UNIVERSITY OF CALIFORNIA, SAN DIEGO 3 1822 02686 2193 UNIVERSITY OF CALIFORNIA. SAN DIEGO 3 1822 02686 21 93 g'?^ B V THE SAME A UTHOR. THE REPUBLIC OF GOD. ^n Itnstitute of STijcologg. By ELISHA MULFORD, LL. D. I vol. 8vo, $2.00. Frotn the Lutherati Observer (^Philadelphia). Every page stimulates thought, and every argument proceeds from postulate to inevitable conclusion, like the tread of a conquering army. Fioiii TJu American {Philadelphia). It is distinguished by power of thought, felicity of style, and perfect candor. To employ the phrase of King James, there is as much conviction in one leaf of his book as in many another volume. From The Independent (New York). The author vifrites with a grand and convincing seriousness. Like the voice of truth, he brushes aside confusion and misconception in his illuminating presentation. From The A diiaitce (Chicago). It is a distinct contribution to the Christian thought of the time. No thoughtful person can read it without a rich gain to his own thinking. From The Critic {New York). We do not remember that this country has lately produced a speculative work of more originality and force. From, the Boston yournal. It is one of the few books which may be described as formative ; its temper is calm and lofty, and its ennobling conceptions of God and duty take hold upon the heart as well as upon the intellect. *^* For sale by Booksellers. Sent, post-paid, on receipt of price by the Publishers, HOUGHTON, MIFFLIN & CO., Boston. Mass. THE NATION: FOUNDATIONS OF CIVIL ORDER AND POLITICAL LIFE IN THE UNITED STATES. ELISHA MULFORD, LL. D. BOSTON: HOUGHTON, MIFFLIN AND COMPANY. New York: 11 East Seventeenth Street. (Cfce fiitoereiDe press, tffambrJDgf. 1899. Entered according to Act of Congress, in the year 1870, by E. MULFORD, In the Clerk's Office of the District Court for the Eastern District of Pennsylvania. Copyright, 1898, By Rachel P. Mulfoed. To THE MEMORY OF MY FATHER, IN THE HOPE THAT HIS FAITH SHALL LIVE IN HIS CHILDREN'S CHILDREN, / DEDICATE THIS 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 pohtics 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 lavv^s, which form the condition of science, poUtical 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 politieal 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 1 am glad to acknowledge, to the Rev. Mr. Maurice of London, and to Hegel and Stahl, to Trendelen- burg and Bluntschli ; while 1 have sought by ref- Vlii PREFACE. erence to them to indicate this, it has been hxrger than mere notes of reference can trace ; and T 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 ma}'^ 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 synonjonous, 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 L The Sdbstancb of the >(ation . . • • • . 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 n. The Nation as Defined in Theories . • • • S4 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 op the Nation as Defined in Theories . S7 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. Ihb Origin of the Nation 64 1. The nation is of divine foundation : analogy with the family. 8. The evidence of its origin : — CONTENTS. a. In its moral being and personality. b. In its government. e. In its authority and powers. d. In the facts which indicate the consciousness of ihe people. e. In the facts which indicate the conscience of the people. CHAPTER V. Thb People and the Land J 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 of Rights 78 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. b. 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. J. 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. b. Absolute and relative rights. c. Eights of persons and things. The realization of rights in the nation. CHAPTER Vn. The Nation the Realization of 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. 21 PAcn It is the assertion of the self-determination of the pec pie in the nation as a moral organism. The realization of Freedom in Rights. a. It is construed in Rights. b. 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 Vm. The Sovereigntt of the Natios ...... 129 The organic wUl of the people. The notes of sovereignty, a. Supremacy, b. 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. k CHAPTER IX. Thb 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. Zn 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 hal)eas 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 Xn. 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, b. Of families, c. Of numbers, d. Of properties or accidents attaching to men. The Republic formed in the representation of persona. The law of representation. a. 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 quahfication. 6. A lit- erary qualification. On the representation of public opinion. On the representation of minorities. CHAPTER XHL The Nation and its Relation to other Nations . . . S51 The external sovereignty of the nation. The right of recognition. The authority and province of international law. CHAPTER XIV. The Nation and the Individual 259 The ancient and modem representation. The laws of their relation and development. The freedom of the individual. ?n the defect in the representation of individualism in some recent theories. CONTENTS. Xlll CHAPTER XV. nam 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 Commonavealth 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 commonweal til 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. b. 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. h. 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, h. 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 of the Confederact . .321 The confederate principle. Its definition by Montesquieu ; hy 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 his&orical conflict in the United States. XIV CONTENTS. CHAPTER XVIII. The Nation the Antagonist op the Emfirb .... 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 Sjjain ; 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 nation. The Protestant principle. The nation, the Christian nation. CHAPTER XX. The Nation the Goal ow EListost • Stt Conclusion. THE NATION. CHAPTER I. IHE 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,^ — " 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 tratEc 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 innocent 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 hare; but nat-je 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. ">Se6. — No marrying 'mong his subjects? "Ant. — None, man; all idle: whores and knaves." The Tempest, act ii. bc. 1. In contrast to this, Shakespeare has represented the actual condition of man •part from society, in the Caliban. This condition is not ascertained from the fragmentarj' 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. Th« most exact representation of this condition is thus in some assumed character as the Caliban. THE SUBSTANCE OF THE NATION. 8 artificial systems of political schools. The}* 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 earHes*. and the widest records of his existence disclose a conditioi- in which there is the recognition of some common relation^ and men appear as dependent upon each other, and a. seeking association with each other ; they make sacrifice. for it, and accept obHgations in it. The nation has its foundations laid in the nature of man. It is the nonnal condition of human existence. There is in it, as the organization of liuman 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 w^ords 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 crround 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 ^o, and capacity to suffer or rejoice. The naticm e-^lsts, 4 THE NATION. only as men are lifted out of a meclianical existence ; in it there is the assertion of their determination, and their free endeavor. And man does not owe the conception of tlie 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 a.so wears out, with time and use, when another is made in its stead ; but it is not thus with states, and 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 Avhich 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 Aristotle's Politics, bk. i. ch. 2. R. von Mohl, in one of his later works, represents the state as only one vi the successive spheres of human life which he enumerates as the sphere )f 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, j'et 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 Btate. 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 not 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, Enci/klopcude der Staatsun* $en$cha/ten, p. 17. See also Bluntschli's Geschiehte, p. 616. THE SUBSTANCE OF THE NATION. 9 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, tiie 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 refei'ence 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 •ives to be as if it had not been. There are none unaf- lected by it, but each is involved in every moment of its existence. In the politics of Aristotle, human relationships — th» 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- saiy imperfectness, as also they will hold best the relation of citizenship who hold best the relation of brothers and nusbands 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 physical 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. Tlie 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 pi-esent occupants alone, but it em- braces those who are, and have been, and shall be. There THE SUBSTAXCE OF THE NATION. 7 is in it the continuity of tlie 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 lias 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- 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 ShaKcspeai'e, as Giotto and P?ru- 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.^ 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 movmg 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 memoi'y 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 Eeipnblicse. — Cicero De Bepublica, bk. ili. eh. 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. TJhe 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 wanino- 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- umulation. It has the unity of an organism, not the ^wggregation of a mass ; it is indivisible ; its germ lies >eyond 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 condition of its independence. An ^entity of structure also pervades the whole. Thus the defect of a part injures the whole ; and if a part bo sev- ered it ceases to exist, as tne limb which is cut from the body, or the branch from the tree. 10 THE NATION. The nation, therefore, is not something whicli can be i.orn clown, 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 liv'ing body. They are affected by it, not as by an external force, acting on component particles, but as by a living spii'it 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. Tjere may thus be an ignorant or a learned mob, a mob of men of fashion or of men of science, but the spirit is the same, and in its severance from the organic people thei'e 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, jrou fi'agments ! " and those who in the conceit of culture THE SUBSTANCE OF THE NATION. H 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. ^ 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 its 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 Blimtschli, for thft practical study of political subjects. And it is significant hat 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 Franchue, 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 ita existence as an organism. It is also significant that the assertion of the nation as an organic unity, in modern political thought, sliould 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." ^ 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 germ. 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;^ 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 ejcist — its bloom is followed by inevitable decay. The deeper truth is in 1 Savignj''s Syst. des Rom. Rechts, vol. i. p. 22. " In even'' 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 Rimi. RccJifs, vol. i. p. 20. See Bluntschli's Allgemeinen Siafsrecht unci ib?r 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., Antimncdiiavelli, ch. ix. Mr. Soencer says, — " We find not only that the analog^' between societj' and a living creature is home 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 literiture of poU^ THE SUBSTANCE OF THE NATION. 13 the -words of the Roman statesman, — " The state ia formed for eternity." ^ The nation is a conscious organism. It is the conscious life of the people ; it knows its own object and the pui'pose which is given it to fiilfilh Its action does not proceed 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 Caesar, 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." — Encyklopadie der Staatsioissenschqften, p. 84. 1 " Debet enim constituta sic, esse civitas ut seterna sit." — Cicero, De Reputh Hea, bk. iii. eh. 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 tliat 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 theii' 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 stroncrer than the individual intention of its members THE SUBSTANCE OF THE NATION. 15 It has determined the course of the greater in tlie 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 Enojland 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 expre* sion to this vocation ; and king-s and ministers whc 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 tlie 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 Avould 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 w^iich 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 wliich 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.^ It is as a moral organism that the nation is the sphere 1 " Whosoever Jays violent hands upon the state, assails the conditions of at moral life, and therefore the crime is regarded as the greatest." — Trendelen* tmrg, Naturechte aus dem Grunde der Ethik, p. 286. THE SUBSTANCE OF THE NATION. 17 of the Indi\'idual 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, hut it is constituted in the order of a moral world. Its course is defined in law, and in law as pre- scribino- 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 a 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 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 Ciril 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 historj- in this limitation in a physical sequence; \he,y appear under the conditions of a moral life, and their growth or decaj' 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 dut}', 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 U 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 fultilhnent 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 workino; 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 fi-om 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.^ 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 woi'ld, 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 '.st der gottliche Beruf, einer nation." — Stahl,PAt7o- lopbie des Bechts, vol. i. p. 365. 20 THE NATION. the judgment of history. But in the formal and artificia. 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 in which another and a separate power is carried to its end, nor the fi'ame-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 tlie 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 special but 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 m its freedom the possibility of evil, but in evil there is *lso the negation of its being. The being of the nation as a moral person has its witness THE SUBSTANCE OF THE NATION. 21 m 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 fonried in relations, ^an 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 Avarrior 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." ^ Hegel, who has given a yet wider expression to modern thought than did Aristotle to the ages before him, ' — and there is no other name with which the parallel may oe 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," ^ and " The state is the realization of freedom, and it is the absolute end of reason that freedom be real," ^ and " The state is no mechanism, but the rational life of self conscious freedom, the order of the moral world; "* an,j again he says, " There is one conception in religion and the state, and that is the highest of man." ^ There is no other conception which has such p^ver in the thoughts of men, and in this age it has the greater significance when it is drawn, not from a scho(,l of puritan 1 Aristotle's Politics, bk. i. ch. 2. 2 Hegel's Philosophie des Reehts, p. 312. 8 Ibid. p. 317. * Ibid. p. 340. • Hegel's Philosophie der Religion, vol. i. p. IW. 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. ^ 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." ^ 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 partnei'ship in every virtue and in all perfection." ^ 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." * 1 See Rothe's Tlieologische Ethih, vol. iii. sec. ii. p. 900. Stahl's PhUctophit des Rechts, vol. ii. sec. 2, p. 181. Bluntschli's Allgevi Stats Reckts, vol. i. p. 140h 2 Milton's Reformation in England, Preface to bk. ii. * Reflections on the French Revolution, p. 368. < Troihts 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 tliat. 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 bo apprehended only as involved THE SUBSTANCE OF THE NATION. 25 m 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 necessaiy 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 onlv 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 not an 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 harmony of the world." * 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. BrowTison 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 the power in conflict with evil, but even the beginning (Paradise) looked toward a development into a perfect kingdom.' — Stahl, Phihsophie des Hechts, vol. ii. sec. ii. d. 81. 26 THE NATION. its progress to discard, and from which it may be ultimatelv 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 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 bj' 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 wliich 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 mac the Creator has assigned the social and the political state as best adapted to develop the great capacities and faculties, intellectual and moral, with ichich 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 StaticB, 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 b?come extinct." — Social Statics, p. 24. It would scarcely be neces- sarj' to notice these statements of this theory, but if they be received in thi THE SUBSTANCE OF THE NATION. 27 The nation is represented as an historical accident. It h the outward circumstance of the life of man iipon the earth ; it is a phenomenal phase of society, the form which society in its manifold natui'e, in some places and some 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 Avere 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 vears, with thought of a people, they must work inevitable disaster, alike to the individual and the nation, and their repetition of the mediiieval 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 'lot further described, and there is no positive presentation of facts on which t." rest these " other stages of civilization," which also were rid of government, whose existence the writer aasumes, except as the " state among the Bushmen," may be also illustrative of them. When these assumptions are presented, vith the pretension of a school that it alwa3's keeps a foothold of facts and is characterized by a scientific exact uesB, they may Justify some surprise. 28 THE NATION. their ceaseless changes, and then not to appear again, but it is the fabric in whicli 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 whicli 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 necessaiy 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 whicli is or- ganized for plunder, as in the brigand's band or on tlie pirate's ship.^ 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 immanium? Omnisnt fugitivonim ac latronum conj^re^'tta umm in locum multitudo? Certe neg» Sifl." — Cicero, Da KeptMica, 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 oe for human society no real 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 jural 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 so THE NATION. moral continuity, and its citizenship is no longer a living relation. There is no [jrinciple 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 csd. There is no place for the self-devotion which is the so.urce 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 tlie 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 founda- 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 civij 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 relationsliip, and in its last analysis it couhl 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 th*^ 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 lays 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, 's elevated above it, only at last, in its necessary relation to it, to be reduced to the same low conception. The nation, merely as a society of jural relations, cannot com- 32 THE NATION. preliend the family thus as organic and as sacreJ, ana 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 M^ith the latter. It is coirect 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 tiie 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.^ 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 pliysical 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 1 Kant, Bechtslehre, sec. 45. THE SUBSTANCE OF THE NATION. 33 on which a number of men aie 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- sai'ily 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 aun, 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 a ise 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 pi'ofit 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 h the very root of division. It can issue only in di^integra* THE SUBSTANCE OF THE NATION. 35 tioii through self-antagonisms, and tlie 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 So 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 I .tent or avowed alliance. The pi'inciples 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. ^ 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 bufgerliche gesellschaft rein als solche, ist eine Kosmopolitm." — Botha, 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. Tliey alike shape the action of men in the conduct of affairs, and tliere 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 bemnning; 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 A^aried 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 no*- 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 wortti is only in their illustration of tte 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, 88 THE NATION. and of its organic process in the nation ; and in tlie expli- cation of the family the nation is formed. The riglit 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, nor 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 cliildren 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 guai'dianship over it.^ The right of the nation, therefore, instead of residino; 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 histoiy 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 tne 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 o( the child, in case his parents neglect to train him up in the nurture and admo- aition of the Lord, or are training him up to be a thief, a drunkard, a murderer ■ 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 the weaker, 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 mei'e 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 been 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 strono; enough to reijard the weakest and the lowliest with indifference, and in its course the things which are not have brouoht to naught the things which o o o 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. 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 beino; 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 Puifendorf, of Kant ; in England it was wnth 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 Contrat 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 tlie 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." ^ 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 jomt 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. 290. * 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 inductior 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 beino;. 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, tlie 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 repi'esented 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 Ans* totle, that " man is by nature a pohtical 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, wliich it also contradicts, is that he has no existence apart fi-om 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 ai'e 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 poA^'ers, 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 Ions: and elaborate leg-al 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 .he voluntary choice or agreement wdiich 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. Tiiat, 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 Avith 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 extinction 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, m the conception of a state founded on a contract, for the conception has no place for punishment in tlie 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 j^lu'ase 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 inhereni in society to justify its prevention. There is then in gov- eiTiment no authority, but only an agency limited to the securance of the private interests of the contractors, and in Bociely no permanence beyond their formal bond, and no nation which lives on although the individual dies. THE ORIGk-J 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. ^ 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." ^ 1 Bluntschli's Allgemeinen Statsrecht, vol. i. p. 260. 2 Ibid. 26-3. See on some of these theories, Ibid. vol. i. pp. 2.50, 270. Hooker has a statement of the social contract, and the institution of govern- ment in it: "Men knew that strifes and troubles would be endless, except they gave their common consent, all to be ordered bj' some whom the}' 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 tlie fundamental thought of his great work, and places him among the great politicians of his own and of every age. Hi^ work is a treatise of laws, as rest- ing in the eternal and divine reason. — Dr. TuUoch 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 aga'nst 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 reallj" vindicated." — Tulloch's Puritanism, p. 29. There is an impass* 60 THE NATION. It is said that the nation lias 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 riglit has no limitation, and it recognizes no authority over it and allows none separate from it. This proposition postiilates the very object to be ascer- tained. It presumes the existence of the people, but obvi- ously it is not of the 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. ble way from the position of Hooker to the inferences of Laud, or to the corr& ■ponding inferences, in another form, of the ecclesiasts of a recent puritanism THE ORloIN 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- sio-n. 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 Avill of man is certainly a necessary element in it, but as it 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 stale 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, biit 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 nvolves, has been always the same in 52 THE NATION. eveiy 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 postxi- 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 alsc comes into clearer light in the higher development of the THE ORIGIN OF THE NATION. 63 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 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 thcii own. — Brownson, The American Republic, p. 127. CHAPTER IV. THE ORIGIN OF THE NATION. The nation has a divine foundation, and has for its (;nd 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. ^ 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 natui'al 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, tliere 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 necessarv, since the work would not perhaps have detained »0 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 tlie moral life of the individual.^ 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 onVin 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 whicli 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 riutarch says, in a citation by Haller, "In my judgment, a city could be moro easily built without ground, than a state could be founded or exist withont "aith 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, acceptiua quam, concilia coetusque hominum jure sociati quse civitates appellautur." Sirmn. Scipionis, cb. iii. 56 THE NATION. be I'eo-arded. Thus the personahty of the nation is i:i- dicative of its divine origin. The necessary elements of personaUtv are freedom and justice, and wisdom and cour- ao"e, and the hke, 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 powder 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. Tlie 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 •epresentatives 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. 57 nation, is over the people, and while the indiv'idual acts in the oovernment of the nation, it is over the individual and he is subject to it, and this is a power which is and can be in the nation only as it is a moral person, and is deriva- tive from God. This alone in government, is the condi- tion also of the reconciliation of law and freedom.