be so denned, that neither shall be isolated from another to become its oppo- nent, nor subjected to another to become its instrument. The action of either, when, in its alienation, it becomes the impediment to another, will result in the weakness of the government, and tend to the corruption of the whole. If their interrelation is not clearly defined and established, there will be, through vagueness, a greater risk of diver- gence, or their action will proceed without dignity or decent respect, or through irregular channels, or with undue influ- ences. There will be the resort also to special and temporary devices and contrivances by the one power to hinder or control the other. While the mode of communication be- tween them is not clearly established, slight and irreg- ular means will be introduced. Then the condition of affairs is ascertained through private channels, or the casual testimony of investigating committees. The exec- utive becomes only the man at the other end of the avenue ; but the legislature is then only a crowd of men at this end of the avenue. The confusion is increased, and the relative strength of the powers is disturbed by the neglect of the legislature to organize a civil service, so that the executive has a vast preponderance given to it in certain in- tervals. But the most obvious danger is in the too wide separation of the legislative power from the executive and the judiciary. The isolation of the latter from the legisla- tive power, becomes the source of indifference in the legisla- tive power to them, and then of their weakness, and in the ' consequent disorganization, there is the defect of the whole. : Thus Stahl says, " the complete isolation of the executive j strips it of everything and makes it the tool of the legisla- j tive power." THE NATION AND ITS NORMAL POWERS. 193 The high offices of a minister of a department of admin- istration, are imperfectly organized. Their growth and number are beyond the provision of the constitution, and are to be determined in the historical necessity of the state. While their immediate relation and administrative respon- sibility is to the executive, they are more than merely its registrars. It has been suggested that the ministers of the executive, in conformance to some modern political consti- tutions, should sit in the chambers of the legislature, but without a vote, and a member or attorney of the judiciary should also sit with them, but without a vote. This might improve legislation, since it would give to the legislature a higher strength in its ampler and more complex organiza- tion, and aid toward the removal of the breach between the powers, and open clear and definite means of com- munication between them, instead of the vague and in- definite, and therefore perilous ways which now alone exist. The legislative, executive and judicial powers, in their formal organization, constitute the government. The legislature is the precedent power in the govern- ment. Since the government is of law, and the assertion of the sovereignty of the nation is in positive law, the power which can alone constitute its determination as law, ! in its relation to the other powers, is necessarily precedent. [t is not, that these powers do not each subsist immediately I in the sovereignty of the nation, and it is not, that the other Dowers are subordinate, since the action of each T in its own jphere, can neither be directed nor determined in its con- ;ent by another ; but in the normal process the inception )f civil and political action is in the legislature. It is lot the power which executes the law, nor the power vhich interprets the law in adjudging cases under the aw, but the power which in its nature can enact its will is law, that in the formative process is precedent. The legislative power has the definition of its sphere of 13 194 THE NATION. action and the enumeration of its special powers in the formal constitution, but the objects of its action exist only in the change and circumstance of history. It alone is con- structive, and alone can act with a reconstructive power in the historical crises which come to every nation, for which it is not in the capacity of a formal constitution to provide, and for which it could no more prescribe than it could predict the circumstance of history, epochs which no individual prescience could anticipate and no expiring convention could forestall. The political course is not to be shaped by an executive decree, for this, apart from law, is authority for no man, nor by a judicial decision, for this has only a revisionary power, but in the process of law, and therefore by the power which alone can enact its will as law. The recognition of authority, in the formative course of the nation, in any other form than as law is anarchic, and is the inauguration of an imperial power. It is to law alone that every individual, both the power that makes and the power that executes the law, is subject. The distinction between the constitution and the laws is indeed fundamental ; but it is to be considered that the formation of the constitution is in its nature a legislative act, as the constitution, when formed, is the supreme law, and every amendment is also in its inception a legislative act. The legislative power is regulative of the order and organization of the other powers, in so far as this is not defined by the constitution, but is left to be determined in the continuous process of the state. The other powers, in- deed, subsist with it in the organic constitution. It did not create them, and it can neither nullify them, nor assume their functions. Because they are subject to its action as law, it does not follow that they are subordinate to it, since it also is subject to law ; this does not reduce the executive simply to an instrument of its intent, and the judiciary to a registrar of its opinions. 1 1 " To prevent collision in the action of the government, without impairing THE NATION AND ITS NORMAL POWERS. 195 There is also, in the representative structure of the legis- lative power, a vested authority, in relation to the other powers, which they have not to each other nor to it. Thus, on an alleged violation of his trust, it may summon an executive or a judicial officer before it, and if a high crime or misdemeanor is proven, he may be convicted by it ; but no other power has a corresponding office, and it alone can judge its own members, and determine their qualifications. It also holds those who are to fill the i judiciary subject to its confirmation, and a vacancy in the executive, in certain circumstances, may be filled by it, but if any occur in itself, it must be referred immediately ito the people. It also is to receive from the people the announcement of an election of the President, and to induct him into office. The more perfect structure of the legislature has been jthe index of the progress of the political spirit of the peo- ple. In the higher political development its organization [has become ampler and it has embodied more varied ele- ments of strength. This has been the principal aim of modern political constitutions. The effort has been also to make it more free, and less subject to repressive legisla- tive codes and rules, without impairing its power of com- ing to a conclusion. But the construction of the legisla- I'tive power, its history, its order, its system of rules, the ! number of which it should consist, the form of election, the duration of office, the dual system of houses, and the :like, is a special study. 1 , :he independence of the departments, all discretionary power was vested in the legislature. Without this, each would have had equal right to determine what Dowers were necessary and proper to carry into execution the powers vested in t, which could not fail to bring them into dangerous conflicts." Calhoun's Works, vol. i. p. 346. Bracton said, " The king ought not to be subject to man, but to God and the aw." Christian cites Year Books, 19 Henry TI. 31: " The law is the highest nheritance which the king has: for by the law he himself and all his subjects ire governed, and if there was no law there would be no king and no inheritance." 1 Bluntschli says, but it is to be noticed that the executive is regarded as in- 196 THE NATION. The executive is the power to which belongs the exe- cution of the laws and the administration of affairs. It is in immediate direction of all the departments of adminis- tration. It is the head of the army and navy, and in command of them for internal order and external defense. But the name the executive imperfectly indicates the character and dignity of the office and even its relation to the other powers. While it is entirely in subjection to law, and cannot pass beyond the law, it far transcends the office of a merely executory instrument of the legis- lature. Nor can it be described even as the exclusive executive, since in the ordinary course of affairs the law is not executed, but is pronounced and applied by all concerned, or more strictly, the law may be said to exe- cute itself, since the proclamation is presumed to be iden- tical with the execution. 1 The name still less indicates its relation to the judicial power, since the execution of the judgment of the court is in the immediate authority of the court, which acts through its own constabulary, and it is only in its discretion that it may call for the aid of the executive. While imperfectly denoting the relation to these powers, the name is itself dry and formal, and sug- gestive rather of a pedantic and scholastic distinction; there is in the office a far larger conception that embraces higher duties and trusts. It is representative of the unity of the nation, and its unity in personality. It is therefore vested in one person. It is representative of the majesty of the nation, and it is to preserve and protect and defend the constitution in the unbroken supremacy of law. It is representative of the tegral with the legislative power, " Die gesetzgebende Gewalt bestimmt die Stats- und-Rechts-'ordnung selbst, und ist ihr hochster, das ganze Volk umfassender Ausdruck. Alle andern Gewalten iiben ihre Functionen innerhalb der beste- henden Stats-und-Rechts-ordnung in einzelnen concreten und wechselenden Fallen aus."< Allgemeines Statreckt, vol. i. p. 452. 1 The signature of the executive is always presumed to be upon a law, and indicates something of its necessary relation to the legislature, and while it is only a form, it yet has a significance, and would be insisted on by one who guards the executive office. THE NATION AND ITS NORMAL POWERS. 197 organized might of the nation, the power of the nation in its totality. It is therefore the head of the army and navy. It is representative of the nation in its external sovereignty, and the nation acts immediately through it, in its relation to other nations. It is through it alone that all communication with other nations proceeds, and it alone is to receive ministers and embassies from them, and is to send its own to them. It is representative of the nation in its unity, beyond all interests and sections and factions and parties, and is in identity with none of these, but in immediate relation to the people in its entirety. It is representative of the relation of the nation to every person who is a .member of the nation. This has had no higher exemplar in the life of nations, than President Washington and President Lincoln. They kept a conscious relation to all, and they heard the petitions of all the people. In the conscious life of a free people, it is a power which is not left to be determined if that word may be applied in this connection by any accident, and it is not restricted to a single line of family descent, but he who is called to it is to be called of the whole people. There is no form in the barbaric constitutions, and no type drawn from the confusion of the changing conditions of the feudal age so noble as this, in which the nation is manifested in its i moral being, and no imperialism has such elements of strength as this, in which there is the representation of the I nation in its conscious purpose, and in the recognition of ! the majesty of law. The inauguration of its power, is I the expression of the conscious determination of the peo- ple, and in the fulfillment of law. It is to guard the unity of the nation, and to protect the people and the land in all perils. Since the judicial power is withdrawn by its process from immediate action, and the legislative power is without the continuous action and i the capacity for immediate action, which some sudden or imminent peril to the nation migHt demand, it becomes its 198 THE NATION. duty and power, in the emergency, in the defined limits of the constitution, to suspend the habeas corpus, and to call out the armed force of the nation ; but the provision for this act is to be so clear that it may not become in itself a source of peril. It represents the might of the whole in its relation to the individual, and in it the nation stands forth in its unity on the approach of insurrection from within or invasion from without. It holds for the individual the power of pardon, and this is always its prerogative. There has been through all the conflicts of history the exhibition of no quality in the sovereignty of nations, which does not belong to it, and there has been no tyranny but is alien to it. Its authority is in the supremacy of law and its power is in the majesty of the nation. " The phrase is, the king can do no wrong, and it has a deep signifi- cance in the assertion of the sovereignty of the nation as subsisting in its being as a moral person ; and every act which does not proceed from this, or is in variance with this, is unkingly. 1 The construction of the executive power was widely considered in the formation of the constitution. The con- ditions of its organization were, that he who was called to it should be called from the whole people, and that it should be left to no accident. There was the suggestion of various forms, as its entrustment to an elect council, or to a person elected from the legislature and responsible to that, and its duration for life or for different terms. The proposition adopted was its investure in one person, elected by a college, which was elected by the people; and the term of office, open to a reelection, was four years. The project of an electoral college failed, continu- ing only as a form, and it remains as an illustration of the want of inherent strength in a constitutional form which 1 " He that does injustice dishonours the king." Samuel Mulford, 1714 Doc. Hist, of N. Y. vol. iii. p. 371. THE NATION AND ITS NORMAL POWERS. 199 does not correspond to the purpose of the people, since in every election some name has been immediately before the people. This course alone has an historical justifica- tion. It has been truly said, that the people can best appreciate great services to 'the nation, and great qualities in action, and they are without the envy and the prejudice of the narrow circles of cliques and parties, and no sepa- rate interest as of a certain family or a class prevails with them, and they are indifferent to the private ambitions of great men. The executive power in its organization is vested in one person, and no other form is consistent with it. The plan of an executive council was sustained by Milton in his description of a free state. It was the constitution of the executive in the triumvirate of Rome ; but its inter- nal dissension illustrated the defect of a plural system. It was established in France, in the directory of five ; but the want of unity and decision, and the variance in this collegial rule, opened the way to the power of the First Consul. There is an inevitable weakness in the assumption of executive power by a college, as a senate or parliament. The higher organization of the executive power comes in the historical development of the people, giving to it greater strength, and a more perfect correlation to the other necessary powers in the nation, and its better con- ception is gathered from the work of those who fill it best. The judicial power has its sphere in the interpretation and application of laws in a conflict of rights. It renders judgment in a controversy in law between man and man, and man and the state. Its conclusion is an opinion in pursuance of which decision is made, which is final in respect to the status of the parties concerned. In order to its action, a case must be laid before it, and judgment is given between parties in dispute. Its procedure is in a court. 200 THE NATION. It is withdrawn from the military, and can execute its decisions only by a constabulary. " The judiciary," says Mr. Hamilton, u has no influence over either the purse or the sword ; no direction either of the strength or of the wealth of the society ; and can take no active resolution whatever. It may truly be said to have neither force nor will, but only judgment." Its decision is not a law, but a precedent from which its subsequent action in all corresponding cases is pre- sumed, but by which it is not imperatively determined. Its decision is a finality, in the case considered, and is beyond even its own revision. It would be a digression to inquire into the nature and philosophy of a precedent in law ; but as the conception of rights is widened in the increasing freedom of the people, and courts change, and the wisdom of the application of the law is not perfect and does not reach a finality, it may follow that precedents are annulled or avoided with the process of time, as with the action of courts ; and yet, in a conflict of rights, a prece- dent is rightly presumed steadfast, and to settle affairs for all time. The inquiry of special importance as to the judicial power is in reference to its relation to the other powers, and the political sphere which has been assumed for it. The organization of this power, in conformance to its nature and end, is judicial. Its structure is that of a bench of judges, and not of a representative order. It is estab- lished as a court, and not as an assembly of the people. If it were invested with positive political power, it would necessarily be formed as representative in the political constitution ; if it were invested with ultimate political power, it would be formed from and of the whole political people. In the election of those who were to ex- ercise its office, the people would not be restricted to a single profession or class, as that which is variously described as solicitors, proctors, attorneys, counsellors, THE NATION AND ITS NORMAL POWERS. 201 lawyers, but it would be composed from the whole people, and from them there would be drawn scholars and artisans, and farmers, and tradesmen, and economists, who, no less than lawyers, have their sphere in the process of the polit- ical people, and are to act in its decision. The concession to the judiciary of an ultimate decision in the political sphere, would be the reference of the des- tination of the state to a regime of lawyers, and, as it is now organized, to a power which is not responsible to the people, and holds its position for life, and whose action is a precedent which is presumed to be final and beyond rever- sal, and whose opinion is a decision from which there is no appeal. Then the historical progress of the people would be traced no longer in the better institution of rights, and the broader freedom, and the more varied organization of its powers, but in judicial decisions rendered, it may be, upon feigned issues and pronounced over contending litigants. Then the crises in the political life of the people would await for their event, the process by which a case could be made up and brought into court, and the development of the state would be shaped by an exclusive profession or class, and that one which is of all the most superstitious, and superstitious of the letter. It is the poet, and not the historian of laws, who says that freedom broadens from precedent to precedent. The nation also exists in the conditions of an historical development, and therein is the on-going of its power, but the action of the judiciary is retrospective. It is invested with a revisionary but not a constructive power. It can only consider a case which is brought before it, and pass judgment upon that. It is, in the rendering of judg- ment on a case, to say what the law is, but not to say what the law shall be. The formative political power be- longs only to the power which is representative of the political will. The form and procedure of thfi judiciary also precludes 202 THE NATION. its exercising an ultimate political determination of the destination of the political people. It is incapable of the functions which the proposition demands. " It is," says Kent, " to determine the supreme law whenever a case is judicially before it." The fact that its action is limited to the case before it, is the evidence that this power is beyond its capacity. The vastest changes and crises might follow in swift succession, and yet give rise to no case, nor involve in a special controversy, contending litigants. The actual course of events would not await the constant construction and conclusion of feigned issues, and yet, the judiciary is silent, until the consideration of a case opens its lips. These feigned issues would also render the house of judges only the moot court for the examination and trial of political theories. The construction of feigned issues by the legislature, which it is to refer to the judiciary, is indicative of the bias of jurists, and not the constructive grasp of statesmen. It would be as consistent, in the difference of opinions by the judges, to refer the conclusion to the legislature. It would involve peril, also, in the subversion of the integral character of the legislature, since, while it might avail as a temporary device, there must be but one power to enact laws, and this power can suffer no evasion of its responsibility. The reference of this office to the judiciary is inconsistent with the normal institution of law in the political organism. In the political order law subsists in the consciousness of the political people. The determination of the individual must be the assertion of a conscious power, and obe- dience to the law must be a conscious act. Therefore the deliberation of a political assembly is public, and the law is published and presumed to be in the knowledge of all. But the formation of judicial opinions is private, and the study of these opinions and precedents, and the examina- tion of the decisions of courts, demands the prolonged and laborious research of an exclusive profession. To allow to THE NATION AND ITS NORMAL POWERS. 203 these opinions and precedents the ultimate determination of the political order, is to dissever it from its basis in the conscious spirit of the political people. It is as if the laws were to be hidden in costly and obscurely written tomes, and required the interpretation of a special craft. They would be as completely withdrawn from the conscious life of the people, as the laws of the tyrant which were recorded, but so high that none of the people could read them. The special scope of the judiciary is indicated also by the qualities demanded for it in contrast with the work of the statesman. These qualities can only be described as judicial. The breadth of thought and the prescience of the statesman have not in the judiciary their immediate field. But the opinions of the judiciary cannot be regarded as the power determinative, in its ultimate action, of the des- tination of the state, nor accepted as the finality in its course, since this would be inconsistent with its existence in the realization of the freedom of the people. To make the opinions of the judiciary a finality in the political order, would fetter the free spirit of the people, confining it, not in the assertion and recognition of law, as the determination of the organic will, but in the conformance to a mere legality. The past by its precedents would im- pose its authority upon the present. The energy of the people perishes when precedents become the substitute for the action of a living will and the strength of a living spirit. The Israel which once had kings and prophets, has then only Rabbis of the law. 1 1 " The law spoke to each man individually, bound him to his fathers, bound him to those who should come after him ; it united him to every member of his nation. Suppose that law reduced to a mere collection of letters, written on stone or in a book, yet invested with all its traditional sacredness; suppose it changed from the witness of a nation's vitality, into the witness of a glory that has departed ; suppose a set of men possessing hereditary claims to reverence, untiring diligence, much acuteness, devoting themselves to the task of expound- ing this law, suppose this and you have probably the best conception you can get of the Rabbinical casuistry, and its immediate influence upon the min^ of a people, crushed and fallen, but full of grand memories, seldom quite de- lerted by an inspiring hope." Inaugural Lecture, by the Rev. F. D. Maurice Cambridge, 1866. 204 THE NATION. There is a proposition connected with this which refers to the judiciary, the preservation of the constitution, as an exclusive province, regarding its final interpretation as obligatory upon the other powers, and placing it as an arbiter over them, to confine them in their constitutional limitations. This also is inconsistent with its character, and is an office which belongs to no separate power, and involves a misconception of the relation of each and of the whole. It is in its province to interpret the law in every controversy in rights which is brought before it, and it may hold a law invalid in a certain case, because in con- flict with the constitution which is also a law, and to which every enactment of the legislature must yield. Its decis- ion is final only of the case in controversy, although held to apply to all corresponding cases. Its decision is to be received by the executive and by the legislature with the highet deference, but it is to be accepted by them, in their action, only in so far as their judgment may approve and confirm it. The judiciary would also fail as a final arbiter, since no power is constituted to act as arbiter over the others, but each is to conform to its own normal sphere, and the avoid- ance of conflict is to be found only in their interior struc- ture and their interrelation in the whole. This would also impose upon it a duty which it could not fulfill ; it would refer the final arbitrament to the inherently weaker power. It is withdrawn from the military, and has the least ability to enforce its decisions. Its endeavor would be futile, since the mandamus of the court, if issued to the President or the Congress, would of necessity be disregarded. To ascribe this province to the judiciary and to impose its decision upon the legislative power as a finality would make the latter subordinate. The judiciary would control the legislature, and its opinions might become the substi- tute for laws in the political order, and its decisions super- sede legislation. It would be as consistent to give the THE NATION AND ITS NORMAL POWERS. 205 legislature the revision in certain cases of the opinions of the judiciary, and to make that revision obligatory. The reference of this province to the judiciary is a polit- ical solecism, and has no historical justification. Its only parallel would be the power of rabbinical opinions, in the decay of the national life of Judsea, and the influence of the jurisconsults in the decadence of Rome. Blackstone, in defining this assumption, says, " To give to the courts the power to annul the laws of parliament were to set the judicial power above that of the legislature, which would be subversive of all government." l It would be also an imperfect arrangement, since the judiciary, when involved in a conflict, is left with no arbi- ter over it, and there is no provision against its encroach- ment upon the other powers, and its assumption for instance, of legislative functions. It places an arbiter be- tween two parties; but it is a third party and is also concerned. Story says, " a declaratory or prohibitory law would be the remedy ; " but the judiciary alone would be the interpreter of this law, and might set it aside, and in a decision beyond appeal. To allow to the judiciary a decision upon the validity of a law itself, .and that before it had involved a wrong to any, would give to the judiciary an absolute veto upon the legislature. It would have no parallel except perhaps in tne tribunitial veto in Rome, 2 the ultima jus tribunorum 1 1 Bl. Comm. 91. 2 Argument of the Attorney General, 1867. The exclusion of the judiciary from the constructive political power of the nation, has been recognized in an opinion of the Supreme Court. It states that when the national government acts, for instance, in reference to the concerns of a commonwealth, " the constitution, so far as it provides for an emergency of this kind, has treated the subject as political in its nature and placed the power in the hands of that department," i. e. the legislature. It continues, " its decision (f. e. the legislature's) is binding on every other department of government, and cannot be questioned in a judicial tribunal." Luther v. Borden, 7 Howard's R., 1. " Invested with political power to keep the other departments in their pre- scribed limits, such a doctrine must destroy the judiciary. The people will not bear a political power which is independent of their control. If the judici- 206 THE NATION. of the republic, and the illustration still would be imper- fect, for the tribunitial power was of the people and was held only for short periods. The decision of the judiciary is authority in all courts, and this is necessary to the unity of a judicial system and the uniform interpretation and application of the laws ; 1 but the decision is in no respect binding as a rule of legis- lation upon the legislature. The judiciary demands for its strength exclusion from all legislative and executive functions. It has the indi- cation of its independence in the tenure of its office. It is not a representative body, and therefore is not to be constructed as representative. The call to it is to be from the government of the nation, in its authority. It demands also exclusive qualifications, and the study requi- ary exercises such power it must become representative, which is the nature of all political power under free institutions. A branch of government which can dictate to the legislature is legislative." Fisher, Trial of the Constitution, p. 82. " By the Constitution of the United States the President is invested with cer- tain important political powers, in the exercise' of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties he is au- thorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases their acts are his acts, and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists and can exist no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being intrusted to the executive the decision of the executive is conclusive." Marbury v. Madison, 1 Cranch's R., 137. " The Supreme Court of the United States, like all other courts, is simply a court of judicature, to decide controverted cases, in law, equity and admiralty, that are! brought before it by actual litigants. It is not charged with any special func- tion conservative of the constitution, like the so-entitled Senate of the French Constitution of December, 1799. In cases before it the Supreme Court has no other jurisdiction over constitutional questions than is possessed by the hum- blest judicial tribunal, state or national, in the land." " The court does not formally set aside or declare void, any statute or ordi- nance inconsistent with the constitution. It simply decides the case before it according to law, and if laws are in conflict, according to that law which has the highest authority, that is, the constitution." Wheaton's International Law, Dana's note, p. 79. 