^ The character of the authority of the nation also indicates its origin. It has autiiority, 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 croAvnins 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 throuo-h all the chano-es 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 Jie 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 :he type of victory to its art. In Rome the very religion vas 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- ■ess." — Brownson. Tht 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 eveiy 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 desti'oying 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- duiath 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 oblio-ation of its members to it. And as there is in the conscience the witness to a divine relationship, if the na- tion liad merely an external or a physical being, there would be no ground in which the conscience could ac- knowledire a relation and oblig;ation to it : there would be only the individual obligation which one may hold to an- other. The conscience testifies also to a judgment as coming upon the nation, because formed in a relation in- volving an immediate and a divine obligation.^ There is no thought Avhich 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 Avho 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 savs of a recent political school, " it has rejected the divine jfigin 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 by so doing have deprived the state of her sa- ■aredness, inviolability, and hold upon the conscience." — The American Rejtublie, 122. 30 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, Avhen 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 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 Statsreclit, vol. i. p. 253. While it is denied bj' 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 ■othority." — Stahl's PhUosophie des Bechis, vol. ii. sec. 11. p. 184. CHAPTER V. .THE PEOPLE AND THE LAND. The people and the land form the natural elements of the nation, in its physical vmity 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 aofcrresate of men, a chance coUec- 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.i The people is not determinate in any enumeration of ■ndividuals. It is tlie 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. Tt is a mechanical conception which assumes a certain nor- .nal 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 signiticance. The organic pe,>ple 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 tf the words. 62 THE NATION. od'ic 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 tlie adversity of its years. It may exist in " numbei-s as the stars for multitude," or in only a remnant who keef, its callino; and o-uard 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 net 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. ^ There is 1 " America, though the best representative of the social and political gains of the eighteenth centur}-, was not the parent of the idea, in modem civilization, that man is a constituent member of the state of his birth irrespective of hi« %ncestry. It was become the public law of Christendom. Had America dons ess, 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 tlie ground of exclusion from it, and no human greatness that can justify an exalta- tion over it. The isolation fi'om 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 nnity, embodies its aim .n 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 ago-recrate, 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 'he more opulent in its types ; and the forms of the bud >.nd 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 oat 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 Histofy, vol- ix. p. 449. " Der zustand der Barberei besteht darin aasa Bine menge ein Volk ist ohne zugleich ein Staat zu sein." — Hegel, in Bote- leranz 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.^ 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 p)stulate 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 mora] 1 " This authority is not ' the governecf,' 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 persoii within a certain territory without reference to his consent." — Mr. Ilurd's article en " 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 Avork 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 are unfolded. The right to the land is in th( 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 ]>art 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 comphcity 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 all alienation and division. The bounds of tho 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 " 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 inity 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 here 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 tne land is owned by one hun- dred and fifty proprietors, anoi the whole number of pro- prietors is reduced to thirty thousand, while the majority S8 THE NATION. of the people subsist on wages. " Tlie yeomanry," saya Mr. Disraeli, " has vanished from tlie 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.^ 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 1 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 bej^ond. 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. 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 ohysical 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.^ 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, ancj. 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 lias a more exact statement of the influence of the ph_vsical worli cpon man: •' The world," he says, "furnishes the materials, and man detet mines the form." . . . • " Man is not a result of the world, and yet he de- fends 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 " 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: originallv 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 cf the father-land exists only when a people has already attained to the life of the nation. The merely economic society has nothing »i this." — Kothe's Tkeologische Ethik, 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. ^ 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 bsing endowed with self-consciousness, reason, and freedom, is cal ed a person, or has personality." — Ahren's Naturrecht, p. 83. THE NATION THE INSTITUTION OF RIGHTS. 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 beloncr 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 hacredness 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 fi-eedom. They are the process in which personality affirms itself and attains recognition in the nation. Thus also, reverse- .y, the decay and 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 man is made in the image of God ; they ai'e his by nature ; they belong to him in T4 THE NATION. his oriirinal 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 tlie nature of man. Personahty manifests itself in the reaUzation 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.^ The nation is the institution of rights. The primaiy distniction 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 Reckts, p. 72. Stahl's Philosophis des Rechts, vol. iL aec. i- p. 331. Miclielet'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 Bubstance 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 qualit}- of vulgarity is a respect for the accidents of 1^ 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 su- ^ renie necessity. They must yield also to its force, as, for 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 foi'feited 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, Avhile 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 tiie more simple and the more exact. It is the less likely to allow injury to rights through ai'bitrary notions. It in- dicates the origin and the content of rights. It has a better place in the common thought of men, and may be trusted to hold its own, in the long run, against a more scholastic term.^ « 1 Hurd's Law of Freedom, etc., vol. i. p. 36. Lieber's Political Ethics, vol. L p. 281. The declaration of principles at ti:e cIom of the War of th» Revolution WM^ 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.^ 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 b}' 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 belono; to individuals in a sino-le un- connected state.^ 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 tliough 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 n 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 Contiiuntal 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, mereh'' 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 pn- mary and strictest sense; such as would belong to their persons merely in a state of nature, and which ever}' man is entitled to enjoy whether out of so- iety or in it." — 1 Bl. Comm., 123. , 8 " 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 whicb »rise from the civil and domestic relations." — 2 Kent's Comm. 1. THE NATION THE INSTITUTION OF RIGHTS. 77 always the construction of an abstract system. These rights in their orio-in and their content can be referred only to the nature of man. Their foundation is in no sphere of external circumstance, and in no estate or con- dition of hfe, but in the constitution of man. They are the rights of human nature, and their derivation is signi- fied in the image in which tliat 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 bni'ied 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 foniial Civil and Political j)rocess. 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 Jaw 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 neople. They are apprehended and 78 THE NATION. then actualized in its development. They are affirmed in the growtli 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 vvhicii 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 impi'int 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, .he products ; by agriculture, and commerce, and trade ; bv 3,11 those elements which, in the necessary relation of man .n physical nature, so clearly affect, while they do not de- .ermine, 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 Politica. r^rocess. It is only in law, in which this process consists THE NATION THE INSTITUTION OF RIGHTS. 79 that natui'al rights obtain their necessary form. Tliey have apart from this neither the requisite precision, nor the ob- ligation which secures tlieir authority and vaHdity. 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.^ 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 foi-mer, and the latter is held in its sepa- ration as an artificial existence : the foundation of societv 1 Anstotle distinguishes between a natural right which is everywhere alike falid, <()V station, as a thing which men strive to acquire and preserve, may be regarded THE NATION THE INSTITUTION OF EIGHTS. 87 The right of personal Hberty is the right of external freedom ; it embraces the right to locomotion ; the right to labor, — to earn Dne's bread in the sweat of one's brow ; the riffht to unrestricted action in the choice of the voca- o tion and occupation of the individual. There must be freedom to come and go, and freedom of action, and space in the state for the individuality of each to work outward ; and none can be hindered or restrained from his vocation, and every occupation is to be opened upon the same con- ditions to all. The right of property is a personal right in its strictest form, and is especially illustrative in certain phases, of the relation of the individual and the nation. Its definition in formulas and theories may be traced through the widest range of legal and political thought, and it bears the im- press of the spirit of all their schools. It is more com- plex than the , preceding, and appeal's in more opposite representations ; and in historical and in recent theories it has met with strenuous denial. " Thou shalt not steal," were the words of the ancient Hebrew commandment, but " la propriete c'est le vol," said M. Proudhon, and the inference was reached throuo;h the rejection of all ground on which the right to property has been asserted in the schools of economy. The Hebrew commandment presumed the existence of the nation ; it presumed a will whose determination was in righteousness, and in which the nation had its foundation ; and the exis- tence of property, then, was recognized as an institute of the nation, not its first nor its main institute, but subse- quent to many othei's, as the order of the family, the rest from labor in the succession of the week, and yet it is j)resumed w^ith them and as sacred as they. The legal definition which has most widely prevailed, as as propertj'." — Social Statics, p. 162. But the conception is lost when p1ace and institution of property, which he assailed so passionately and so conclusively, separates them from atheism. They who hold the tenure of property iii ihese theories may justify themselves, but it may be for 1 Proudhon, Systime des Contradiclions Economiques, vol. ii p. 234. 94 THE NATION. them to ask what they may have in these theories to pro- tect them and their rights ; or what the future of society may be which is educated in them ; or how tliey may meet those crises which try the defect in social schemes, and which they may defer in their dogmas but cannot de- fer in history, the inevitable days in which false theories and false systems are burned up like stubble. It is in the avoidance of the divine origin and subsistence of the nation, and in the indifference to its existence in its moral being, and in the assertion of individual and economic scliemes, that these theories have prevailed, and in them they have their consistent assumption. The Hebrew commandment pre- sumed the being of the nation in wdiich it was declared, as a moral order, and as subsisting in the name of a righteous will, from whom the commandment come, and in that con- ception the tenure of property was defined. The origin of the existence of property and of the right, is in no formal law or precedence, and law is only reguhitive and descriptive of it. It is in no external circumstance, and occupancy is only the incident of it, and, in its exclu- sive apprehension, allows to it no moral significance. There is in neither a formal law nor an external circumstance the source of rights, and it is only as property consists with the nature and vocation of man that occupancy and law follow from it, but its origin is not in them. The ground of the right in the existence of proj)erty, and of the right to property, is in the vocation from God in the world, of the individual and of the nation. Prop- erty is the material for the work of man in his vocation on the earth, and in that alone is the ground of its right. If property becomes in itself an end, then personality is sub- jected to the things which it possesses. If it be held apart from the vocation of man and the moral relations and obli- gations involved in that, then it becomes mere possession, the instrument of a selfish interest, and the means for the degradation of personality. THE NATION THE INSTITUTION Of RIGHTS. 95 To tlie individual and to tlie nation God gives liis pow- ers and his working field, and these are the talents of each, and in this alone does property consist. It is thus, as it is mven in and for the vocation of man on the earth, that its use affords a ground for the manifestation of character, and there may be in it tlie expression of individuality, and elements of culture and freedom. In this also is the sign of the sacredness of the relation which the individual and the nation bear to the earth. Thus, also, if there be no recognition of a vocation which the individual and the na- tion are to fulfill, then the origin of property is only in the arbitrary or the accidental ; it is in its origin arbitrary — the seizure by force and choice of that which each may lay hold of; or accidental — that which each in his for- tune may stumble on or is in luck to obtain, and it is the sign only of the avarice of men who clutch it in their grasp, or the risk of men who find it by tlie way.^ The origin of the existence of property and of the right to property is not in the physical condition of man. Th^re is no more ground in his physical being for prop- erty than there is in the other animals for property, as in it man has no more rights than they. Man is dependent upon the physical world, and in his physical being is related to it,. through the sweep of all its changes, and it may be in the evolution of all its forms : but in his spiritual nature, he is over it ; he exists in a higher sphere ; his cit- izenship is in another world; and in that ampler realm of a realized freedom there is alone the ground of rights. In the })hysical world man is to find the satisfaction of his physical necessities, and therefore he has power in it and over it. But property is not therefore simply the means for the satisfaction of physical necessities, nor is its ground in the aimless subjection of the material world ; in this there can be the source of no riiiiit 1 Dr. Brownson's definition of property is as profound as it is beautiful,— ** Property is communion with God, through the material world." — 77»e J.«6fv MM Rtjniblic, p. 15. 96 THE NATION. In the physical world man has a formative power, and there is in his physical condition the hard necessity for la- bor, but labor follows from the existence of property and the right in it ; not the reverse. It is an element in property, and in the necessary condition of life it appears as the wages for toil and the return for service, but labor itself passes into the higher conception of work in the vocation of man. The recognition of property on this postulate is alone consistent with the correspondence in the rights and duties of property. When recent economists, as Bastiat, admit that the true condition of property and the relations of capital and labor can be fixed by no adjustment of eco- nomic schemes, but by the recognition of a moral obligation in the use of property, it becomes an e\adence of this prop- osition as to the ground of property. It is not simply the purchase by the individual, which is to be held in exclusive use, and suffers an indifference to moral relations ; it has a moral aim, and thus the advance in civilization will not be in its negation, and the degradation of all in a mere com- munism ; there will be its better assertion, and in the recognition of the duties of property as correspondent to its rights there may be the coming of the true communism, of which the world once has seen the type. • The relation of property to the family has its basis in he constitution of the family, as a moral order in the world. The fact that in archaic society it is held as a common possession in the family, is consequent on the fact that the family is the archaic form, and the inception of the moi'al order and relations of the world is in the in- stitution of the family. Thus the relation of property to the family does not cease in the progress of society, but is held with more definite limitations and provisions as soci- ety passes into more complex and varied relations. The process in the realization of a moi'al order, in the institution of property, appears also in the realization of THE NATION THE INSTITUTION OF RIGHTS. 97 the nation. The people possesses in the land the external sphere of its vocation in history. The riglit to the land is not in the fact of occupancy, but in the vocation of the nation as a moral person. The nation has the right to property in its own vocation, and as a moral order it is instituted and maintained, in the nation, in and with the vocation of the individual. Thus property is to be main- tained as an institute of the nation, and secured alike to the individual and the familv and the nation. The right of property, as it is existent in the nation, has its formal assertion in the right of eminent domain or expropriation. It obtains, not because the right of one man, or of a col- lection of men, is precedent to the right of another, and there is no ground on which the rights of several should exclude the right of one, but because the right of the na- tion is necessarily precedent to the rights of the individual. Yet here also the nation in its moral order is to regard and to maintain the existence of property. Therefore in the formal exercise of expropriation, an adjustment is to be made by compensation. The obvious maxims given by Bluntschli in defining this are, first, that the nation maintain the freedom and the security of property ; and, second, that it exercise no arbitrary disposition of prop- erty. And as an element in property is labor, the nation in the exercise of expropriation is to render compensation to the individual for the return of his labor appropriated by it. It is the fact of the nation as a moral order that makes the maintenance of "the rights of property impera- tive, and while it belongs to it to define values in the issue of money, it is to make this issue the representative of actual values, and while its own right is precedent — and may be exercised in its peril, as in war — in the possession <)f all property, yet in its normal course, if it fails to sus- vain the validity of contracts and exchange, in correspond- ence with their actual values it becomes itself destructive of property, and as the obligatio i of the nation is higher T 98 THE NATION. as its right is higher, every act of national dishonesty is the greater wrong, and is subversive of the moi-al order of the whole. The right to the recognition of these civil rights, and to their maintenance in the civil order, is the primary civil right. It is the necessary condition, in which all other civil rights are established, and without it they re- main a fiction. To each and all the nation is to leave open the avenue to these rights, and is to allow it to be closed in the private interest of none. Tliis is what Burke has called the right to justice. It is the right, in the or- ganization of justice, of every man to a fair trial for him- self and against every other man. The justice of tlie state is to be for each and all, or it becomes the institution of injustice ; its tribunal is to be open to hear the cause of all, or it becomes the inquisition of wrong. It is the right of all to equality before the law. This right is implied in the necessary conception of law as universal. It is indicated in the most ancient symbols of justice, and its types are traced in the most archaic of social forms. The earliest traditions are of the institution of tribunals, to which all may appeal, and in whose judg- ment all may abide. The signature of justice most widely found is the scale held with fair and even balance. It is the figure of one w^ho is blindfold and sees not those who may approach, but whose ear is open to the cry of all. The rich and the poor, the strong and the weak, may all share its protection and must abide its decision. The life of the humblest is as sacred as that of the greatest, and the possession of the poorest in shelter and tools, is as well regarded as the estate of the rich. It is this principle of equality before the law that ap- pears in the foundation of social order. In the myths of Plato, it is represented in the inception of society. " Man was furnished with all he needed, for his individua. life ; but he had not yet the wisdom by which society it THE NATION THE INSTITUTION OF RIGHTS. 99 formed. This wisdom was kept in the citadel of Zeus, and into that awful sanctuary forethought could not enter. As time went on, the power and weakness of man was seen. He instituted ordinances of worship ; he defined lano-uage; he invented clothing and procured food for him- self. But he lived in isolation and was unfit for social union. Then if men were scattered they were in danger of perishing from wild beasts ; if they tried to combine, they were scattered again by mutual violence. There- upon Zeus, fearing for the safety of our race, sent Hermes with self-respect and justice, that their presence among men might establish order, and knit together the bonds of friendship in society. ' Must I distribute them,' said Her- mes, ' as the various arts have been distributed aforetime, only to certain individuals, or must I dispense them to all ? ' ' To all,' said Zeus, ' and let all partake of them. For states could not be formed, if they, like the arts, were confined to a few. Nay, more, if any is incapable of self- respect and justice let him be put to death, such is my will, as a plague to the state.' " ^ The wide historical influence of the axiom of the juris- consults of the Antonine era, " omnes homines, natura aequales sunt," has been illustrated by a recent histoi'ian of Roman law. Its auspicious assertion as a principle and aim in the destination of the state, in the beginning of the independence of the republic, will always have an histor- ical significance. The recognition of an equality before the law is slow to come, and the attainment of an impartial justice is marked by careful and painful steps. It seems so fair an ideal, as to win the thoughts of men. It alone reflects that holy faith in justice, which men feel in their hearts has some- where its abode, and to which the right does not appeal in vain. It is the only shield of human weakness, against in- human wrong aul the violence and fi'aud and oppression 1 Thecetetui, sec. 21. 100 THE NATION. of wicked men, but many have fallen striving for it whc have been the pro[)hets of the world whose cry is still "liov« long ? " It is the policy of evil to devise against it, and it is overborne by all the evil elements of our nature, by sel- fishness and pride and lust. Political rights are those rights which are instituted in the normal process of the people as an ethical organism. They are those rights which have their ground in the being of the nation in its moral personality, and in themi the ft-eedom of the people in its organic unity is realized. Political rights include the right of every person born in the nation, to be and to remain in its citizenship. The nation cannot arbitrarily determine who shall or shall not exist in it as members of it. " The right of citizenship as distinguished from alienage," says Kent, in defining the law of civilization, " is a national right, character, or con- dition." This is applied to " all persons born in the juris- diction and allegiance of the United States." ^ This is irrespective of ancestry, and consists with a national not a racial principle. It is involved in the being of the nation in its moral relations, and therefore, as every other right, is only forfeited by crime, which is in its nature and effect the severance of relationships. Political rights include the right of every person who is a member of the nation, to participation in its resultant advantage. The strength and power to which it has at- tained are to be the aid and defense of every member, and the domain of its order is to be open to him. Its histori- cal memories and associations are no more truly the glory and hope of all its members than are its results the pos- session of all. It has a universal end, and to restrict its advantages to one or to a few, to an individual or to a class, would involve the subordination of the whole to pri Tate and special ends. 1 2 Kent's Comm. 39. THE NATION THE INSTITUTION OF RIGHTS. iOl Political rights include the right of every person vt nv is a member of the nation to the actual determination of a person in its destination. The personality of eacli is* to be respected in it, and to act in it, not negatively but posi- tively, not passively to be allowed as if the nation were only some power over it, but it is to act as itself a deter- minate poAver in it. Since the normal and moral process of the nation is in the determination of personality, every in- dividual who, being a member of it, has personality, has the right to its determinate assertion in the nation. It is its defect when, by an arbitrary act, certain persons are in- cluded and determine its action and certain other persons are excluded. Political rights include also the recognition and insti- tution of all those rights which are involved in the rela- tions of life as a moral order. These are to be guarded and affirmed by the nation, which is invested with authority to maintain the order of society. Thus the family in its normal and moral conception is to be maintained by it, and the violation of its organic law is to be punished. Rights have their correspondence in duties ; they may be arbitrarily separated, but it cannot be without the de- fect or the distortion of the one or the other. Since rights have a moral content, to every right a duty corresponds, but it does not follow that a right corresponds also to every duty, since there are immediate duties in the relations of life, as for instance, the duty of a child to its parents. Rights and duties have the same ground in personality. Rights have not their ground in duties, and do not pro- ceed as if only derivative from them. A right is a con- dition, in which there may be th-e fulfillment of a duty ; but a right is not simply the means for the fulfillment of a duty, only the instrument by which a duty is performed, and hav- ing apart fi'om that no signifi ;ance. Rights no less than the fulfillment of duties have their immediate content in 'i02 THE NATION. i-peJ'srfnality ; they are therefore to be held not simply as sub- sequent to duties, and as if only incident to them. Since rights, proceed in their conception from a righteous will and subsist in that, therefore in the realization of rights there is the fulfillment of duties. The rejection of the immediate foundation of rights and duties in personality can result only in the construction of a formal law of duty and a formal system of rights. Mr. Caird has said that, " in the philosophy of Kant, the demand for the rights of man first manifested its true nature, because in that philosophy the claim of right was based on the idea of duty." ^ But rights are based in per- sonality, and in that alone can they subsist, and from that alone is their content derived. Kant asserted that the rights of man exist only in conformance to an abstract moral law, and only for an end defined in that law, but this can become the ground only of a formal conception of rights and a formal freedom. It would merge the being of the state into a formal system of laws. The necessary inference of this postulate of Kant, is the derivation of the right of personality from a law of duty, and thus he assumed it to.be resultant from the law, — " Let not thy- self be used as a means." But this reference of the right of personality to an abstract and formal law, and its defini- tion in the limitations of that law, is not a sufficient ground for the right of personality. This law, for instance, which requires me to guard my own personality, and forbids that I should allow myself to be used as a means to an end, is obviously too narrow ; it does not comprehend the right of personality, for this involves the right against other persons, that they also shall respect my personality . and shall not use, nor dare to use me as a means to an end. 1 Inaugural Lecture in the Common Hall of Glasgow College, by Edward Curd, 1866. Kant's Rechtskhre, sec. xliii. See Stahl, Phil, des Rechta, vol. ii Hc. 1, p. 96. THE NATION THE INSTITUTION OF RIGHTS. 103 The rights of the organic people, or national rights, have an integral unity as they are instituted in the real- ization of the nation as a moral person. They do not compose simply a formal system. They are not a mere accumulation of institutions, to be held by the people, as a miscellaneous budget of receipts, nor do they exist only as proceeding from the duties of the people, and as the resultant of certain obligations. The rights of the people subsist in the consciousness of the people in its unity, and this is the condition of political rights. They bear in their form the imprint of the type of the nation's individuality, and are the expression of its spirit. In their institution they constitute its political order. There is thus in its political course the expression of its aim and the subjection to it of the whole external order. There is indeed apparent in the institution of its riglits, the influ- ence of the physical condition of the people, the age, the land, the climate, the races, but these only modify while they cannot determine its process ; this is determined only in the freedom of the people, and is the manifestation of its spirit. The rights of the people have a universal as an indi- vidual element, and move toward one end in everv nation, and thus there is a correspondence in different nations. But the one element does not preclude the other, they have an integral and individual character. They have no ex- otic forms, and cannot at once be transplanted from one people to another. They cannot be applied as abstract ideas adopted with some abstract system. Thus, in tlie development of rights, while they may not always have the harmony of a system, yet formed in the life of the people they have a deeper unity, and, wrought and forged in the great events of its history, they have subtler power and robuster proportions. There is a certain representation of rights in which 104 THE NATION. they are defined as original and acquired rights. But strictly there is only one original right, the right of per- sonality, and to this all others may be referred. It is the right which is primitive in the rights of man, the right of a man to be himself. The term acquired rights, when rights are held as the acquisition or private property of certain individuals or families, denotes a condition isolated from the normal and organic being of the nation, and de- riving its content from traditional foi'ce, or custom or acci- dent ; it describes rather the privileges or prerogatives of an individual or a class. These may invade the whole sphere of natural rights, and when encroaching upon them, become in reality the ancient wrongs of a people. Ac- quired rights are positive, but they have no necessary basis beyond, and exist only as the creation of law. There is a definition of rights as absolute and relative. The defect in the phrase absolute, as applied to rights, has been noticed ; there is, moreover, no necessary antithesis to separate relative rights and the rights of personality, since all rights are the rights of persons in certain relations. The term describes mainly the rights of persons in cer- tain necessary relations, as for instance the rights in the family, of the parent and child, of the husband and wife, and these relations are founded in nature, and maintained \)y the nation, as belonging to a moral order. There is sometimes added to the same category the rights of corporations, — " artificial peysons created by law, under the denomination of persons." ^ These rights are more exactly defined as franchises and privileges. They are formed by vesting a certain individual, or a number of individuals, in a corporate character with an artificial personahty, and attaching thereto certain definite franchises and privileges, which, since the artificial person- ality is constructed, are described as rights. They are 1 1 Kent's Comm. 3. THE NATION THE INSTITUTION OF RIGHTS. 105 created by the state in its enactment and have their ori- gin and limitation in positive law. Their accumulation in great mononolies, presumed to be chartered for the jmblic advantage, is to be rigorously defined, and if not guarded may be an injury to the natural rights of the people. They are only the creation of law and exist always in subordination to the law of the public weal, but the strength, which resides in their assumption, by a legal fiction, of personality, is a significant illustration of the real ground of rialits. There is a definition, the most prominent in the history of civil riglits, in which they are described as the rights of persons and the rights of things. This had its source in Roman law, which defined rights as ad personam and ad rem, and it had there a better justification than in later civilization, since in Roman law the definition of liumaii- ity, as Hegel says, was impossible.^ In Roman law, rights ad personam are not the rights of a person as such, but the riglits of a certain person or of a person in a certain status ; personality as distinct from slavery, is repre- sented as only a status or a condition. The phrase in which the distinction appears, remains as a reminiscence of the Roman conception, or is retained as a technical term or as a nice rhetorical antithesis. It denotes, says Christian, " by the former the rights of persons in public stations, and by the latter the rights of persons in private relations." ^ But since all rights are the rights of persons, and things can be only the objects of action, the merely verbal antithesis involves confusion and may become the source of constant error. The description of rights as existent in some formal Hegel, Philosophie des Rea\(s, p. 23. 1 Bl. Coinm. 123. " Now rights and obligations ar« iranifestl- the attributes of persons, not oi 106 THE NATION. system which the nation is to apply is unhistorical. Rights are represented thus as complete and beyond modification. They are the framework out of which man is to con- struct society, the house wliicli is so built that one state may move out and another come in. They are the dry anatomy which a political spirit is to clothe with life. This can be justified only as the origin of the nation is defined in a formal law ; it is inconsistent with its oroanic being. The nation is the realization of rights. The foundation of rights is in the nature of man, but their positive deter- mination is in the civil and political organization. The content of rights is in personality ; the realization of rights is in the being of the nation as a moral organ- ism. There is for rights no positive existence apart from the nation. The imaginary state of nature in which rights are represented as existing in their completeness, apart from the civil and political being of society, is unreal, it is only the fiction in which man is stripped of the actual circumstance and relations of life, in order that he may be costumed in the theories and speculations of later schools. There is beyond the civil and political organization no right but might; there is no security, and rights which are primary, as of life and libei'ty and property, are neither acknowledged or affirmed. The absence of the rights of man is characteristic of his existence, in so far as the germ of the nation is undeveloped and its form undefined. There is in the nation the institution, not the creation of rights. Since their foundation is in the nature of man, and their affirmation is in the nation, and since no man can take that which is by nature his right, simply as a things, and to dis-ide rights, as Blackstone, into the rights of persons and the rights of things, if by the latter words are meant rights not over in or to, but belonging to or inherent and vested in things, we have seen evinces either inac- curacj' of thought, or is at best misapplication of language." — Eeddies' In- pdriet, etc., p. 171. THE NATION THE INSTITUTION OF UIGHTS. 107 gift, they are formed and maintained in tlie nation onl)> as tlie being of the nation has a divine origin and is itself a divine gift. There is, therefore, in the development of the nation the manifestation of the rig-hts given of God to man. Thus, in the representation of the nation as only an external organization, or as an economic association, there can be no just conception of the origin or subsistence of rights. Thus, also, they cannot be regarded as hav- ing their origin in law ; in law there is their assertion but not their creation, and in law tliere can never be the perfect measure or expression of them. In the course of the nation their recognition in law, in any moment, is nec- essarily incomplete, and is never a finalit}', but is always advancing to correspond to the life and the freedom they represent. Since the nation has its being in the realization of rights, the hiohest oblio-ation of the nation is that rio;hts be real. In the institution of rights there is "the manifestation of the nature of man as it is made in the divine image. As the origin of the rights of man is in his creation in the divine imaiie, so also is their realization in the nation the fulfillment of the divine will. As the realization of rights is in the vocation and jhe destination of the people, so also is the righteousness in which they are wrought the condition of tlie being of the people. The realization of the rights of humanity in the nation is the fulfillment of rio-hteousness. It is in the being of the nation as a moral person that there is the realization of rights, and in this is the affirmation of righteousness on the earth, and therein also the nation, in its personality, can subsist only in the righteous name, and caji proceed only in the righteona will of God. CHAPTER VII. THE NATION THE REALIZATION CF FREEDOM. The necessary being of the nation is in the realization of freedom ; that is, its end is to make freedom real, and its development is only as it does make freedom real. The freedom of the people subsists in the nation as a moral person. Freedom is tlie manifestation of personality. Man has in his nature impulses and the power of following them, and desires and the power of gratifying them; but his being is not in these, and deeper than these and beyond these, there is a consciousness of an I — a peraon. In the assertion and the realization of this, and in the exclusion of all that is alien from this, alone is freedom. It is the realization in man, through his own self-determi^iation, of his true be- ing. The law of freedom is the law which is laid in the being of personality. The act of freedom is a self-deter- minate act, the determination of personality.^ 1 There is a common phrase in elhics, which asserts the existence of la'* precedent to life — a law precedent to the divine beinpj, or as the phrase is, in one shape, "the throne of justice is above the throne of God; we may appeal from the throneof God to the throne of justice." If there be the assertion of a aw as existent " in the beginning," those who postulate a law having a mora? ontent as the /ms<, and those who postulate a law which exists only as a formula 'thought, — the necessary limitation of conception — maj' oppose each othe' uut the bystander can scarcely question the result; the latter has a consistenct which the former cannot claim, and the pure dialectic has the start of the ethic But the law which has for its subytance the good or the right, is in the di. vine person, the being of God; it is the will ot God. The assumption of orecedent law is not necessary to the assertion of the immutability of the good AS it is apparent in moral distinctions, for this immutability is in the immutable being, — the personal being of God; and than it is manifest in the moral order of the world, as the moral order is the realization of the will of God. The good THE NATION TIIK RKALIZATION OF FREEDO:\I. 109 The assertion of personality is in tlie will. Tlie will de- rives from personality its content. The self determined will alone is free. The will defined in an abstract and formal conception, and divested of personality, and its sub- sistence in it, allows no freedom, and when thus divested of its content it is without freedom also. The action which is arbitrary is not free. It is the mere formal act of the will ; it proceeds only from the will, not from the conscious determination of personality, — that is, the whole, the real person, — and having no other source, it is only willfulness. This action, separated thus from its subsistence in personality, is mere force, and instead of implying force of character, it is force without ciiaracter. It is a barren sceptre. It has no more dignity than the operation of a physical power in nature. The will in this conception may be as strong and as unbending as iron, but its quality is no better than iron. is maintained in the realization of a moral order by the divine will, and this in the relations of a moral order is the just. " The good is as little a law for the divine ■will (that is, God wills it because it is already in itself good) as it is a creation of the divine will (that is, that it tirst becomes the good, because and after that God has willed it), but it is even 'in itself the original will of God, from eternity to eternity. The good, as the substance of the divine will, is something specific, distinct from the divine rea- son and the divine omnijiotence; rot less original than these: it springs orig- inally purely out of the will, but it springs not out of the abstract conception, (abstraktuni) of the will (Kant's abstract conception of the principle, be a law unto thyself; or Fichte's abstract conception of pure self-activity); nor from the formal conception (formalismus) of the operations of the will (Hegel't develop- ment of the moral out of the (momente) incident of the operations of the T;i!l), but it springs out of the eternal positive (inhalte) content of the will. " The good is, to speak in a general way, nothing else than the substance of a person. Man can therefore endeavor to derive the conceptions which we recog- nize in the attributes of God, and the virtues of man from the original concep- on of personality. In the substance of personality there lies the spirituality >,-hich contends against losing itself in external ob,ects and in sensual impulses, and of this alone and of nothing else, has the ethic of Kant and Fichte given a scientific representation ; in the substance of personality there lies further the unchangeableness of the will, that in relation to the moral order of the world ia the just; in the substance of personality is the love that goes forth toward those who are persons; in the substance of personalitj' there is the oneness of all these energies and qualities in the innermost centre — the person, and therewith iti impenetrability by all that is external or strange or alien to it — its holiness '" —.Stahrs Philosophic des Rechts, vol. ii. sec. ^ pp. 85, 86. 110 THE NATION. The action which springs immediately from im])ulse oi appetite is not free. The pursuance of a blind instmct, or the subjection to a strong passion, is the negation of free- dom. Thus the animal is unfree. It is determined and limited by its animal nature. The desires and the emo- tions, the impulse and the passion of men, as separate from personality, are therefore to be apprehended as external to the will, and the immediate subjection to them is igno- ble, as the degradation of personality, and unworthy, as the negation of the true and real self in man ; there is in it the loss of freedom. Thus Shakespeare says : — " I'll never Be such a gosling to obey instinct, but stand, As if a man were author of himself And knew no other kin." The action which is merely unlimited and unrestrained is not free ; the power to do whatever one lists or pleases is not freedom. The most false representation of freedom is this apprehension of it in the absence of restraint. It is then identified with mere caprice. The fi'eedom which in this assumption is called natural freedom is unreal. It is illustrated by the old words denoting the widest and the most unrestrained play of desire, " a boy's will is the wind's will." But in that unceasing motion and that sweep of limitless fields there is no freedom. It is not until the boy has passed on to the life of a personality, reahzed in its conscious self-determination, that he is truly free. Yet it was only this false conception of freedom which appeared in the later phases of the French Revo- lution. Freedom was sought in the removal of all that was assumed as a limitation. It was to be attained in the erasure of the whole organization of society, and o-J all the institutions and associations of the past. The path of the revolution, in its principle, was not far from that of the cloister, and the ideal still was that which had been sought in the via negativa of the mystic. It oblit- THE NATION THE REALIZATION OF FREEDOM. Ill erated all that appeared beyond its immediate intent. The existing order was to be determined in the momen- tary action of the individual. It was not a freedom which presumed the existence of the nation in its organic and moral being, a freedom which had a moral content, but it was assumed to consist in the absence of all limitation and restraint. Then when all the institutions of the past were swept away, and no apparent barrier was before men to check their advance, and there was nothing in the wide blank of the horizon to debar them, there was a painful discovery that they were not yet free. It was the rejec- tion of the moral relations which subsist in the nation, and the striving after freedom in mere vacancy, that opened the way to any influence from without that might take possession of the empty domain. In the denial of all or- ganic and moral relations there arose everywhere the dis- trust and crimination of men, and there followed what was called the reign of terror, when those who never were bidden, came co the room all swept and garnished, and men became the slaves of fear and of dread, and the way was open to the entrance of an imperial power. The action which is simply momentary is not free. The will in its freedom has elements of continuity and identity, which subsist in personality and are reflected in character. It is not merely the capacity to vault hither and thither, and to pass and repass from the one side to the other. The power of choice certainly is involved in freedom, and therefore it is to be recognized as existent in it, and it is not to be obstructed nor confined by that which allows no room for individuality to act, and no sphere in which it may have its sweep ; but the choice in which freedom is realized is the choice which is in accordance with personal- ity, — it is the realization of personality. The active choice between good and evil in man is broug-ht forward in the contradiction of his nature, and in the issue of the Conflict of life, and it appears in his being influenced by a 112 THE NATION. power against liimsclf and by a presence alien to his truo and real self; and in this there is manifest, not the freedom of man, but the defect of freedom. The error in the pop- ular apprehension of freedom in the schools of theology, and as it goes out from them in politics, is in representing it as consisting only in a power of choice, only an empty formal possibility in the life of man, but having no de- terminate moral content. The freedom of man is not simply in this momentarj' choice, and the realization of freedom is not in the broader rpad opened before it and the wider scope of possibility in its action. It is not found in the larger alternative between rio;ht and wrong, or the longer balance with the more even play between them. It is not found in the perfect suspense between the oppo- site forces, and it is not won by the people that stand on neutral ground. On the contrary, in the higher freedom of man there is the less choice between the good and the evil, and there is the less possibility of a decision un- worthy of one's real and true self, that is an ignoble de- cision. When the will is represented as only in identity with the power of choice, which when thus emptied of all moral content is the merely willful, that is, the arbitrary, then the assertion of this power is not freedom, and the mainte- nance of this power is not among the rights of men. The nation is to realize the freedom of man, and to guard it in the institution of rights, but it is not in any conception to establish the wider province, and to open the more unlim- ited scope for this power to act, and to guard the exercise of it, and to remove all restrictions from its Avay, and tx? keep it from all hindrance and molestation, in the indef- inite sweep of its arbitrations. The freedom of the citizen is not defined in the power to turn a traitor, nor is all re- straint upon the power of turning to be forbidden. That people would not be the more free, in which the larger choice was left open to its soldiers to desert, and which THE NATION THE REALIZATION OF FREEDOM. 113 made such action a principle of rights, as it must become if it be the rea' freedom of man ; but the people is the more free when there is in the spirit of its soldiers no possibility of desertion, and the soldier is the more free tc whom even the suoro-estion of such action does not come, who is beyond its suspicion, and who knows only and de- termines only to meet and fight the enemy. The soldier who even deliberates, or allows the choice to pass before him, is the less free — the more exposed to subjection to impulse and fear. This assertion of the mere power of choice is not freedom, and its maintenance is not among the rights of men, and its extension does not constitute the progress of the people. In the choice and the assertion of the right, man acts in accordance with his real and in- nermost being, his own true self, and with the exclusion of all that is alien as external to that being, but in the opposite, man chooses that which subverts personality and subjects him to evil, that which does not belong to his being, which comes out in the contradiction of his na- ture ; but in freedom and the realization of freedom there is no contradiction, — there is in it alone the act and the unfolding of the true being of man. Freedom is not attained in the negation, in which man without personality, as if all before was a blank, moment- arily determines whether to be this or that, whether to do or not to do. In the determination which is in the right, there is alone in the individual and the nation the realiza- tion of freedom and the attainment of the beino; and end of sach The nation is the realization of the freedom of the people. The freedom of the people subsists in the being of the nation as a moral person. If the nation be regarded as only a formal organization, an exposition of a barren system of rights and a miscel- lany of institutions, then only a f:rmal freedom can Imj 8 114 THE NATION. predicated of it as also the postulate of a formal ft'eedom has its sequence in an empty and formal conception of the nation. But the real freedom of the nation in which it works out its end as a power in history, the freedom in the attainment of the vocation of the people, in the mani- festation of its own character, in the strength and endur- ance of its own will in the divine will, in whose purpose' is the development of history in the moral order of the world, — this freedom can have no ground in a merely formal conception. The defect in the popular definitions of the schools, of the freedom of the nation or political freedom, is conse- quent on their proceeding from this formal conception, and while only a formal conception has been assumed, and a formal definition has been allowed, it is not singular that the latter has been, as Mr. Hurd calls it, the problem of publicists. Thus the subject which is central in politics and formative of its M^hole course, has obtained in this premise no clear definition. Dr. Lieber, in a treatise con- cerned exclusively with national and political freedom, represents it as " that liberty which results from the appli- cation of the general idea of freedom to the civil state of man." ^ In this reference to " the general idea of free- dom," the subject is left undefined, and one is sent in quest of the "general idea." And the freedom of the people in its organic and moral being, that is, national freedom, is avoided in these abstractions. It does not exist thus com- plete in an abstract form, which a people is then to adopt 1 Lieber's Civil Liberty, etc., vol. i. p. 34. Dr. Lieber, in attaching so great weight to certai" institutions of freedom, a1 • lews no corresponding weight to the fact that these institutions have their only ground in the organic unity of the people in the nation. This leads to the ap- plication of certain institutions of a certain type to all nations, and thus all are to be made to conform to an Anglican type. But while recognizing the worth of these institutions, in themselves, to civilization, the condition of freedom is the national spirit of the people, which will mould institutions in its own strong individualit}'. While the United States has in its history a lineal re- lation to some of these institutions, and they are an inheritance of inestim» ble value, yet work is to be done in new conditions, and in a life which is neither Anglican nor Galilean THE NATION THE REALIZATION OF FREEDOM. 115 and apply by some induction, and when thus apprehended it can result only in the constniction of a formal system or a collocation of institutions. It would be as consistent to represent the freedom of the individual person, as the assumption and application of the " general idea." The freedom of the people, or political freedom, subsists in the nation in its organic and moral unity. It is the self-determination of the people, in the nation, as a moral person. It is formed in the conscious life, and its process is in the conscious vocation of the organic people.-^ Freedom has, apart fr'om the nation, no positive exist- ence. Thus among the vast populations of Asia, there is no political freedom, but only the natural freedom of man, and the term freedom can be applied to those peoples only negatively as denoting the absence of a positive system of slavery. Thus, also, in the loss or the destruction of the national unity, that is, the organic and moral being of the 1 Milton's whole argument rests on the identity of political and moral freedom, »nd the utter rejection of any conception which does not presume this. He says of the formal representation, — "The way to freedom is without intricacies, without the introducement of new or absolute forms or terms, or exotic models, ideas that would effect nathing." — Milton's Works, ii. 127. It is " a real and substantial freedom, which is rather to be sought from within than from without, and whose existence depends not so much on the terror of the sword as on so- briety of conduct and integrity of life." — Works, i. 208. " Unless that liberty ■which is of such a kind as arms can neither pro'-ure nor take away, which alone Is the fruit of piety, of justice, of temperance, and unadulterated virtue, shall 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 ; •nless by the means of piety, not frothy and loquacious, but operative, un- 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 j-our necks to the yoke, as if you were brutes, who notwithstanding all your triumphs, will put you up to the highest bidder, as if vou 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 tree, 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; ind finally bid adieu to your dissensions, your jealousies, your superstitionev, your outrages, your lusts. Unless ^-ou will spare no pains to effect this, you must be judsed unfit both by God and mankind to be intrusted with the pos- session of liberty and the administration cf government, but will rather, like t nation in a state of pupilage, want some a:tive and courageous guardian to un- dertake the mar igement of your aflfairs." — 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 j^ursuits 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. ^ 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 tht 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 Statsrechts, Tol U. 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 m it, as the norm of its action, is the law in the foundation of its being and is reah'zed 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 mav 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 hedce 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 I'elations. 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- vnoral are destructive of freedom, as they are subversive of he true being of men. and are repressive, and hold the elements of tyranny. Bi;t in the increase of the freedom of the nation, its politica' 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 resti'icted 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 ia not to be locked up as a state secret, nor to be conductea 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 peoi)le 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 pagejs of scholars, or the rhymes of poets, or the voices 120 THE NATION. of orators. These are not laws, and the condition t)f 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 ia implied in their subsistence in personality, and thus we cannot 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. ^ 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 ultirnate 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 vhus 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 froa 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 wliick rights are fortified and stand as tlie barriers against the betrayal of freedom from within, or its 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 illustratitm 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 expressi9 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 unitj and being, as a whole. The nation is the domain of law , tlie law is of the nation, for the nation. It is thus, in its inclusive chai'acter, 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. Ths argument " ab impossibile," is valid ia law. " Impossibile est quod natursB »epugnat." — J^'ff- lib. i. tit. 17. 1 " 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 person' as its basis and aim, that is, it has an essentially personal character. All law is throughout a law oi persons. Tiie 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 •ubordinate division of the law relating to persons." — Ahreu's Nnturrechi, p. 83* 140 THE NATION. necessary interpreter, and while the pri%ate judgment of the law-giver may be allowed as an aid to ascertain, it cannot absolutely determine its import ; the reference tc 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.