1 " And the judges in every state shall be bound thereby, anything, etc. Art. 6, sec. 2. THE NATION AND ITS NORMAL POWERS. 207 site to its higher attainment often withdraws men from direct intercourse with the people. The judiciary must always resist in so far as it can, arbitrary action or usurpation in every form and by every power ; but it is not invested with superior or special func- tions for this end, and its resistance is simply that which belongs to every degree of power. The judiciary has, in fine, no power of origination, but only of judgment and comparison. But it subsists in the nation in its sovereignty, and therefore, while it is not con- stitutive of the political order, it has not merely a formal relation to it. Though it cannot make its opinion a law constructive of the political order, because then it would be a legislative power, it is yet in its sphere to interpret and apply the law. It cannot determine what shall be the law, but only ascertain and define what is the law. The fact that it is to interpret and apply the constitution as law, and then also the laws of the legislature, has been the occasion of the advancement of the judiciary, and of the reference to it of public or national law. If it be allowed that nations stand related and their rights and powers and obligations are comprehended in public or national law, as individuals stand in their private relations in common law, it is then in the apprehension and explication of the former that the province of the national judiciary appears. And the strength and consistency of the judiciary in its his- torical course has been in the fact that it recognized the necessary being of the nation, as subsistent in the sphere of public or national law ; and its greater decisions were formed in the conception of the nation in its necessary being, the organic power which in its sovereignty asserts itself in the constitution, and enacts its will as law. 1 The 1 The illustration of this is, for instance, in the decisions of Gibbons v. Ogden, Martin v. Hunter's Lessee, Luther v. Borden, McCulloch t. Maryland, Ogden v. Saunders. The constitution is interpreted in no exclusive or restrictive sense. " It did not suit the purposes of the people, in framing this great charter of our liberties, to 208 THE NATION. office of the national judiciary is necessarily the explication of those principles, in which the necessary being of the nation consists, and in which alone national rights and powers can be construed. The terms of the constitution which presume the being of the people, and the law as the expression of its organic will, can only be rightly con- strued in conformance to the necessary conception 'of the nation. It is certainly to allow the proper authority to the historical interpretation of law ; but this can be only as it apprehends the actual history of the nation, and in so far as it substitutes for the actual facts in this history, its own abstractions, its opinions will become as worthless and vain as all abstractions are, which cannot be allowed to thwart or to stay the organic course of the people, and the real- ization of its historical life. The earlier decisions of the Supreme Court were characterized by their profound and lofty conception of the nation. There was, in that period, in the varying conflict of rights, a conception of the na- tion, its being, its rights, its powers, its capacities, which places the names of the earlier justices by those of the earlier presidents. Chief Justice Marshall is second only to President Washington, and the services of Mr. Justice Wilson were no less than those of Mr. Secretary Hamil- provide for minute specifications of its powers, or to declare the means by which these powers should be carried into execution. Hence, its powers are expressed in general terms, leaving to the legislature from time to time to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers as its own wisdom and the public interests should require." Martin r. Hunter, 1 Wheaton K. 304. " This instrument contains an enumeration of powers, expressly granted by the people to their government. It is said that these powers ought to be con- strued strictly. But why ought they to be so construed ? Is there one sentence in the constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all oth- ers into execution, Congress is authorized to make all laws which shall be nec- essary and proper for the purpose. But this limitation to the means which may be used is not extended to the powers which are conferred, nor is there one sen- tence in the constitution which has been pointed out by the bar. or which we have been able to discern, that prescribes this rule." Gibbons v. Ogden, 9 Wheaton R. 1. THE NATION AND ITS NORMAL POWERS. 209 ton. In their decisions, there is the foundation of a na- tional jurisprudence, which Kent has justly described as " a solid and magnificent structure." It is in later decis- ions that a provincial theory or a partisan scheme or a narrow legal dogma succeeds to that high conception of national powers and rights ; it is in recent decisions that there is displayed the conceit of a power, which in its his- torical interpretation may ignore all the facts in the history of the nation, and proceed to determine the issue of the gravest historical crises, by the application of certain pe- dantic formulas, which the spirit of the people does not know nor recognize. The legislative and executive and judicial powers, in the exact significance of these terms, are but imperfectly de- nned. The distinction has a scholastic style, and is sug- gestive rather of the terminology of science than of the powers in the civil and political organism. These phrases become the occasion of error, when they are assumed to define powers which have not their source in the organic unity, and their development in the organic relations of the nation. When they are described as proceeding from a formal law, it has been truly said that they make of the nation only a great law machine, and the government a necessary contrivance for making laws, where one power institutes the law and a second executes and a third applies it. But these powers, in their immanence in the civil and political organism, and in their institution in the realization of rights and of freedom, transcend this empty conception. There is beyond these terms a significance in the words which always will denote these powers with the people, the Congress, the President, the Judges. 14 CHAPTER XII. THE NATION AND ITS REPRESENTATIVE CONSTITUTION. THE sovereignty of the nation has its normal assertion in representative government. The representative prin- ciple is illustrative of the higher political organization. The representative constitution is the realization of the sovereignty of the nation in its necessary conception as a moral organism. Government is necessarily of and through a person. There is in its action the assertion of personality, and sovereignty is existent as the determination of personality. In the normal process of the nation in its representative organization, in whom does its sovereignty rightly exist? The common answer is in two forms : Firstly ; it is said that it is existent in the whole people. This embraces each and every individual in the nation, with no further discrimination. This is merely indefinite, and can admit of no actualization. It does not presume even the consciousness of a political unity and order, which is the precedent and condition of the action of the political will. It does not ascertain a real sovereignty. It is phys- ically impossible, since the whole population comprises a certain proportion who are not capable of performing what the proposition presumes. It is unhistorical, since there has existed no political organization where the power was held in common by the whole population ; some law regu- lative of political action in the consciousness of the people must be assumed. The proposition is inconsistent with the organic and moral being of the nation, and has its premise in the conception which identifies the contiguous population in a certain locality with the nation. THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 211 Secondly ; it is said that it is existent in the qualified electors. But who, in the normal representative consti- tution, are qualified ? What qualification may be rightly assumed by the nation as defining an elector ? It is said that the nation of itself has a right to define the qualifi- cations of its electors. This is evident; for as the act of the elector presumes the being of the nation, and the consciousness of unity and order, that is a political spirit, so the nation alone may define the qualifications of its electors ; and the act then of the elector is that of one in whom there is the political spirit which subsists in the nation. The act of each the nation and the elector is primarily involved in the other, there is a logical, but not a formal, precedence. But since, then, the nation alone has the right to define the qualifications of its elec- tors, in what principle may it rightly proceed to define them ? In what principle may it ascertain the real sov- ereignty of the nation, so that in the designation of its qualifications its sovereignty may have full and free exposition? The nation cannot be left to define these arbitrarily, since that would contradict the reason of the state, and would imply injustice in the nation itself; its process would become the expression of the willfulness of men, not of the will of the people. It cannot be pre- sumed that they are to be left for their definition to the adjustment of accident, since the conception of sovereignty precludes this; and the nation can allow no accident to shape its course or determine its end. In what principle, then, is the nation to proceed in its representative constitution, in the realization of its sov- ereignty? This inquiry may be carried further. What is the quality of the act of an elector for which qualifica- tions are requisite in order to define it? In other words, what is a vote ? A vote is the formal assertion, in con- formance to certain political prescriptions, of a free will in the determination of the government of the civil and polit- 212 THE NATION. ical organization. It is the act of a person in the political process of the people of which he is a member. A person is one who has a free will, one whose action is free and self-determined. This is the substance of personality, and in this personality is in identity with sovereignty. The c, existence of personality is therefore necessarily presumed* in the qualifications of an elector. The inquiry, then, as to the principle of representation is resolved into the further inquiry, what is the organiza- tion of the nation, the normal political organization, in which a person acts as an elector, in the determination of its sovereignty ? The answer to this inquiry has always been in correspondence to some antecedent assumption, as to the being and end of the nation. It is said that the nation is formed in the representation of interests, which in their combination are assumed to constitute the political organization. This is the postulate of Mr. Calhoun. He says : " There are two ways in which the sense of the community may be taken. One regards numbers only and considers the whole community as having but one common interest throughout, and collects the sense of the greater number of the whole as that of the community. The other, on the contrary, regards in- terests as well as numbers, considering the community as made up of different and conflicting interests, as far as the government is concerned, and takes the sense of each through its appropriate organ, and the united sense of all as the sense of the entire community." 1 This is defined as a universal principle and applied to all forms of govern- ment. " In a republic, in consequence of the absence of artificial distinctions, the various natural interests rise into prominence and struggle for the ascendency ; " and he says of the restriction of each by the other, "it is this negative power which in fact forms the constitution." i Calhoun's Works, vol. i. p. 221. THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 213 This identifies the nation with the commonwealth or the civil corporation, while in that it is imperfect, since it allows no real ground for its continuance. It apprehends the organization of society only as the combination of con- flicting interests, each struggling for the ascendency, and the constitution is the negative result which is obtained in the balance of these repellant forces. This theory of self- ishness, or of enlightened self-interest V inter et lien en- tendre, which is assumed as the basis of society, cannot become the foundation, nor, in the balance of its endless antagonisms, constitute the authority of the nation. There is no combination of private interests or private rights which can attain to the conception of public rights or du- ties, or create a public spirit ; no accumulation of special interests can form the whole, and the nation does not exist for the furtherance of private or special ends. Interests, even in the low and evil conception of life in which this theory proceeds, do not form the stronger mo- tives to human action, but are overborne even by the habits and impulses and passions of men. These interests moreover, centering in self, cannot become constructive of unity, for unity can subsist only in the consciousness of moral relations. There is also in the foundation of the nation the manifestation of a spirit and law of duty and sacrifice, and there has been none but has been called to crises in which no interests could be weighed against the sacredness of its life, or the obligation of maintaining it. While each interest is thus constituted as a negative against every other interest, these negations can form nothing positive ; they are constructive of nothing. The proposition assumes also a representation " through their appropriate organs," of various interests, whose value is to be regarded, and which are weighed and counted against each other, and estimated by some special consid- eration. As this becomes the ground of representation, it would consistently require a Representation of interests 214 THE NATION. proportionate to their value and extent, and form a con- stantly changing schedule. It is deficient even as a description of the commonwealth or the civil corporation, and in it the organization of society is severed from its moral ground ; its bond is only the maxim of expediency, and its permanence the dictate of some separate and private interest seeking its own end. There is no longer a higher authority for government, nor the recognition of a divine obligation to maintain order and to punish crime. It is the disintegration of society; and the subversion of the whole, by the secession of any interest which deems the action justified by the grievance it may suffer, or by the profit it may anticipate, is its logical and historical sequence. It is said that the nation is constituted in the representa- tion of families. The family is the integral and formative unit of the nation ; each family is to be represented in it, and only one who is the head of a family is to be an elec- tor. But the nation as an organism is distinct from the family. Instead of being limited and defined in its end by the end of the family, and in its order subordinate to it, it is constituted over it. The proposition would conform to an oriental type of society, and instead of consisting with the organic and moral being of the nation, it would be constructive of a state in which there was no political spirit, and no citizen- ship or law or freedom. It would also, unless supplemented by a fiction, obviously exclude some who have wrought with the highest power in history. It is inconsistent with the nation in its necessary con- ception, as itself a moral organism, to which *the individ- ual has an immediate relation, and not merely a rela- tion formulated through the family. But the error in the premise of the proposition, is the implication of the identity of the family with the nation. THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 215 It is said that the nation is constituted in the representa- ** tion of numbers. The whole number of inhabitants as enumerated by a census, is to be represented. There is no more reason why men should be esti- mated by their numbers than by any other physical qual- ity, as for instance their bulk. There would be the same consistency in basing representation upon the stature or color or gesture of men, and these might with the same justice enter into the representative government. There is no clearer discrimination of sovereignty in numbers than in any physical proportions. This also assumes the identity of the nation or the political people simply with the population. It is said that the representation should be of certain capacities or properties or accidents attaching to men. This regards certain powers of mind, or incidents of life, as for instance, occupation, as the ground of representation. The practical application of this proposition has been at- tempted in the scheme for a plurality of votes. Mr. Mill denies the proposition, " that all persons ought to be equal in every description of right recognized by society," and therefore demands a distinction in the number of votes which each should give ; "if every ordinary unskilled laborer ought to have one vote, a skilled laborer ought to have two, a farmer, manufacturer, or trader should have three or four, a lawyer, a physician, or surgeon, a clergy- man of any denomination, a literary man, an artist, a pub- lic functionary, ought to have five or six." These propor- tions are laid down, " putting aside for the present the consideration of moral worth, of which, though more im- portant even than intellectual, it is not so easy to find an available test." If then this consideration of relative moral worth were added in this arithmetical estimate, the differ- ence between the single vote of the workman, who knows enough to cast one vote but not more than one, or is good 216 THE NATION. enough to cast one but no more, and the higher grades of social and intellectual acquisition would be very great. But the proposition, in its application, would be unjust upon its own premise, while, this condition is omitted, and of this the external condition gives no test. If the power of each as an elector was made thus proportionate, in a numerical scale, to certain external signs of relative moral worth, the standard would inevitably be so imperfect, as to make the actual process corresponding to it the most complex system of injustice. It not only would revive the maxims of the Pharisees, but it would attach to their schedule of virtues a power beyond any compensation that has been assumed in their estimates. If it were joined to a merely economical conception of the state, there could be for a people whose moral strength had any living energy or spirit, no agent of debasement so potent. But the principle which the scheme assumes is false, for it is not the occupations nor the acquisitions of men, nor literary attainment, nor official place, nor artistic nor pro- fessional skill that is the ground of rights, but it is person- ality itself, and in the infinite worth of personality the worth of manhood is alone the foundation of rights. The state can compute this by no arithmetical notation, nor by any addition or subtraction can it find its numerical equa- tion. It cannot set against some intellectual or professional acquisition in one person the whole determinate action of another person. The proposition proceeds from a merely artificial notion of personality, a mechanical stand- ard of duties and rights, a formal scheme of morals, the empiric of virtue ; it is the " excellent foppery of the world." It may "be further said of this scheme, that none of the properties and powers enumerated in it correspond to the nation as founded in the nature of man, and as the nor- mal and moral order of human existence. If it were a great utilitarian organization or machine, a cutlers' associa- THE NATION AND ITS KEPRESENTATIVE CONSTITUTION. 217 tion, or a railway or gas company, or a produce exchange, or an economic society, and it were required to choose those who should be its foremen or directors, then it might better give to skilled labor or to professional attainments, and to these in their strictest estimate, the sole or the sub- stantial choice ; and if it were only an academic society, a school or sect, then literary culture or scholastic habit might chose its dean or doctors. But it is none of these ; the principle, moreover, in so far as these estimates have been applied, has been dis- proved. The literary and scientific class, to whom in this estimate, and perhaps, on its premise, no better could be made, a power sixfold beyond that of the unlearned is allowed, have only too often been betrayed by whim and caprice, and subservience to political abstractions. They are men withdrawn, perhaps, in the narrow circle of some ethnic or linguistic theory, and blind to all facts beyond its narrow horizon, or scholars who draw their political prece- dents from the ideal world of Homer's heroes, and not the grander world of to-day. The Universities, when a special representation is open to them, are more often represented by lower men ; as Oxford in England, whose later repre- sentatives could scarcely justify the working of the repre- sentative system in comparison with the greatest of its medieval politicians, William of Occam, or might suggest, in the comparison, some question as to the principle itself. A fact often noticed, is the tendency, also, to defect of political spirit and loyalty, in men of an exclusively scien- tific or mathematical culture ; it may be in the latter, because their study is merely formal ; there is the depre- ciation of the moral or political world, the life of man in history and the order of society, in comparison with the physical world. But this empiric standard wou!4 require also for its con- sistency the adoption of a negative scale, by which the number of votes should be diminished, as, for instance, one 218 THE NATION. who lives in idleness, whether in poverty or with inherited wealth, whatever be his profession or his attainment in it, should have his number of votes correspondingly reduced ; this rule of subtraction would require constant changes with the changes of condition or character, as on some weather-gauge with its shifts ; and in the representation of professions, the difference between the better and poorer members is more than the difference between separate professions, and this also would require representation. While the aim in this proposition may be well enough, the principle assumed has no foundation, and therefore fails of any clearly denned practical application. It is at the outset in conflict with the foundation of rights, or it may be said, that it allows its inconsistency with an equal- ity of rights. The proposition has its premise in the me- chanical notion of psychology, which classifies and divides the will and the affections and the powers of the mind, so that, as in Hegel's illustration, a man is represented as carrying one faculty in one pocket and one in another. It is after the distinctions of the school-men, who pronounced their judgment upon the masters in the medieval schools by a fixed scale, representing for instance genius as four, learning as five, imagination as six, judgment as seven, and striking the balance in order to arrive at their com- parative merit. When Mr. Mill, to maintain his proposi- tion in opposition to " equal suffrage," defines the latter as an " equal claim to control over the government of other people," 1 it resolves the state into its atomy, and is the merest individualism ; for no man has a claim to control over the government of another, but the nation has the claim to government over the whole. / The nation, then, is not constructed in the representa- tion of interests, for it is in itself before each and every separate and special interest, and can be formed by no ac- cumulation of them ; it is not of numbers, for these may 1 J. S. Mill, Dissertations, etc., vol. iv. p. 160. THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 219 exist separately from it, and no aggregate of numbers, how- ever vast, is in identity with it ; it is not of families, for it is other than the family, and no collection of families can attain to it ; it is not of special acquirements or capacities, as an association of trades, or arts, or schools, for the state is in none of these ; it is not to interests or families or num- bers, or special and exclusive professions and attainments, that the right of government in the nation belongs. The nation is constituted in its normal political order, in the representation of persons ; and the right to representa- tion is the right of a member of the nation who is a person. Government is and can be only of and through a person. The vote is the right in the nation of a person, as the act can be only the act of a person. This is no abstrac- tion to be newly applied in the sphere of politics, and no scheme for which from the outset an actualization is sought, but it is the principle which has the broadest ground in history, and the only ground in reason, and the necessary ground in justice. Firstly ; this principle has the broadest ground in his- tory. It alone can claim an historical justification in the representative constitution. It has not infrequently passed into the order of the state without a direct or avowed rec- ognition, as if of itself coming forth. There has been a con stant endeavor, in some shape, toward its assertion. The most common tests which have been established have had no other consistent basis, and without the recognition of this law fall to pieces as a miscellaneous bundle of terms and conditions. Thus, in the most common conditions for instance, a universal principle being assumed, the child, or the dependent, or the demented are not allowed to vote, since they have not the wil], the conscious self-deter- mination and freedom of a person ; and in the conception of the law they are constructively, but not actually per- 220 THE NATION. sons ; and they, also, who have been proven to have taken a bribe, or made a wager on the issue of an election, are not allowed to vote, since their act, as controlled by an external consideration, is regarded as no longer free, that is the act of a person ; and they- who have committed a high crime are not allowed to vote, not because this priva- tion is an immediate punishment of crime, but because through crime they are regarded as having lost their free- dom, as in wickedness men are no more free, and there is in it the destruction of personality. There are no other tests which have been established so widely as these, and in this principle alone they have their consistent ground. The qualification of property might claim as wide an appli- cation, but that refers to this also for its ultimate justifica- tion. Blackstone, in a passage of great breadth and sig- nificance, concedes this. He says, " The true reason of requiring any qualification, with regard to property in voters, is to exclude such persons as are in so mean a situation, that they are esteemed to have no will of their own. If it were probable that every man would give his vote freely, then every member of the community should have a vote. But since that can hardly be expected in any of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby some who are suspected to have no will of their own are excluded from voting" Again he says, " only such are entirely excluded as can have no will of their own." While this presentation of human nature, which makes property the sign of per- sonality, is neither just nor edifying, the principle of rep- resentation is conceded in it. There is, therefore, in all these tests, which have had the widest institution, the recognition of this principle and the endeavor to establish it. It alone has the broadest historical ground, and only in their reference to it are the common conditions justi- fied. THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 221 Secondly ; this principle has the only ground in reason. It has its precedent in the being of the nation as the natural and normal order of human society. In person- ality, man has the condition of all rights, and a realized personality is to have its normal expression in the nation, as the nation is the natural and normal condition of hu- man society. The right to vote is therefore a natural right, the right of a member of the nation. It is still the induction, in fact, of the postulate of Aristotle, " man is by nature a political being." If the nation was only a formal or an artificial association, then it could allow any formal qualification and any artificial test, and the political arti- ficers constructing the fabric could elaborate them after their own device ; but if it be the natural order and con- dition of human existence, as there is in personality the realization of the true nature of man, so in the nation, as the manifestation of the true nature of man, there is to be the expression of it. There is no other conception of gov- ernment which is not inextricably involved in the arbitrary or the accidental. Mr. Brownson says, " The elective franchise is not a nat- ural right, because it is political power, and political power is always a trust, never a natural right, and the state judges for itself to whom it will or will not confide the right." It is evident that the nation is to judge for itself to whom it is to confide the right, but the whole inquiry is, as to what principle it may rightly act upon, in the asser- tion of this right, and what is to be the premise of its judg- ment. It is a right as well as a trust, but the position of Mr. Brownson assumes as the condition of the process of the nation, the isolation of positive from natural rights, and the severance of the sphere of each. It is a trust and a right, and there is an inherent weakness in its separation as a trust from its conception us a right. In it, as it is nowhere else apparent, there is the correspondence of a right and a duty, as they subsist in personality ; it is a 222 THE NATION. trust vested only in an actual or realized personality, and in this only is it a right. 1 In this the nation is constituted in conformance to its necessary conception, as a moral organism. There is evolved in a moral organism the affirmation of personality, and the nation is formed in the realization of personality. The person who is a member of a nation is not to be re- garded as a negation in his relation to it. For personality no negative condition is to be postulated, in which its be- ing is ignored, and its aim is disallowed; but it is to be regarded, as the nation strives toward the realization of a moral order. It is not alone the passive right to the advantages re- sultant from the nation, for in this there could be neither the satisfaction of the moral longing nor the fulfillment of the moral aim of man, and this would indicate only the defect in the moral condition of the nation and its degra- dation, but it is the right to recognition as a person and the correspondent affirmation of personality in the process of the nation. 