^ The law itself is the standard by v/hich 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 laiv, and acting through its normal powers, constitutes the government. The opovernment is the institution in which the sovereio-ntv 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 it is the will of the nation. Of the application of nat- ural law in jurisprudence, 3Ir. Hurd says : — " Whatever rules or principles, tribunals may apply as law, the}' 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 vili of the state, whether it acknowledges or refers to any rule of natural oriein or not. Second, since the will of the state is to be presumed to accord with natura. 'aw, when the positive legislation of the state does not decide, the tribunal musi ascertain the natural law which is to be enforced as the will of the state. Bu. this law can only be determined bj' such criteria as are supposed to be recog- nized by the supreme power of the state, if such criteria exist ; and this law when ■o determined becomes identified in its authority with positive law." — Hurd' Law of Freedom, etc., vol. i. p. 24. THE SOVEREIGNTY OF THE NATION. 141 The goTernment 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, tiie 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 ft-eedom. 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.^ 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 petty potentates, who supposing they are powers, avail themselves of the pedestal of our ovrn might to play at kings. And yet all this swindle is unauthorized by the history of the past, is q'aite new, unhistorical, and equally opprsed to th< 'eachings of God, as to tbs R^htt tf 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 externa' form may remain, the ultimate result is the overthrow also of its external sovereignty. If the domain of law ig 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 bui'eau, 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 Avho 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 consti'uctive 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 ia the higher assertion of personality, — that is, the realizatior THE SOVEREIGNTY OF THE NATION. 143 of the fi'eedoni 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 thia it is clothed with power and with majesty on the eartk. CHAPTER IX. THE NATION AND ITS CONSTITUTION. The constitution of the political people has a twofola 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 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- Btitute 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 ia 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 Hepublic, 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 wiitten 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 intrinsicallj' 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 Oenerative Principle of Political Constitutions, Boston, 1847. I The comparative value of a written constitution has been the subject of wid« 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 orde of the nation, and if it does not assume the functioni of the legislative power, the argument for U ma - be justified, and at least bai 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 lomd. 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 affirmailve 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 supei-fluous, 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, h ftindamental ; the one is the definition and construction of THE NATIOy 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 Tigilance, or as if it were to be held in a superstitious rev- erence- It is not attained without thouo;ht : it does not increase as the trees in the wood. It is not formed, and it cannot be sustained in the lethargy and passi-\nty 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 mav be the lono-ino; 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 th'i people are to act, and 148 THE NATION. the people must find therefore in tne constitution the expression of its spirit, and its purpose must not be fet- tered nor pei'verted by it ; but it must be able to act in and tlirough it with entire freedom, in the fui'thei'ance 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 theoiy 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 modem 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 Anghcan freedom. England, which never has apprehended the spirit of another people, md 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 exponen' THE NATION AND ITS CONSTITUTION. 149 of the will and spirit of the people, and that whu.-h is over it, but is not of it, or no longer of it, has elements of weakness or of tyi-anny. It is the weakness of an empty form, or the hard tyranny of an abstraction or system, and repressing but not 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 pohtical 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 fouo-ht 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 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 comprehenaed in its formal organization. There is a political tnith in the rude verse of a poet of the Republican Age in England : — "Let not j-oilr king and parliarotnt in one, Much less apar., mistake themselves for that Which is most worthy to b» thought upon; 150 THE NATION. Nor think ihey are essentially the slate. 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 lifCf Which they but repi-esent ; That there'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 ino-rooved in that which flies. The reten- tion of all that is good in the past is to be held as no hin- drance to advance, but its precedent. There is to be no divergence from the old, as if it were necessary to take fi'om 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 fv^orld's civilization, — she yet held, in undying deference^ the tables on which her first law was written. There must be 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.^ 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 fi*om 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 teino; deflected from its course, and its life is being deformed, although under the form it once enacted and alone has the rio-ht 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 Tight 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 wrested from then^ than by the most consummate tyrannv. "A constitution which has no place for amendment is absolutely immoral. for it sets itself forth as absolutely perfect; i.* is far more immoral thnn th« mnlimited power of the monarch."— Scnleiermi.:her, Chnstliche Sitte, p. 270 162 THE NATION. of the continuous life and continuous development of the 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 beincr of the nation and it is in conformance tc the organic law. It is not anarcliic, for it is the only possi- ble piu'suance 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 poHtical 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 wiU of the whole. ^ The revolution whi^h 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 grounded in the living conviction of the whole." — Schleiermacher, Chriafliche 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 histoni', 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 itselC can onlj' be regarded as such a crisis, which, through external impediments becomes the condition of the maintenance of the moral life of the nation; and Buch a revolution therefore can only be justified when it rests on the living con viction of the people in its totality." — Rothe, Theolorisckc Ethik, vol. iii «ec. >2, p. 984. THE NATION AND ITS CONSTITUTION. 153 sncceeded immediately by the real order of tlie 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 ei'il, 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 hi 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 histoiy- The French Revolution bore throughout the ieepest devotion to the nation, and in its tumultuous changes no voice was lifted against the unity and gloiy of Fi-ance. 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 prinarily to define the structure and the mode of action of the normal powers m the nation. 154 THE NATION. It is the enumeration and the hmitation 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 tlfe 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 which 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 barriers," and in the real crises they would be throuTi aside, as the impediment in the path of a free people in its necessary course. To attempt to make the constitution the formula which nat 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 whict THE NATION AND ITS CONSTITUTION. 155 become in their immediate enactment the embodiment of a Kving will, is itself possible, only as the nation is no longer a living power, and has no longer a hving 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 regretfalness, 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 measui'e 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 tyi'anny 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 onl'- 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.^ The constitution determines the order, but it cannot predicate the coiirse 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 friture in the lives of nations than of individuals, nor can they outmaster time, nor wrest the secret from tlu years. The constitution is to provide that the people shal 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- \)lempnt 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 convictioa, iets the dead over the living, an I denies the moral development of the state." — Bchleiermacher, Chrisllkke Sittt^ 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 progi-ess 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 pui'pose 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 estabhshed. 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 law^'ers are more perilous than the superstitions of priests. It is the adherence to a political formula, to which it attaches a separate sanctity, and reftises all change, while its spirit is wasting and decaying. It holds the form above the life and beino; of the na*ioi which it was instituted to 158 THE NATION. maintain. There is here the contrast of a righteous and ar 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,^ 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. 1 " Conservatism consists not in that the old form be retained, but that the substance be maintained." — Stalil, Philosophie des Rec/its, 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." — Rothe, Tneolu- yische Ethik, 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 fort,'-etting that the public good, the real welfare of the great bodj' 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 fo! the attainment ^f 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 necessaiy rights. These are rights which are involved in the attainment of its necessary end in liistory. 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 incongnious 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 responsibihties 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 hio;her law, and the maintenance of its endurino; order. The principle of action is then, salus 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 peiil 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 carefti. 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 I'iglit 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 siu'render of material wealth, is for that in Avhich 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 woulc! 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 natioc 1 Rothe says, " Every war which is morally justifiable, is a national war " — Theologitche Ethik, vol. iii. sec. 2, p. 958. THE NATION AND ITS SOVEREIGN RIGHTS. 161 is the investitiire on the earth of right with miglit ; 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 sui'render 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 fi'eedom 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.^ 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 fonnal or an in- dividual conception of the nation. It is as one army tliat 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 mio-ht on the earth. Then there appears that spirit of sacrifice in which the unity of the nation is laid, and in which its l"The army must not only be national, but be the nation, — the nation in s« far as it is capable of tearing arms, in its toialltj must form the armj." Bothe, Theologische Ethik, vo ii. sec. 2, p. 964. U 1G2 THE NATION. life is gained. Tlien the prophecy of the future of the nation is nut in those that are, but in those that have given themselves for it, and its continuity is in tliose that died that the nation might live.^ 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.^ 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, Fhilosqphie des Bechis, 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 verj' striking definition of war is cited by Rothe from Wirth, — "th« power of one people against another people in its whole might, its totality." Pomponius, — "hostes sunt quibus bellum publice populus Romanus decro- nt; coeteri latrunculi vel prsedones appellantur." THE NATION AND ITS SOVEREIGN RIGHTS. 163 necessarily cannot declare war, nor conclude peace, and it has in its direction trie 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 ba?ls of the state, in a mere individualism, there is the foiuidation 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 miiversal peace is the goal of the nations in history. But it is assm-ed 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 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- aciousness of national rights and duties, and the subordination of national to private interests. It was not the act of the people pf 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 of nations, was no neutrality; but her lecognition 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 witernational law only for nations, and placed a rebel force, in the view of Roman law — latruncuU vel pradones — on the same footing with a nation, and the ad- vantage was secured to th jm of the rights of nations, while the hazard of their political recognition as a natior 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 pohtical sovereignty. It is the formal manifestation of the external sovereignty of the nation. It belongs to the nation alone to enter into *hose 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 tm'n. 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 claijn, 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 '.ravel 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 't belongs only to the nation, in its sovereignty and its free- dom, to invpst those who may come to it with politica rights, — its citizenship and its freedom. THE NATION AND IIS SOVERi^IGN EIGHTS. 165 But the citizens of another nation, who may travel ot reside in it, or acquire and hold property in it, are subject to the conditions of its civil order. They hold property on the same conditions with its own citizens, and subject with theirs to loss incurred by accident, by the possible interruption of order in social crises and by the vicissi- tudes of war. No nation can invade the domain of an- other on the pretense of the maintenance of the civil rights of its citizens, nor obtain any reparation for loss or injuiy to persons or property which may arise in these cuxum- 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 ahens, 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- srty, 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 exchano-e are less rade than an exchange in cat- tie, 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 tender in the formal exchange K.'i values, as in the liquidation of contracts, may be and is justified in the temporary destruction of war, wdiile yet it 8 destructive of actua. values aiid 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 fi-aud, 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 throuo;h 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- Bent, 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 fill! in its original right. This right forbids the alienation of any part of tha wliich by nature and in history constitutes the doraaiB THE NATION AND ITS SOVEREIGN RIGHTS. 167 of the people in its integral unity.^ 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 hue, 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 miHtary 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 ertain 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 A the domain of the state. A part of the domain of the state is not alienated thereby, but the whole is more exactly detined." — Bluntschli, Allffemeinet Stattrechts, 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 arovmd 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 dehverance 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 indi\'idual 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 ne 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 ; bu 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 poHtical organization and no pohtical hfe, 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.^ 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 ; hut it has only a formal interest, and the fact is determined in the political being of the pohtical 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 : thu'dly, that all acquisition of territory, by pui'chase or conquest, is by the United States alone, and the imme- diate transferal is to the United States, as in Louisiana and Alaska : fom'thly, 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 fi'om 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 Hen 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 territcirial extension. It comprehends, it has comprehended, those annexations which are commanded bv an absolute necessity, uniting to the country popula- tions having the same manners and the same national spirit as ours. France *n only desire such territorial aggrandizements as do not impair her territorial vchesion., but she should always labor for her moral and political aggrandizement by using her influence to advance the great interests of civilization." — NapolecMi UI. Circubr. 18Q8. 170 THE NATION. wealth can of itself determine its own boundaries or effect their rectification ; these considerations, from a simply lega. 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 leo-al confusion has arisen from the fact that while 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 "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- ■•in included within a particular State." — Brownson, American Republic, p 300. CHAPTER XL THE NATION AND ITS NORMAL POWERS. The sovereignty of the nation lias its institution in the pOAvers 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 fimc- 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 fi'eedom and of rights. The formal organization of these powers has obtained its higher construction in the modem age. The distinction of their chflPerent organs and their functions, is illustrative of its higher development. In the pohtical body, as in the physical, each organ has its separate use for wliich 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 pubhc affau's ; 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 t. " It is the proper work of the popular assembly to letemiine concerning war and peace ; to make or termi- '. ate alliances ; to enact laws , to sentence to death, ban- .shment, or confiscation of goods; and to call the magis- trates to accomit for their beha\dor when m office." ^ In modem politics the distinction has been held in a 1 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 fiilhiess 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 There have been various analyses of these powers, but their value is chiefly illustrative, and they have no correspondent historical justification. The de- Bcription of Locke, and of Montesquieu, and also of Hegel is, I. Legislative. — Pouvoir Ugislalif. IL Executive, — Pouvoir executif. 111. Judicial, — Pou- voir jiiiUciare. 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 administratif ; and (b.) A supervisory power, — Pouvoir irir- epeciive. Trendelenburg designates four powers, — vier functionen, — I. The Govern- ment, — Die Regierung. IL The Military power. III. The Ltgislative 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 pimply the organization of the physi- cal force of the whole; it is in subjection to the political power, and its neces- Bary principle of action is that of entire subordination in the political whole. — Trendelenburg. Naturrechle, p. 160. Bluntsclili's description indicates the tendencj' of recent German publicists The common distinction \s 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, tne Crown and the Parliament, or the President and tne Congress form each an in- tegral and inseparable element. The powers are thus defined, as, I. The Gov ernment, — Bie RegierungsgewaU, das Regiment. II. The Court, — Die Richter. iichegewalt, das Gericht. III. The Public Instruction, — Die Stat.scultur. IV • he Public Economy, — Die Wirthschaft. The presentation of these powers ii given with great fullness of historical illustration. — Allgemeines Stc.t$rechi 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.^ These powers represent the will of the organic people in its civil and pohtical 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 ir the executive is regarded as iiw 196 THE NATION. The executive is the power to which belont^'s 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.^ 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 i\nity 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 Ausdruclc. Alle andern Gewalten iiben ihre Functionen innerhalb der beste- henden Stats-und-Rechts-ordnung in einzelnen concreten und wechselenden Fallen aus." — Allgemeines Statrecht, 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 ii only a form, it yet has a significance, and would be insisted on by one wh« guards the executive office. THE NATION AND ITS NORMAL POWERS. 197 organized might of the nation, the power of the nation in its totahty. It is therefore the head of the annj 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 tha*. 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 ot 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 t is to be called of the whole people. There is no form in the barbaric constitutions, and no type drawn from the conftision of the changing conditions of the feudal age so noble as this, in which the nation is manifested in its moral being, and no imperialism has such elements of strength as this, in which there is the representation of the nation in its conscious purpose, and in the recognition of the majesty of law. The inauguration of its power, is ihe expression of the conscious determination of the peo- ple, and in the ftilfillment 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 the capacity for immediate action, which some sudden or imncinent peril to the nation ni-ght 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 m 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 ahen 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.^ 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 fi'om 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 fi'om 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 dishonoura the king." — Samuel Mulford, 171 i Doc. Hut. of N. Y. vol. iii. p. 371. THE NATION AJJJD ITS NORMAL POWERS. 199 does not correspond to the pm-pose 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 eiivj 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 indiflFerent 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 coimcil 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 apphcation 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 .aid bef-^re it, and judgment is given botween parties in dispute. Its procedure is in a court. 200 THE NATION. It IS withdrawn from the military, and can execute it« decisions oti\y by a constabulary. " The judiciary," says Mr. Hamilton, "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. 20 J lavTjers, but it would be composed from the whole peo])le, and from them there would be di'awn 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 progi'ess of the people would be traced no longer in the better institution of rights, and the broader fi*eedom, 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 m 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 fi-eedom 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 re visionary but not a constructive powder. 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- •ongs only to the power which is representative of the political will. The form and procedure of *he judiciary aJso 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 opmions and precedents, and he examina- tion of the decisions of courts, demands the prolonged and aborious research of an exclusive profession. To allow tc 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 M'ithdrawn from the conscious life of the people, as the laws of the tyrant Avhich 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, woiild 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 " 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 Btone or in a book, yet invested with all its traditional sacredness; suppose it changed fron» 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 j^ou have probably the best conception you can get of the Rabbinical casuistry, anl its immedia';e influence upon the min«' of a people, crushed and fallen, but fu".. of grand memories, seldom quite da- serted by an inspiring hope." — Inaugural Lecture, by the Rev. F. D. Maaric4 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 then' 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 laAV, 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 highest deference, but it is to be accepted by them, in their action, only in so far as theii 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 witlidi'awn fi'om the military, and has the least ability to enforce its decisions. Its endeavor would be fiitile, 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- cede legislation. It would be as consistent to give the THE NATION AND ITS NORMAL POWERS. 205 .egislature the revision in certain cases of the opinions of the judiciary, and to make that revision oUigatory. The reference of this province to the judiciaiy is a polit- ical solecism, and has no historical justification. Its only parallel would he the power of rahbinical opinions, in the decay of the national hfe 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." ^ 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 jucUciary 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 jt }aw 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 the tribunitial veto in Rome,^ the ultima jus tribunorum 1 1 Bl. CoTOw. 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 ct » commonwealth, " the constitution, so far as it provides for an emergency of thii 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 (i. e. the legislature's) is binaing on every other department of government, and cannot be questioned in a judiciiil tribunal." — Luther v. Borden, 7 Howard's R , 1. "Invested with political pover to keep the other departments in their pre- scribed limits, such a doctrine musi 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« feet, 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 ; ^ 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 quahfications, 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 conformi'y 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." Jlarbur^' v. Madison, 1 Cranch's R., 137. " The Supreme Court of the United States, like ail 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 ii according to law, and if laws are in conflict, according to that law which has th? highest mcthoritv. that is, the constitution." — Wheaton's International Law Dana's note, p. 79. 1 " And the judges in every state shall be bounrt thereby, anything, etc A.rt. 6, sec. 2 THE NATION AND ITS NORMAL POWDERS. 207 Site to its higher attainment often withdraws men from direct intercom'se 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 pohtical 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 powders and obhgations 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.^ The 1 The illustration of this is, for instance, in the decsions of Gibbons v. Ogden, Martin v. Hunter's Lessee, Luther v. Borden, McCiUoch v. Maryland, Ogden r. Saunders. The constitution is interpreted in no exclusive or restrictive sense. ''It did Dot «uit the purposes of the people, ii framing this great caarter of our libertie», 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 ra 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 v. Hunter, 1 Wheaton li. 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- Btrued strictly. But why ought they to be so construed? Is there one seritencu 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 uec- sssary ana 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 w« have been able to discern, that prescribes this rule." — Gibbons v. Ogden, J 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 soHd 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- fined. Tlie 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 apphes 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 worda which always will denote these powers with the people, — the Congress, the Prpsid irt, ije Judges. 14 CHAPTER XII. THE NATION AND ITS REPRESENTATIVE CONSTITU'ROW. 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, tvud 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 iinhistorical, 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 maybe 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 pohtical spnit, 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- ereigntv of the nation, so that in the designation of its qualifications its sovereignty may have fiill 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 w^ould 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 Drecludes this ; and the nation can allow no accident to i;hape 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 it the formal assertion, in con- formance to certain politico, prescriptions, of a free will in the determination of the government of the civil and poMt- 212 THE NATION. ical organization. It is the act of a person in the politico. process of the people of which he is a member. A person is one who has a fi'ee 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 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 farther inquiry, what is the organiza- tion of the nation, — the normal pohtical 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 beino; 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 ■ IS havino; but one common mterest 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 scovernment 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." ^ This is defined as a universal principle and applied to all forms of govern- ment. " In a republic, in conseqvience 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." 