2 In this the nation is constituted in conformance to its necessary conception, as the realization of freedom. Free- dom is no negation ; it is not found simply in the security which is obtained by restrictions imposed upon an exter- nal power, nor in the uses resultant from the checks and guaranties constructed against an external power. It is not attained in a condition of indifference to the nation. It is not in the acquiescent reception of its common advan- tages, nor in the permissive participation in the things in which it has profited. Personality is not regarded in the nation when it is restricted to some special end, nor has it 1 Brownson, The American Republic, p. 379. " No man has a natural right to be a voter without qualifications or conditions, but every man in a republican state has a natural right to become a voter." - Mr. Taylor Lewis. 2 " Die volksvertretung ist ini Staat absolute sittliche Forderung, namlich genau in demselben Maase, in welchem der Staat, bereits wirklicher Staat ist." - Rothe, Theologtsche Ethik, vol. ii. p. 125. THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 223 compensation in the partnership of its accumulated gains. The personality of man is not in the multitude of things which he possesses. Freedom is only in the realization of personality ; it is only as there is in the nation, in its pro- cess and order, the expression of personality that there is in it the realization of freedom. 1 Thirdly ; this principle has a necessary ground in jus- tice. In this, government in the nation is constituted in conforinance to its normal law. It rests in the conscious consent of the people. It is the assertion of the political will of the political people. The more perfect expression of the will of the people is in the government, and it em- bodies in it its purpose, and has in it the satisfaction of its aim. The government in the determination of its sove- reignty is not a mere order apart from the peopfe ; it is not an abstraction having no ground in the organic and moral being of the people, but it is the determinate life of the people in the realization of a moral order. The government in its necessary conception is over the people, but it is none the less the determinate action of the people, and of the whole people in its realized sovereignty. The individual person is not simply to exist as a subject to the government of the nation, while yet he is in perfect subjection to it, but he is to act determinately in it. The self government of the people is then no speculative pretense, and no legal abstraction; it is no formal order and no aggregate of institutions, but there is in it the real- ization of the self-determination of the people, the asser- 1 Franklin asserted these two theses : " That every person of the community, except infants, insane persons, and criminals, is of common right and by the laws of God a free man, and entitled to the full enjoyment of liberty." " That liberty or freedom consists in having an actual share in the appointment of those who frame the laws, and who are to be the guardians of every man, of life, prop- erty and peace; for the all of one man is as dear to him as the all of another; and the poor man has an equal right, but more need to have representatives in the legislature than the rich one." Franklin, Works, vol. ii. p. 372. " Auch in der rechtlichen Freiheit, ist demnach, die Wahl, ein unentbehrliches moment, ja, sie ist die Bliithe der Freiheit, denn die Wahl ist eben die Aus- Berung der Individualitat." Stahl, vol. ii. sec. i. p. 327. 224 THE NATION. tion of and the obedience to law. The right of govern- ment in the nation is not then merely prescriptive ; nor is it derivative from any convention ; nor is it to be con- strued as a private right, to become the privilege of a caste ; nor is it to be restricted to a succession in a certain family or a certain number of families to be accounted only as some domiciliary right, vested in its present occupants, and to descend as their estate, but it is the right of the people in the realization of its moral being. If any other principle be assumed, it must justify itself in another and a lower conception. If for instance, the nation is based upon property or has for its end the secu- rity of property, then property may control it, and money, not men, may rule it, and those who have their highest accompli sfrment in the making and keeping of money may represent it; if it consist as a private possession in the privileges of the few, a family, or class, or race, whom force or accident has placed in power, and if it be only the in- crement of their privileges to be held against all comers, until some may come with stronger and more subtle force to oust them, and hold these privileges against the former proprietors, then, those holding them alone may determine the course and destination of the whole. If any form be assumed by which the expression of personality is denied, then in so far, the government is defective, as the form is arbitrary, since it exists not in the affirmation of that which yet, in a realized personality, has in itself the spirit and the determination in which government subsists. It becomes the suppression and not the manifestation of the power immanent in the nation in its moral being. And as the form in which the affirmation of personality in its normal process is denied is arbitrary, it may assume the form of the determination of an individual, or family, or class, and becomes the support of the power and privileges of one or of a few, who hold only a formal and legal prece- dence. It establishes the government in an exclusive, and THE NATION AND ITS EEPRESENTATIVE CONSTITUTION. 225 not in a universal principle, and it is formed in a narrow separatism, as if the individual personality were to act in the nation for some special end which is placed before each, but not in its being, in the realization of the univer- sal end. The representative government is therefore constituted / in the representation of the people, in the realization of its moral being. It is the representation of persons. This principle has had its assertion in the progress of the nation, and with the higher result of history. It is in the being and order and sovereignty of the nation, in the institution of rights, in the realization of freedom, that common men as a fact have proven themselves to be men. The suc- cession in the authority of the nation, since iiS inaugura- tion, has been maintained unbroken, and has triumphed over anarchy, when allied with the hate and the secret assault and support of aristocratic and imperial powers. It has been the ordination of a mightier sovereignty, and the institution of an ampler freedom, and the realization of the noblest political order which the world has seen. The line of the Presidents, the elect of the people, from Pres- ident Washington to President Lincoln, has been greater than any line of kings. In the succession of events, the self-determinate purpose, the moral strength of the people, has been tried in its integrity and firmness of resolve, through the crises of the most mighty insurrection, and it has sought the maintenance of the authority of law, and the consistence and continuance of order, and with the love of peace in its steadfastness it has followed them with an unselfish end. The right to vote is the right of every person who is a member of the nation. It is the*birthright of freedom. It is the right only of a person, that is one in whom there is the realization of personality, one whose action is self-deter- 15 226 THE NATION. mined, one who has the consciousness of law and of freedom in the self-determination of his own spirit, and in that alone is the power which can shape the course and destination of the state. It is the right of every person who is a member of the nation, that is, who is born and educated in it, as the nation itself is not simply a physical but a moral organism. It is in the assertion of this right alone, that there is the expression of the political will of the political people. In this alone the government of the nation has also the manifestation of its divine origin and institution ; as personality has its realization only in the realization of divine relations and the fulfillment of the divine will. In the institution of righteousness and of free- dom is the being of the nation, and in this in its highest conception, government in the nation is manifested as a trust and a right. The aim of the political constitution should be, to give to every member of the nation who is a person, represen- tation in it, that is, every actual person should vote, and none beside. This and this alone ascertains the actual sov- ereignty of the political people. The qualifications which proceed on this ground, which is also the nature of the act itself, and no power can make it other than this, alone give expression to the political thought and political will. These qualifications may become more exactly defined in the historical development of the political people ; but their aim will be always the same. These qualifications as de- fined in law have necessarily the form of a general law. Their intent is the exclusion of those only who have no will of their own, that is, no personality. Thus children and minors, and those who have taken bribes or made wagers, and the imbecile and insane, and all convicts or criminals are not allowed to vote. The government of the nation is founded then in the determination of its manhood and in the spirit of the people, and not in the accidents of life, as property or occupation, or rank, or color, or race. THE NATION AND ITS KEPKESENTATIVE CONSTITUTION. 227 The vote then, as the representation of a person, pre- cludes all special distinction. There is an infinite worth in personality, and therefore every person in its repre- sentation counts one. It is representative of the whole per- sonality. There is no graduated scale in which to estimate the relative worth of real manhood, or the valuation of the whole moral determination. If the personality of man could be made secondary, then by a graduated standard the most extensive system of a plurality of votes could be adjusted to the proportionate worth of the moral determina- tion of men, and many votes could be given to one, and few to another ; but the personality of none" can be held thus as itself inferior and its all, the entire moral determina- tion in its integrity, as of a diminished quality. To confer the power of an elector upon one who in the course of nature is not a member of the nation, belongs only to the nation in its sovereignty. There is for every individual as such, whether citizen or stranger, all rights subsisting in the necessary relations of life, that is all civil rights ; but all rights subsisting in the, nation in its free- dom, that- is all political rights, are only of the political body, and if an alien be received and made a member of it, it must be by the act of the nation in its sovereignty. The homely phrase of the law is to get naturalized ; but this is not a slight nor easy thing ; and nature works, even as in the life of states, slowly and patiently, and is not sub- ject to the act of legislatures, or the administration of courts. The Republic is indeed to welcome the stricken and the oppressed for conscience sake out of every land, and is to be as the city whose gates are open by night and by day, and not the least among its titles is that of the name of the home of the pilgrim ; and if it be forgetful of this, it loses some of its noblest historical traditions. But to admit to immediate representation whoever may come to its shores, who have no consciousness of the aim 228 THE NATION. and destination of the nation, and no participation in its political spirit, becomes a defect of government and is a detriment to the Republic. To bestow upon these the same political power with those born and educated in the nation and animated by its design, is no more just, than to refer the decision as to the direction of a house or the disposal of an inheritance to some transient guest who may come to lodge over night or take shelter in a storm. They have no apprehension of the unity and continuity of the nation, and do not partake of its conscious spirit ; it is elsewhere that their thoughts turn to cherish the memory of their ancestors, and elsewhere that their hopes look for the home of their children. Thus, there are Keltic and Asiatic populations who have been educated under an imperialism, and bring with them imperial tendencies which involve the degradation of the individual personality. They have thus no clear conception of freedom and of rights which subsist in personality, nor of what constitutes a nation; there is thus often among the Keltic popula- tions a merely tribal feeling, and the nation is conceived as itself vested in a race, and in the want of personality they fall under the control of some priest ^ demagogue. The immediate characteristic of the Asiatic populations is this want of personality. Through customs which have a weight which the occidental mind can scarce- ly apprehend, they retain their attachment to the land of their nativity. They have here no enduring home, and regard another land as alone sacred. Thither they turn with reverence to the graves of their ancestors, and look forward themselves to finding a grave in it, avoid- ing to fall in battle elsewhere, and refusing elsewhere to be buried. There is an evil in the accumulation of masses of populations whose thought and spirit separate them from the nation, and who are subject to a foreign ecclesiastical or political influence ; but the evil is not obviated by con- ceding to them a political power which has no root in THE NATION AND ITS KEPKESENTATIVE CONSTITUTION^/ 229 // J . -T J devotion or sacrifice, and is inspire^ b^fto lovely 5?here< / M may and should, in the prudence of the^srate, be^Vgrne J - form or law of naturalization ; but to refer to &fesQ pop-; - ulations political power, with no discrimination, myblves r j^ danger to the political whole. % x. -ft It is thus, also, that Indians are excluded from voting |* not because they are not taxed, but because, as they are*" subject to the will of a chief and absolutely controlled by it, they are without freedom ; they also exist in a tribal relation, the organization of a race, which isolates them from the organic and moral 'being of the nation ; but in withdrawing from this tribal relation, they come upon a national position and should be regarded as members of the nation. There have been some qualifications defining the right to vote which claim a separate notice. The qualification in property, maintained by Blackstone as the sign of a conscious freedom and independence of character, has an historical presumption. But property is no more the evi- dence than it is the basis of manhood. It has always in itself too great power, and there is always danger that it may seek to subvert character, and to subordinate the whole to selfish ends. This pecuniary condition of suf- frage tends, also, to an estimate of the nation itself by a pecuniary consideration. It induces the disposition to re- gard the government as the agent of special interests, and in the crises of its existence there has been the inclina- tion, in great divided interests and monopolies, to pursue exclusively their own separate ends. 1 When it is said that the owner of property should vote, because possession gives a stake in the nation, it makes self-interest the con- dition of the nation, which it cannot be ; and as in these 1 Mr. Brownson says, " The mere men df wealth, the bankers and brokers, are those who exert the worst influence upon the state ; their maxim is, let the state take care of the rich, and the rich of the poor, and not let the state take care of the weak, for the strong need it not." The American Republic, p. 383. 230 THE NATION. crises the nation may call for the sacrifice of property and of the life of the individual, there is the negation of the so-called stake in it. - But a property qualification has its premise in the as- sumption that the nation exists primarily to protect prop- erty. It regards security as the only end, and prefers Babylon to Judaea if only the ducats are stowed away more safely in it, though they never are. But the residence of government in property is consistent only with the organ- ization of the nation in certain private rights, the barbaric or the patrimonial constitutions, where power is a private estate. Thus when property has been made the exclusive qualification, there has been the disposition to regard a vote as something which one possesses, as itself property, some- thing which may be held at a pecuniary valuation, and bartered or transferred. A qualification in education, or more strictly, a literary qualification, as the ability to read some state document or to write, has obtained a recent advocacy. In so far as in- telligence is implied in the conscious freedom and self-de- termination of the will, that is, in so far as its action has a rational content, this test has a higher worth than the preceding, and the real education of the people, in which there is a moral more than an intellectual element, is, in another phrase, the realization of personality. But the inquiry is, how far a strictly literary qualification is indic- ative of this. If it was the only qualification, then lads at school, on passing their examinations, could vote. The qualification is then assumed as but one, with certain others, and the ability to read or write, and a certain tech- nical or scientific acquisition, is held as indicative of fitness for the offices of a citizen, so that all lacking this are pre- cluded from its highest exercise. But the test is a superficial one, and perhaps of all is the most artificial. A technical or scientific acquisition is not the evidence of the real education of the people. THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 231 Mr. Hare says justly, that "no science can reach the depths of the knowledge painfully won in the daily life, and the experience of man and woman." The life of the workman, the fulfillment of human relationships in the family and the community, the endeavor of men in the realities of life, is a deeper education ; and in work rather than in a certain literary or scientific acquisition, is the evidence of the capacity for political power. There is nothing in the political action of a distinctly literary or scientific class to justify the application of this test. 1 They have seemed more often to be controlled by notions or theories, or by some vulgar conceit withdrawn from politics and the organic life of the people, to become only a learned mob. The elements of character, clearness, foresight, and the self-determination of the will, are not always among the acquisitions of literature or science. Even Comte says, "clear-sightedness, wisdom and even consistency of thought, are qualities which are very inde- pendent of learning." A qualification of a literary or scientific form for polit- ical action has also no historical justification. Some of the most intellectual periods in the course of a people have been the most corrupt ; they have been characterized by the destruction of personality and the coincident decay of national life. Greece in her dissolution was crowded with the most fluent rhetoricians and the most subtle sophists, and her citizens became at once the slaves and the tutors of other peoples ; and the Greek still with his intel- lectual acuteness is destitute of the most primary civic rirtues. The age in Rome which was marked by the 1 See Milton's reply to the grammarian, " Whosoever therefore he be, though from among the dregs of the common people, that you are so keen upon, who- soever I say has but sucked in this principle, that he was not born for his prince, but for God and his country ; he deserves the reputation of a learned and an honest and a wise man more, and is* of greater use in the world than yourself. For such a one is learned without letters ; you have letters but no I learning, that understand so mam' languages, turn over so many volumes, and i pet are but asleep when all is done." Milton's Works, vol. i. p. 30. 232 THE NATION. transition from a nation to an empire, although its creative power in literature in certain forms may be traced to a preceding national development, was yet characterized by a wide intellectual culture, and a rare although superficial refinement in letters. The movement for Secession was marked by a skill in its leaders that could ransack his- tory for their legal and diplomatic precedents ; and the growth of imperialism in England has drawn to itself the almost entire support of the literary class of the English race ; but literary and scientific culture is not always in- dicative of the moral strength and determination of a peo- ple, and the intellect divested of moral spirit is not a ' power working in the institution of righteousness, which is the condition of national being. But a literary or scientific test fails, because the act to which it is to apply is not of a literary or scientific charac- ter, and the qualification must be conditioned upon the nature of the act. These qualifications, to the effect that a certain amount of property or a certain degree of literary acquisition shall determine the fitness for the duties of a citizen, proceed from the notion that the character of man consists not in what he is, but in what he possesses ; that in the conditions of his action what a man has is to be pre- ferred to what he is. The real education of the people is to be provided for in the organization of political power. They for whom, in the want of a realized personality, the exercise of elec* toral power is not possible, yet have a right to the aid of all in the nation that may tend to its development. They are not to be left in political indifference because desti- tute of the capacity for political power. They have the right to be educated by the state for the state. Their edu- cation is to be regarded as the necessity of the state, and in the endeavor toward the development of their personal power, the nation advances toward its destination. It is the formation of an independent manhood, so that he who THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 233 has reached his majority in years, is always in his political majority. The correspondent evidence of the law of representa- tion is in the fact that every divergence from it, as the sequence of a false premise, issues in disaster. The sov- ereignty and representation of numbers, and the entrust- ment of political power to those, who have in themselves no ground for it, has only this result. There is no basis for electoral rights, when there is no capacity for elect- oral action. The force which is impersonal in the state, cannot be called upon to shape the destination of the state. The crowd, that is, the disorganized elements, . the an- archic fragments, are not to be called to the government of the state. The power referred, on the premise of some abstract notion of rights in representation, to this impersonal mass, is a contradiction. This force does not and cannot offer a vote, when the occasion is open to it by electoral laws. Its action is expressive of no free and conscious pur- - pose ; and called to act in the institution of freedom, and to incorporate it in the state, it moves only as some fate. In : the construction of a moral order, it sweeps on as a phys- ; ical force, not as if directed by an inner will, but by a mere momentum. It is the casting into the scales, when ji the highest issues are to be decided, of a dead weight. It drifts, and like all forces not guided in human life by a per- f- sonal power, it drifts downwards. Its course, apart from the real will and freedom of the people, is so inevitably toward the wrong, that the language of a clear and self- determinate spirit is, "I have not gone with the multitude j to do evil." It is the building not of an order, but of a pan- demonium; it makes the nation the confusion of strange tongues, and the Babel of incoherent and unmeaning voices. It creates a power which is not the will of the people, but is without the consciousness of the unity and order of the people. 234 THE NATION. The object of every political constitution is to exclude this element, that is, the impersonal mass, from authority in the state. The reference of power to it subjects the organization of society to brutal force, while the whole effort of civilization has been to wrest it from that blind and unthinking sway. It is this which has been the con- stant aim and the condition of freedom. This reference of power to mere numbers, that is, the impersonal mass, is justified by no right. It is a barren sceptre, and in the defect of sovereignty in itself it cannot act for its institution in the state. It is not the assertion of the sovereignty of the people, but the negation of sover- eignty and of the people. Its exclusion is no violation of the law of democracy, but is necessary to the assertion of democracy. Its exclusion is not despotism, but its in- clusion is the worst despotism, the absolutism of a multitude, not the government of a free people. It is a rabble of men which is called to the expression of the thought and purpose of the political people. It is a form- less waste, out of which the determination of the form of the state is sought. It is the necessary degradation of the whole, and the state supplies in itself the instrument of corruption. It does not act with freedom, and it will not act for freedom. It falls under the influence of parties and sects, to be used for their special ends. It becomes subservient to men who will employ it for the accomplish- ment of selfish schemes, or the furtherance of their own ulterior interests. Its subjection is to the domination of those who can rule masses, but cannot rule freemen, and it becomes the instrument of the designs of the demagogue or the priest or millionaire. The multitude is everywhere dangerous to the state ; but the bestowal of power upon it is to place the arms of her arsenals in the hands of the blind. It is the un- reason of the state when it calls upon ignorance and vice and crime to determine its career. THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 235 This investiture of the impersonal mass with political power, the mere representation of numbers, justifies all the scorn which has been spoken of it by the best of men. There is a comprehensive truth in the words, so exact, as the political expression in Shakespeare always is, where " Wisdom Cannot conclude but by the yea and no Of general ignorance, it must omit Real necessities, and give way the while To unstable slightness. Purpose so barr'd, itfollow t Nothing is done to purpose.' 1 '' The result is, that it " Bereaves the state Of that integrity which should become it, Not having the power to do the good it would, For the ill which doth control it." l The result of the bestowal of political power upon the mass appears in the government of the municipality of New York. With the qualifications prescribed by electoral laws, the danger disappears in a great commonwealth, while it is apparent in a city where large numbers are congregated, whose education under an imperial or ecclesiastical dom- ination has left them without freedom. The people are used to increase the wealth of a few individuals. There has been a special justification sought for this bestowal of electoral power in its educational influence upon the individual, as invoking a sense of responsibility. It is true that the nation, without reference to the exercise of electoral power with this object, is the mightier power in the education of the race ; but the bestowal of electoral power, with the special design of the education of certain individuals, avoids the content of the act and considers it primarily in the interest of the individual apart from the state. Its value as an educational, influence upon the mass is not apparent, since in the want of independent action it 1 Cmnolanus, act 3, sc. 1. 