1 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 residt which is obtained in The balance of these repellant forces. This theory of self- ishness, or of enlightened self-interest — Vinteret hien en- tendre, which is assumed as the basis of society, cannot become the fomidation, 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 spu'it ; no accumulation of special interests can form the whole, and the nation does not exist for the fiu'therance of private or special ends. Interests, even in the low and e\al 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 cou.ld be weighed against the sacredness of its life, or the obligation of maintainmo- it. Wliile 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 t:ieir appropriate organs," of various interests, whose value Is to be regarded, and which are weighed and counted agninst each other, and estimated by some special consid- eration. As this becomes the ground of representation, it would consistently require a repr ^sentation of interests 214 THE NATION. proportionate to tlieir 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 th« identity of the family with the nation. THE NATION AND ITS KEPRESENTATIVE CONSTITUTION. 215 It is said that the nation is constituted in the representa- tion of numbers. The whole number of inhabitatits 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 laAvyer, 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 i;i 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 liigher gi'ades 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- ahty 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 t^rorld." It may be further said of this scheme, that none of the Droperties 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 REPRESENTATIVE 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 mio-hl 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 spu'it 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- cation of the moral or political world, the hfe of man in nistoiy and the order of society, in comparison with the physical world. But this empiric standard would 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 iiJierited 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 defined 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 in " equal claim to control over the government of other people," ^ 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 maj 1 J. S. Mill, IHssertations, etc., vol. iv. p. 160. ^ THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 219 exist separately from it, and no aggregate of numbers, liow- ever vast, is in identity witn 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 grou^nd 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 will, the conscious self-deter- mination and freedom o." a person ; and in the conception li the law they are constructively, but not actually per- 220 THE NATION. sons ; and they, also, wlio have been proven to have token a bribe, or made a wager on the issue of an election, are not alloAved 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 destiniction 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 claiiii as wide an appli- cation, but that refers to this also for its ultimate justifica- tion. Blackstone, in a passage of gi'eat 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 oivn. 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 ivho 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, wdiich makes property the sign of per- sonahty, 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 establisu it. It alone has the broadest historical gi'ound, and only in their reference to it are the common conditions justi fied. THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 221 Secondly ; this princi})le has the only gi'ound in reason. It has its precedent in tne 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 jiduction, 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 o^vn device ; but if it be the natural order and con- dition of human existence, as there is in personahty the reahzation 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 m the arbitraiy or the accidental. Mr. Brownson says, " The elective fi'anchise is not a nat- ural right, because it is political power, and political poAver is always a trust, never a natru'al right, and the state judges for itself to whom it will or wiU not confide the right." It is evident that the nation is to judge for itself o whom it is to confide the right, but the whole inquiiy is, is 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 trus~, but the position of Mr. Brownson assumes as the conchtion of the process of the nation, the isolation of positive from natm'al rights, and the severance of the sphere of each. It is a trust and a •ight, and there is an inherent weakness in its separation iS a trust from its conception as a right. In it, as it is :iowhere else apparent, there is the correspondence of a right and a duty, as they subsist iu personahty ; it is a 222 THE NATION. trust vested only in an actual or realized personality, and in this only is it a riglit.^ 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 memher 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 lonmno- nor the fidfillment 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.^ 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 m a condition of indiffi^rence 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 out everj' man in a republican state has a natural right to become a voter." — Mr. Taylor Lewis. 2 " Die volksvertretung ist im Staat absolute sittliche Forderung, namlfcfc genau in demselben Maase, in welchem der Staat, bereits wirklicher Sta»t i»t." - Bothe, Theolagische Ethik, vol. ii. p. 125. THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 223 compensation in the partnersiiip of its accumulated gams. The personahty of man is not in the multitude of things which he possesses. Freedom is only in the reahzation of personahty ; 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.^ Thirdly; this principle has a necessary ground in jus- tice. In this, government in the nation is constituted in conformance to its normal law. It rests in the conscious consent of the people. It is the assertion of the political will of the pohtical people. The moi-e 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 fi-om the people ; it is not an abstraction having no ground m the organic and moral being of the people, but it is the determmate life of tlie people m 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 mdividual 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 communitv, 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 r-ght, but more need to have representatives in the legislature than the rich one." — Franklin, IT'orts, vol. ii. p. 372. " Auch in der rechtlichen Freiheit, ist demnach. die Wahl,ein unentbehrlichea moment, — ja, sie ist die Rliithe der Freiheit, denn die Wahl ist eben die Au»- •eruBg der Judividualitat " — Utakl, vM. ii. sec. . p. 327. 224 THE NATION. tion of and the obedience to law. The right of govern* ment in the nation is not then mereh^ 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 accomplishment in the making and keepmg 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 svibsists. 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, aixl 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 excl isive, ar c! THE NATION AND ITS REPRESENTATIVE CONSTITUnON. 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 its inaugura- tion, has been maintained mibroken, 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 fi*eedom, and the reahzation 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 pm-pose, the moral strength of the people, has been tried in its integi-ity and firmness of resolve, through the crises of the most mighty insuiTCction, and it has sought the maintenance of the authority of law, and the consistence and continuance of order, and with the 'eve of peace in its steadfastness it has followed them with m unselfish end. The right to vote is the right of every person who is a member of the nation. It is the birthright of fi'eedom. It is the right only of a person, that is one m whom there ia the realization of personality, o::e whose action is self-deter* 15 226 THE NATION. mined, — one who lias 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, Avho is bom 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 orimn and institution ; as personahty has its realization only in the realization of divine relations and the ftilfillment of the divine will. In the institution of righteousness and of free- dom is the bemg 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 eveiy member of the nation who is a person, represen- tation in it, that is, every actual person should vote, and none beside. Tliis and this alone ascertains the actual sov- ereignty of the poHtical people. The qualifications which proceed on this gromid, 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 owi], 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, o; color, or race. THE NATION AND ITS REPRESENTATIVE CONSTITUTIUN. 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- sonahty. There is no graduated scale in which to estimate the relative worth of real manhood, or the valuation of the whole moral deteraiination. If the personality of man could be made secondary, then by a graduated standard the most extensive system of a plurahty 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 personahty 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 subaititing in the necessary relations of life, that is all civil rights ; but all rights subsisting in the nation in its free- dom, that is aU political rights, are only of the politica body, and if an ahen be received and made a member ol it, it mut.t be by the act of the nation in its sovereignty. The homely phrase of the law is — to get naturalized ; but this is not tt slight nor easy thing ; and nature works, even as in the life of states, slowly and patiently, and is not sub- ject to the dct of legislatures, or the administration of courts. The Republic is indeed to welcome the stricken and the oppr'^ssed for conscience sake out of every land, and is to be a'? 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 oome to its shores, who havi' nj 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 m 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 degi-adation of the individual personaHty. 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 ^t 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 pohtical influence ; but the evil is not obviated by con- ceding to them a political power which has no root in THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 229 devotion or sacrifice, and is inspired by no love. There may and should, in the prudence of the state, be some form or law of naturalization; but to refer to these pop- tdations political power, with no discrimination, involves danger to the political whole. It is thus, also, that Indians are excluded from voting ; not because they are not taxed, but because, as they are subject to the wiU 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 pecmiiary condition of suf- frao-e tends, also, to an estimate of the nation itself bv a pecuniary consideration. It induces the disposition lo re- gard the government as the agent of special interests, and *n the crises of its existence there has been the inclina- . on, in great divided interests and monopolies, to pursue exclusively their own separate ends.^ When it is said j-at the owner of property should vote, because possession gives a stake in the nation, it makes self-interest the con- dition of the nation, wnich it cannot be ; and as in these i Mr. Brownson 6ays, " The nere men of wealth, the bankers and brokers, are those who exert the worst influence upon the state; their maxim is, let the »tate take care of the rich, and the rich of the poor, and not let the state taka care of the weak, for the strong need it not.'' — The American Republic, p. 383. 230 THE NATION. crises tlie 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 secui'ity as the only end, and prefers Babylon to Judaea if only the ducats are stowed away more safely m 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 m education, or more strictly, a Hterary 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 wliich 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 if the most artificial. A technical or scientific acquisitior b 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 m the realities of life, is a deeper education ; and in work rather than m 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.^ They have seemed more often to be controlled by notions or theories, or by some vulgar conceit withdrawn fii'om 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 quaUties 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 m 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 nrtues. The age in Rome which w^as 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- Boever I saj' 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 mere, and is of greater use in the world than yourself. For such a one is learned without letters; you have letters but no learning, that understand so many languages, turn over so many volumes, and yet are but asleep when aT. is done." — Milton's Works, vol. i. p. 30. 232 THE NATION. transition from a nation to an empire, although its creative power in literatui'e 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 imperiahsm 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 mtellect divested of moral spirit is not a power working in the institution of righteousness, which is the condition of national beino;. But a literary or scientific test fails, because the act to wliich it is to apply is not of a literary or scientific charac- ter, and the quahfication must be conditioned upon the nature of the act. These qualifications, to the efiect that a certain amount of property or a certain degree of hterary acquisition shall determine the fitness for the duties of a citizen, proceed from the notion that the character of man consists not m 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 personahty, 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 pohtical 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 Ui 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 whc THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 233 has reached his majority in years, is always in his political majority. The correspondent ei-idence 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 fi-eedom, 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- *cal force, not as if directed by an inner will, but by a mere momentum. It is the casting into the scales, when 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- sonal power, it di'ifts downwards. Its course, apart from the real will and freedom of the people, is so incAntably toward the wTono; that the lanfmao-e of a clear and self- determinate spirit is, " I have not gone with the multitude 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 'oices. It creates a power which is not the will of the .eople, but is without the consciousness of the unity and jrder 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 orounization 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 pm'pose 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. 285 This investitui'e of the impersonal mass vnth political power, — the mere representation of numbers, — justifies all the scorn which has been spoken of it bj the best of men. There is a comprehensive truth in the words, so exact, as the political expression in Shakesr>'»are always ia, — 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, itfolknm, Nothiny is done to purpose.''' The result is, that it — " Pereaves 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 Avealth of a few individuals. There has been a special justification sought for tliis 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 certam 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 mas3 is not apparent, since in the want of independent action il 1 Coriolanus, act 3, so. 1. 236 THE NATION. becomes the instniment of any who may get domiliioE 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 aifau's 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 ftirther 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 vith injuiy 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 ftu-ther 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 wliich power was held as a private estate ; the ruler was a patron and the place belonged to his patri- mony. Yet hoAvever 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 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 people, and to become a means of their degradation. To allow these men to offer offices as a recompense for action in 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 when 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 can scarcely be surparjsed. The national offices and trusts are employed to control men as evil dominations control them, in the subversion of then' freedom. They are driven to vote as a gang. It is the same in result, when the bribe is tendered hj an individual or a party, and in 238 THE NATION. money in hand, or a place of corresponding pecnaiary 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 ar imperial wiU. THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 239 Tlie 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 sonstitution. 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 imdefined, 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 anonvoous form of these agents, as 240 THE NATION. the common rumor or newspaper article, that thus ^nablei them to serve a foreign opinion. The statesman must learn to estimate the strength and the weakness of public opinion, and Avhen 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 fiom 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 untme 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 wou.d yield in the panic of miformed thought. It would be the reo-iment of those who start at the shaking of the leaves. In the agitation and surging of its crowd, they that woulo aim only to follow it must leave the place of leaders, anc 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 fi-om 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 diAasion 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 oe an ampler and more perfect organization in the representation of persons, this prmciple demands th 3 exclusion of whim and willfulness, 16 242 THE NATION. the mere caprice of men. It also demands the clearer determmation wliich 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 plu'ase 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 tyi'annical in its spii'it and intent, no scheme for the protection of minorities, which alone can be sustained by the majority, would avail, and tyi-anny in some form would be inevitable. It might be inferred fi-om 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 tyi'anny 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 famihes, 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 poHtical order the determination of the political people, and for the enactment of laws which are over all. The poHtical 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 effort is prevented, to effect its change or repeal.^ 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 moie 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 asainst the desicm of a few as an individual or a class, and far more unfrequently than they has it been diverted fi-om its end. There is an illustration often drawn fi-om 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 Calonial 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 r., vol, iii. p. 367. 244 THE NATION. the influence of imperialism. It was when the nationaj spiiit and life of Judaea was lost, and her unity was broken in the merease 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 Ca3sar." 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 pohtical 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 cured 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 electora, actirai of a vast number who have no freedom of will. THE NATION AND ITS REPRKSKNTATIVE 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 suffrao-e mio;ht 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 DOwer of the Congress, but the assertion of political rights tiust require no ingenious argumentation. There is not in that the stable ground necessary for the institution of rights, and the argument on which they are assumed to rest may be met by some other argument, and argument is not conclusion. The indifference of this school to the secur- ance of clear and express guaranties for rights in the posi tive law, is the source of the distrust of its statesman.'jhip 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 Repubhc 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 hmited, 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 wliich 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 ftiture ; 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 haa been from century to century interrupted by a disputed succession; and where the hereditary principle has beer THE NATION AND ITS REPRESENTATIVE CONSriTUTION. 247 maintained, as in England, in historical crises it has been disavowed, as in the revolution of 1688 ; and these crises have been more often the precedents of national power. The sovereignty in certain families, as in England, has also become only a formal sovereignty,^ that is, only the institution of sovereignty. There was coiu-age and chivalry in the house of Plantagenet, and there was strength to rule in the house of Tudor, and there was always a courtly dignity 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 gi-eat 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 wathout 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 devic3, — " only the dot over the i." 1 In the constitution of England, the crown has not the strength which the 5(xecutive has in the United States. Jlr. Disraeli is one of the few statesimen i,vho have noticed the increasing incapacity or lapse of executive power. Th« crown is a power without reference to the character of its occupant. It is said the Parliament has become the sovereign, but th° Parliament, in certain respects, 18 not sovereign; it Is destitute of the power •^-hich should be vested in the legislature, as, .
e 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 indi\ddual by a vocation, and the individual is withdraivn fi'om 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 miity 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 indiviilual. Every individual must be m absolute end also to the state. The individuality of none can be engrossed by societj' 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- olo(jische ElhiJc, vol. iii. sec. 2, p. 903. " It has often been said tha*^ the well-being of its citizens is the end of the Btate ; this is certainly true : if it is not well -w^th them, if their subjective aim is not satistied, if the state as such is not the means for this satisfaction, the» the state stands on lame legs." — Hegei, Philosophit its RechU, ^ 321. 262 TUE NATION. individual, since as a moral person, it lias its origin n 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 bemg. 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 reahzation 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 reahzation of personahty, 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 ovm, 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. Personahty is inahenable. 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 Bpirit is Ijeyond the assault of force ; its life is not touched THE NATION AND THE INDI\TDUAL. 263 and its strength does not yield to mortal wounds. A man may alienate an outward thing, but personahty he cannot aHenate. Its alienation would presume its nega- tion, the very abdication of the will. The sm'render 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 personahty, and its consequence is superstition and slavery.^ Since person- ahty has its origin in God, its spiritual and inner life is immediately with God. Its course is in the hght 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 coiu'se 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 fi'om 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 fi'om 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 fi-eedom 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 ist die rechste, concr*»test(?, und in kensiviste 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 Avith 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 liave 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 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 they 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. Ther« is in the realization of personality the conquest of evil A.nd the separation from it. The conscience presumes the communion of a person with a person ; it s represented thus as the inner voice, the eternal word which speaks to tin ■pirit of man. THE NATION AND THE INDIVIDUAL. 265 It is a duty to obey, but if the laAV to which obedience ia 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 oiher with the law of its being. The re- jection of an immoral requisition may be therefbre 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 effort 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 conceptiot of personality, the significance in ethics of the golden rule, as a comprehensive law, — " do unto others as ye would that thej should do unto you." This alone removes i^, from a mere negation ; the law of action is in "no abstract idea of justice, nor ir love of itself considered, but the wntent 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 incUvidual 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 ^dgor of the people is sapped. The armies are no lonfjer 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 Mnth 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 histoiy, says,^ " 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 fi-eedom, 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." Bvit 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 -svith 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 o^ •1 Bluntschli's Allgemeines Statsreckts, vol. i p. 40. THE NATION AND THE INDIVIDUAL. 267 the being of the nation as a moral person. It cannol 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- ahty of the individual with dread, and found no place for it ; but in the reahzation of the nation it becomes the element of its strength. It is as the temple whose build- ing is of Hving stones. The very substance of the nation is in identity \Anth 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 reahzation of personality testify in themselves tc the higher reahzation 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 buildinof of the nation. 7 7 J^ 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 in\asible 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 ao external 268 tm: 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 otliar voices were silent before this, and the solitary path whither it led was more sacred than the worn M^ays 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, — 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 soci-^lism, — 'vhere the TFF, NATION AND THE IXDmDUAL. 269 iDdividual 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 and 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 foi-mal 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 :f the individual; but it is not thus in an organization fonned in an organic life, and as fi'eedom has no formal gi'ound, it cannot subsist in a merely formal association, and it is only as the nation is an organic and moral per- son that fi'eedom is realized in it, and that the freedom of the indi\adual may be wrought in and with it, in its normal development.^ 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 fi'ee ex- pression. There is to be room for eacn that he may de 1 See Bluntschli's Geschichte des StaaUrechts, 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 externa» 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 fi-eedom 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 streno-th. In it the bondao-e of the animal is overcome, and " the ape and tiger die." The higher individuality is always advancing toward the universal, as universality is a necessaiy 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 \iation 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 ANP THE INDIVIDUAL. 271 opraent in a consistent whole. Since the nation ?ompre- hends in its aim the universal, not as an abstraction, but in the realization of personality, it diverges fi'om 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 cour ie of principahties and powers, not of the government of free men. Seventhly, The nation is constituted as a power in the education of the indi\ddual. 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 wiU, 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 hidividual 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 indi\*idual an heritao-e, 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 are the armor it lias forge i 272 THE NATION. for liim ; 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 undisthijmished 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 Stalil 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-deteiTnination 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 m (vhich every man remains perfectly free, so that when he >beys the state he obeys only himself; and this statement )f the problem is the deep and eternal truth, but it is only M be solved in the conclusion, that the will of the state »nd the will of the individual hold substantially the same determination, and that each hold a moral determination THE NATION AND THE INDIVIDUAL. 27B 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 Hfe 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 (he political changes of tiie age promote it since they all tend to raise the low and lower the high." — On Liberty, pp. 8, 43. This proposition that the poUtical 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, tliat is, the organization of society; but the ages of national development have alwaj's been characterized by a higher individual development. These changes have been the greater in the United States, in Germany, in Russia, in Italy, in Spain; and the most superficial survej' of these countries makes it apparent that the greater nnity 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- Bonality. 