236 THE NATION. becomes the instrument of any who may get dominion over it ; it induces also a low conception of a vote and of the government itself. The gain which may appear in some instances is at the most slight, in comparison with the detriment to the whole. The education of the few by this method becomes also as costly as it is perilous, as for instance in the municipality of New York. This bestowal of electoral power has been justified also as a means of protection, and has been called by a senator " the protection of ignorance and weakness." To call upon ignorance in this way to protect itself, is to impose upon it an office of intelligence and decision of character. It is only in justice and foresight that the protection of igno- rance and weakness is found. When the control of the state is given to ignorance the safeguard of rights is de- stroyed. The vote of the city of New York is cast blindly against the public interest, and subserves the private schemes of men. If protection alone, and not a realized freedom, were the end of the state, power assigned to igno- rance and weakness would not ensure it. The necessary nature of electoral power discloses the evil of a condition of affairs which, in the abandonment of character and freedom and the degradation of personality, is fraught with the deepest corruption. In the absence of the organization of the civil service and administration, it is the condition in which public offices and trusts become the instruments of power, so that their places and pay are held to further private and partisan designs, and as agents or tools to control men to certain special uses and ends. The profits of office are used to buy voters, and the promise of office is held before them as an equivalent for their vote, or the threat of removal is used to intimi- date them in their vote. Their vote is unfree and of it- self is made the instrument of their corruption. It works with injury alike to the individual and to the whole. It is THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 237 the more immoral, for it is the use of the powers of the nation to subvert its moral order. Thus there are those who refrain from the thorough organization of a civil ser- vice upon the simplest maxims of economy and prudence, because they can use its offices to further private and par- tisan ends and to build up their own power, and an imper- fect civil organization becomes the pretext for their course. It is the undermining of the freedom and the defeat of the sovereignty of the people. The public offices and trusts of the nation are held as patronage. The word is consistent with the barbaric con- stitutions in which power was held as a private estate ; the ruler was a patron and the place belonged to his patri- mony. Yet however democratic the pretense of the form of the state may be, to hold these positions as a means for private or partisan ends is beneath the barbaric consti- tutions, for if they allowed this patronage to the prince, it was because he alone was presumed to be in identity with the state. In the existing condition, the offices and trusts i are held, not as in the service of a free state, but as an imperial boon. It is, in the interest of a class of so-called : politicians, the building of a power independent of the s people, and to become a means of their degradation. To allow these men to offer offices as a recompense for action tin their behalf, or to remove or threaten any with removal from offices they have faithfully administered, on account : of their independence of political action, is bribery. And j trhen workmen in national armories and navy yards, who are dependent for their daily support upon their daily (labor, have their places used as an instrument to control [their vote for private or partisan ends, the political crime jean scarcely be surpassed. The national offices and trusts >are employed to control men as evil dominations control I them, in the subversion of their freedom. They are driven to vote as a gang. It is the same in result, when the bribe is tendered by an individual or a party, and in 238 THE NATION. money in hand, or a place of corresponding pecuniary value, and there is no distinction if the workman be dis- charged from a plantation or a navy yard, or driven from a farm or an armory on account of his vote. The public service is conducted not only without regard to prudence and economy, and honest and efficient adminis- tration, but national offices are used by those in power to retain power and promote their private ends ; or in the triumph of a party, they are held as booty won on the field, to be divided among its retainers. The consequence is also the filling of public offices with bad and irresponsi- ble men. The vote of those who are thus controlled is no longer a free, that is, a responsible act, but is the service of a dependent and the assent of a valet. It has no more worth than the act of a slave, the man who does not know his own mind and cannot call his will his own. The cor- ruption works in those who give and those who take the bribe, and one who uses these means to control men be- comes destitute of self-respect as he destroys the self-re- spect of others. It frustrates the free and independent purpose of the people, and there is in it the degradation of character. The nature of electoral power is inconsistent, also, with the singular proposition, that in certain sections or dis- tricts, representation should be made necessary, and a vote should be compulsory. It has been said, that men might be required to send representatives to the government, but this would be a form with no representative character. It would be only the authority compelling the act which was represented, and this could act immediately with better consistency. The action when thus required would not be the representation of free men, and would not have the worth of the power which in some plebiscite obeys an imperial will, THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 239 The necessary principle of representation illustrates the strength and also the weakness, in that conception which describes the government as the representation of public opinion, or public opinion as the basis of the representative constitution. It is true that public opinion appears only in the organization of society, and there is in it the indication of an aim beyond the private and separate end of the in- dividual. But government is not constituted in the rep- resentation of public opinion, and* there is not in this the sovereignty or the freedom of the people. There is in public opinion the unformed thought of men, or thought as it is being formed. It thus takes its color from the changing impulse and emotion and passion ; of the moment, and reflects its hopes and fears. It denotes, indeed, in some phases, the purpose that will endure and assert itself with irresistible might; and in this is the ex- pression of the conviction of the people, that will hold on against the treachery of those who have been called to power. It is thus that it indicates often the course and tendencies of historic movements. But it denotes often the confused agitation rather than the stable purpose, the impulse instead of the deliberation of the people. It is the rude and crude thought, often obscured by prejudice, and it acts often in an imperfect knowledge of events. Its organs thus are informal forces, and not recognized in the constitution of the state ; as, for instance, the popular ru- mor, that is, the mere " report of a report," the public lec- ture, the newspaper, the course of the exchange, the talk of the street. It is always undefined, and there is no power whose authentic expression it is so difficult to ascer- tain, or which is so open to imposition, since some alien purpose may often raise the noise and counterfeit the voice and assume all the guises of public opinion ; there is no vehicle of public opinion, as the newspaper or public lec- ture, but may be set in motion by an alien power. It is indeed the secret or anonymous form of these agents, as 240 THE NATION. the common rumor or newspaper article, that thus enables them to serve a foreign opinion. The statesman must learn to estimate the strength and the weakness of public opinion, and when and how to re- gard and to disregard it. It is always to be considered and weighed as a positive force in the conduct of affairs, and those who acted in indifference to it, would expose their measures to the unnecessary risk of disaster. It is to be regarded in any course of action, with respect to what it may indicate in the mind of the people. But so far from an immediate representation of it, it is always to be held as a force which has not even a law of discrimination, whereby its own thought and purpose may become clear. The disposition to overestimate it is a characteristic of weakness. It is more often not itself clear, and instead of being the guide of the state, needs a firmer intelligence to guide it. He who would have even its support in the long run, must be strong alike to lead and to resist ; he must learn to apprehend the enduring purpose of the people, and to hold it against betrayal. The danger is that men who are untrue to themselves, and thus without self-respect or rectitude, will listen for it blindly, and follow its uncertain voices, until in their weakness they lose their foothold, and are swept away by its current. To regard the representation, therefore, as that of public opinion, is obviously defective. It cannot and is not to govern. To regard the government as only its represent- ative, would argue a defect of will. There would be in it the subversion of personality. The power which be- came its exponent to indicate its courses and the shift in its changes, would be no longer a real government. It would open the way to "unstable slightness." It would yield in the panic of unformed thought. It would be the regiment of those who start at the shaking of the leaves. In the agitation and surging of its crowd, they that would aim only to follow it must leave the place of leaders, and THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 241 become lost in its multitude as their call is drowned in its tumult. If they rise for a moment upon it, it is only to be swept away by its tide. The peril is thus in regarding public opinion, not to con- sider what it may indicate, nor what may be its force, but blindly to obey it. Then in this servility there is the pros- tration of manhood. Then it is made the substitute for the conviction of duty, and a foundation is sought in it instead of the steadfastness which is " buttressed in conscience and invincible will." To turn from a central rectitude, and the inner light, and the eternal word, to this uncertain voice, which has in itself no law by which it may become clear, is to follow the shout of the multitude. It is the abdication of government when statesmen look only to the popular voice in its momentary changes, and seek the ora- cles that peep and mutter, and join in the common super- stition that calls for its favorite magicians and soothsayers. At last the inevitable weakness of these men incites only the contempt of the people whom they could not gov- ern, and whom they could not guide when called to go before it. There is another phrase which has become the formula of a certain scheme in representation the representation of minorities. This presumes an arbitrary division of the majority and the minority, and then asserts an injustice in the reference of the conclusion in political action to the former. The principle which it aims to establish is the actual representation of persons ; but it has been made complex not only by not apprehending the necessary prin- ciple, which alone gives it consistency, but by the intro- duction of extraneous notions, as for instance, the proposi- tion for a plurality of votes. While the aim is always to be an ampler and more perfect organization in the representation of persons, this principle demands the exclusion of whim and willfulness, ' 242 THE NATION. the mere caprice of men. It also demands the clearer determination which is implied in the representation of persons ; and as the principle is embodied in the nation, the government becomes more resolute and more positive. The government is necessarily to have strength and energy of purpose, and authority is to have a clear and unequivo- cal assertion; and so vast an impersonal mass is already allowed to act, that the form of the political decision of the majority alone may give a positive and conclusive expres- sion to the political will. In another form there might result the most grave disaster in a paralysis of power and will. The charge which is associated with this phrase of a tyranny of the majority, has no justification on the postu- late assumed, nor in the course of government. There has been in history no power so devoid of tyranny as the political majority ; and the more frequent invasion of tyranny in modern nations has been in the effort through violence to override the will of the majority of the political people, when asserted in the order of law. If the ma- jority is actually tyrannical in its spirit and intent, no scheme for the protection of minorities, which alone can be sustained by the majority, would avail, and tyranny in some form would be inevitable. It might be inferred from the assault upon the political majority, that the oppression of the world had been consequent upon the political action of the majority of the political people ; but the fact is that the tyranny has always been the power of the minority acting with no conformance to a constitutional order, as the despot or dynasty, the hereditary or monetary class, some family or collection of families, bound by a tie among themselves ; and these have held the whole as their pos- session, and subordinated it to their own special ends. The majority also is constantly changing and being re- solved in the people, but these powers perpetuate them- selves. The assault upon the political majority has often THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 243 seemed to start from the premise that its act is held as the standard of truth, and not as the form for ascertaining in the political order the determination of the political people, and for the enactment of laws which are over all. The political majority has always been the method of ascertain- ing the conclusion of a representative body, as for instance in England, where not only the sovereignty of the parlia- ment is assumed, but where there exist no limitations upon its power corresponding in force to those in the United States, and its members are elected by a majority, and while its law is enacted by a majority, submission is commonly rendered to it, while of course no just eifort is prevented, to effect its change or repeal. 1 In the past the will of the majority has been the most beneficent form in which the government of the political people has been instituted. There has been in it a more constant recognition of a principle of right which is over all, and an endeavor to substitute it for the arbitrary ac- tion of an individual or a class ; and it has sought, though far from its better realization, more steadily the well-being of the whole against the design of a few as an individual or a class, and far more unfrequently than they has it been diverted from its end. There is an illustration often drawn from the action of the mass, or the fragments of a disorganized society, against the action of the organic people. The cry of a Judaean mob or a Roman rabble is made an argument of accu- sation against the nation and the expression of the or- ganic will. But in these instances, the illustration is of 1 The form of representation was a subject of discussion, in the Colonial period. " The Governor, Commissioners, and Council took upon them the leg- islative power, and the People were governed by their Ordinances until an as- sembly was called which privilege was then declared to be the People's Right." "A great part of the injustice done in the Colony may be ascribed to an un- equal proportion in representation." Samuel Mulford, 1714. Doc. Hist, of N. 1'., vol. iii. p. 367. 244 THE NATION. the influence of imperialism. It was when the national spirit and life of Judaea was lost, and her unity was broken in the increase and pretension of parties and sects, that a mob was gathered, and the crowd, that shouted for the release of Barabbas the robber, and for the condemna- tion of one who came to manifest the power of a king in the service of humanity, appeared when the multitude had already learned to cry, "Caesar is king; we have no king but Caesar." This is no illustration of the action of a people, but of the mob which is not a people ; it is no argu- ment for accusation against the people, but is the evidence of the degradation of men under an imperialism. In this principle the political spirit and political will has its true expression. It is to be held as a constant aim, and there can be no estimate of the higher power which it will bring. But the change in the application always in larger and nobler- forms, can be the result of no laws, and it is to come in the wisdom of the state. It is to come in the development of the state, and not before its time, when it could involve only peril and disaster to the whole. In this period, as in every period of transition, when the order of things is disturbed by a vast migration of races, there is so large and indefinite an impersonal mass casting its heavy weight in elections, that its uncertain in- crease is to be guarded against, and the change which has elements of progress must be in reality as in form, and in the development of the nation in its moral being. The conditions and qualifications of electoral power have a uni- versal premise and law, but the aphorism de minimis non curat lex is necessary, and while this in individual instances and to certain persons may involve an apparent wrong, yet the extension of political power to the inclusion in electoral action of a vast number who have no freedom of will, THE NATION AND ITS REPEESENTATIVE CONSTITUTION. 245 and no capacity for political action, involves a far greater wrong to the higher personality of the nation, and the detriment of the whole. The electoral right is a political right, and affects prima- rily the political people, and it should have in the constitu- tion of the whole its enduring guaranties, and its sanctions should be established in the supreme law. The constitu- tion defines the conditions of electoral power, and the writings of President Madison indicate that it designed this, but it defines them as inclusive of the conditions estab- lished in the administrative order of each commonwealth for the election of its lower house, and the more definite description is referred to the commonwealth. It is true that there is a certain advantage in this, since an extension of suffrage might be made in the commonwealth, which in its limited sphere, would not involve the peril that might result in an extension through the whole, and the method of amendment in the constitution of the commonwealth is more free ; but there is often wanting in the separate com- monwealths the spirit which pervades the political whole, and there is a want of the comprehension of the well- being of the whole, and the conditions in each common- wealth may differ so widely as to impair the unity of action in the whole. By an ingenious exegesis and collocation of clauses in the constitution, the specific designation of the qualifica- tions of an elector may now be claimed as within the power of the Congress, but the assertion of political rights must require no ingenious argumentation. There is not that the stable ground necessary for the institution of hts, and the argument on which they are assumed to rest lay be met by some other argument, and argument is not iclusion. The indifference of this school to the secur- ice of clear and express guaranties for rights in the posi- ive law, is the source of the distrust of its statesmanship 246 THE NATION. with the people. The disposition to be satisfied with, some argument, however subtle, indicates the defect in the thought of those who dwell in the abstract conceptions of rights, rather than toil for their substantial realization in institutions. The Republic is constituted in the representation of per- sons. There is in this the institution of the actual sove- reignty and freedom of the people. It is the organization of the republic in the democratic principle. There is strictly no democratic form of the state. There may have been at a certain interval, in some of the municipalities of Greece, in the organization of the whole people in a public assembly, some correspondence to it, but it was nec- essarily limited, and there is no historical nation but tran- scends the possibility of a democratic .form. But while there is no democratic form of the state, there is a demo- cratic principle. It is the principle, in which every per- son who is a member of the nation is to be called to act in the normal determination of its government, and the gov- ernment is to be in the name of the whole. The form of the state in which the democratic principle is realized is the republic. The electoral law is the law of the Republic. This law has in the most varying forms the wider historical justifi- cation. The only comparison would be with the law of hereditary succession, and the latter claim can scarcely be sustained, even with the long monotony incident to its periods. The latter has assumed an apparent security, since it has an immediate provision for the future ; but to leave the government to the accident of birth, and to restrict it to the line of a certain family descent, with the contingency of the intervals which are described as a regency, is not the most provident constitution. It has been from century to century interrupted by a disputed succession; and where the hereditary principle has been NATION AND ITS REPRESENTATIVE CONSTITUTION. 247 lintained, as in England, in historical crises it has been ivowed, as in the revolution of 1688 ; and these crises ive been more often the precedents of national power, le sovereignty in certain families, as in England, has become only a formal sovereignty, 1 that is, only the jtitution of sovereignty. There was courage and chivalry the house of Plantagenet, and there was strength to le in the house of Tudor, and there was always a courtly tity and recognition of public duties and public offices in the house of Stuart, but it is difficult to associate a conception of sovereignty with the existing house, and in this aspect the later line of its kings seems a sad and fantastic procession. The families which have held the government as an inheritance, have not differed from other families ; they have not been exempt from the law in which the sins of the father are visited upon the chil- dren, nor could they claim more than the blessing which showeth mercy unto thousands. A recent writer has said that the constitution of England, its king and peerage, rest upon a power of great influence, although held slightly by the philosophers, the power of visibility. It is rather the opposite, the power of illusion. The haze of old political traditions veils them from the sight, and in their elevation above the people they are not visible as they actually are. The hereditary principle is thus main- tained in a sovereignty with indifference to the actual character of the monarch, or it is an institution without reference to a person ; negative qualities conform to it, and there is in it no representation of the nation as a person, and only by some figment it is described as a national device, " only the dot over the i." 1 In the constitution of England, the crown has not the strength which the executive has in the United States. Mr. Disraeli is one of the few statesmen who have noticed the increasing incapacity or lapse of executive power. The crown is a power without reference to the character of its occupant. It is said the Parliament has become the sovereign, but the Parliament, in certain respects, is not sovereign; it is destitute of the power which should be vested in tho legislature, as, for instance, the power to declare war and conclude peace. 248 THE NATION. The electoral law was the form of the Roman empire and of the German empire of the middle age. It was the law of the church ; and the popes, as also the bishops and abbots of the middle age, were elective. In Venice the doges were elective. In Rome the hereditary law was modified by a form of adoption. 1 It is as the representation of persons, that the republic is formed in the moral determination of the people. Its necessary foundation is in the virtue of the people. Mon- tesquieu denned this as the principle of the republic. It is the foundation of society in every form ; but it is the very condition of the order of the republic. It is said that the republic is a monotony, and its level a low and dead level. The contrast is then the formal gradation of society, the construction of lower and middle and higher classes. The greatness which appears here is comparative. Its aim is the formation of a conventional type. But in the republic the political people hold their own conscious aim, and reflect and determine their own end. It is then a necessity that the republic should have more of life. Its life is always necessarily one of endeavor and conflict, or the government must lapse into some other form. Its greatness is only that of a realized personality. The long monotony of a despotism is in contrast to the ceaseless movement and agitation of the republic, and the latter in its stability demands a higher energy, a more constant vigilance of the people. But the moral life must necessarily follow this law, anjl in its advance is always 1 Macchiavelli says that "most of the lineal successors of the Roman emperors turned out badly, while those who were adopted did comparatively well." Aristotle maintains a partly elective law, rather than a strictly hereditary mon- archy. Politics, bk. ii. ch. 8. Cicero says in a passage of singular force, " Novus ille populus, Romanus, vidit id, quod fugit Lacedemonium Lycurgum, qui regem ncn diligendem duxit sed habendum, qualiscunque is fuit, qui modo esset Herculis stirpe gene- ratus. Nostri illi etiam turn Agrestes viderunt, virtutem et sapientiam, regalem lion progeniem quaeri oportere." De Republica, bk. ii. ch. 12. THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 249 the more quick, and the more unresting and unsatisfied, and borne into higher and intenser conflict. This has its illustration in the energy and devotion and sacrifice which give nobility to the pages of the history of nations. This, says Rothe, 1 is the nature of an holy life, and that it is the more unresting, and that as a consequence there may be the loss of some apparent material advantage to the state, is not to become an argument of opposition to it. The offices and powers of the republic constitute a public trust. They are not held as a private estate. In England the higher positions are held as a private invest- ment, and in the army and navy commissions are open to purchase and sale. The representation of the Republic is of a person by a person. It is not of one person in substitution for another, but in community with another. To regard one person as in the place of another, would be the negation of person- ality, the representation of a person by a form or symbol. The representative violates his own personality, if instead of standing in his own free and conscious self-determina- tion, he aims to follow a constituency and to stand in iden- tity with that. Then he is no longer free in his own will and knowing his own mind, and the result can be only the weakness and instability of government. The representative is a person, and is the representative of the moral personality of the nation, and therefore in the realization of that acts immediately only in relation to the nation and to God. It is the law and the majesty of the nation, in its unity and its freedom, and as a govern- ment over the whole, that is to be realized in his deter- mination. He is not the bund and mechanical instru- ment or exponent of an external will, as a constituency or a party, but stands in the will and determination of the i Rothe, Theokgische Ethik, vol. ii. p. 126. 250 THE NATION. state, which is not external to him, but is to be realized in him; but every formal notion of the nation forbids this, since then the representative has only a formal relation to the nation, and is representative only of separate parties or certain persons in it. CHAPTER XIII. THE NATION IN ITS SOVEREIGNTY, IN RELATION TO OTHEB NATIONS. THE sovereignty of the nation, is the manifestation of power, in the historical life of the world. Its external >vereignty is apparent through its relations to other na- ms, and in its sphere in history. While its internal )vereignty appears in its government and order, and the sertion of its will, as the supreme law ; in its external sovereignty it exists in its unity and independence in re- lation to other nations. The recognition of a nation becomes thus one of the most impressive events in history. It rests on the con- sciousness, in each of those who act in it, of its sove- reignty, as a power hi history. It reflects the majesty of a power existent in its unity, in the moral order of the world. This recognition of one nation by another as thus existent with all the sovereign rights of a nation, can never be divested of historical solemnity. From the unformed life of men existing with no consciousness of political unity and order, and sustaining only some tribal relation, there emerges a new nation, to be recognized in its sovereignty by other nations and to enter its course in history. The appearing of a new planet in the wide fields of space, to be followed in all its circles in the physical order, is not so impressive as the appearance of a nation which is to exist as a power in history, and to act upon the destiny of man in that grander order, the order of a moral world. From the vacant centuries that have furnished no element of unity or freedom or fraternity, ijiere rises a power which is 252 THE NATION. to hold a conscious moral aim, and to act as a conscious moral energy. The sovereignty of the nation has thus its immediate external manifestation, in the recognition of nations. It is the moment in which there is a conscious realization of the historical power of a people, and each stands toward the other in a recognized sovereignty in the world. This recognition presumes in the power which is recognized the capacities which belong in its necessary being to a nation, and in which it is constituted as a nation. The nation recognizes in another, that which it is conscious of possess- ing in itself, in its own necessary being. It recognizes not a mere association of men in a certain locality, under a certain form of government, but a people as a nation. There can be no recognition which does not imply this. This recognition presumes then respect toward the na- tion recognized as a nation. It must concede to it the rights, which in its own necessary existence it asserts for itself. There is the application here of the fundamental law of rights, be a person, and respect others as persons. This law is implied in the being of the nation as a moral person ; it is the necessary postulate of rights and of duties. From this then proceeds the recognized right of a nation to determine its own political end; the right to establish its own political form ; the right to exclusive leg- islation in its domain; the right to self-preservation, to independence, to property ; the right to exist in a common relation to other nations. In the existence of the nation as a moral person, is the postulate of the sacredness of the principle of non-intervention. The recognition of it, in its sovereignty, necessarily presumes a deference for its self-determination and its freedom. It is to control its own order, and is to be respected in this, and no other nation is to intervene in its internal administration. This recognition presumes that the nation which is thus recognized, shall itself respect the rights and powers of THE NATION IN ITS RELATION TO OTHER NATIONS. 253 other nations. There is the assumption of the formal obligations of a nation. It is to yield respect to others, as it asserts its own self-respect. The principle which is here also the ground of action, is the identity involved in the necessary being of nations. The recognition of a nation is thus a continuous act, and so long as there is moral integrity of action, it is limited only by the formal existence of the nation itself. It is not therefore to be momentarily offered, nor to be arbitrarily withdrawn. It is the expression of the continuous relation of nations in their existence in history, and proceeds from the postulate of continuity in the nation. While the recognition of one nation by another nation is one of the highest acts of external sovereignty, the right to recognition is a formal right and the demand for recog- nition can be only formal. A people may exist with a manifest unity and sovereignty, and with entire independ- ence and freedom, and be in reality a nation, although it receive no recognition from other nations. Whether it be in reality a nation, is to be determined only by its con- tent, that is, the internal sovereignty which is manifest in law and freedom, and the external sovereignty which is manifest in independence and self-subsistence, but its rec- ognition depends only upon the determination, in the judg- ment of another, whether it be a nation. This recognition of a nation is not simply the recognition of a certain succession in government, although it is neces- sarily through a government. It is the recognition of the nation, which in its sovereignty may determine its own government. The act is through the government which the nation ordains for itself, and the government thus con- stituted, whatever its form, is alone legitimate. It does not follow, therefore, in any event, after the recognition of a nation, that communication is to be opened with some transient power which, perhaps through the aid of a for- eign imperialism, may Be imposed upon a people from without. 254 THE NATION. The sovereignty of the nation in its external relations is indicative of the place and vocation of the nation in his- tory. It is manifest through it as an integral power in the moral order, which is history. This is the premise of normal international relations, and the system of interna- tional laws. Since the nation has its vocation in a moral order, and its end in the realization of the destination of humanity in history, the nations exist in an international relation, which has for its condition a moral relation, and the system of international laws is definitive of the moral order in which these relations come forth. The nations, in the attainment of their necessary end, are constituted in a moral order. They cannot therefore, in the development of national life, remain in isolation and indifference. While a collection of men has no consciousness of national life, it does not and cannot concern itself with other peoples which exist as nations, except as some fragmentary mass is concerned in the pursuance of some private interest ; but if there be the development of national life it is brought into a relation to other nations. The formal definition of these relations is the office of international law. As these relations consist in the moral order of history, their am- pler expression will come in the higher realization of the being of the nation in the moral order of history. But the merely formal character which the science of international law has in the work of its yet greatest master, bears the impress of his whole political conception, and of the formal political tendencies of his age. 1 The science of international law has its foundation in the being of the nation as a moral person ; this is the condi- 1 " Grotius was not a generative thinker. If the difficult problems of the duties which one nation owes to another had been discussed in a Baconian spirit for the purpose of ascertaining what those laws are which bind voluntary agents if it had been shown historically how these laws, though they may be broken by men with arms in their hands, nevertheless avenge themselves, something would have been gained. But mere maxims which define accurately and peremptorily what should and what should not be done, must be rather hindrances than helps THE NATION IN ITS EELATION TO OTHER NATIONS. 255 tion of the rights and obligations which it is to embrace and define. And as the nation advances in the realiza- tion of its being, the science which has for its province the definition of the law of international relations will be- come constantly the expression of a development in wider and more varied relations. It is regulative of relations deeper than those formed simply in the adjustment of con- troversies arising among nations out of a state of war, or those which are the dictate of a mere international cour- tesy, although the principle of rights presumes this cour- tesy. It is this conception of the nation as a moral being, which has given to the work of Wheaton an almost his- torical position ; and however briefly defined, its clear ap- prehension of it has been the source of an influence which can attach to no mere manual of rules or collection of pre- cedents, in a science which has no acknowledged tribunal. Wheaton says, "every state has certain sovereign rights to which it is entitled as a moral being ; in other words, because it is a state ; " and again, "every state as a distinct moral being, independent of every other, may freely exer- cise all its sovereign rights in any manner not inconsistent with the equal rights of other states ; " and again, " all sovereign states are equal in the eye of international law, whatever may be their relative power." These proposi- tions are constructive in the work of Wheaton. 1 The progress in international law can come only in the clearer apprehension of the being of the nation, and the to an actual moral science. Yet the value of the work," the writer adds, "is in its evidence that these relations have some moral ground; that they cannot be left to be determined by accident, nor commercial cupidity, nor a Macchiavellian policy." Maurice, History of Philosophy, vol. iv. p. 324. 1 Wheaton, International Law. Dana's ed. pp. 52, 89, 100. R. von Mohl has criticized the work of Wheaton as unscientific, a confusion or miscellany of law, contemporary politics, and history; but whatever may be its defect of method, and that certainly is obvious enough, its moral spirit and conception has given it an historical influence and position beyond almost any modern work on the subject. Literatettr wid Geschichte der Staatsimsen- Khaften, vol. i. p. 399. THE NATION. consequent assertion of the rights and correspondent duties involved in that. It will await the institution of no tri- bunal, whose formal judgment will be a finality. In the nature of the nation in history, there can be no tribunal and no congress which shall be in itself supreme, and possess over the course of nations an ultimate and impera- tive control. As the nation is constituted as a moral per- son, it cannot abdicate its responsibility which is given in its being, and can, in its ultimate determination, be re- sponsible to none on earth, but only and immediately to God. The nation will hold in its own determination, so long as it exists in the conditions of history, the issues of war, on which it enters in its entire being. It may act in cer- tain circumstances through another, and it may refer the exposition of certain principles, or the estimate in the ad- justment of certain concerns, to the judgment of another ; but in this it may not act so as to impair its sovereignty, or to surrender its. moral responsibility. In the realization of the being of the nation in history, there will be manifest among nations a deeper relationship. In their greater strength, and as their end is apprehended in the realization of the destination of humanity, there will come a more enduring peace. The advance of hu- manity is indeed slow ; but in the solidarity of nations they will discern the sources and conditions of their aid to each other, and that all must suffer in the detriment of each. Then will come the sympathy and the helpfulness, which there is among men, who march toward the same goal, and at last must march all together if at all. It is there- fore no dream, but the coming of a new life, which holds the prophecy and the realization of the fraternity of na- tions. In the development of history this relation is be- coming more perfectly apprehended, and as mankind rec- ognizes more deeply the universal fatherhood, there is THE NATION IN ITS RELATION TO OTHER NATIONS. 257 manifested in the Christendom of nations the family of nations. 1 1 Napoleon III. pronounced the award in the Universal Exposition, " in the name of the family of nations." Thiers and Guizot have shown the course which would have represented the selfishness of France; but the idea of the fraternity of nations has always awakened in the spirit of modern France an emotion, and has stirred it with hopes beyond any appeal to selfish interests. The tendency of modern diplomacy is, to become more open, and the old de- vices and disguisements of merely sinister schemes and tortuous courses con- stantly avail less. But there is no estimate of the danger and disaster involved in the weakness and cowardice of nations, in not meeting as men." The premise of international rights is given in the postulate of HefFter, as cited by Wheaton: " Law in general, is the external freedom of the moral person. This law may be sanctioned or guaranteed, or may derive its force from self-pres- ervation." " The jus gentium is formed on reciprocity of will." The refusal of England to submit her action in recognizing the Confederates In rebellion as belligerents, to arbitration, proceeds upon the ground that it was an act of England in her sovereignty, and may in itself be referred to no arbi- tration; but it was a deliberate act, within her control, and the injuries to this nation which were resultant from it are therefore within her responsibility, and may be submitted to an arbitration. Their recognition as a belligerent power, by a nation, before the circum- stance of war involved any necessity for it, tended necessarih' to elevate them to an equality with the nation, and gave them all the advantages which arise from regulations shaped to apply to nations, in defining national rights in time of war This was the constant security of the Alabama in British ports. The neutrality of England in the circumstance of war became nominal. Mr. Gladstone attributes many of the recent difficulties of England to her recognition of any power as a nation, when a transient interest may dictate. There was more than this in the eager manifestation of satisfaction at the peril approaching the American people. It would seem to have been a sudden dis- closure of the spirit of the English toward the United States. If the disclosure was terrible, it would be weakness to forget it and peril to overlook it. Mr. Gladstone, who seems never to have heard the Hebrew national psalms said or sung, said, as a minister of state, that " Jefferson Davis had made the South a nation," and the remark is mainly significant as indicating among the statesmen of England the conception of what constitutes a nation. The sym- pathies of nations are more subtle and profound than are those of individuals, and the causes of the sympathy of Prussia and Russia and Italy for America, and the active sympathy of England for the rebellion, lie deep in the springs of history. The strength of the political course which Mr. Burlingame has inaugurated in the East, is that it does not regard these peoples merely as those with whom we are to open economic relations, a policy in the interests of the sovereignty and of the freedom of trade, nor to begin a scheme of conquest in which all the elements of national life in the people, however imperfect, are to be crushed; but it is the institution of a policy in which these elements, in the unity and spirit of the people, are developed, and is the investiture of them with powers and rights which have a moral content, and consist with international law. 17 CHAPTER XIV. THE NATION AND THE INDIVIDUAL. THE tendency of the political speculation of the old world, in Greek and Roman thought, was to regard the state as above and before the individual, so that the ex- istence of the latter was subordinate and secondary ; the individual existed only for the state, and the state alone existed as an end in itself. There was the assumption of a necessary contradiction, and the solution was in the nega- tion of the individual. In Greece, the state acknowl- edged no moral, and allowed no formal limitation to its power. It took upon itself the immediate and exclusive conduct of life. It was to dispose of all, and not only to prescribe the avocations and regulate the affairs, but to direct even the thoughts and affections of men. It com- pelled the individual to engage in public pursuits and fill public offices and execute public trusts in the same manner as if subject to a military discipline. In contrast with this, the tendency of modern political speculation, in its abstract systems, has been to regard the individual as above and before the state, so that the ex- istence of the latter is subordinate and secondary ; the state exists for the individual, and the individual alone exists as an end in himself. In these conventional schemes, the state is apprehended as only the form which the indi- vidual adopts in the pursuance of his private ends ; it is an artificial and temporary association, formed by a collec- tion of certain individuals ; it is established and maintained by a certain number of men, as private persons, and is subservient to their interests as individual or collective. THE NATION AND THE INDIVIDUAL. 259 It is secondary to the individual in the assumption that it is only an artificial and temporary organization, and in the rejection of the unity and continuity involved in its necessary conception, and manifested in its organic life. In the course of history, there has been through the Christian centuries, in the realization of the being of the nation and the individual, the evolution of no antagonism, but there has been the manifestation of their necessary foundation and unity. Firstly, The nation and the individual are existent in the conditions of history, each as a necessary and integral element, in the normal development of the other. The nation is no abstraction. It is not a formal and external order apart from the people. It is organic, and in its necessary process as a moral organism it presumes in the individual the realization of freedom. In this, it is consti- tuted in its freedom. There is in this, instead of a source of variance, the postulate of its moral strength and its spirit. The individual, conversely, has his normal development in the nation ; it is formed in the institution of a moral order. This has been the course of history. The transi- tion from the unformed life of man, the barbarous con- dition, has been in the realization of the truly human, that is, the normal and the moral condition, and this has been formed in the relations of the nation. The isolation of man is the representation, not only of an unreal, but an un- developed existence, and the institution of the normal rela- tions of men, that is, the organization of society, is in the nation. There has been thus for the individual apart from the nation, no realized freedom. The nation has been the precedent of the realization of freedom. Secondly, The nation and the individual in their rela- tion, exist each in a real and integral moral life and each as an end. The necessary conception of personality for- bids that it should exist only as a means to an end, and its realization in the nation and.in the individual forbids 260 THE NATION. that either should be apprehended as merely secondary and subordinate. The nation, as a moral personality, has its law of being in itself, and its own vocation and its own end in history ; the individual in his own personality has therein also his own law of being, and his own vocation and end. 1 The personality of the individual has not its origin nor its foundation in the nation ; the personality of the nation has not its origin nor its foundation in the individual, but each has its origin and foundation immediately in God, and its vocation is only from Him. There is therefore no necessary antagonism, but in the law of their being an inner unity. There can be, therefore, in their normal de- velopment no real conflict, and there can be no apparent or external conflict which does not involve in the one or the other the precedent contradiction of its own nature, and of the law of its own action, as determined in per- sonality. The actual conflict of either with the other, is in its precedent a conflict with itself. That there should be the possibility of an apparent or an external conflict, lies in the fact that through the power of sin, and through the ignorance and the weakness of men, the course of each is agitated and disturbed, and the realization of its being must be through many crises ; and in the fact also that^the exist* ence of each in itself is a development in the moral con- ditions of history and of life ; but in the realization of the being of each, the possibility of this antagonism is dimin- ished, elements of external opposition are eliminated, and all that separates or occasions variance is being constantly excluded in the course of the development itself. 1 There is the representation of the individual personality in the conscious- ness, in the dramatist: ."I am a nobler substance than the stars: Or are they better because they are bigger? I have a will and faculties of choice, and power To do or not to do ; and- reason why I do or not do this ; the stars have none. They know not why they shine more than this taper, Nor how they work, nor what? " THE NATION AND THE INDIVIDUAL. 261 The organism of society is thus construed as an ethical organism, that is, an organic whole in which that which exists in it is both a part and a whole, a part in rela- tion to an existing whole, and yet each a whole in itself. 1 In the Greek representation, Aristotle justly places the nation in relation to the individual as the whole to the parts, and this relation exists for each individual compre- hended in it ; but the defect in the Greek thought is in not regarding the individual as a whole and an end in him- self, and also in apprehending him as immediately related only to the state, and therefore as secondary and subordi- nate. This was the fault of the Greek thought ; it had not the revelation of the divine origin of man in the image of God, which has been from the beginning of history the ground of the positive Christian development. Thirdly, The nation is withdrawn from the individual by a vocation, and the individual is withdrawn from the nation by a vocation ; but this instead of being the premise of an inconsistence, because the fulfillment of the relation of each is in the realization of personality, and in the will of God from whom it proceeds, is the condition of an inner and a necessary unity, as this unity has its subsistence in God. There is in this apprehension of the moral order existent in the vocation of the nation and the individual, the presentation of no abstract ideal, but it is the very ground of the unity and progress and solidarity of society. The nation has its own vocation which it is to appre- hend and to realize in history ; it has not its origin in the volition of the individual, nor its end in the object of the 1 " The nation must apprehend its moral aim not exclusively as the universal but as this in inseparable unity with the individual. Every individual must be an absolute end also to the state. The individuality of none can be engrossed by society as an whole to perish in it, as if crushed through the grinding of the wheels of the state machine, for the sake of the common good." Rothe, The- vkgische Ethilc, vol. iii. sec. 2, p. 903. " It has often been said that the well-being of its citizens is the end of the rtate ; this is certainly true : if it is not well with them, if their subjective aim i * not satisfied, if the state as such is not the means for this satisfaction, then i fce state stands on lame legs." Hegel, Philosophic des Recht*, p. 321. 262 THE NATION. individual, since as a moral person, it has its origin in the divine will, and its end in the moral order which is set before it. There is thus manifest in its progress, a pur- pose in which it is borne toward the divine end in history. There is an aim which in its completeness in history, transcends necessarily the existence of the individual. There is a continuous spirit which is apparent in the suc- ceeding moments of its existence, and these are not merely the changes in a physical sequence, but in the develop- ment of a moral being. The individual is to work in his own vocation, and this consists with a moral order. This vocation, in its external phases, is incident to the realization of personality. The nation cannot determine the vocation of the individual, though in its moral order it is to maintain its sphere. It can assume nothing which devolves upon the determina- tion of the individual, but while existent with it in the relations of personality, it is external to it. The individual cannot transfer to the nation that which is involved in his vocation. Since it is in the realization of personality, there can be no transferal of it, but the individual is to work in it, and to work it out. The individual has neces- sarily to work in his own purpose, and after the idea given in the type of his own individuality. He can only appre- hend that which is his own, and an end which was alien to his being would be for him an abstraction, or would have necessarily to be rejected as an evil. It is thus alone, in conformance to his vocation, that he can work with a conscious spirit and freedom. Personality is inalienable. The rights of the spirit alone are inalienable rights. They are the rights of the spirit in itself, and are not as those which can be instituted through positive law in the external sphere. They are rights which are not won by force of arms. They are not to be numbered in the conquests of earth. The inner spirit is beyond the assault of force ; its life is not touched, THE NATION AND THE INDIVIDUAL. 263 and its strength does not yield to mortal wounds. A man may alienate an outward thing, but personality he cannot alienate. Its alienation would presume its nega- tion, the very abdication of the will. The surrender thus of the individual will and the conscience to that which is external, as to a priest, and the faith which calls one on earth a master, is the degradation of personality, and its consequence is superstition and slavery. 1 Since person- ality has its origin in God, its spiritual and inner life is immediately with God. Its course is in the light in which no shadow falls, as it is unmeasured by time ; it is the path which the vulture's eye has not traced, and is as " the flight of one alone to the Only One." " Over the soul,'" says Luther, " God can and will allow no one to rule but himself." The authority of the state cannot control the inner life, it can judge none for opinion's sake, it can by no enactment direct the course of the spirit ; it is not to invade the conscience and thought, it is not to regulate the dispositions of men ; it cannot determine their love or hate or thoughts. These are withdrawn from the state, and over them the state neither has the power, nor is it called upon to rule. As the freedom of the inner spirit is beyond external power, the rights of the spirit cannot therefore embody themselves in the formal sphere of posi- tive rights, but the nation is to guard them from all attempt at invasion from the external sphere, and to forbid every attempt to bring force to bear upon them, and is to secure and maintain the freedom of conscience and of thought, the freedom of worship and of science. Fourthly, The nation and the individual exist in an organic and moral relation, in which the normal develop- ment of each has as its condition the development of the other, and their unity is formed after the law of a moral unity. The development of the individual has instead of 1 Hegel speaks of personality as " die hochste zugescharfste spitze." Logik, bk. iii. p. 349. Rothe says, " Personlichkeit i|t die rechste, concreteste, und in- tensiviste Bestimmtheit." Theologische Ethik, vol. i. p. 66. 264 THE NATION. its restriction, its necessary condition in the nation. It has its postulate in no merely external order, and no for- mal complex of laws and systems, but there is in these its limitation. As it is formed in relations, it subsists in a relation to the nation, as a moral person. The life that proceeds in conformance only to an external and formal postulate the life that in morals is under rules, and in art under manners, and in religion under dogmas, and in politics under systems is devoid of energy and of the strength and satisfaction of a living spirit. It is be- cause the nation is not merely an external and formal sequence or system, but an organic and a moral person, that it consists with the development of the individual person. The nation indeed exists in its freedom in the realiza- tion of a moral order, but that order is correspondent with the real, the innermost being of the individual personality, and therefore the individual may strive to embody his moral determination in it, and may have in it the satisfac- tion of his aim. But it is in consistence with this that the nation may always require from the individual, in the external sphere, an external moral life, and the individual may demand from the state that no law determining the external sphere shall be in itself immoral, or destructive of the rectitude, or conviction of right of the individual, or impose obligations which are an offense to conscience. 1 1 The conscience is not simply a certain faculty, as the memory and the judg- ment, to be occupied with the perception and contemplation of good and evil, as the memory, for instance, is occupied with the recollection of the past, or the judgment with the comparison of objects. It is not simply the capacity for the wider knowledge of good and evil, and the higher, the better conscience is not the wider acquisition of knowledge of the fruit of the tree of good and evil, and the discernment of the quality of its fruitage. This can account for none of the facts of conscience, as the}' are attested in the consciousness of the individual; or in the writings for instance of Shakespeare and the older dramatists, in whom there is the most profound analysis of these facts ; or in the history of the race ; or in the witness of its great moral teachers. There is in the realization of personality the conquest of evil and the separation from it. The conscience presumes the communion of a person with a person ; it is represented thus as the inner voice, the eternal word which speaks to the spirit of man. THE NATION AND THE INDIVIDUAL. 265 It is a duty to obey, but if the law to which obedience is enjoined is in violation of the law of conscience, its rejection is a moral necessity. The individual may not in his ac- tion controvert his own. conscience, as if for instance the state demanded his participation in some superstitious rite. But the state in every law and regulation of this sort, not only passes beyond its province, but the requisition of such acts is in violation of the law of its own being, as there can be no actual conflict of the individual and the nation but it is preceded by, and in itself involves, the variance of the one or the other with the law of its being. The re- jection of an immoral requisition may be therefore the con- formance to the higher law, the law of the being of the nation, but the rejection can only be justified in the indi- vidual, when it is followed by an eifort and endeavor to repeal the law or regulation itself. The development of either the individual or the nation is in so far the condition of the higher development of the other, that the ages of their higher historical development have been coincident. They become associated in the spirit of the people. In the life of the nation, the very names of its members, in whom there has been the higher personality, become the synonym of its strength. Thus Dante becomes identified with Italy, and his name becomes a sign of its national hope ; and Shakespeare with England, and Luther with Germany ; and in the struggles of the peoples for national life, their names become the symbols of national unity and national spirit. It is thus, also, that in the decay of the nation there is the correspondent degradation of the individual. This has its historical evidence in many forms. As the strength of the organic life of the nation is impaired, and its spirit is There is in the conception of personality, the significance in ethics of the golden rule, as a comprehensive law, " do unto others as ye would that they should do unto you." This alone removes it from a mere negation ; the law of action is in no abstract idea of justice, nor in love of itself considered, but the content of the law is in personality. 266 THE NATION. broken, there is an increase in the assumption and dom- ination of sects and parties, and the individual person- ality is weakened as the people become entangled and trammeled and ridden by them. The tyranny of opinion is stronger in the decadence of law and freedom. The moral energy and vigor of the people is sapped. The armies are no longer armies of men, but masses moving mechanically, as if impelled by some power external to themselves. They become converted into the passive instruments of an imperial force. It is in the law of a moral unity the unity in which the realization of personality subsists that the foundation of the unity and continuity of the nation is laid. It is the law which has its highest manifestation in sacrifice. It consists with the consciousness of the vocation of the nation, as the fulfillment of humanity in God. A his- torian of the state, as he presents, in the exclusion of all theories, the facts of history, says, 1 " The glory and honor of the nation have always elevated the hearts of its chil- dren, and inspired them with sacrifice. For the being, the freedom, and the rights of the nation, the noblest and the worthiest have always offered their lives and their all. The whole great thought of the Fatherland, and the love of its children to it, would be inconceivable, if this moral personality did not belong to the nation." But as there is in the moral unity which is manifest in sacrifice, the recognition of the moral being of the nation, there is in it also, the preclusion of the postulate and induc- tion of individualism. It can find no reconciliation with the assumption that the nation exists only for the institu- tion and protection of private interests, and the further- ance of private ends. The unity which subsists with the sacrifice of the individual for the nation, as it is formed in the manifestation of the law of the highest moral unity in the life of humanity, can proceed only in the conception of 1 Bluntschli's Allgemeims Statsrechts, vol. i. p. 40. THE NATION AND THE INDIVIDUAL. 267 the being of the nation as a moral person. It cannot consist with a mere individualism in its principle or result; and it is abhorrent that the sacrifice of those who had the higher moral spirit the worthier going forth in their prime with joy and trust should be counted only to serve the private and special ends of the individual, and to secure or promote their pleasure or possession ; and when the names and sacrifice of these are kept in the memory of the people, it is abhorrent that any should regard the nation as existent only to subserve their private and special interests and ends. But this is the necessary- assumption of individualism. It is because there is an inner moral unity in the nation that the higher realization of personality consists with it. The ideal state of Plato regarded the freedom and person- ality of the individual with dread, and found no place for it ; but in the realization of the nation it becomes the element of its strength. It is as the temple whose build- ing is of living stones. The very substance of the nation is in identity with the realization of personality ; but this can be conceived only as the nation is a moral person. It is thus in its history, that those in whom there is the higher realization of personality testify in themselves tc the higher realization of the nation. The will that strives for the prevalence of righteousness on the earth, in obedi- ence to the divine "Will ; the spirit that communes with the inner voice to follow the divine Word ; as there is in these the source of the personality and freedom of man- so there has been in these, also, the building of the nation* The historical forces, with which no others may be com- pared, in their influence upon the people, have been the Puritan and the Quaker. The strength of the one was in the confession of an invisible presence, a righteous and eternal Will which would establish righteousness on the earth, and thence arose the conviction of a direct personal responsibility which could be tempted by no external 268 THE NATION. splendor, and could be shaken by no external agitation, and could not be evaded or transferred ; the strength of the other was the witness in the human spirit to an eter- nal Word, an inner voice which spoke to each alone, while yet it spoke to every man; a light which each was to follow, which yet was the light of the world ; and all other voices were silent before this, and the solitary path whither it led was more sacred than the worn ways of cathedral aisles. There was in this the foundation of the personality of each, and the secret of the power in which they have wrought upon the nation. Fifthly, The conception which defines either the nation or the individual as subordinate and secondary, is in its error the postulate of an inevitable antagonism. If either be held not as an end in itself, but only as a means having the other for an end, there can be no principle of unity and no form of reconciliation ; there can only result the negation of the one by the other. Society, then, in its irregular course, moving from one contradiction to another, sweeps through the extremes of socialism and individual- ism. It alternates between a communism, in which there is the destruction of the individual, and an imperialism, in which as in anarchy there is the exaltation of the individ- ual. There is in each of these phases of discordant action, the contradiction to the nation as an ethical organism, -J the subversion of the organic and moral being of the peo- ple. The result in each is the decay of public spirit, which is the reflection of the moral aim of the people, and the loss of even the conception of public duties. Thus in an individualism, where society is apprehended as hav- ing its origin in the volition of the individual, and its continuance subject to his option, and government is only the temporary agency of certain individuals, its right only the combination of private rights, its will only the momentary choice of private persons, its end only the fur- therance of private ends ; and in socialism, T vhere the THE NATION AND THE INDIVIDUAL. 