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 cf art, does not diminish individuality. If these truths, or books, or works of art, were limited b}' 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 artiticial 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 f-'undation ^a no artiticial representation of the state, but only as they 'jre " ecognized as the rights of personality — the is 274 THE NATION. rights of inin. And individuality is not founded in, nor developed by, artificiaj distinctions and grades in rank, or caste, or by various trades, or by the isolation of provinces; these impair it as it is compresse'l in their external moulds. Th« force of custom and circumstance weighs upon the spirit, as it is cramped and bent to run in these grooves. The country may be called the more free which has roads open through it; but it is not the more fi-ee 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." — Hocial Statics, p. 229. The mean- mg of this term is made further apparent. Mr. Spencer saj-s: "Government being simply an agent, employed in common bj- 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 olfices and exposes himself to the danger of maltreatment." — Jbid, 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 "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'." — Jbid, p. 229. It is difficult to imagine " a 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." — Jbid, 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 th. toldiers of the nation as justly described as "evil weapons," nor believe that THE NATION AND THE INDIVIDUAL. 275 H 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 eflecl 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 ev^ry political crime, and these principles in the thoughts of men are the dissolanon of society aad 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 ni identity ; the family has its own unity and order, and the nation has other powers and obligations, so that Avhen 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 thvis 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 beo-innine: 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 conformance 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 mvolved 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 ^Dolitical abstractions and the infidelity of many political dogmas. The representa- tion of the nation as only a forma >rganization, or as an "xternal 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 tc 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 JEneid is the story of filial duty and reverence, and in each the spirit of tha 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 &■? an institute of the nation in its order, and its violation is ♦o be punished as a crime. In Greece, its earliest insti- >flE NATION AND THE FAMILY. '219 tutions, the pliratriae 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 relicrion, 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 obhgation, 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 annaHsts and her satirists, as the cause and circum- stance of the ruin of Rome. When the sacredness of the "amily is not regarded, when it is no longer apprehended is a moral order, but as de^nsed by men and shaped onlj ay a law of expediency, and subject to caprice, the lift of Bociety is corrupted in its source? . 280 THE NATION. Thus also the system of slavery, in its antagonism to the nation, was in conflict with the law of the femily and among the slaves in certain commonwealths, family life was unknown, and many on emerging from slavery had no lamily name, but only the designation given to identify the individual.^ 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.^ The conception which prevails of the nation shapes the family also. Wlien it has been regarded only as a fonnal 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 familv, in 1 Slavery, in its necessarj' antagonism to the organic being of society, de- Btroyed 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 unitj' 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 doniu X)mniunia omnia. Id autem est principium urbis, et quasi Seminarium Rei publics." — Cicero, De Officiis, i. 17. THE NATION AND THE FAMILV. 281 conformance to its normal and moral conception, antl to punish its violation, Avhich 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 fonn, 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 arid con- ditions of marriage, and to require that it be midertaken not slightly nor hastily, but with a definite fonn and the attestation of the oblio-ations 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 oblicration 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 ind being of the whole ; thus, if divorce is allowed it may devolve immediately on the nation to prescribe its 4 Whal R. 11. 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 orants 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 yaars do not erase them from the record of human lives. ^ 1 In Troilus and Cressicla, 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 Eind married calm of states," 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 tlie drama from the criticism of Mr. Verplanck, which has the assent also of Mr. White, that " the effect of the pla\' is impotent and incongruous." Mr. Verplanck yet says the drama " displa3's 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 /,'rf., 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 Troilus 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 aloue th« vrden of the city was ended. CHArTER XVI THE NATION AND THE COMMON^VEALTH. The nation in its internal order and administration, is constituted in the commonwealth. The family is the primaiy 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 beoinnino; of the svstem of civil rights, and the building of the commonwealth.^ The commonwealth may be regarded thus in its fonnal organization as precedent to the nation. 1 In defining the character and relation of the United States and a particulai Slate, the international and the civil state, — the nation and the commonwealtb, 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 o( 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 been recognized by the gi-eat masters in political science. Aristotle describes (1.) the family — oTkos, the house; (2.) the common- wealth — KUi/xT], the community ; and (3.) the state — > ToAi?, the political body ; the city state. The common- f\realth, he says, is formed for mutual advantage, but the «tate is formed for a moral end.^ 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 B'drgerliche Gesell- sehaft, the civil state ; and (3.) the nation, Der Staat, the international state. ^ 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 Phihsophie des Rechts, p. 66. Hegel defines the commonwealth as " aii associi.tion 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 aiid 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 comaicnwealth, he says, has three phases, the sati.-f ^le conscience of the individual, and the conscience of le community which the jury represent. It is the claiii. 1 Constitution of the Commonwealth, Art. IX. sees. 9 and 11. « 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 wi-onged. 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 seqvience 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 solitaiy 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 fi'om 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 pro^nsion 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 veiy 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.^ It belongs to the commonwealth, in the guardiansnip of * Constitution of the Commonwealth, Art. VI. sees. 6, "; 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 fandamental 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.^ 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 secui'ity 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.^ 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 siunmary the substantial content of the constitution of the commonwealth of Pennsylvania, tc 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 norma. 1 Constitution of (he Commonwealth, Art. V. sec. 10. ^ jind, Art. VII. s«c. 6- THE NATION AND THE COMMONWEALTH. 297 process. With the formal exc(;ption wnich is to be noticed, and wliich 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 emj)ty 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 wliich, 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 affaii's 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, 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 tfonsistently to the commonwealth ; but the nation hay an 298 THE NATION. immediate obligation in the maintenance of the family in its moral miity 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 referi'ed 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 quahfications 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 qualifit;ation 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 poAver cannot be lef\ to the discretion of each separate commouAvealth, 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 CO>rMONWEAi-TH. 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 rii;ht 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 of the army and na\y 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 exchano;ed its sio-nals 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 Avho sail upon it, out on the limitless expanse, it is as good as oak and ii'on. And the gov- ernor in this character, on the sti-eams to which he may often be confined, is like Wordsworth's fisherman, " tricked out in proud disg-uise." But this assumption of military and naval authority m its consequent weakness, is indic- ative of the neglect of the nation in its own sphere, to provide for the instniction 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 constabulaiy ; 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 hoh- day. There is in the commonwealth ni conception, ami 800 THE NATION. no power of war, and it may neither declare war noi conclude peace. These poAvers, m 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 mstitu- 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 natior. 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 I'ights a perma- nence. THE NATION AND THE COMMONWEALTH. 801 The civil order which may have the highest fonnal com- pleteness, when the life of the nation is no longer present in it as a sustaining poAver, is merely abstract. The mos*". 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 Avas 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 Avas 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 ciA^il laAv of itself has the attraction only of an external sjinmetry, 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 liA'ing spirit is Avanting in the most splendid development of the cIa^I organization of so- ciety.^ It is only in the immanence of the nation that the com- monwealth has its continuance in history. The structure, Avhich is a combination of priA'ate 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 poAvers which, in the life of humanity, bear its issues to their close. The assumption of the foundation of society in the commouAvealth has been the precedent of a false civilization. Since the commonAvealth exists only as the organization of the indiA'idual and collectiA'e interests of pri\'ate persons, when the foundation of society has been lought in it, it has assumed a selfist principle as its law, 1 See Merivale's History of the Romans, vol. vii. p. 429. 802 THE NATION. and its end has been tlie 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 powci 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 wliich through centiu'ies, 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, aru that in some transition may be better effected in an imperialism, but it is in the nation in it8 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 slaveiy ]ias its sequence in dissolution and division. The nation is external to the commomvealth. The commonwealth is invested with a formal sovereignty It is not the sovereignty of the people, in its organic being bwl a formal sovereignty, limited to a certain process aiic 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 constitute'^1, that the nation is external to it. The commonwealth has a formal, but not an organic unit J. It is a whole only in its relation to the nation, and tlu'ough it, to the other commonwealths of the nation. The commonwealth is defined by boundaries wliich are foraial, that is, they are not the natui'al boundaries whicli diw'de nations, as oceans, or mountains, or rivers ; nor the historical boiindaries 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 bomidaries in dispute, but the settlement of them is with the nation. These boundaries thus cannot be conceived as those of a separate pohtical 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 inteo;ral 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. It 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 cominon- .wealth. The order and the execution of justice is to bo 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 Bustained 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 rig-ht 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 fi*eedom 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 secui'ance 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 fi*om 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 conflictino- fonns and titles and unsettle values. These lines are therefore to be carefrdly defined. While there is thus no moral ground which could hold them in the supreme necessity of the peo- ple, in the normal condition they are to be maintained in 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 il s own consent and of the authority of the nation. Fifthly ; There is the right to the maintenance in every 20 806 THE NATION. commoiiAA ealth 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 sliall isolate it from the order of the nstion 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 eveiy crime committed within its lunits 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 iiave 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 coi-porate rights and interests are endangered, to enter as a party in court, ana 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 m its normal order there shall be given and secured aL 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 equahty in the commonwealth. The commonwealth is a formal organization. If the order of the commonwealth is overthrown in anarcliy 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 utterlv destroved through anarchy, or to restrain its action when robbery and mui'der 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 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 then' order and admin- istrfvtion. These are the conciuTent 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.^ The distinction in the nation and the commoPAvealth 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 vhe constitution as the supreme law, and of the acts of Congress as laws, and it is to give judg-ment 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 straggled toward a clearer recog- nition, " the United States has no common-law jurisdic- tion in criminal cases." ^ 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 earher 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 then* decisions to the bulk of the later, and pass from their large and sohd 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 commonwealth, 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 he subject has assumed in abstract speculations and legal presumptions. These theories are mainly significant in their contrast to the principle which has been estabhshed. 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 po8« THE NATION AlH) THE COMMONWEALTH. 311 BesseJ 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 wiitten contract, while all other powers, which can attach to the most un- limited conception of political action, remain resident in tJiemselves. 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 m 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 histoiy in conformance to this conception. The right, for instance, vhicli 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 ajorehending the commonwealth as identical with 812 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." i 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, so. 1. THE NATION AND THE COMMONWEALT]|. 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 indi-s-iduals 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 it«elf, 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.^ Thirdly ; There is a theory which represents the people as existent as an organic whole, while in its complex polit- cal organism the Siates 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. Hm-d. 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 modem publicists who have given no other view of the state." — Hegel, Philosophie 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 maybe at least, the consisten ground of th.' admiration of the latter for the political speculUiciw V Mr 'alboun. 314 * THF. NATION. in the same people m their several condition of the people of distinct States." ^ This theory is more thorough, and may claim "an higher historical consistence than either of the preceding. But it is defective if it may be conceived to place the form of the state above the life of the state, or to condition the life upon the form. There is no preconceived political form to which the being of the political people is to correspond. The real sovereignty of the people can be predetermined by no form, but it is itself to determine the form of its poUtical life. The fact that in a certain period it acts in a certain form does not therefore make that form necessary to its being, nor forbid that it may be changed. And sovereignty subsists in a unity, not in an aggregate, and is existent in the people not simply as a territorial people, Jthough it is in the people of the land, but in the people as organic and moral. There is also a formal sovereignty, and the exercise of certain powers necessary to its nonnal executive action, that is, vested powers, in the common- wealth, and it is because the organic people forming the nation has a real sovereignty that the powers existent in the commonwealth cannot be wholly beyond its recall, or utterly detached from it, as would follow, for instance, in the seces- sion of a commonwealth. And if, as this theory implies, the existence of the several civil States is necessary in the realization of the sovereignty of the organic whole, then the acts performed and the laws enacted in the interval of the action of each and all might be reversed or annulled, as transpiring in some interregnum and void of sovereignty. And the order of the separate commonwealths is formal, and in the supreme necessity of the organic people thev may be merged and remerged into each other. The na- tion is not conditioned upon the existence and continuance of the separate civil States in their extant form. It could 1 Brownson, ITie American Republic, p. 220. Hurd, Law of Freedom, etp., vol . p. 408. THE NATION AND THE COMMONWEALTH. 316 exist through one as through another political form, and even wliile all the commonAvoalths included in it were changed. It has not the condition of its being in any form, nor its limitation in an external order.-' But there is in none of these schemes the exposition of the nature and relation of the commonwealth and the na- tion. The realization of the commonwealth and the nation in conformance to their necessary conception, — the com- monwealth as the civil organism, subsistent only in the nation, and in its formal order invested with a formal sove- reignty, but with the ample sphere of the civil organiza- tion, in which indi\^duals have the institution of their pri- vate relations ; and the nation, as the moral organism, the being of the organic people in its freedom; — the result in this is before and beyond any theories or any formulas. In the realization of history'- it cannot be changed by them so as to be made as if it were not, but in their prevalence its development may be distui'bed or detained. The premise of the distinction in the nation and the commonwealth — the United States and a particular State. — has been assumed in certain propositions wliich claim a separate notice. Mr. Calhoun defines the principle on which the distinc- tion is based, " The division of the powers of the govern- ment was effected by leaving subject to the control of the several States, all powers, which it was believed they could adA'antageously exercise, without incui'ring the hazard cf bringing them in conflict, and by delegating others specifi- cally to the United States." ^ This is the application of a 1 Hurd, Law of Freedom, etc., vol. i. pp. 400-415. Mr. Hurd's exposition oi the historical course of the state is indeed masterly; and one cannot avoid regret that the writer, who has shown tne widest political learning and the finest freedom of thought of any American publicist, should have been led to and through this long compilation of laws on slavery. It only indicates in how many ways the system has been the source o'' loss to us. • Calhoun 9 Works, vol. ii. p. 420. 316 THE NATION. mere empiricism, which proceeds only on the principle of an avoidance of conflict. It is for the keeping of the peace between the separate commonwealths. It presents the commonwealth as the integral and original power, and the government of the whole is not ordained and established by the organic people in its sovereignty, but constituted by the delegation of certain powers of and from the several States ; and it again illustrates the fact that Mr. Calhoun apprehended nothing beyond the commonwealth. It is also the assumption of only a negative principle, the avoid- ance of the risk of conflict, and therefore cannot become the ground of a positive order, nor constructive of any- thing. It prescribes also only the form of the common- wealth, and the principle in which the powers of the whole are left to be determined is not given, but they are merely represented as " others." In the principle assumed, more- over, instead of escaping the hazard of conflict, in its polit- ical conception it has become the inevitable source of con- flict, and has borne in itself the elements of dissolution to the whole. The distinction is often represented as that of a central government and a self-government, meaning by the latter simply a local administration. But this is obviously de- fective, since the distinction is not one of government and administration. There is o;overnment and administration alike in the parts and in the whole. There are in the nation necessarily immediate administrative powers, and these aifect every individual in the whole, and there is a central government and strictly central system, as of a wheel within a wheel, in the civil organization. There js indeed m the commonwealth the , administration of its order, or a local administration, but this distinction fails to ascertain the principle in which its order consists. The work of De Tocqueville, so profound in its apprehensior of the thought of another people, the gift of a citizen of France to the United States, has illustrated the worth of ^ THE NATION AND THE COMMONWEALTH. 317 central government and local administration, or a self- o government in the meaning of the local administration of local affairs ; but there has been beneath this the develop- ment of a far gi-ander and more complex order. There is in the writings of Mr. Choate a significant il- lustration of the principle which has been ascertained. In endeavoring to sustain the separate political sovereignty of the separate States, when he defines the powers existent in the commonwealth he says, " one of the prerogatives of sovereignty — the prerogative to take life and liberty for crime, — is theirs without dispute." ^ It is indicative of the principle in their distinction, that on the assumption of their sovereign powers this only can be cited without dis- pute which is itself not strictly, in the conception which has been ascertained, the act of pohtical sovereignty, but belongs to the commonwealth in its formal sovereignty, and is necessary to its executive action as the civil systen\ in the nation. There is an apparent objection to this principle in a declaratory statement of the constitution describing powers as reserved to the States, or to the people. But this, while not in immediate variance with this distinction, has no immediate apphcation. The constitution asserts in the amplest measure national powers, and prohibits powers to the commonwealth. The powers are not reserved by the States to themselves, since inasmuch as the States lid not grant powers, they could reserve none; and the power asserting itself, is of the people, whose will is alone the supreme law over the whole. The phrase also, " the States," while it is represented as identical with the people, by a common principle of interpretation in law, must be explained as congruous with the same term in the preceding sentences of the legal document m which it appears. i Choate's Woi-ks, vol. i. p. 197. 818 THE NATION. The importance of the definite consideratioi of the dis- tinction of the nation and the commonwealth constantly appears. A senator said of the Civil Rights Bill, that it opened " a new epoch in the legislation of America ; " and while that great hill had its constructive principle in the immanence of the nation in the commonwealth, and the nation is to maintain not the pretense of civil order, but the commonwealth in its reality organized in the unity of the nation, yet whatever should tend to bring the nation to assume m itself the immediate sphere of the common- wealth and its permanent retention, Avould involve the most gi'ave disaster. It, might, as in the institution of an imperiahsm, secure a more perfect civil order for a certain period, but it would not continue long. In its close it would be destructive of the noblest civil and political order that society has yet attained. The clearer recosTiition of this distinction is the con- dition of the higher development of the commonwealth itself. There can be but an imperfect advance while its nature is luidefined and its province is undetermined. Its object must be clearly apprehended. There devolves upon it, says Kent, " the dut}^ that its jurisprudence be culti- vated, cherished, and exalted," and this, Avhile not strictly comprehensive of it, indicates its immediate design. The legislature has not in the ci'vil organization the relative position and precedence which it has in the political body. The best elements of stability in the commonwealth of Pennsylvania, have been in the withdrawal of that which was not clearly to be referred to the legislatui'e and itL refsrence to the coirrts. The securance of civil rights is the immediate act of the judiciary, and it is vain to divide its responsibihty, or to construct a power to act in its stead, or to merge its offices or functions with those of the legis« lature. If it becomes weak or corrupt, the only remedy is its reconstruction in the commonwealth, and not the ac- cumulation of its powers in the legislature. THE NATION AND THE COMMONWEALTH. 319 As the commonwealth is formed in the jural relations of society, the common law, through the common working of many commonwealths in a political whole, may have before it in their varied process an higher attainment. Its aim is to he the administration of justice. The better civil order is in the higher manifestation of justice, and the clearer assertion of the nature and doom of crime. Pun- ishment is to be made inevitable as the manifestation of crime. Justice is imperative, and perfect justice alone truly imperial. There are false theories of conscience and crime which make the one a mere negation, and the other only an imperfect stage of development, and hold the conflict of good and evil as a neutral field ; and there is a necessitarianism in which there is the denial of the reality of crime, and there is a humanitarianism which is con- sistent with no just and holy conception of the origin or the destination of humanity, which are undermining the order of society, and converting into a poor pretense its most awful institutions. There is the demand for a more manifest justice. It is a day of evil for a people, when it comes to regard the punishment of crime only as the sequence in some legal formula, or determined in some social contract or some law of expediency, and when its statesmen lose all consciousness of a divine obhgation, that :;rime must be punished, and wicked men must meet the consequence of then' deeds. This is the end in the com- •nonwealth, and in its failure to realize this it is separated .Tom its gi'ound in the nation, and its organization no longer corresponds to its end. There has been in the historical course of the United States the higher development of the cii-il and political organization of society, — the commonwealth and the na- tion. Their sequence is not the mere accident of history, nor the induction of an arbitraiy theory, nor the assump- tion of a legal formula; but it has been justified in the 320 THE NATION. reason of the state. It is an organization ampler and nobler than they who in the generations have builded in it could wholly comprehend ; and working steadily and faith- fully in their own day, they have wrought in the ages, building better than they knew. It has been vindii^ated m political science in the pages of its few masters. It fills the almost prophetic conception of Milton, — " not many sovereignties united in one commonwealth, but many com- monwealths in one united and intrusted sovereignty." The commonwealth is poor and empty, as are all things else, m seeking to be something other than itself. When it assumes a national place and national relations, it is severed from its consistent strength and its symmetric order, and is weak m the assumption of unreal powers. It becomes the caricature of the state, moving with a de- ceptive pomp in a disastrous pageant. In the building of a false civilization, m the accumulation of merely material interests, it bears with it the ruin of a people. The family has its own place, and the commonwealth has its own dig- nity ; but the worth of each is in the fiilfillment of its own law. And if the commonwealth, instead of its maintenance in the unity of the nation in which its interests alone have a moral ground, and are formed in the spirit of a moral interest, is broken and dissevered from it, it is when ma- terial possessions are counted as beyond fr-eedom, and gold is more precious than humanity, — the golden wedge of Ophir more precious than a man. CHAPTER XVII. THE NATION THE ANTAGONIST OF THE CONFEDERACY. The nation and the confederacy represent the forces in conflict in human society. The nation in its organic and moral being in history may recognize other nations, and may enter into certain relations and assume certain obligations with them ; it may form an alliance or join in a league with them, for certain objects defined, for instance by a treaty between them ; but each is subsistent in itself, and the convention which they form obtains its only force from the sovereignty of each persisting in it, and is conditioned upon their contin- uance, and expires with its own Hmitation or with their retirement. But this presumes the existence and affects only the powers and obligations of separate nations.