269 individual is apprehended as subordinate, and is related to the government only as its subject, and in himself and his services is held as if owned by the state, there is in the principle and result the comprehension only of private capacities arid private obligations, and in each there is no foundation for public duties and public rights. Their conception is apparently preserved in the latter as- sumption, but in it, the necessary rights of the state itself can only be apprehended as private rights, and in relation to the individual the state is only a private person. There is wanting also in the artificial conception of the state, that is, its conception as only a formal sequence or order, the necessary condition of the individual develop- ment. It is necessarily restrictive of the individual. This has been conceded in the induction from the theory itself. Those who have assumed the origin of the state in a com- pact, have regarded its existence as the necessary and formal limitation of the individual, and therefore it has been assumed that the individual surrendered a part of his actual freedom and actual rights on his entrance into it, and in so far suffered the deprivation of them. The organization of a merely formal association, as the organization of a sect or a party, is necessarily restrictive of the individual; but it is not thus in an organization formed in an organic life, and as freedom has no formal ground, it cannot subsist in a merely formal association, and it is only as the nation is an organic and moral per- son that freedom is realized in it, and that the freedom of the individual may be wrought in and with it, in its normal development. 1 Sixthly, The nation is to institute and maintain for the individual the sphere of an individual development in its external conditions. It is to enable each to bring all that is in the type of his individuality to its fresh and free ex- pression. There is to be room for each that he may do 1 See Bluntschli's Geschichte des Gtaatsrechts, etc., p. 622. 270 THE NATION. all that is in him to do, so that if there be failure in any attainment it is in the homely phrase, because it was not in him. The state by no enactment is to thwart or re- strict the working out of the individuality of each in its own type. It is not to hamper or debar any in the crea- tive use of the talents given to him, but in its external conditions is to guard them against let or hindrance. The individuality of each is to be so left, that each may work after his own idea, as all that is alien to this must neces- sarily be rejected as abstract or evil. This is the condition of the moral life, and its real achievement. In this alone, as the individual works freely and steadily in it, is the only sureness of strength and repose of character. It is in this that the manifold riches of life, more varied and opulent than in the process of the physical world, are wrought. There is thus to be open to each, the expression of his own conceit, his own dispo- sition of things, his own fancy alike in the work and play of life. There is to be also the freedom of work, and free- dom of thought in every form, in theology, in politics, in science, and freedom of study and research, and freedom of communication and association, and freedom of cooper- ation in industry and economy. There is to be freedom of action, the choice of a home, the choice of a vocation, the choice of a wife. This freedom in every field is the condition of moral strength. In it the bondage of the animal is overcome, and " the ape and tiger die." The higher individuality is always advancing toward the universal, as universality is a necessary element in person- ality. Thus the mere eccentricity of style, the singularity of manner or oddity of action which do not belong to individuality, tend to disappear, as all mere mannerism ceases in the work of the greater artist. In the necessary conception of a moral organism, the nation is to regard the individual as in himself a whole, and its aim is to be, that his powers shall have a devel- THE NATION AND THE INDIVIDUAL. 271 ent in a consistent whole. Since the nation compre- hends in its aim the universal, not as an abstraction, but in the realization of personality, it diverges from its own aim, and impairs its power in every course which is re- strictive of the individual personality. Its attempt imme- diately to control and direct it, is an incursion always marked by the devastation of human energy. In its en- croachment it can only mar the work and baffle the pur- pose of men. It can only make men by it the agents of imperial dominion and the subjects of priestly supersti- tion, the tools of sects and the trade and stock of parties, not the members of a free nation. It is the course of principalities and powers, not of the government of free men. Seventhly, The nation is constituted as a power in the education of the individual. The individual first becomes a person in the nation. It acts as a power in the realiza- tion of personality. It works as an organic energy. The elements of a moral order in it are formative of charac- ter. In the nation the individual apprehends the authority of law in an order which is over self will, and he has before him an aim which transcends a selfish end, and is lifted into the consciousness of a life which has a universal end. In the nation there is wrought into the life of the individual the apprehension of a purpose formed not in momentary and transient desire, but a purpose transmitted through the succeeding generations with its sacred memo- ries and mysterious sympathies and quickening hopes. The nation thus becomes for the individual an heritage, and not his alone, but to be held for those who shall follow him. The wealth of its historical associations, and the grandeur of its historical epochs, are its gifts. The majes- ty of its law, and the authority of its government, and its conquering power are around him; its acquisition is his vantage-ground ; its domain is his home ; its order is his working field ; its rights arc the armor it has forged 272 THE NATION. for him ; its achievements are the nobler heights he treads ; its freedom is the ampler air he breathes. The evil of things is in the degradation of personality, and in that men sink into the undistinguished mass. But the nation in its being as a moral person penetrates the whole, and transfuses it with its spirit. In its relationships it becomes the realization in humanity of the brotherhood of men; and in its continuity, it takes hold upon that which is eternal, and man is lifted into the clearer con- sciousness of the being and the eternal " I am," the foun- dation of all. But no theory of interests, and no scheme of economy, and no sect in its exclusion, and no imperial- ism in its dominion, have power for this, and it belongs not to the nation as these, but to the nation because it is other than these. There is in Stahl a suggestive and beautiful illustration of the representation of the state in the fundamental thought of Plato and Rousseau. The true postulate and the real object, it is admitted, is the perfect unity and relationship of men in a moral kingdom, and with this the perfect freedom and conscious self-determination of each ; it is this that has inspired the loftiest conceptions of the state. The fundamental thought of Plato is the perfect unity of the state, but as involving the surrender of the individual will ; and yet it is this which casts a marvelous light upon the pages of the Republic, the feeling that the true condition of humanity is only realized when the individual wholly and without reserve loses himself in the unity and the harmony of a higher moral whole : the fun- damental thought of Rousseau is the perfect freedom of the individual, and he asserts as the problem a condition in which every man remains perfectly free, so that when he obeys the state he obeys only himself; and this statement of the problem is the deep and eternal truth, but it is only to be solved in the conclusion, that the will of the state and the will of the individual hold substantially the same determination, and that each hold a moral determination. THE NATION AND THE INDIVIDUAL. 273 Theie is a faith in the destination of the state which makes the highest moral endeavor no vague and empty dream. There is a faith which while it may call for the willing sacrifice of the individual, yet makes it not all in vain; and they that in the strength of that faith pass though the suffering and sacrifice of prisons and of battle- fields, find in the realization of the life of the nation that the words are justified, " He that loseth his life shall find it." NOTE. Mr. Mill says: "The tendency of all the changes taking place in the world, is to strengthen society, and to diminish the power of the individual ; formerly men lived in what might be called different worlds, different ranks, trades, etc. at present in the same. They now read the same things, see the same things, have the same rights and liberties, and the same means of asserting them. The assimilation is still proceeding ; all the political changes of the age promote it since they all tend to raise the low and lower the high." On Liberty, pp. 8, 43. This proposition that the political changes taking place in the world, the politi- cal changes tending to increase the power of society, operate to diminish the power of the individual, is the necessary induction of Mr. Mill's conception of liberty; but it is presented with no historical evidence. These changes, it is admitted, are towards the realization of a stronger life in the nation, that is, the organization of society ; but the ages of national development have always been characterized by a higher individual development. These changes have been the greater in the United States, in German}*, in Russia, in Italy, in Spain ; and the most superficial survey of these countries makes it apparent that the greater unity and power in the realization of the being of the nation has been coincident with a higher freedom a higher realization of the individual per- sonality. A wider illustration might be drawn from the history of preceding centuries, as for instance, the age of the higher national development of Eng- land was the age also of Shakespeare, of Raleigh, of Bacon, of Milton. To read the same books, to hear the same truths, to see the same ideals in art, to become conversant with the same facts in history, does not diminish individuality; the same books does not mean books of sameness. That all men, for instance, read the Bible, or Homer, or Dante, or Shakespeare, or in the facility of travel, have opened before them the whole world of art, does not diminish individuality. If these truths, or books, or works of art, were limited by an exclusive patent, it would not aid in the development of individuality. In so far as any production in literature or art has a universal element, the per- sonality of each is elevated, instead of being depressed and diminished by it. It would be inferred that individuality is apprehended in the preceding citation as only a formal variety or contrast. The artificial distinction is the description of a personage, and not of personality. When Mr. Mill assumes a diminution of individuality as the result of the institution of the same rights, the fallacy is more apparent, but is most danger- ous, foi these rights have their consistent foundation in no artificial representation of the state, but only as they are recognized, as the rights of personality tbe 18 274 THE NATION. rights of man. And individuality is not founded in, nor developed by, artificial distinctions and grades in rank, or caste, or by various trades, or by the isolation of provinces; these impair it as it is compressei in their external moulds. The force of custom and circumstance weighs upon the spirit, sis it is cramped and bent to run in these grooves. The counhy may be called the more free which has roads open through it % ; but it is not the more free when one is always re- quired to take a road through the valley and one always to ride on the hills. The stronger individuality comes to hold these distinctions which are cited, only as an accident. And the formal distinctions of rights and liberties, as it severs them from their only true foundation, instead of elevating crushes the individual- ity of men and fetters their free action; for the further statement, it is a law of unvarying force, that when in the nation the low becomes high, it is not by the degradation of the high, but in the elevation of the whole. Mr. Spencer has a representation of the state, in which education and the institution of public schools by the state is regarded as an infringement upon the sphere and rights of the individual ; and recognizes among the rights of the individual " the right to ignore the state." Social Statics, p. 229. The mean- ing of this term is made further apparent. Mr. Spencer says: " Government being simply an agent, employed in common by a number of individuals to se- cure to them certain advantages, the very nature of the connection implies that it is for each to say whether he will employ such an agent or not. If any one determines to ignore this mutual-safety confederation, nothing can be said except that he loses all claim to its good offices and exposes himself to the danger of maltreatment." Ibid, p. 229. It may be well to have the induction of an out and out individualism, which holds the state only as a '' mutual-safety confederation," a joint-stock insurance office, and regards government as a private u agency," and recognizes for the individual, " the right to ignore the state." Then when not only one but two or a crowd assert their rights and ignore the state, and in this condition rob or murder, or in any sort maltreat each other, the state may not act in reference to it, since it is only the agency in the employ of other individuals. If then, if the illustration may be allowed, Mr. Spencer assert and exercise his rights, and while maintaining his right to ignore the state is robbed by some vagrant, of course he cannot recover through the aid of the government the property which he has lost; or the vagrant, not having determined himself to ignore the state, may bring the power of the gov- ernment, being the agency in his employ, to secure him in his actual possession, it of course refusing to admit the claim of one who had ignored the state. Mr. Spencer further describes this right as the attitude of " a citizen in a condi- tion of voluntary outlawry " Ibid, p. 229. It is difficult to imagine " 8 citizen in a condition of voluntary outlawry ;" and one fails to recall the po- litical position of any whom it depicts, unless it be not the least sig- nificant among the political characters in Shakespeare, Sir John Falstaff. The satisfaction with which Sir John would receive this presentation of the state, as defining his position, can readily be imagined, and it is not surprising, in the unshrinking conclusions of the writer, to find on the following page a repetition of Sir John's inveterate opinion, " The state employs evil weapons, soldiers, policemen, jailers, to subjugate evil, and is alike contaminated by the objects with which it deals and the means by which it -works." Ibid, p. 230. The difference between evil doers and deeds, and this use of so-called evil weapons, is not defined; and a people who have reason will not regard the soldiers of the nation as justly described as "evil weapons," nor believe that THE NATION AND THE INDIVIDUAL. 275 it was contaminated by them. These statements need no discussion, and if there be an illustration of a barren logic applied to the state, or in Milton'i phrase, " ideas that effect nothing," it is in these positions. Their significance is mainly in their evidence that at the outset a mere individualism loses the conception of a country, and the relation of the people to the land. They are the induction of empty formulas ; and they do not touch the solid ground, nor comprehend any fact in the life of an historical nation. And it is the peril of a people if these theories mould its thought; the right to ignore the state becomes the justification of secession and rebellion and of every political crime, and these principles in the thoughts of men are the dissolution of society and destruction of the nation. CHAPTER XV. THE NATION AND THE FAMILY. THE nation and the family exist in a necessary and moral correlation. They do not exist in identity ; the family has its own unity and order, and the nation has other powers and obligations, so that when society is con- stituted after a patriarchal type, and does not pass beyond that, there is no political life, nor the institution of an his- torical power. The family is the natural and the normal condition of human existence. It is not the unit of society, that is, the ultimate and integral element, but it is the unitary form of * society. In its beginning it is rude and imperfect in its structure, but with the progress of society it passes on to a higher development and a more perfect conformance to its type in the true and monogamic organization. The family is of divine institution, and is constituted in and with the nation in the moral order of the world. It is a relationship, and there is thus in its growth the educa- tion of the individual and the formation of character. It is as a moral order, and as constituted in moral rela- tions, that the family has its origin and foundation, not in impulse and desire and transient choice ; but it presumes in its beginning and its course the assertion and continuity of a moral determination, and therefore impulse and tran- sient choice must be brought into subjection to it. It is as a moral order that it has its own law, and is to be formed after its own necessary conception. It is as a moral order that it is related to the whole order and organization of society, and therefore its violation affects not only the individual but the nation. THE NATION AND THE FAMILY. 277 The family, in its divine origin and in its formation in' the relations of a moral order, and in its consistence with the determination of personality, is a holy estate. It has its beginning in the "I will " of those who enter it; and it cannot therefore consist with the transient desire, nor the momentary act of the will, and these are excluded by its law, and the continuous character of the moral determination of the will is apprehended in it. It is in conform ance to the relations of a moral order ; and as these relations, while they consist with the moral deter- mination, had not their origin in the transient volition of man, they cannot be made subject to it. Since man did not create this order, in the possibility of sin, he may interrupt or violate it, but he cannot change it. It is not therefore existent only in the momentary choice of sep- arate parties, to be continued or dissolved, as the inclina- tion of either or both may dictate. This would consist only with an arbitrary and unfree, and therefore an im- moral, constitution of society. The family is organic ; it has not its origin in an enact- . ment or a contract ; it is not a construction in conformance to a speculative theory or scheme ; it is not a formal rela- tion, but an organic and moral relation ; it is not a formal \ order, but the natural and normal order. This precludes its assumption by a certain section or a certain class as an exclusive or a proprietary right. This precludes also the representation of the origin of the family in a contract. The contract also could not become the ground of the unity involved in the family, since those who form a con- tract remain separate parties to it. The necessary analogy of the family and the nation illustrates their necessary structure, and there is in it the avoidance of the error of many political abstractions and the infidelity of many political dogmas. The representa- tion of the nation as only a formal organization, or as an external order, or as the exclusive possession of a few, or 278 THE NATION. as formed in a contract, or as the scheme and expedient ol legislators, is inconsistent with the necessary analogy of the family and the nation. In the organization of society the family is precedent to the nation, while in its continuance it is subordinate to it. It is through its precedence and through its necessary con- stitution in organic and moral relations, that it appears in an historical relation with the beginning of the nation, and subsists in a continuous relation with it. The nation has not its origin in the family, but it exists in a necessary correlation with it, and in the development of each this relation must always have a deeper recognition. The first indications thus of the organization of society, are in the family, the life of the patriarchs and the patricians ; and the notions of a formal and conventional origin of society disappear in the study of the historical beginning of things. There has been in no age the record of the foundation of the nation, but there has been coincident with it the witness to the sacredness of the family. In the ancient world, or rather in the beginnings of the historic world, this conception is central and prevails in its art and liter- ature and laws. The book of the Genesis is mainly filled with the record of the foundation of the family, and the incident of its history ; and with its close the transition is made to the nation. The Iliad, in which there is the deepest reflection of the spirit of archaic life, is the story of a war for the vindication of the purity of the marriage bond, and its heroes are those who go to battle to vindicate the sacredness of the family; the ^Eneid is the story of filial duty and reverence, and in each the spirit of the family blends with the nation, and in each there is the unfolding of a national life. In Judaea the family, in its primitive law, is declared to be holy, it is to be maintained as an institute of the nation in its order, and its violation is to be punished as a crime. In Greece, its earliest insti- THE NATION AND THE FAMILY. 279 tutions, the phratriaB and gentes, are the evidence of the power and the dignity of the family. In Rome the rever- ence for the family is reflected in all the observances of its religion, moulding all its institutions and its laws. The law has a universal attestation, that when the life of the nation has been the deeper, and its moral aim more clearly apprehended in the consciousness of men, there has been a clearer recognition of the sacredness of the family, and conversely when the family has been regarded as formed in a contractual law, or a momentary obligation, it has impaired the power and spirit of the nation. In its higher development, the people have apprehended in the nation the glory in the work of its ancestors, and in its future the enduring heritage of its children. It is thus that the symbols of the family have been inwrought with those of the nation, and its services have been recounted in the inscription of ancestral honors. Its glory has been in its devotion to the nation, and it has kept the names of those whom it has given for it in its holiest traditions. It is thus that reverence for the fathers and their work is involved with the continuity of the nation, and therefore the law which is so deep a revelation of the conditions of national life, " Thou shalt honour thy father and thy mother^," is made the premise of the permanent possession of the land by the people. It is thus that in the decadence of national life there is a loss of the consciousness of the sacredness of the fam- ily, and a consequent increase in the violation of its law. It is the degradation of the family, and the lower appre- hension of its obligations, that is represented alike by all her annalists and her satirists, as the cause and circum- stance of the ruin of Rome. When the sacredness of the family is not regarded, when it is no longer apprehended as a moral order, but as devised by men and shaped only by a law of expediency, and subject to caprice, the life of society is corrupted in its sources. 280 THE NATION. Thus also the system of slavery, in its antagonism to the nation, was in conflict with the law of the family ; and among the slaves in certain commonwealths, family life was unknown, and many on emerging from slavery had no family name, but only the designation given to identify the individual. 1 In the family a child is educated for the nation. It is a relation which has a moral content, and character is moulded in it ; and the individual grows into the con- sciousness of a whole, in which he is borne beyond his own separate and selfish end. In the advance of childhood there is also the consciousness of a continuous relation, and in its obedience there is the education for government and for freedom. It has been truly said, that government so depends on the life of home, that for a homeless com- munity, anarchy or despotism would be the alternative. 2 The conception which prevails of the nation shapes the family also. When it has been regarded only as a formal relation, and its origin referred to a contract, the same law has been assumed as defining the family ; when it has been apprehended in a mere individualism, the conception of the family as organic and as a divine institution, has also per- ished, and in this formalism and individualism, there is not only the rejection of the organic and moral being* of the family, but its necessary relation to the nation. The necessary relation of the nation to the family is the condition of the rights and obligations existent in that rela- tion. The nation is to guard and maintain the family, in 1 Slavery, in its necessary antagonism to the organic being of society, de- stroyed the family before it sought to destroy the nation; and there is nothing in the reconstruction of society more important than the assertion of the sacredness of the family and the unity of the household. There might be the highest value in a homestead act of some sort, but no legislation can maintain an accumula- tion of property without a deep assertion of the family, and with it, in the ordi- nary administration of civil rights, nothing can prevent that accumulation. 2 Rousseau says, "The family is the primitive type of political society." " Prima societas in ipso conjugio est, proxima in liberis, deinde una domus communia omnia. Id autem est principium urbis, et quasi Seminarium Rei- publicse." Cicero, De Officiis, i. 17. THE NATION AND THE FAMILY. 281 conformance to its normal and moral conception, and to punish its violation, which is in a higher measure a crime against the whole. The nation fails in its office, in which it is clothed with power and authority for the realization of a moral order, if it regards with indifference, in any form, the infraction of that order. It is thus that it is in con- flict with a system of polygamy, which has in itself the elements only of an imperfect development of society, or elements at variance with the moral unity of the family, so that it becomes an impulse toward barbarism. It is thus, also, that it is to prescribe and regulate the forms and con- ditions of marriage, and to require that it be undertaken not slightly nor hastily, but with a definite form and the attestation of the obligations of the state, in and for its maintenance. It is thus to punish the violation of the law of the family, and is not to leave it to the wild justice which acts in private revenge, which is the defect of gov- ernment ; and it is not to omit adultery from the calendar of its crimes, nor to intermit the judgment of it as crime ; it is an abandonment of its trust if it fails in this. In its civil rights the family is to be sustained by the nation acting in and through the order of the common- wealth, and its inheritance in property, and the guardian- ship of its members left dependent, is to be observed by the nation, and if parents themselves are derelict in duty to their children and to society, even the right of parental control must be superseded by the parens patrice}- But the / maintenance of the family in its moral order is the imme- \ diate obligation of the nation, and although it acts in and through the process of the commonwealth, yet its obliga- tion is not limited to the latter sphere, and while in cer- tain periods or phases it may act more effectually through it, yet in others the same method might imperil the order and being of the whole ; thus, if divorce is allowed it may devolve immediately on the nation to prescribe its 1 4 Whart. R*ll. 282 THE NATION. conditions. And as the family is in itself a moral order, and has not merely a formal origin, the government of the state cannot simply by a formal act annul it, and the di- vorce it grants is not the ground of the dissolution of mar- riage, but the authoritative recognition of the fact that the bond of the family has been already dissolved by crime. The hope and the blessing of the family and the nation is one. Their foundations are not laid with human hands. The years do not erase them from the record of human lives. 1 1 In Troilus and Cressida, Shakespeare has indicated the deep moral relation of the family and the nation, and its significance, in the story of Troy. The war had its origin in the violation of the purity of marriage life, and it was this which involved the city in destruction. The doom then which overtakes Troilus and Cressida is the reflex borne on through the years, and on to the close of the city, of the moral judgment upon Paris and Helen. There is an expression not only in the catastrophe, but through the whole drama, of the organic and moral relation of the family and the state, and it shapes the discourse and even lends its coloring to the imagery of the play. It is thus that its thought dwells upon the " Unity and married calm of states,' 1 and thus the deepest lessons of political wisdom are no digression, but are nat- urally connected with the conception and import of the play, and the tragedy in its close consists with the unity of the whole. This political significance alone justifies the drama from the criticism of Mr. Verplanck, which has the assent, also of Mr. White, that " the effect of the play is impotent and incongruous." Mr. Verplanck yet says the drama " displays all the riches and energy of the poet's mind when at its zenith;" and Mr. White places it "among the most thoughtful of all his plays." White's Ed., vol. ix. p. 10. One may then be reluctant to admit the conception which regards the conclusion as impotent and incongruous, and the political lessons as only detached discussions on politics, and the awful fate at the close as arbitrary and misplaced. But if, in the close of the history of Troy, there is to fall upon the life of its own members on Troilua and Cressida, with scarcely an immediate premonition, the shadow of the guilt which was the beginning of the war and the destruction of the city, then in the relation in which the family is involved with the nation in its whole course, and from which no individual member of it can be wholly exempt, there is the unity of the drama, and then the same doom is repeated in the close of Troy which impended over it in the beginning of the war, as if in that alone the burden of the city was ended. CHAPTER XVI. THE NATION AND THE COMMONWEALTH. THE nation in its internal order and administration, is constituted in the commonwealth. The family is the primary form of human society, but in the natural growth of society the family does not remain single ; it branches outward, forming other families, or in the course of time other families become connected with it. These have as separate families certain relations ; they are sub- ject to certain common necessities, they hold certain com- mon lands in occupancy, and with labor and its result in the satisfaction of necessities, there may come into use some mode of exchange in that which they have separately obtained. The return of labor is scant and irregular, and often is subject to the disposition of the stronger, but in this archaic life some uses, in forms however rude, prevail, in which interests are recognized, and although they may be shaped at the outset by the will of some patriarch, these uses obtain a certain force. It is the community which has been formed in the transition of the family, through common necessities, and the adoption of common uses and the accumulation of common interests. There is in this the beginning of the system of civil rights, and the building of the commonwealth. 