^ It is apart from the principle of confederatism. The confederacy is the construction of society in its own exclusive type. It defines the origin of society in the vol- untary action of certain separate parties, and it is formed in their contract ; its powers proceed from the contract of those who are associated as private persons in it, and the authority of its government is derivative fi'om the arrange- ment of the articles of this contract. The formation of society is artificial, and the government and order of the world are of human contrivance, — certain expedients for the accompHshment of secular and separate ends. The 1 A principle of politics of increasing strength in this age is " freedom from alliances," and this is indicative not only of changes in the character and rela- tion of nations, but of the stronger personal life of the nation. There w&s tliii consciousness of freedom in the advice of the fathers of the republic, as in tlM words of President Washington, " a7oid all entangling alliances." 21 822 tHE NATION. state is the exclusive possession of those who have con- structed it ; its government is their agent ; its justice the scheme of their legislators ; its freedom the resultant con- sequent from the exchange conducted on the entrance to it; and each is limited to the proprietors who are joint par^ ties in it. The end of society is the securance and for therance of private interests ; its order is the balance of these interests ; its government is the representation of these interests ; its primary and exclusive function is their protection. The confederacy may be defined as the combination of separate individuals or societies who enter into a volun- tary agreement, and in the arrangement which they have formed there is the source of government; the limita- tion of its action is with the several parties, and in the ex- press terms of their arrangement, that is, it is the origin and institution of society in conformance to the civil con- tract. The highest principle in it is not the institution of justice which is in itself before all legislation, and is not created by it ; nor the organization of rights which it may recognize but cannot bestow, nor the realization of free- dom which although posited in an external order is of the spirit of man, and can no more be conferred by the lawyer than by the preacher or prelate or king, but it is the law of combination after wliich it is constructed. The confed- eracy has been called by its historian, " the most polished and the most artificial production of human ingenuity," and defined as a system in which each party, " as an inde- pendent and sovereign power, and as in itself absolute, enters into a compact with others." ^ Montesquieu, while regarding its primary object as security, which is assumea as belonging to it in a greater degree, describes it as " an assemblage of societies which is to arrive at such a degree of power as to provide for the security of the whole." 1 Freeman's History of Federal Government, vol. i. p. 6. ' Montesquieu's Spirit of Laws, bk. ix. ch. i. THE NATION THE ANTAGONIST OF THE CONFEDERACY. 323 The end is here only that of the commonwealth with which the state is identified. In the period in which Mon- tesquieu wrote, it was presented as a formal system, — a precedent to oppose the formal system which identified the state with the prince, and in the conflict with the legal assimaptions of feudalism, the social contract had a value while maintained as a legal fiction. The formal constitution of a people in some period of transition — as in an early stage of pohtical development, or a later stage of political degeneracy, — may take the shape of a summary of articles in conformance to a confed- erate system, but its characteristic is always the lack of permanence. If the people exist in the unity of a con- scious and organic life, and in the continuity of an integral power in history, it is set aside as not representing the reality, and in the development of the people in its na- tional being, with which it cannot consist, it is necessarily rejected ; or if through the ascendency of a selfish power the unity of the nation is broken by it, there is in the lapse into the confederacy only the evidence in its external con- dition of that which has been wrought within in its moral dissolution. The confederate is the immediate antithesis to the national principle, as the confederacy is the necessary antagonist to the nation in history. This antithesis be- comes apparent in every aspect in which they may be regarded. The nation, as the organism of human society, presumes an organic unity ; and its being, as organic, is that which no man can impart. The confederacy assumes the existence of society as artificial, as formed through an association of men in a certain copartnership of interests, and as only the aggregate of those who, before Kving sep- arately, voluntarily entered it. The nation is formed in the development of the historical life of the people in its unity ; the confederacy is a temporary aiTangement which is formed in the pursiiance of certain separate and secular 824 THE NATION. ends. The nation in its necessary being can have its ori- gin only in the divine will, and its realization only in that The confederacy assumes the origin of society in the vol- untary act of those who separately or collectively enter it, and its institution has only this formal precedent. The nation is constituted in a vocation in history, and therefore has its own purpose and work ; and of this it cannot divest itself, as if it was an external thing, nor alienate, nor trans- fer it to another. The confederacy is the device of a tran- sient expediency, and in conformance to certain abstract or legal notions, or formidas, as the exposition of a scheme. The nation exists as a relationship, as it is in and through relations that personahty is realized ; and it can neither have its origin in, nor consist with, a mere individualism. The confederacy comports only with an extreme individ- ualism, — the association of private persons, the accumu- lation of special interests, to be terminated when these may dictate or suggest. The nation exists in an organic and moral relation to its members, and between the nation and the individual no power of earth can intervene. The confederacy is only a formal bond, and the individual has no more, in the state, an end in correspondence to his moral being ; and it is thus that the word confederate has become stamped with a certain moral reprobation. The nation exists in its unity in the divine guidance of the people. The confederacy allows only the formal unity which is created in the conjunction of certain men or associations of men. Their antithesis appears the more obvious, the more intimately they are regarded. The confederacy assumes only the aggi'egation of separate parties, as individuals or societies, but allows no principle in which a real unity may consist, nor the continuity in history of the generations of men. It is a formal order whose condition is a temporary expediency, and its limitation is defined m that, and not ia the conditions of an organic and moral being. It is no^ THE NATION THE ANTAGONIST OF THE CONFEDERACY. 325 the guidance of the people in its vocation, in the realiza- tion of its being in history, but its structure is framed aftei its own device, and out of the material which it has heaped together. It builds of its own brick and mortar — which it has accumulated, — what it alone can build, although its brick be as venerable as that upon which Mr. Carlyle has pronounced his pohtical eulogiiun, building after its own schemes in the structure of society a Babel, and the result, which is not only a reciuTent fact but a moral necessity, is that the work fails of all permanence in history, and the builders are driven away, or if it be preferred, they go away with confusion and division. The antithesis which appears in the national and con- federate principle has its manifestation in history. The confederate principle in its necessary sequence can bring only division, and unity and order are established only in the same measure in which it is overcome. The security, which it has made its single aim, it has failed to obtain ; and m the furtherance of private and special interests it has been rent and broken by them. The pages of history contain everywhere the record of its disaster. The illus- tration of its course and its consequence appears — as in these lands also it had its widest construction — in Greece and in Germany. The termination of the history of Greece is abrupt, as if the sudden and violent issue of crime. It was as the confederate spirit came to prevail, in the divis- ion of her separate communities, and in the exclusive as- sumptions and supremacies of these communities, in the precedence of Athenian, and Spartan, and Theban, and Macedonian power, that the strength, which in its unity of spirit had triumphed over the multitudes of Asia, was lost ; and in the dissension of these communities, which preferred alliance with a foreign power, so entirely was the national purpose effaced, and in the rivalries and jealousies of private ambition and devotion to private ends, the life of Greece was destroyed. The onlj union sought or allowed R'as in 826 THE NATION. that fatal de\dce, a balance of power, wliicli was always irregular and disturbed, while separate commimities with their separate interests alternately contended for the su premacy. The disease in the members could be overcome by no organific force working in the whole, for this was prevented by the assumption of a merely formal relation. Then followed a succession of internal wars, interrupted only by transient intervals of peace. The greater power of the confederate principle was then also in those com- munities, where a system of slavery predominated, as in Sparta ; while in Athens there remained until the close the memories and hopes of a national life. This has left its ex- pression in some of the noblest pohtical conceptions in Ht- eratui'e. And still it is in Athens that the national life of Greece is slowly reillumined. But the issue of the con- federacy was a disaster from which none were exempt. The citizens of Athens themselves were disfranchised. The separate commimities sank into the condition of Ro- man provinces, and the ruin involved the whole, and the subjection of the whole to a foreign power. The termina- tion of the drama has been fitly represented by the his- torian, when the last great patriotic statesman of Greece went alone into the temple of Poseidon, to hail and wel- come death. The most complete recent illustration of this principle is in the German Confederation. The as- sumption of the rights of sovereignty by petty states and municipahties, each with its claim to independence and legitimacy, divided the people, and in its resultant weak- ness left it through centuries the ally or the subject to some imperial power. The mockery of the power of a great people was in the construction of the German Bund. Tt was the prop of weak and pretentious sovereignties — aere lords of division at home and agents of imperial pow- ers abroad. It led the people across every frontier as the antagonist of nations ; and France, and Italy, and Den mark, in turn, have felt its assault. It could not protecJ THE NATION THE ANTAGONIST OF THE CONFEDERACY. 327 the people from domestic tyranny, nor avert foreign in- vasion. In the most immediate danger to the people it could not act ; while the Turks were before Vienna, Diet aifter Diet was held, but no common action followed. There are none of the great highways of Germany over which her own soldiers have not been compelled to march as the ally of a foreign power, and none of her capitals over which they have not aided to hoist a foreign flag. [t is only after long humiliation that there comes the lawning of the imity and fi'eedom of the German nation. There is alike in ancient and modern history, the evidence how deadly a foe the confederate spirit has been ; how close its alliance has been with slavery and with the pre- dominance of every selfish interest; how, through the division and resultant weakness of the people, it has opened the way to foreign supremacy and to imperialism, and how long has been the battle which the nation has had to fight. The nation attains the realization of its sovereignty and its freedom only as it sti'ives to overcome this false princi- ple, and yet as its root is in a selfish tendency it is only at last overcome in the close of the conflict of history. The confederacy in itself has no permanence, but the evil principle, the bite of the serpent, remains, and in some sudden moment it may rise and strike at the life of the nation. With the people of the United States the conflict of the nation and the confederacy passed through a long period of years, until the character of the principle and purpose in each was to become manifest, and they were to meet face to face, and over a continent from its centre to the sea their armies were to be gathered, and in a stmggle of life and death, not only for those who are, but for those who shall be, the issue was to come forth in the judgment of Him, with whom are the issues of eternal conflicts. On the postulate of a confederate prmciple, it was assumed that the people constitute a confederate association of sep- 828 THE NATION. arate political societies, that each of these is sovereign, and each has a separate, integral and continuous existence, being associated with the others in a formal agreement for certain defined ends and the securance of certain mterests • and that from this joint agreement expressed in the stipula- tions of certain articles formed by each as a party with the others, there is derived the authority of the government and the powers of the people. The inference in logic, and the result in fact, was the attempted secession of one or several of these societies, when any deemed that it was justified to itself in the exercise of its sovereignty, and in the consequent maintenance of its continuous existence, — in necessary coincidence with the extinction of the organi- zation of the whole, which was regarded as only formal, and in which the separate societies were combined. There was assumed for each a sovereign and continuous existence, and an ultimate authority over its population, who were primarily constituted as the citizens of each society, and each could be conceived to exist without the others ; but the relation of the people in and of the whole was formal, and it could not be conceived apart from the separate soci- eties upon whose existence in their independence and sove- reignty and continuous existence it was thus conditioned. There has been in the history of no people the witness to a higher unity. The divine guidance of the people has nowhere had ampler evidence, and in the consciousness of the people it has been held in a purpose transmitted from the fathers to the children, in the faith of succeeding gen- erations. The rmity of the people has been moulded in the unity of a history so perfect, that apart from it the suc- cession of events is a discord and not a development. If thig unity be denied, the history holds no significance, and the people have acted with so long toil and sacrifice in a false masque, — a poor but fatal comedy of errors. The foundations were to be laid in a new world, not w the age of imperialism, when the Roman empire vas the THE NATION THE ANTAGONIST OF THE CONFii-DERACY. 329 central power in the world, nor in tlie age of medievalism, when the power in the same centre was transferred to papal ecclesiasticism, but in the age of the coming of the life of nations. It was the age of national development. Its gates were opened in the age of that protestantism which was formed in the struggle and endeavor of nations, against a universal domination whose capital was Rome. It was the national age of England, the age of her high- est development, the age also of Shakespeare, and Raleigh, and Bacon, and Milton ; in this age there was the begin- ning of the positive development in the history of the American people. There was the inception of the his- torical unity and historical life of America. The people, in the colonial period, was formed under one government — that of Great Britain ; and all were con- stituted under one sovereignty, as they were comprehended in one colonial system. Through the years preceding the War of Independence, the colonies, which were the planta- tions of Great Britain, were in an integral relation to one power, and subject to one authority. The government of Great Britain was over and inclusive of the whole. The formal investiture of the colonies with certain sove- reign powers, was confined mainly to the administrative powers, which are necessary in the organization of civil society, that is, the order of the commonwealth. From England the people was to inherit those elements which consist with a common relation. There were only those forces, which tend to the community of men, and here was mingled with them no element of variance. There was an inheritance of one language and one lit- erature, and common manners and arts and laws. The War of Independence, while it cannot be strictly called a revolution, was in the development in its unity of the people planted here, and here to unfold its life. The separation from Great Britain was a single political act ; it was the act of the whole people, and involved the aa 330 THE NATION. Bumpticn by the whole of the sovereignty, which before was asserted over the whole by Great Britain.^ It was occasioned by the same single coiu'se of events. The peo- pie had been subject through their Hves to the same for- tunes. Its complaint was of the same grievances, and it had suffered the same wrongs and endured the same humiliation. There was the same purpose animating the whole, and it advanced toward the same end. The period of colonial dependence was succeeded by the independence of the whole. The action of the people was naturally, in the first in- stance, through the existent social forms, but it was none the less the action of the whole peoj)le. The people acted necessarily in the organizations in which it stood, — as the town meeting, the county, the municipality, the common- wealth, — and its action must have been through these forms, unless all forms were obhterated in some social de- vastation ; but this action through the extant forms in this transition, instead of being conclusive of the separate po- litical sovereignty and continuity of each community as an integral political power, when considered in its pohtical aspects, is wholly inconsistent with it. ^ 1 " The association of the American people took place while they were colonies Df the British empire, and owed allegiance to the British crown." — 1 Kent's Crnnm. 201. 2 De Tocqueville inferred that the people and freemen of each township con- otitute the political integer, and that its existence is independent of the collec- tive people of the commonwealth. — Democracy in America^ vol. i. pp. 40, 67, 68. Sir. Bancroft maintains the same position. — History, vcA. ii. pp. 59, 60. See also Kurd's Law of Freedom, etc., vol. i. p. 405. " These views have been ex- pressed by them without sufficient reflection or examination, and are not correct in principle, nor sustained bj'our colonial records, nor by any adjudication of oui coorts." — Butler, J., in Webster v. Harrington, 32 Connecticut R. 136. The aa- lumption of the town meeting as the integral political power, or the political mo- nad, is described as the merest fiction, and as destitute of foundation in both fact and law, and this is illustrated by a wide survey of evidence. The argument \» ■.onclusive against the integral political character of the township ; but there ii aore apparently to justifj' the inference of M. De Tocqueville and Mr. Ban roft, that the integral political power is resident in the township, than may b* lited to maintain the same claim for the commonwealth. THE NATION THE ANTAGONIST OF THE CONFEDERACY. 331 There is in its continuance the unfolding of a still grander and more imposing unity. The War of Indepen- dence, with its years of suffering and devotion and sacri- fice, was the war of one people. It was fought from its opening to its close before the inception of the Constitution, and with no formal constitution, but they " stood all to- gether, and they marched all together." They went forth to battle under one leader, and under him they won a common victory. The power of the whole was instituted in one Congress. The language it used in its official acts, spoke of " country and America." The names which the political power assumed, were the "Continental Congress" and " Continental Army " and " Continental money." The name " United America" was often repeated. The rela- tion toward other political powers was that always of one people forming a nation, and the recognition by other na- tions was not of each community as a separate political power, but it was the recognition of the people as one na- tion. It was the organic people forming a nation that sent forth its ministers, and with it treaties were made and international relations were established. Thus its ministers were received by France as the ministers of the United States, and at the conclusion of the treaty mado between the two governments in 1778, the Kmg of France spoke to its ministers of " the two nations." The authority as- serted was of the whole people, and the delegates in the Revolutionary Congress proclaimed its power " m the name and hy the authority of the good people of these colo- nies." The Declaration of Independence was the act of the whole people ; it calls the Americans one people, and its salutation is to them as fellow citizens. Thei-e is in it the assumption of no separate rights, and the record of no separate wrongs. The Declaration in its conception transcends the spirit of any of these separate communities, and was beyond their separate grasp. It was by the whole people that the war was carried on, and victory was won, 332 THE NATION. and peace was established for the people. There was iii these events beyond argument the evidence of the divine guidance of the people. And the witness to this provi- dential guidance of the people in the realization of the nation, was to be given by one whose words are more than those of an isolated individual. President Washington said, in his first inaugural to the people, " Every step by which they have advanced to the character of an indepen- dent nation, seems to have been distinguished by some token of providential agency." The subsequent circumstance of the deepest significance is that the people sought to realize its purpose under the articles of a confederation. It was the assumption of a confederate principle, although in the nature of things it induced inevitable contradictions ; thus, while the separ- ate States are represented as sovereign, they are not so in reality, but the attributes of political sovereignty are with- drawn from them ; then also the articles are called the Articles of Confederation, but they are also described as articles of perpetual union ; the acts which were then per- formed imder the articles were mcongruous with a con- federate conception, and thus the Congress of the people proceeded to enact laws as if invested with positive pow- ers, and thus the great seal of the United States with its legend of unity was adopted ; and treaties were con- firmed by the Congress, in which the nation was bound by obligations to other nations, and the whole people was held by them ; under these articles also, — so far was the condition removed from an actual sovereignty in the separate communities, — in the highest issues, and those which involved the very being of the people, the ulti- mate determination was with nine of the thu^teen com- mimities, and this formal political action was imperative over the whole. But the fact of the most enduring impor* is that these articles of confederation had no continuance but after a very brief period of confusion and disas'ter thej THE NATION THE ANTAGONIST OF THE CONFEDERACY. 333 fell away, partly tkrough their inherent weakness, and partly because they did not correspond to the real consti- tution, and could not embody the real spmt and purpose of the people.^ There was formed by the people a national constitution. It was ordained and established by the people, and in the institution of a national government, " We the people of the United States, — for the United States of Amer- ica." It is called " the Constitution," and not, as before, " the Articles," as in a compact. The end which it places before it is a national object, — "to provide for the com- mon defense, to promote the general welfare, to secure the blessings of liberty to ourselves and our posterity." The ordination of the government is in a national legislature, whose laws are authority for the whole land ; and a na- tional judiciary, to which is referred the subject and ad- ministration of pubHc law, and before which the separate communities in a conflict of rights appear by summons or appeal ; and a national executive vested in one person in the unity of the personality of the « nation. It is the enumeration of national rights and of national powers. It is ignorant of and indifferent to the very names, and the number and the extent of the separate civil communities comprehended in it. The illustration of this history is in the necessary polit- ical development of the people. The formal argument in every phase admits no other conclusion, as in its course there can be traced no divergent event. 1 President Madison says of the character of the confederation, after describing the Amphictyonic and Achaean leagues, which he represents as in analogy with it, " The inevitable result of all was inibecility in the government, discord among the provinces, foreign influences and indignities, a precarious existence in peace, and peculiar calamities in war." — Tlie Federalist, Xo. xx. President Washington, who held the conception of the organic and moral bemg of the nation with a more profound sincerity and grasp of thought than any American statesman — certainly before President Lincoln — wrote to J jhn Jay, March 10, 1787, of " a thirst for power, and the bantling — I had liked to have said — the monster sovereignty, which has taken such fast hold oi the States individually." 334 THE NATION. Firstly, The separate societies or commonwea.ltli8 have each of itself no integral historical life, and there is no separate historical aim which may be apprehended in them. The whole historical development is of the people of the United States, and upon the people its work has been laid. Apart from the people of the United States, and apart from a relation in and to that, history is ignorant of these separate communities. They have no separate ground in history. Secondly, The object and end toward which the people nas moved, has been the reahzation of a common end, and that the end of the being of the nation, the realization of freedom. The aim has been to place beyond all aggression tue inalienable right of personality, the freedom of con- science and of thought, and to embody in more enduring institutions the rights of man ; and this m the course of the people has been increasingly apparent. The end was not the false and negative conception of what is called freedom, which was to exist only in then' relative indepen- dence in respect to each other, a freedom of alienation and division, but there was the unity of a moral aim, and for this the toil and conflict and sacrifice of years have been offered and this has been given to the people. The immortal words in which Washington was called by the Continental Congress to the head of the Continental Army were, "to command all forces raised or to be raised for the defense of American liberty." Thirdly, The societies, with the interval of a brief and most significant period of transition, have existed under a positive national constitution. It is a constitution which proceeds from the poHtical people in its unity. The su- preme law is the assertion necessarily in its organic char- acter of the sovereign political power. The constitution ia the supreme law. The names of the separate societies are unknown to it, and there is no recognition of a separata sovereignty, and no assumption of a divided sovereignty, THE NATION THE ANTAGONIST OF THE CONFEDERACY. 