1 The commonwealth may be regarded thus in its formal organization as precedent to the nation. 1 In defining the character and relation of the United States and a particular State, the international and the civil state, the nation and the commonwealth, this term is used in a strict and limited significance. Yet it is not arbitrary, and may claim both a literal and historical justification; it is the style of many of the earlier and larger communities, as the commonwealth of Massa- chusetts, the commonwealth of Virginia, the commonwealth of Pennsylvania. 284 THE NATION. In the process of society, the family exists in an organic, and the commonwealth in a formal relation to the nation. The distinction in the organization of society, of the commonwealth and the nation, has heen recognized by the great masters in political science. Aristotle describes (1.) the family OIKOS, the house; (2.) the common-' wealth Ko>/r7, the community ; and (3.) the state n-oAis, the political body ; the city state. The common- wealth, he says, is formed for mutual advantage, but the state is formed for a moral end. 1 The conception is repre- sented by Hegel, with great clearness and completeness, and forms one of the most masterly subjects in his poli- tics. Hegel maintains the distinction through the whole structure of his work. He defines (1.) the family, Die Familie; (2.) the commonwealth, Die Biirgerliche G-esell- schaft, the civil state ; and (3.) the nation, Der Staat, the international state. 2 The commonwealth is the civil order of society. It is a formal organization, and is based upon external and nec- essary relations, and its action is through a civil system for the security of the private rights of persons. 1 Politics, bk. i. ch. 2. 2 Philosophic des Rechts, p. 66. Hegel defines the commonwealth as " an association of men as private individuals, and thus as existent in a formal rela- tion, a relation formed through their wants, and in the civil constitution as a means for the security of persons and property, and in an external order for their special and common interests ; " he says, " the commonwealth as an ex- ternal order, in its realization recedes into and subsists in the state." Ibid. p. 215. The commonwealth, he says, has three phases, the satiafaction of the individual through labor and exchange, or " the system of wants; '' the security of liberty and property, or " the jural process; " and the care of special interests as a common interest, or " the police and corporation." Ibid. p. 248. He says the commonwealth " is constantly apprehended and represented as the state, but the state is other than this, and its law is higher than this, it is the righteous- ness," etc. Ibid. p. 69. The representation of the commonwealth, Die Biirger- liche Gesellschaft, in Hegel, may well be described by Rothe as meislerhaft. It is in no respect open to the criticism of R. von Mohl, that it is introduced simply in conformance to a threefold logical sequfertce. Geschichte Literateur de Staatsuissenschaften, vol. i. p. 82. The distinction is maintained with certain modifications by Rothe. Theologische Ethik, vol. ii. pp. 101-120. Bluntschli rejects the formal distinction of the civil corpoiation and the state, but the THE NATION AND THE COMMONWEALTH^ , 28& 1 C '-J /: >, v It is the society of men existing in jurul rkmflons, dn^in associations which are defined in jural forms. ^Ttfs> mem-/' bers exist in no organic unity and continuity^ but/lji formal relation, through the existence of private inters in their individual or collective character. It embraces the administration of civil justice in its formal order. The commonwealth, since it is formed, in the necessary relations of life, has the law of its action in necessity. It is thus that its characteristic is order, and its object is se- curity through the integrity of the collective whole. The commonwealth has for its end protection, the protection of private interests, as individual or collective. Its organization is for the protection of interests involved in the necessary relations of men. It exists for the secur- ance of life and liberty and property, through the institu- tion of the system of civil rights. It embraces those wants which are necessary in life and their satisfaction. It is the same which those who have held only a negative and for- mal notion of the nation have apprehended and sought to embody in that. The commonwealth has for its province the economic organization of society. The system which is ordinarily described as public economy belongs to it, and writings on economy are mainly occupied with subjects which are its concern. It comprehends the relations of the vast and complex industrial processes of society. There is in its immediate scope the separate and the cooperative interests of agriculture, of trade, of mining, and of the mechanic arts. It is to direct the movements of production and of position he afterwards assumes may be allowed to justify it, since he is there under the necessity of establishing in the organization of the state a separate Dower or department, which is immediately concerned with private or civil fights and the economy of the state. Allgemeines Statsrechts, vol. i. p. 458. The present historical tendency indicates that in the unity of the German nation the separate states, as Prussia, Saxony, Hanover. Bavaria, will exist as distinct commonwealths or civil societies, forming in this respect a very close parallel to the United States. 286 THE NATION. exchange. The adjustment of the relations of labor and of capital which represents the accumulated result of labor, is to be referred to it. It is to regulate the division of labor, and that which is of higher value, the union and cooperation of labor, and that which is of still higher value, it is to maintain the freedom of labor. The commonwealth has, in connection with the eco- nomic interests and laws of society, the department of social statics. The enactment of sanitary laws and regula- tions, and the foundation of sanitary institutions, belongs to it. It is to take necessary measures for the protection of health, and to secure society against whatever may be a public nuisance or a public peril. 1 The commonwealth is formed in the institution and maintenance of civil rights. The individuals composing it are private persons, and as such they are comprehended by it; they have each their end in the necessary rela- tions of life to secure, and the security of their private in- terests is the necessary end for which the commonwealth exists. The individual, therefore, may require the security of his necessary rights from the commonwealth, and the commonwealth may require from each that he also hold these rights for others secure. There is, therefore, to be established through it the protection of each in his necessary rights and his necessary avocation, with no undue hindrance or unequal restriction. The commonwealth is instituted in the maintenance of justice in the necessary relations of life, or civil justice. This is the law which is formative of its whole organiza- tion, and is defined in a jural system. Justice is to be recognized as necessarily involved in the organization of society, and is to be affirmed as law, and to be adminis- 1 The establishment of a quarantine and quarantine regulations, thus falls naturally within its object, but this ought not to be regarded solely as the con- cern of a separate commonwealth, and is not subject to internal administra- tion. Its institution in the harbor of New York, is of no more consequence to the people of the commonwealth than to the adjacent territory. THE NATION AND THE COMMONWEALTH. 287 tered between man and man. Its violation is to be set forth as crime, and the penalties incurred by crime are to be defined and imposed. Since justice in the common- wealth or civil justice is apprehended as existent in the necessary relations of life, it is to be maintained through its whole extent for all men, and there is to be the recog- nition of the equality of all men before the law. It is not to assume a different principle of action for different sorts and conditions of men. It is to assert a justice which is impartial, or it becomes itself an organized injustice. It is to establish justice in the authority of law, and to judge the infraction of law as crime. It is to maintain justice for every man ; and private revenge is forbidden as the rude justice of an unorganized and barbaric state. The execu- tion of justice is to be regarded as the necessary condi- tion of the commonwealth through its whole extent, and its whole power is to act in its ultimate enforcement. It is to be the guardian of every individual. The object, in the increase of the commonwealth, to be steadily re- garded, is that the process of justice shall not be neutral- ized through old and imperfect judicial organizations, where the abuses tend only to the emolument of a special and conservative profession, as in the commonwealth of Connecticut ; and that it shall not become entangled in intricate formalities, to become what Cromwell called the law-system of his age, " a tortuous and ungodly jungle ; " nor that it shall affect, beyond the necessity of scientific precision, a phraseology unknown to the people ; nor that justice shall be made so costly that any shall be debarred from access to it. Justice is to be open and free to all. It should be the same for all, and thus in the apprehen- sion of crime no special or private rewards should be allowed, but it should be held as the office of the state ; and no officer of the state nor of its police, should be allowed to receive a tender of reward from private persons, nor should any gift be made te justice. A system of 288 THE NATION. private rewards gives to wealth and power a special secur- ity, which is not open to all, nor promotive of the security of the whole, and is but a slight advance from a system of private revenge. The commonwealth is to bring crime to the light, and its object is to protect rights and not crimin- als. The fair trial of all charges is to be had, and the evidence of all, the plaintiff and defendant alike, is to be received that all may be known. The object is to make the conviction of crime sure and the punishment inevita- ble, and to determine the actual injury and the actual degree of guilt. The course of law thus is not to be merely formal and mechanical, as in an imperial code, but it is to regard the varying aspects of human action and the vary- ing conditions of human life. It is to take into account the age and circumstance and mental condition, and all which may be exculpatory in them, and to regard crimes to which different degrees of guilt attach, and for which there must be corresponding degrees in the punishment imposed. Thus the law, instead of an unvarying and me- chanical application, presumes the deliberation of those before whom trial is had, and the judgment of a judge. The commonwealth has the institution of its procedure in the common law. This is its exclusive province. It is this law which has been instituted in the ascertainment of the justice involved in the necessary relations of men. It recognizes a solid justice existent in the development of these relations. It is shaped in the jural definition of these relations. It acknowledges, therefore, as a prescriptive right, that which by long continuance has been wrought in the use and wont of men. It holds the right of ways which are open to all alike, and fair to all, and have been long trodden by the steps of men. It is this recognition of justice as existent in the necessary relations of men, which is the precedent of the common law, and the condi- tion of its legal positivism. It is not the tradition of any code nor commandment, however ancient. THE NATION AND THE COMMONWEALTH. 289 The principles to be regarded in the constitution of the commonwealth are those which define its unity and its scope. The unity of the commonwealth is that of the unitary organization of justice. Its authority is to have within itself no formal restriction and no sectional limita- tion. It is as a crime against the whole that the violation of its law is to be regarded and punished. The denial of the unity of the organization of the commonwealth was the ground of opposition to the important legislation of the commonwealth of Pennsylvania, in the succession of 1 crimes and outbreaks of violence in Schuylkill County in 1867, and also to a system of metropolitan police in certain separate districts. But the commonwealth fails of its end when crime is allowed to remain unpunished, or rights 1 become insecure through defect in its organization. There is no sectional right in the outlawry of a certain locality, j to preclude the action of the commonwealth through its j whole extent. The scope of the commonwealth has also no restriction in the institution of civil rights, and the determination of the whole civil order is within its sphere. The reason and I the right of the legislation of the commonwealth of Penn- sylvania, which modified the whole tenure of property, and was so great an advance in establishing the freedom of property, placing real property upon the same basis in certain respects as personal property, 1 was opposed with the argument, not that the act was in itself unjust, but that it was beyond the scope of the commonwealth. But this rests in a deficient apprehension of the commonwealth, for in the normal civil order and civil administration, there is no formal limit to its action. The territorial extent of the commonwealth is commonly shaped by some circumstance, or some consideration of civil administration. It conforms mainly to the content of the commonwealth, and when once established it is to be l Price Act, April iS, 1853. 19 290 THE NATION. held stably, as if it were itself bottomed in the common law, and as describing old and established interests which have grown up and repose in it. The nation in its civil organization may constitute a sin- gle commonwealth, or it may be divided into many and sep- arate commonwealths, and these may increase in number, with the extension of the national domain, and the chano-e and growth of population. The conception of the commonwealth, as it has been represented in political science, has had its precedent in the slow advance of civilization. Its organization is not new nor strange, nor did it come forth at once complete in all its powers in the beginning of the American state. The form may be discerned in its germ in the first unfold- ing of the civilization of the Teuton, and may be traced in the succeeding institutions of our ancestors as they emerge from the shadows of German forests. It appears in the structure of the constitution of England, in the or- ganization of counties for civil administration and the man- agement of local and special concerns, while embraced in the kingdom, and subject to the Crown and the Pailia- ment, in whom is the determination of the political whole. It appears in the distinction of the Hundred, and however rude and imperfect may have been the form of this, and however widely writers may differ in defining its character and limitations, they all agree in the reference to it of the transaction of judicial, and the management of local con- cerns ; its primary object is that of civil administration. There is, in the " Lives of the Chief Justices," an illustra- tion of the manner in which this distinction was guarded., The writer says of the office of Chief Justiciar, as intro- duced by William the Conqueror from Normandy, " The functions of such an office would have ill accorded with the notions of our Anglo-Saxon ancestors, who had a great antipathy to centralization, and prided themselves upon THE NATION AND THE COMMONWEALTH. 291 enjoying the rights and advantages of self-government. The shires being parcelled into Hundreds and other subdi- visions, each of these had courts in which suits both civil and criminal might be commenced." 1 It was not by a single assembly of men, however great, that so vast and noble a structure was conceived, nor in any single age has it been perfectly realized. It has been formed slowly in the long struggle of society toward the better attainment of its end. It will always obtain a more perfect form with the progress of the people. The commonwealth has, in the historical development of the United States, its amplest and its highest organiza- tion. There has been the illustration of its strength and its conformance in the order of the whole ; and also of its evil, when, severed from the whole, it has sought to build a civilization in the furtherance of some separate and special interest, and to base in that the foundation of society. The sphere of the commonwealth must be ascertained by its content ; by what it is, and not by what it is assumed to be ; by its actualization, and not by any abstract conception of law, or empty theory of society. In the illustration of the nature of the commonwealth, reference is made to the constitution of the common- wealth of Pennsylvania, not only because it lies nearest at hand, but as that of one of the original thirteen com- monwealths, - a commonwealth as central, and as conserv- ative in the habit of the community as any, and comprehen- sive of as great and varied interests as any, and it has had in the revision of its constitution the aid of lawyers of sin- gular eminence. 2 And since what is assumed for one com- 1 Lives of the Chief Justices, vol. i. p. 33. The distinction may be traced in its outline in defining the nation and the commonwealth, in the distinction of public rights and duties as supreme and subordinate. See Christian's Bl, Comm. chart, iii. 2 The commonwealth, as the civil organization of society, opens a more imme- diate field to lawyers; but then, also, by the same influence, they may be with- drawn too exclusively within its contemplation, and are apt to become, and for the same reason, that is as also withdrawn exclusively in it, what Dr. 292 THE NATION. monwealth, in its nature, is assumed for all, the constitu- tion of this may be taken as a legal instrument to furnish its illustration. The formal organization of the commonwealth is in legis- lative, executive, and judicial powers, through which its order is construed. The legislative department has its province presumed in the nature of the commonwealth, and its special limitation in the judicial department. The judicial organization and form of procedure is necessarily more amply defined in the object of the commonwealth. The executive department is defined in the office of the governor, a name not indicative of political precedence, nor suggestive of the sovereignty of the state, but denoting the direction of the internal administration, and the regu- lative or magisterial character of the civil office. The commonwealth is the institution of the authority of law in the civil order. It forbids that any shall be ar- raigned but by due process of law. 1 It allows neither private revenge nor private judgment to assume the be- hest of justice. It regards crime as a violation of the Arnold called the political economists, " those one-eyed men." But their ser- vices have indeed been conspicuous in the formation of the constitution of the commonwealth of Pennsylvania; and there is no commonwealth in which the jural scope has been more clearly maintained, or the province of its judicial in distinction from legislative powers more carefully and wisety guarded, and where the constitution has been so little cumbered with the detail which belongs to the sphere of legislative enactment. It bears the impress of the work of Wilson, and Gibbons, and Chauncey, and Sargeant, and Price, and Binney, and Wallace. 1 The earliest historical assertion of law is not in the enunciation of a principle, but in a judgment on a case (see Maine's Ancient Law, p. 3). and there is in it, whatever else there may be, the presumption of a substantial order in the neces- sary relations of life, and crime is adjudged in the interruption or violation of this; in this may be tracad the historical development of the common law. Its origin is in no formal code, nor in the tradition of a formal code. "There have been," Mr. Maine says, "three agencies which, in its historical course, have shaped the process of the common law, legal fiction, equity, and legislation." The first, whatever its advantage in some periods, is a rude device, and belongs mainly to the past; the second must constantly seek the aid of legislation, as it finds expression in a positive form; and the third becomes the more potent agency. It is only within a very recent period that legislation has been brought to shape the course or to act in the explication of the common law in the commonwealth of Pennsylvania. THE NATION AND THE COMMONWEALTH. 293 peace, and therefore as against the commonwealth, and in its name it is judged. 1 The commonwealth is to institute courts for the admin istration of the civil order. 2 The historical origin and form- ation of courts affords the widest illustration and evidence of its province. The court is constituted for the assertion and protection of civil rights. There is for every one subject to the authority of the commonwealth, the right to bring his cause into court, and each may be required to appear before the court, and the award of justice is rendered by it. The access to the court is for all, and " every man for an injury done him in his lands, goods, person or reputation, shall have remedy by the due course of law, and right and justice adminis- tered without sale, denial, or delay." 3 Before the court a trial of the cause is had, that justice in the matter may be ascertained. The method is demonstrative, and evidence is given and the facts in the case examined. The parties bring in witnesses to their suit, and everything concern- ing it is laid before the knowledge of the judge and the jury by whom the verdict is rendered. These successive steps are themselves rights, and belong to every one sub- ject to the authority of the commonwealth. There is for each the right to appeal to the court, to call witnesses, to have council in law, and to bring before the judge and jury all that may concern the action. Every individual in the commonwealth to whom its writ may come, is required to 1 Constitution of the Commonwealth, Art. I. sec. I. Art. II. sec. 1. Art. VI. sec. 10. " The style of all process shall be, * The Commonwealth of Pennsylvania,' and all prosecutions shall be carried on in the name and by the authority of the Commonwealth of Pennsylvania, and conclude ' against the peace and dignity of the same.' " Ibid, Art. V. sec. 11. 2 "The judicial power of this commonwealth shall be invested in the supreme court, in courts of. oyer and terminer, and general jail delivery, in a court of common pleas, orphan's court, register's court, and a court of quarter sessions of the peace for each county; in justices of the peace; and in such other courts as the legislature may from time to time establish." Ibid, Art. V. sec. 1. Jbid, Art. IX. sec. 11. 294 THE NATION. answer the summons of the court. In the feudal age, the nobility regarded it as an injustice that they should be held to obey this summons, or that the evidence of all men should be received in respect to them, but in the new Par- liament House in London, a painting by the side of the throne represents the arrest of the heir to the throne by a, London constable. The facts are to be brought out, and that only can be held as authentic which is brought to the knowledge of the judge and jury. 1 In the court the method of procedure is formal and ex- act. This formality gives to the cause of every man the same dignity. It invests every charge and every suit, by whomsoever it is brought, with the same solemnity. The same summons sets forth the claim alike of all, whether rich or poor or citizen or stranger. This formality secures justice from abuse, and forbids that the cause of any should be passed by hurriedly or slightingly. In the court the procedure is open to all. Its sessions are announced, and the whole action is public, since the crime is not alone against the individual, but against the peace and dignity of the whole ; and although the cause is between certain parties, yet the justice involved affects the whole ; and the punishment is not alone the satisfaction of a private wrong, but the consequence of the violation of the law. In the court the examination is before a jury, and judg- ment is rendered by it, and the verdict it returns when the offense is proven, is called a conviction. This is the office of the jury. 2 The trial by a jury is not, as De Lolme de- scribed it, simply to resign the individual to the judgment of a few persons ; but as Hegel says, it is the demand of the conscience of the individual that justice be meted out to him, and the conviction is rendered as expressive alike of the conscience of the individual, and the conscience of the community which the jury represent. It is the claim 1 Constitution of the Commonwealth, Art. IX. sees. 9 and 11. a Ibid, Art. IX. sec. 6. THE NATION AND THE COMMONWEALTH. 295 over impulse and desire, of the conscience of every man, and the witness of his own, his true and better nature, which no crime can wholly silence, and which by crime has been most wronged. The punishment which follows is the manifestation of crime. It is not primarily reform- atory, and it may not always of itself have that effect upon the individual, but it is the sequence of crime in which its nature is manifested. The conscience of the individual and of the whole demands that crime shall be brought to light, and that punishment shall be inevitable, and the commonwealth fails of its end in so far as this is not ac- complished. The significance of punishment by solitary confinement, is in the fact that it is the reflex of the nature of crime itself, for evil, as the subversion of personality, involves the loss of freedom, and is the separation of one from his fellows, and the severance of relationships, and is itself an isolation : thus solitary imprisonment is but the manifestation of the sequence of crime. The adoption of this mode of punishment indicates an advance in civili- zation. The commonwealth is to make provision for the institu- tion of officers in the civil administration, as for instance, the district attorney and the justice of the peace. The former office in its very imperfect construction, has some of the best elements of jural progress ; and of the latter, Stahl says, that the office embodies perhaps the highest conception in the Anglican civil system. It represents the peace of society as conditioned in justice. It is to consider in its inception the charge of the interruption of the peace of society, and there was a deep significance in the formula in which the old writs ran : " In the peace of God, and the commonwealth." It has to provide also for the institution of all offices of civil order, as sheriffs, justices, constables, coroners, prothonotaries, registrars, and recorders. 1 It belongs to the commonwealth, in" the guardianship of i Constitution of the Commonwealth, A/t. VI. sees. 6, 7; Art. IV. sec. 6. 296 THE NATION. interests, to enforce the execution of contracts and of wills, and the administration of estates. It has in its scope those institutions, so fundamental in the civil order, the con- tract and the will. The form in which these are executed is of consequence, since they are to be maintained and enforced as positive law. It is thus requisite that all wills shall be proven, and all deeds and titles are to be given in the name of the commonwealth, and it is to provide for the probate of wills and the recording of deeds. 1 It belongs to the commonwealth, in the securance of interests, to regulate the relations of capital and labor, and to maintain and protect the division and cooperation and freedom of labor. It is to adjust the legal rate of interest upon capital. It is to charter corporations and to provide for their privileges, immunities, and estates. In the direc- tion of intercourse in trade and exchange, it has the super- vision of roads and highways, excepting only military and post-roads which are in the immediate control of the nation. In the security of health and in sanitary provis- ions, it is to institute officers and boards of health, and hospitals, and asylums, and homes for the infirm or inca- pable, or aged or insane, and it is to provide for the poor and to appoint overseers of them. 2 It is for the commonwealth to establish municipalities, and to grant and convey municipal rights or privileges, and to institute the order and confer the powers which are requisite for the civil administration, in the organization of counties, towns, and boroughs within its limits. The execution of its powers is through a police and constabu- lary. There is in this summary the substantial content of the constitution of the commonwealth of Pennsylvania, to which reference was made in illustration of the common- wealth in itself. This which was ascertained to be its nec- essary conception, has been its realization in its normal i (institution of the Commonwealth, Art. V. sec. 10. 2 Jbid, Art. VII. sec. 6. THE NATION AND THE COMMONWEALTH. 297 process. With the formal exception which is to be noticed, and which is not in all respects inconsistent with its admin- istration, this is all there is in it. There is no power be- yond this that could be actualized or strive for actualization in it without involving some contradiction. There is be- yond this only the sphere of legal fictions, of empty theo- ries, and political abstractions. There is beyond no solid ground. It is the field of restless visionaries and political dreamers ; and instead of the domain of substantial order, it has proven the confine of anarchy and secession and re- bellion. In it an evil ambition has wrought, and the forces of disorder and division have mustered. The powers which alone remain to be noticed, and which constitute an exception to the preceding, are those which refer to divorce, to education, to the resident qualifications of an elector, and to the militia as a local or constabulary force. These powers are such as in part are properly related to the normal administration and economy of the commonwealth, and therefore in certain aspects may be referred to it, or they are powers which, when left to the commonwealth, fail to obtain any substantial actual- ization. There is nothing in them to justify the specula- tion, which has assigned the most limitless scope to the commonwealth. The limitless in human affairs is indeed that only which is untravelled by thought. There is, in the civil and political life, no sphere of arbitrary and indefi- nite powers ; the arbitrary is without the domain of law, i and the indefinite is the unformed thought and purpose, the vagueness and weakness which appears in incapacity of thought and irresolution of will. There is an article on divorce, defining certain restric- tions of the legislative power in its action upon it, and then referring it to the courts. The administration in divorce, in its connection with the common law, passes consistently to the commonwealtli ; but the nation has an 298 THE NATION. - immediate obligation in the maintenance of the family in its moral unity and moral order, and if it fails to attain this in its action through the commonwealth, it is imperative that it shall assume its immediate authority. There is no form that can intervene by which it can be divested of its obligation to maintain a moral order. There is an article on public instruction, which provides for the institution of schools, so that all may be taught free. But while the administration of a system of educa- tion may be referred to the commonwealth, its institution is of national importance, and also of national obligation, and in the defect of the commonwealth, its authorization should proceed from the nation. There is an article on the qualifications of an elector, in which the conditions of electoral power in the common- wealth are defined, while its electors are described as "citizens of the United States," and its special provision in respect to the commonwealth, is the limitation of the term of residence necessary before any election for " a citizen of the United States who had previously been a qualified voter" in the commonwealth, in order to vote at an ensuing election. The constitution of the United States describes the qualifications of an elector, but its definition is simply inclusive of the qualifications of the lower house in each commonwealth, and the more specific qualification is referred to the commonwealth ; but since the right to vote is a political right, and integral in the nation, the provision for it should be in the fundamental law, and its guaranty in the supreme law of the people. The terms and conditions of electoral power cannot be left to the discretion of each separate commonwealth, without the risk of unequal qualifications which might act as a dis- turbing force, or tend to create alienation or division, and the definition of political power belongs to the nation. There is an article which provides for the arming, or- ganizing, and disciplining of the militia, and describes the THE NATION AND THE COMMONWEALTH. 299 governor as the commander-in-chief of the army and navy of the commonwealth. Of this it is only to be said that the commonwealth has no right to declare war, and over* the militia the governor has power only within the limits of the commonwealth, and he is thus only commander-in- chief, " except when they are carried into the service of the United States." It is only for internal order and administration that the governor has immediate command, and as the militia acts as a constabulary or police, to pre- vent a breach of the peace of the commonwealth within its borders. When the governor is represented as the " commander-in-chief o the army and navy of the com- monwealth," the office is not further defined. Since the commonwealths of the nation have for the most part no sea-ports and no sailors, and, in some instances, no nav- igable waters, the title can scarcely be supported. It is a name for which there is no reality, and except for lawyers it leads beyond all soundings. No navy has ever set sail, and no sailor has ever trod its deck, only constitutional lawyers have exchanged its signals and answered its salutes. It is as a legal fiction, if it can make that claim, but a painted ship upon a painted ocean, although for the lawyers who sail upon it, out on the limitless expanse, it is as good as oak and iron. And the gov- ernor in this character, on the streams to which he may often be confined, is like Wordsworth's fisherman, " tricked out in proud disguise." But this assumption of military and naval authority in its consequent weakness, is indic- ative of the neglect of the nation in its own sphere, to provide for the instruction and organization of the whole people, as a military force, which is its express obligation. The commonwealth is necessarily itself concerned with the militia only as a constabulary ; and when the military organization has been left to it, it has been at the most defective, and its display a masquerade to fill an idle holi- day. There is in the commonwealth no conception, and 300 THE NATION. no power of war, and it may neither declare war nor conclude peace. These powers, in divorce, in education, in the definition of electoral laws, and in the instruction and organization of the militia for local purposes, are alone those which have any description in the constitution of the commonwealth, that are not exclusively within its normal conception, and they in certain respects are not inconsistent with its admin- istrative order. But they are in a necessary and imme- diate relation to the nation, and their exclusive reference to the commonwealth becomes the defect in their institu- tion, or the source of weakness and of radical error in the organization of the whole. The nation and the commonwealth exist in a two-fold relation : firstly, the nation is immanent in the common- wealth ; and secondly, the nation is external to the com- monwealth. The nation is immanent in the commonwealth. The commonwealth of itself is incomplete, and presumes the being of the nation in which it subsists. The com- monwealth of itself has no permanence, and in the nation alone it has its consistent end. It is only as the nation is immanent in it, that it is brought into relation to its ob- ject in the unity of the whole. Then it is no longer sim- ply the private interest of the individual which is its end, but it is the end of the nation itself, a moral interest which gives to justice alone its strength. It still institutes and administers justice with reference to the individual, and acts in the maintenance of private interests ; but its work is no more for a private end alone, nor simply that each individual shall be secure in his special rights, but that all sources of disorder shall be removed, and all that hinders the administration of justice shall be overcome. It is thus, as the commonwealth subsists in the nation and its moral order, that it brings to individual rights a perma- nence. THE NATION AND THE COMMONWEALTH. 301 The civil order which may have the highest formal com- pleteness, when the life of the nation is no longer present in it as a sustaining power, is merely abstract. The mos v . perfect institutes of a civil system have of themselves no enduring power. The historian of Roman jurisprudence may justly describe the great worth to society of those civil institutions the contract and the will, but there was in them no inherent strength to save the society of Rome when the nation was crumbling beneath the weight of empire. In them there was no renovating energy to stay the corruption, or to check the swift decay that was undermining all within. It is thus that in imperial ages there may be a higher culture and structure of the civil order, as in France under the empire. It is thus, also, that the study of the civil law of itself has the attraction only of an external symmetry, and impresses one only as a formal system and as a cold and lifeless anatomy. It has not the spirit of an historic power. The genius of the great mas- ters of the Justinian era can throw over it only a faint glow, and the energy of a living spirit is wanting in the most splendid development of the civil organization of so- ciety. 1 It is only in the immanence of the nation that the com- monwealth has its continuance in history. The structure, which is a combination of private interests, could not exist of itself in the strenuous conflict of the moral forces of his- tory. There can exist in history no mere negation ; and the commonwealth of itself can have no place among those powers which, in the life of humanity, bear its issues to their close. The assumption of the foundation of society in the commonwealth has been the precedent of a false civilization. Since the commonwealth exists only as the organization of the individual and collective interests of private persons, when the foundation of society has been sought in it, it has assumed a selfish principle as its law, 1 See Merivale's History oftfie Romans, vol. vii. p. 429. 802 THE NATION. and its end has been the predominance of a selfish in- terest. And as the commonwealth is formed in the neces- sary relations of life, it cannot become of itself a power in history which is a moral order, and in the realization of freedom. It holds the web and the woof in which those historic figures appear ; but it apprehends not the unity of that design which through centuries, is wrought in the .conscious purpose of nations. The nation in its sovereignty is immanent in the com- monwealth. Its determination is the supreme law; the law of the nation is the law in every commonwealth. The constitution of the United States is the constitution of ev- ery State. The real sovereignty is in the nation, and the will of the organic people is prevalent through the whole. The power, as in any organism, acts through every mem- ber, and thus conversely the injury to a part involves the injury of the whole, and the peril to any commonwealth is the peril of the nation. The nation in its freedom is immanent in the common- wealth. This freedom is not simply the securance of civil rights, aid that in some transition may be better effected in an imperialism, but it is in the nation in its moral being. The life of the nation thus may become im-^ perilled through the commonwealth when its freedom is not realized in it ; since then its spirit is no longer appre- hended in it, and there is a separation from the conscious- ness of its historical aim, and that corruption which is consequent when one existing among the parts acts upon the whole without any comprehension of the whole. The unity also of the nation is imperilled, if the freedom of the people is not realized through the whole, and slavery has its sequence in dissolution and division. The nation is external to the commonwealth. The commonwealth is invested with a formal sovereignty. It is not the sovereignty of the people, in its organic being, but a formal sovereignty, limited to a certain process and THE NATION AND THE COMMONWEALTH. 303 to the formal exercise of certain powers for the prosecution of that process. The power is existent in the sovereignty of the organic people, and it is only in reference to the formal process in which the commonwealth is constituted, that the nation is external to it. The commonwealth has a formal, but not an organic unity. It is a whole only in its relation to the nation, and through it, to the other commonwealths of the nation. The commonwealth is defined by boundaries which are formal, that is, they are not the natural boundaries which div'de nations, as oceans, or mountains, or rivers ; nor the historical boundaries which separate one people from an- other, in their integral life, and are shaped in the struggle and conflict of history ; but they are the lines and angles which are traced in the formal demarkation of an estate, such lines as are drawn by the surveyor and the engineer. They cross rivers and mountains, and stretch away from the sea, and sweep by points of external defense, where one people might make a stand against another people. If there be an uncertainty as to these boundaries, the com- monwealth cannot maintain its position against what might be presumed an invasion, by any declaration of war on the invader, since it cannot declare war, nor can it deter- mine its own boundaries in dispute, but the settlement of them is with the nation. These boundaries thus cannot be conceived as those of a separate political people in its historical course, and illustrate the fact that the common- wealth has in itself no elements of permanence in history. In the agitation in its movements, they would be obliter- ated as lines drawn in the sand. The nation exists in an external relation to the com- monwealth ; but the commonwealth has in itself no ex- ternal relation, excepting only to the nation . and to the other commonwealths through the nation. It compre- hends no foreign relation,, that is, a relation to an interna- tional state. It can enter into.no league nor alliance, nor 304 THE NATION. form any treaty. It a crime has been committed against its peace by any person escaping to a foreign state, it is only through the nation that extradition is obtained, while on any commonwealth in the nation direct requisition may be made. If there be any invasion, it is the nation which is invaded, and the peril is for the whole people, and with its whole physical power it is to meet the invader. The commonwealth as constituted in this formal system, as a civil corporation, that is, as an artificial person, has cer- tain formal rights, or more exactly, immunities. If the divided, and in the development of the nation so rapidly increasing commonwealths, have each a necessary contin- uity, and the capacities of an organic people, in its organic being in history, then the rights of each are the rights of a nation in its sovereignty, and each may assume corre- spondent duties and obligations. But the commonwealth has no continuance in its separation from the nation, and its rights are existent in its formal organization, and it is the nation alone which can recognize these rights. These rights are maintained for the commonwealth, only as the commonwealth exists in the nation. Firstly ; There is for the commonwealth the right that the nation shall maintain it as integral in itself. It can detach no commonwealth, and allow none to be detached from itself. It can withdraw its authority from none, and can alienate or transfer none. It is not only existent in each, but it is existent in its unity and its entirety in each. tt is thus that in the invasion or peril of one, it is the whole that is invaded or imperilled. Secondly; There is for each the right to the mainte- nance of its organization, in its normal action as a common- wealth. The order and the execution of justice is to be maintained in each, and if necessary by invoking the strength of the whole. The due form of law in the privi- lege and protection of courts, and the trial by jury, is to be sustained in each. The validity of contracts is to be en- THE NATION AND THE COMMONWEALTH. 305 joined in each, and through the separate commonwealths, the nation is to maintain for each full faith for its reports and judicial procedure. Thirdly ; There is the right to the maintenance in each, of the freedom of the nation. None can be reduced to a condition of mere subjection, as to some imperial power which is over and isolated from it. The right to the free- dom of the nation is in so far a condition of unity that if it be not realized in the commonwealth, the latter becomes in fact only a province, separated from the sovereignty and consequent freedom of the whole, and its members have no real citizenship. Fourthly ; There is the right in each to the maintenance of a definite boundary and domain. The lines are those which define the order of the organized administration of justice in the securance of private rights, that is, the rights defined in a civil system and the maintenance of private interests. These boundaries, while they are not such as separate one historical people from another, are such as appear in a vested or a customary right. They are the lines which are marked in the survey of property as in a private estate, and property requires exact limits and seeks security and stability in them, while change might tend to disorder, and occasion conflicting forms and titles and unsettle values. These lines are therefore to be carefully defined. While there is thus no moral ground which could hold them in the supreme necessity of the peo- ; pie, in the normal condition they are to be maintained in 1 the order of the whole. It is thus that there is in them ! that attraction of association, and that wealth which gathers with the course of the generations, and they become like the lines of an homestead. They are to be so regarded, that no new commonwealth shall be formed out of another, but with the concurrence of its own consent and of the authority of the nation. Fifthly ; There is the right to the maintenance in every 20 806 THE NATION. commonwealth of a form of government and organization corresponding to that of the nation. There is to be in none the incongruity which would appear in discordant forms. There is to be in none a form of government which shall isolate it from the order of the nation and of the commonwealths coexistent with it in the nation. The republic is to maintain for every commonwealth a repub- lican form of government. These rights in their maintenance necessarily presume the being of the nation, and have apart from it no actuali- zation. They are defined and established in the constitu- tion of the nation and in its supreme law, and form the high guarantees of the constitution. The more definite enumeration of rights is consequent from the formal process of the commonwealth, or from the formal equality of one commonwealth with another in the maintenance of interests ; as for instance, the right that for every crime committed within its limits as against its own peace and dignity, and in violation of its order, the trial shall be had within its limits ; that every criminal, where- ever he may be in the nation, shall be remanded to it on the requisition of its governor ; that upon the seas, rivers, and highways of the nation each alike shall have the same right of way ; that each shall be regarded alike in every regulation of commerce and revenue, and in these none have precedence to another ; that no vessels bound to or from one, shall clear or pay duty to another ; that the citi- zens of each shall alike be eligible for the offices and trusts of the nation ; and the right, when its corporate rights and interests are endangered, to enter as a party in court, and the corresponding necessity to appear and answer a sum- mons as a party in court, but it is only in a court insti- tuted by the nation that this right of the commonwealth is construed ; and the right finally that to the citizens of each in its normal order there shall be given and secured all the rights, privileges, and immunities which belong to those THE NATION AND THE COMMONWEALTH. 307 of any of the several commonwealths in the nation, or the right to a formal equality in the commonwealth. The commonwealth is a formal organization. If the order of the commonwealth is overthrown in anarchy or rebellion, and its course is interrupted or overborne, it is in and through the nation alone that there is the power of reconstruction. The organization is formal, and it is upon the people in its organic and moral being, that is, the nation, that there is the ultimate obligation, although not always the immediate action, in the institution of rights through the whole and for the whole. The nation can therefore allow no civil formula to intervene between it and a condition in which civil rights are utterly destroyed through anarchy, or to restrain its action when robbery and murder and violence and crime in every shape prevail, but tried by no process of law and deterred by no punish- ment; and there is not in this condition the maintenance of the commonwealth, nor can it claim even the name. The curse of impotence would be upon the government of a people, which should aid or abet such a condition. There would be the failure of government to obtain its primary ends, and whatever theory of civil relations was adduced to justify it, it would denote the imbecility of a people. The theory would be a theory of anarchy and not of the state. The government restrained from its end in 1 this formalism could not long endure. It would be itself the greater criminal. The commonwealth is only formal, and the subversion of the civil order within it empties it, and there remains only a territory and an unorganized < population among the vestiges of a past civil system. The nation and the commonwealth, in the coincidence of the civil and political organization, hold certain neces- sary powers, which are involved in their order and admin- | istration. These are the concurrent powers of the consti- 308 THE NATION. tution. Their ultimate ground is in the sovereignty of the people in its organic unity ; but they are necessary to executive action alike in the civil and the political sphere. The illustration of these powers is in the power to levy taxes, and the power to call out and employ for its object physical force. But the power of taxation in the common* wealth is strictly internal, and the force it calls out can act in its immediate direction only as a constabulary for internal order. The principle determinative of these powers is implied in the nature of the nation and the commonwealth. The power in the commonwealth is subordinate and dependent. Kent says, " Although the State legislatures have a con- current jurisdiction in the case of taxation, except as to imposts, yet in effect though not in terms this concur- rent power becomes a subordinate and dependent one. In any other case of legislation, the concurrent power in the State would seem to be entirely dependent," etc. 1 The distinction in. the nation and the commonwealth be- comes more apparent in those powers in each, which have in their procedure a more immediate correspondence, as the judiciary. The distinct nature of each has determined the object of the action of this power in each, while the form of action is the same. It is thus, in the words of Kent, that " the judicial power of the United States is nec- essarily limited to national objects." It has for its province the application in cases involving a conflict of rights, of the constitution as the supreme law, and of the acts of Congress as laws, and it is to give judgment in cases which arise in a controversy between separate common- wealths, and when action is brought by a member of one commonwealth against another, and in cases arising in the external sovereignty of the nation under treaties and in revenue or admiralty practice. But Kent says, of a principle which, involved in the necessary conception of 1 1 Kent's Comm. p. 393. THE NATION AND THE COMMONWEALTH. 309 the commonwealth, has struggled toward a clearer recog- nition, " the United States has no common-law jurisdic- tion in criminal cases." J To this he adds, in explication of the same principle, " the vast field of the law of prop- erty, the very extensive head of equity jurisdiction, and the principal rights and duties which flow from our civil and domestic relations, fall within the control, and we might almost say, the exclusive cognizance of the State governments." * The earlier decisions of the judiciary of the United States were the embodiment of a profound national spirit, and the contrast appears, as we turn from the weight of their decisions to the bulk of the later, and pass from their large and solid conceptions to notions which only obtain consistency in the writings of Calhoun and Tucker's Blackstone. There was in these earlier decisions a con- ception of the being of the nation, which the nation in its progress could advance in, but which it could only by its retrogression reject, and by its dissolution obliterate. They laid the foundations in which the people can build. The precedents which they established apprehended clearly the substance and object of the nation and the common- wealth, and they embodied in a massive and symmetric order the conception to which the masters in political science had sought to give expression. The relation of the nation and the 'common wealth, the international and the civil state, is fundamental. It is only in their necessary conception that this relation is ascer- tained. It is only in their substance that this relation is realized. In contrast to the exposition of their necessary relation, which has its premise in their content, there are certain theories which comprise mainly the phases which the subject has assumed in abstract speculations and legal presumptions. These theories are mainly significant in their contrast to the principle which has been established. 1 1 Kent's Comm. pp. 367, 500. 310 THE NATION. Firstly ; There is a theory in which the States are repre- sented as simply vast corporations which had their origin in some charter or patent, and continue with substantially the same privileges and prerogatives once vested in them. They are corporations overgrown with time, a mass of un- defined forms and an accumulation of interests, but in con- formance to no consistent principle, and constructive of no consistent order. But in immediate answer to this it maybe said, Firstly; These powers are not thus undefined and unlimited, but exist in a clear limitation, and are the same in each com- monwealth, and are part of the same order. The theory would indicate a condition which ought not to be main- tained if it existed, and would imply the social disorder, not the organization of a free people. The theory presents the opposite of their actual condition. Secondly ; It is not to be presumed that these civil states could continue only as vast corporations, whose charters had lapsed, and which then remained with these positive but indefinite and mis- cellaneous powers. There is no country that could exist in the confusion that this would involve, and the civil states could not occupy the place which they have with no other ground or content. Thirdly ; There has never been an historical people that would refer its whole civil system to an organization which had no other character than this. To entrust the security of civil rights, of life and liberty and property, to such a power as this presents, and to abide in its judgment upon them, involves that which no people would allow. It would contradict every conception of civil order, and it has in civil society no parallel. Governments in every form have been imposed upon a people, but no people have ever conceded to an organization such as this assumes, the powers existent in a commonwealth of the United States. Secondly ; There is a theory in which the States or com- monwealths are represented as separate societies, each pos- THE NATION AND THE COMMONWEALTH. 311 sessed of the sovereignty and independence and continu- ous being of a separate political power ; each is possessed of the highest political attributes ; each may claim the ultimate obligation of all its members, and to it their ulti- mate obedience is due ; there is for each a distinct histori- cal place and destination, and each has immanent in itself all the capacities of an international power. These States are connected in a government to which they have del- egated certain powers, expressed in a written contract, while all other powers, which can attach to the most un- limited conception of political action, remain resident in themselves. The government established through this agreement is formed as their common bureau, or general agency, for certain objects. This theory was the postulate of the action of Calhoun and Davis and Stephens. It led the former, in 1831, to assert the right in each State, within its own limits, to nullify any act of the national Congress which it might deem unconstitutional or unjust, and it led the latter, in 1861, to assert the right in each State to secede, and to maintain in itself a sovereign, inde- pendent and continuous existence. There is in this theory the explicit assertion of a confed- erate and the rejection of a national principle, and it pre- sumes its inconsistence with the unity and being of the nation. This will involve a separate consideration. But the only answer to this theory, which is beyond all contro- versy, and is that of the realism of history, is that the separate commonwealths have no realization in history in conformance to this conception. The right, for instance, which in history is the crucial test of political sovereignty, the right to enter into relations with other nations, and to recognize them and be recognized by them, has never been possessed by these communities, and the power ap- parent in the inception of national existence is wanting to them. The theory is unreal ; but it is that evil theory which apprehending the commonwealth as identical with 312 THE NATION. the political people and apprehending nothing beyond, had its logical sequence in the subordination of the whole to a special interest, and consistently assuming slavery as that interest, induced the effort for that object, to effect the destruction of the whole. The events of history in the guidance of the people in its organic and moral being, are the witness to that unity, the rejection of which is blind- ness to the actual life and relations in which men exist. This assumption of a political contradiction the presence of a real sovereignty in the nation and also in the commonwealth has its result told in the impassioned words : " My soul aches To know when two authorities are up, Neither supreme, how soon confusion May enter 'twixt the gap of both and take The one by the other." 1 This theory sought to obtain realization in the articles of the confederation, which was precedent to the constitu- tion ; but these articles failed, because they were an ab- straction and had no correspondence to the real constitution of the people. And the constitution which was then en- acted is the exponent of the people only because it is the supreme law, and the government instituted in it is not one of separate States, but it is ordained and established by the people, and represents an organic relation to persons as members of it ; that is, it is the constitution of a nation. The real sovereignty is in the organic people, whose will is the supreme law ; but it is the people of the United States, and not of each or any particular State, whose will is the supreme law. And sovereignty exists in the people in its organic continuity ; the people in no separate State is thus formed, but the citizens of one State are the citi- zens of every State, and since a state cannot exist as an abstraction, it follows that none can be regarded as sepa- rate from the organic whole. 1 Coriolanus, Act 3, sc. 1. THE NATION AND THE COMMONWEALTH. 313 This theory had its consistent representative in Mr. Calhoun, who avoided none of its necessary conclusions ; but he gave no conception of a political life beyond the commonwealth, and the state for him was only a society existing in jural relations, and composed of individuals related to it as private persons, and having for its end the securance of private interests in their individual or col- lective character. This theory is beyond consideration in itself, since it involves conclusions which it would be the unreason of things to "allow, and would deny the conscious spirit and life of the people, the organic being of the na- tion in history. 1 Thirdly ; There is a theory which represents the people as existent as an organic whole, while in its complex polit- cal organism the States are each an integral and original part. The sovereignty is in the organic people, while in the necessary organization of the people the States are in- tegral ; or in other words, the sovereignty is in the political people, in whose real political constitution the States are necessary. This is the position of Mr. Brownson, and ap- parently of Mr. Hurd. Mr. Brownson says, " the sover- eignty is in the States united, not in the States severally." Mr. Hurd says, " The constitution as a political fact is the evidence of the investiture of certain sovereign na- tional powers in the united people of the States antecedent to the constitution, as well as of the residue of sovereignty 1 On the false origin of civilization in the conception of the commonwealth as separate from the nation, see Maurice's Prophets and Kings, passim. " The commonwealth presumes the nation and subsists in it. When the state is represented as only a union of various individuals, or an association, it is only the commonwealth that is apprehended. There are modern publicists who hsive given no other view of the state." Hegel, Philosophic des Rechts, p. 241. This criticism mainly applies to the view of the state in an empirical school. It is given in the writings of Mr. Macaulay, and it is reiterated in the political writings of Mr. Mill, and the political conception is constantly in the exclusive representation of the commonwealth, and this may be at least the consistent ground of th c admiration of the latter for the political specuk*i