335 The words are not in it, and it is only a school which claims the specious pretense of a hteral construction, that reads of State sovereignties between the lines. The form in which the change or amendment of the Constitution may be effected, precludes a separate sovereignty in the separate communities. While it can only be effected in a form which is established, yet the act is ultimate and the whole is sub- ject to it, but no sovereignty can consist with tliis ultimate subjection, whether the conclusion in its procedure be determined as a pohtical act, by a political majority of one, or of two thirds. Fourthly, The physical power, the organized might of the people, is formed by and in obedience to the authority of the people as a whole. It is organized as a national power. And as war is the act of the nation in its en tirety, it is also beyond the capacity of a separate society to declare war or to conclude peace. The mihtary oath, which every officer registers, is, " That he owes faith and true allegiance to the United States, and agrees to main- tain its freedom, sovereignty, and independence." Fifthly, The separate societies have no existence each as a separate society in international relations. The capacity to recognize other nations, and to be recognized by them, to form treaties and enter into the relations defined by international law with them, is the note or the crucial test of the sovereignty of a political people, and in its formal and external relations a positive test, but there is for this action no capacity in the separate societies, and this power has no existence in them. Sixthly, There have been certain of these societies, cor- respondent in every actual capacity, and in their character and organization to the other communities, and invested fvith all their powers and immanities, which have been constituted by the nation, that is, by the people as a whole. This is the condition of an increasing number of them. They have been formed by the formal act and enactment 836 THE NATION. of the nation, and to assume for these an original and in- dependent existence, and an actual sovereignty, is a contra* diction. It places the created above the creator. Seventhly, These societies are so constituted that citizen- ship exists in all its rights and powers in the whole, and the citizens of the United States are the citizens of every State. It is one political body, to which the members are individually related. There is no expatriation on passing from one society to another ; and no naturalization is requi- site in the change from one section to another, and there is in no separate society the power for such action. But to apprehend a State as existent, apart from the people com- prehended in it, is an abstraction, and can appear only in the vision of political speculations. Eightlily, The separate societies have not the constituent elements of poHtical power. The rights which appear in a national sovereignty and the correspondent powers, are not possessed by them. They have not separately the capaci- ties of an independent political people. Their construction is in a civil system, and they are without the conditions of integral political supremacy. Whatever may be the infer- ence of speculations and the course of legal hypotheses, this is the fact of their condition. Ninthly, They have no external relation apart from the United States. It is the latter alone which is manifest in an external sovereignty. They are constituted in a form necessary to internal order and administration, and have none of the indices of power in which a nation appears in its external sovereignty, maintaining its own relations, and acknowledging on earth no external control beyond itself. Tenthly, The separate societies have not the physical unity which appears in the being of an independent nation. They have in their existence no conformance to its geo- gi'aphical law. They are defined by no natural and nc historical boundaries, but every natural and historica* boundarv is erased in their interrelation. There are none iHE NATION THE ANTAGONIST OF THE CONFEDERACY. 337 of those lines that demark the existence of a separate people on the earth. In the collision of events, and the conflict and migration of races, and the crush of the forces of history, which are mightier in their duration than those of physical nature, if a separate existence was assumed they would become in the first shock so changed as to lose their identity, and history could not recognize them. But while the argument in its conclusion allows no di- gression, and has in the records of scarcely any years in the existence of a people, a parallel in height and full- ness, yet an argument is only illustrative, and in the presence of the being of the people, and in the realization of history, there is presumption in any argument. The evidence is in the being of the people, and from its con- scious unity there is no appeal, and it allows no inquiry. If there be not the consciousness of the unity and sove- reignty and freedom which subsist in the organic being of the people, then all argument is empty, and all inquiry is vain. The realization of history can be determined by no political abstractions, and events conform to no individual preconceptions. Facts do not defer to theories ; in the strong image of the poet, " words are men's daughters, but God's sons are things." The principle in which the character and relation of the separate civil societies are defined, whatever its form, nec- essarily afifects the foundation of society, and is constructive of its whole process. If there be assumed for each a necessary and continuous existence, then each is a self- subsistent power, and then the bond which holds them as collective, that is, as a combination of certain separate and self-subsistent societies, is formal, and the principle in which their relation is formed must be necessarily the confederate principle. To maintain then the continuous union of each with all, and to compel each to persist con- tinuously in connection with another or with all in this formal relation, would not only be destructive of the sove- 338 THE NATION. reignty and independence presumed in each, but when this compulsion was made against its clearly and persist- ently expressed intent, it would become the institution of human society in force. It would involve in human society the maintenance through physical force of a formal order, and not the existence of an integral or organic and moral being. The principle which is the necessary postulate of the confederacy has been defined clearly, and has been held strenuously. There was nothing vague in the attempt at secession, nor in the premise on which it proceeded. It was the assumption of the sovereignty and independence and continuous existence of each separate commimity, and the act of secession was the necessary sequence as each or any deemed itself justified to itself by the grievance it bore, or by the advantage it was to secure. The secessionists regarded themselves primarily as the citizens of these sep- arate communities, and subject to the ultimate authority of each, and became confederate in and for the protection and fui-therance of a special interest, which was assumed as the immediate object. The confederate principle which was manifest in the denial of the organic and moral being of the nation, could appear only as a destructive force. It had its necessary sequence, as it sought its realization, in an attempt at the dissolution of the whole. The conflict of the confederate principle with the nation has been borne on through all the years of the people. There are memorials and declarations, and enactments and proclamations, and judicial decisions and state papers, which are framed in conformance to the scheme of a con- federacy, or formed in the realization of the being of the nation.^ And still in the devices of parties and the expe- 1 There is a force often imputed to some textual statement, in which it is s« construed as to compel history, and thus a notion or dogma counter to all reality may be built upon some political memorial, as the phrase ot a state paper There is an illustration of this in the speculations of Mr. Calhoun. An articif THE NATION THE ANTAGONIST OF THE CONFEDERACY. 339 dients of priests, and the forms of legists and the opinions of jui'ists, the conflict appears. The construction of gov- ernment has sometimes been conceived to exist in a com- promise, but the fact has been their inevitable conflict. As in their conception each involves the negation of the other, there has been in history their incessant antagonism. As the nation is formed in its unity in the will of God in history, and is manifest in the divine guidance of the peo- ple, and advances in its continuity in the transmission of its purpose from the fathers to the children, in thn fulfill- ment of the vocation of the whole people, and exists in the reahzation in its organic and moral being of a moral order in history, so the confederacy denies the unity and con- of the ConfederatioQ reads, " each State retains its sovereignty, freedom and independence, and every power, etc.," and thus it is assumed as the reality in history that each State or society possessed a real sovereignty and independence, and all the political powers involved in a sovereign and independent political being. There is then maintained in strict consistency and as the immediate inference of this postulate, the necessary and continuous existence of each State or society as a political power, and having all political powers immanent in the political body. It is on the phrase of a state document that the whole fabric is constructed, and for all time. — See Calhoun's Works, vol. i. p. 148. The original sovereignty is not the creation of a legal formula, since it is itself the power which can affirm its will as law, and thus in France, for instance, at one period, the most various constitutions, each having the authority of taw, succeeded each other; but it is not presumed that the actual condition changed with each state document, that appeared, as it was said, so rapidly as to form a periodical lit- erature. Mr. Hurd says, " Declaring a state of things does not make it. Since no dec- .aration of sovereignty can be more than evidence, it may as such be compared »'ith other testimony. The declaration of July 4th asserted the colonies to be free and independent states.' The accompanying declarations of an existing condition of private persons that ' all men are created equal, etc.,' all men have inalienable rights,' did not determine any private conditions, even though the state of private persons is the effect, and not like sovereigntj', the cause of law." — Law of Freedom, etc., vol. i. p. 407. " The possession of sovereignty, being a fact and not an effect of law, what- ever written memorials of the rightfulness of any national sovereignty may exist, they can only proceed from itself, and they can only be taken as historical evidences of its existence; not as law controlling that possession of sovereign power which they assert And the authors of these declarations must always •>€ supposed to have the right to substitute others of different term and of equal uridical authority. There can therefore be no written constitution of govem- noct so authoritative in its nature or 'ts expression as to determine the rightfiil >overeignt}', the rightful hoiders of ttat rightful supreme power." — Ibid, vol i. p. 396. 340 THE NATION. tinuity in the being of the organic people, and assumes the origin and foundation of society in the convention of men, and its construction in the combination of separate interests, and its continuance in the dictation of interests , it is conditioned in the law of a temporary expediency, and as a power in the exclusive possession of a class or of a race, and for the furtherance of separate and specia ends. It cannot be too often repeated that the War was not primarily between freedom and slavery. It was the war of the nation and the confederacy. The nation and the confederacy meet at last in mortal conflict. It is the battle of the nation for life. Confedera- tism, in its attack upon the nation, is in league with hell. It severs the children from the fathers. It erases the sacred memories which are their common heritage. It passes over violated oaths. It rejects a law of righteous- ness in the realization of society. It denies the divine origin of humanity, and the sacred rights it bears in it3 divine image. It refuses the foundation of its unity in the comer-stone, which is the "foundation which is lying." It fomis its alhance with slavery, and that dam got its brood. It gathers to itself the pride, the treachery and infidehty of men, the worship of money, the vulgarity of fashion, and the distinction of caste. It collects its sup- porters out of all parties and factions and churches and Beets. It is the conflict of history, the battle of Judaea with Babylon, which sweeps through all the centuries. In its a^v^d significance, it can find but an imperfect expression in the symbols of human thought. It is but faintly imaged in the fight of the eagle and the serpent. It may never wholly cease untd the end of history. The confederacy is the embodiment of the evil spirit, in which there is the destruction of the being of the nation, the organic ana moral unity and continuity of society, and the subversion o^ the whole to selfish ends. It strives to subvert the natioL THE NATION THE ANTAGONIST OF THE CONFEDERACY. 341 to serve its end in tlie perpetuance of slavery, or the pride of birth, or hatred of race. It turns from defeat on the field to cheat men with its Hes and its frauds. It retreats slowly from every hold. There is no people but has felt the poison of its fangs, and none but has been deceived and seduced by its sorceries. The nation in the realization of its being has always to contend with it, and in the sub- jection or the resistance to it is the sign of weakness or of power. The nation is to bear the conflict to the close of history, as it is to strive for the realization in its moral fulfillment of the life of humanity, to which every advance in its history will call it, and of which every new age may be the revelation, as the days of the Son of Man. In every age the character and result of the conflict be comes more clear, as its issue is revealed in the judgment of history. It is not alone the conflict of ideas, for it is in another than an intellectual arena, and reaches the very passion and contradiction of life. It is not alone the con- flict of freedom and slavery, excepting only as freedom is realized in the realization of the being of the nation, and glaveiy, as divisive or destructive, is to be overcome by it. It is the nation contending for its vmity, which is in God, and for its continuity, in which the generations from the fathers to the children bear its holy purpose, and for the fulfillment in humanity of a law of righteousness. The nation was battling for her very being, as she rose to vic- tory, from the fields of Vicksburg and Gettysburg and Atlanta, and the lines befoi'e Richmond. CHAPTER XVm. THE NATION THE ANTAGONIST OF THE EMPIRE. The nation has its immediate antithesis in the empire. The nation is formed in the freedom of the people, as an organic whole, and it comprehends the whole in its action and end as a moral organism ; the law of the empire, or the imperial principle, is the formation of the order of society in the subjection of the whole to an individual or a separate collection of individuals. In the empire, there is strictly the reahzation of the freedom of only one or a few. The will of the people has no expression in it, and there is substituted in its stead the will of an individual, or a class, to whom alone action is allowed. The government is not of the people, but apart from the people. They are the subjects of it, but are not participants in it, and have no place in its positive deter- mination. The empire allows no real expression to the will of the people, but only to an individual or a family or a class. Thus its government becomes repressive, and tends to efface the conscious life and spirit of the people. The nation is in identity with the people, but the empire identifies an indi^ddual or a class, -with the i)olitical body Its language is always in the phrase of Louis XIV. The ruler is not regarded simply as a member of the pohtica. body, but is himself the state. There is no law and no power beyond his individvial authority; there is no voice except his individual proclamation, and no rights beyond his individual rights. The public good is not the imme- iiate aim, and the common welfare is not an object in itself THE NATION THE ANTAGONIST OF THE EMPIRE. 343 nor the well being of the people the end of the whole, except only as it goes well with him. The government of the empire is not in the will of the organic people, expressed through the organic powers of the pohtical body, but the sole authority is the private judgment and the executive act of the imperator. It is a necessary absolutism, and the law of the empire is con- cluded in the Roman aphorism, quod Principi placuit, legis habet vigorem. The empire may conform to the physical being of the state, and has the conditions of an external order, but not of the development of the nation as a moral order. There is the action only of an imperial will, and its process is an imperial edict. There is in the people no evocation of a moral spirit, and no education of an individual character in them. The capacity of each is not called forth, and his powers are not awakened ; he is in no immediate relation to the state; he does not act in the determination of its course ; he cannot realize in it his own purpose, nor strive for the embodiment in it of his moral aim. The life of the state is withdrawn fi-om him, and its conduct is secret from him ; he cannot comprehend it, as in his individual existence he is not comprehended by it. There is thus no development of the individual personality, no moral life and spirit in the people. This appears in China, which is perhaps in all its aspects the most complete illustration of the empire. In China, says Hegel, " the ground of moral action is entirely obHterated. Such is the fearful condition of things in regard to responsibihty and non- responsibility ; all subjective freedom and moral account- ability and concernment in an action is lost sight of." ^ The consequence is seen in the subversion of moral re- sponsibihty. In its criminal code there is no individual 1 Hegel, Philosophie der G:schicke, p. 156. " Die autokratie wird allerdings ausgeschlossen, durch die Representative rerfassung, und durch den Begrifl Jes Staats selbst." — Rofhe, Tlieologitchi Ethik, vol. ii. p. 126. 344 THE NATION. accountability recognized for crime, and there is a confii- sion of the moral judgment and indifference to moral dis- tinctions. In its civil system, punishment is not neces- sarily imposed upon offenders, but is a formal satisfaction of the law. Thus for instance, one who has committed a crime to which the penalty of death is affixed, and is con- demned, may, and with shght expense almost always can find one who will suffer the penalty in his stead, and the law is then satisfied, no regard being had to the exposi- tion of justice, nor in the infliction of punishment, to indi- vidual guilt. Thus also if a resident on a certain street commits a certain crime, the penalty is imposed on the street, and all the houses, for instance, are demohshed. There is thus the destruction of the moral life of the peo- ple, and there is no consideration of the individual char- acter. There is thus in the empire no wide and complex life, and no diversitude in thought and action. There is nothing of that wealth in art and hterature and laws, which appears when the energies of the people are called forth with the fresh and free development of the individu- ality of each. Its life thus has no depth, and its action is mechanical, and there is only a wide and superficial uni- formity. In its best epochs, the empire can present only a few isolated figures, — the greatness of a solitary indi- vidual or a family which are lifted far above the people, and their greatness is transient. This desolation of the Hfe and spirit of the people in imperiahsm is reflected in some of the darkest pages in history, and where the gloom is deepened by the greatness of some sohtary form or some line of rulers in its lonely exaltation. The annals of Taci- tus disclose the condition in Rome, when the conviction of individual obligation, and of the authority of law, and of continuity with the past, and of the relations of men ■A^as lost, and there remained only the sense of subjectioc to the will of a single individual which was external to the people. THE NATION THE ANTAGONIST OF THE EMPIRE. 345 The tendency in imperialism is not only to undermine the moral life and spirit of the people, in its immediate action in the subversion of personality, but also to subvert it as it is formed in the relations of life. In Rome, the decay of the family was in immediate connection with the merging of the nation in the empire. The object is not the strengthening of the sacredness of the family relations, which are m correlation with the nation in its moral being, but it aims at the solitary grandeur and permanence of a dynasty. The empire tends to obHterate, when it cannot identify with itself, the historical memorials which have gathered in the history of the people. It seeks to substitute for them the associations and traditions of a dynasty. The thought of the people is diverted from its achievements in the past, and there is inculcated only the sense of depend- ence upon the existent power. There is in this con- dition no spirit through memory to inform the mind of the people. There is nothing also to incite their fore- thought. In this dependence there is no longer robust- ness of spirit or moral hardihood ; and in the empire the people are regarded, and through its forms are addi'essed, as children. The progression of the empire is in contrast with the law of development in the integral unity of the nation. It tends to increase by aggregation, and its extension is in its material agorandizement. There is no unific force act- ing from within to shape and determine the whole, but only the decree of the imperator, which is an external affair. The sovereignty of the people forming the nation is limited n its own organic law, and through its subsistence in the irganic whole ; but in the assumption of an individual will IS in identity in its domination with the state, there is no necessary limitation and no restriction to the widest circle, to wliich this will may extend its authority. While the loveroignty of the people in the natir^n presumes the or- 346 THE NATION. ganization of the whole people, the organization of the empire is established in the edict of the imperator. The pale of the empire is the boundary of the power affirmed in th2 imperial decree. The tendency of imperialism is thus always to pass the natural and historical boundaries by which a people is described, and it becomes an accumu- lation of peoples, and is formed not in an organic relation, but held by a formal and external bond, which is the impe- rial decree. This was the career of Rome in the empire. It did not intend so vast or so remote a conquest; but losing the consciousness of the moral unity of the nation in its integral and historical life, and apprehending only a formal relation in the law or edict of the empire, it was borne on in the accumulation of peoples and lands imder its authority, until overpowered by the mass it sunk be- neath its weight and tumbled in ruins. The same impulse appears in the course of England in its empire in India. The limit to its sway is constantly being drawn only to be erased. Wellington said it was the Indus, but it was long since passed, to move on to Peshawur and on to Bunnah, and to secure the possession obtained which is held by no cohesive power, it is still hurried on with alarm at external aggression. When once the wiU asserts its own individual power as a domination in the world, it seems, in the consequent evil, to be emptied of its own freedom, and it moves as if impelled by some fate. The destruction of nations thus may be traced in this loss of their moral unity and freedom in the transition to empire. The decline and fall of Rome appears as it ceases to be a nation and becomes an empire. Its imperial power had always certain material attractions, and in itf inception it was not without certain advantages ; it insti- tuted a more perfect civil order ; it terminated social wars which had long continued ; it brought an immediate secu- .ity, and there was a check upon the frauds and corruptions of a praetorial and proconsular administration ; it relievec THE NATION THE ANTAGONIST OF THE EMPIRE. 347 the people from the agitation and concern in public affairs ; but there was the decay of public spirit, and the beginning of those tendencies which were to effect in their gradual course the decline m which the acquisitions of the centu ries of its national development wei'e to perish. The power which once in its discipline had been irresistible, at last could defend no section of its territory from the inroad of a single tribe out of the many once embraced in its con- quest. As its public spirit was destroyed, and its marvel- ous organization was broken, and the energy which had moulded and pervaded its action was undermined, there was in imperialism no creative force to renew it, and no recu- perative strength to overcome its decay. The same conse- quence with the advance of imperialism may be seen in Spain. The record of her imperial dominion under Philip II. is told in the proud story of the chronicler of that day ; "he held in Europe the kingdoms of Castile, Aragon, and Navarre, those of Sicily and Naples, Sardinia, Mi- Ian, Roussilon, the Low Countries, the Balearic Islands, and Franche Comt^; on the western coast of Africa he held the Canaries, Cape Verde, Oran, Bujiya, and Tunis ; in Asia he held the Philippines, and a part of the Moluccas ; in the new world the vast kingdoms of Peru, Mexico, Chili, and the provinces conquered in the last years of Charles V. with Cuba, Hispaniola, and other Islands." But this enumeration of so vast an apparent material power is the preface to disaster, and the beginning in Spain of centuries of humiliation. There is a more recent illustration of the same tendency in imperialism in Austria. In the long roll of soldiers whom Francis Joseph saluted on the field of Sadowa, as his faithful children, there was the German, the Italian, the Magyar, the Croat, the Slovak, the Pole, the Rouman ; but in this multitudinous mass, there was no or- ganic unity. They were the representatives on the field of only a vast aggregate of peoples and states, and the bond which held them was formal, and whether that bond be in 348 THE NATION. a confederate compact or an imperial edict, it can have n« unific force. The empire is formed in the subjection of peo})les and races. It thus embraces those in the state who are isolated from the state. It is a dominion, and is without the conscious unity and aim of the nation. The nation may break down the division and antagonism of races, in a moral order and organism, but this principle is wanting in the empire, and thus it can only embrace subject races as in- ferior. It is this which tends always to bring the empire into aUiance with slavery. The government is not formed in the institution of rights, since no rights are recoo;nized beyond the imperial will, nor in freedom since only the will of the imperator is allowed freedom, nor is it in the protection of the weak and the poor, but it is the sign of their subjection to the strong. It comprehends the people not as integral in the state, but as masses and fragments, and sects and parties and races, and in these conditions they are subject, and the government is an external affair. The empire, since it is a government external to the people, tends to form an external life. The moral strength and energy of the people is not called forth, and there is the suppression of their spirit. There is a unifonnity of action, and the people move mechanically, and the gov- ernment is not a power in which the people acts. It is thus that the people in the empire are mthdrawn from actual life by amusements, and are to be diverted by shows and pageants gotten up for them, and having the attrac- tion of an external magnificence. As in the empire the government is isolated from the people, the people in their isolation become at length no longer affected by it. Their hves become independent of it, and it is powerless to influence their actual condition. There is thus in the decline of Rome, in the empire, no fact more sad than that the actual condition of the people is unchanged under the most brutal and sensual, and the THE NATION THE ANTAGONIST OF THE EMPIRE. 349 most humane and gentle of rulers. It remains the same under Aulus ViteUius, and M. Antoninus Aurehus.^ The empire creates a false conception of human power and human greatness. There is the assertion of power not in the service of humanity, but in separation from it. In the elevation of an individual or a class, the distance between them and the people is widened, and there gathers about the imperial presence a distant grandeur which removes it from the common condition of human- ity. The dignity of the empire is sought, not m its moral, but its material power. It is estimated in the extent of its dominion, or the vastness of its possessions, or the number of its armies, or the strength of its armament. There may be in the empire, in its immediate inaugura- tion, an apparent advantage ; it may.enable men to devote themselves more exclusively to the pursuit of their pri- vate affairs and their private ends ; it may reheve them from attention to public duties and the direction of public events ; it may introduce a more regular routine, and more uniform method and system in the public adminis- tration ; it may display a greater external splendor, and construct vast works of public utility ; there may be a greater care for the physical condition of the people ; but these may be connected with the degradation of the spirit of the people, and there are in these no elements of poHt- ical permanence. The traces of the possession of England by the Romans, under the empire, still may be found in the almost obhterated ruins of the bridges, and roads, and pub- \c works, which they constructed ; but it was in the com- mg of a power which sought to awaken the spiritual life 1 There seems, in the fate which instead of freedom is the principle of the empire, the reflex of the lives of tne people in the life of the individual im- perator. Gibbon says, " Such was the unhappy condition of the Koman emperors, that whatever might be their conduct, their fate was commonly the same. A life of pleasure or virtue, of severity or mildness, of indolence or glory, alike led to an untimely grave, and almost everj' reign is closed by the same repetition cf treason and murder." — History, etc., vol. i. ck 12. 350 THE NATION. and energies of men, and wrought in the common people, that there was the elements of an enduring strength. There may be in the empire, also, works of great excel- lence in literature and art ; but these will more often have had their root in some earher period of national energy, and the creative power in all literature and art can appear only in the development of a native strength. There may be, also, a greater civil code, although instituted from the precedents formed more often in an earlier period ; but this is the condition of the civil corporation, and can have only the attraction of an external system. The result of the empire is not always the creation of a vast or permanent material wealth. It has been said that the empire creates wealth, although it destroys credit. The latter certainly follows, since the people cannot ascertain the intent of the ruler ; and the secret course of the gov- ernment gives rise to distrust and foreboding, and business enterprise is checked, and men will not risk large under- takings. But the empire does not create wealth. It does not stimulate human activity, nor incite the thrift and fore- thought and shrewdness of the people. The people in the empire are not rich. There is greater inequality of for- tune, and wealth becomes useless in the hands of the few, and the poverty of the mass is in contrast with the vast riches of a few individuals or families. In Great Britain the increase of pauperism and the disappearance of the yeomanry — that is the larger nimiber of proprietors — has been in proportion to the accumulation of lands in the possession of a few. In Rome, under the empire, the nobles and farmers of the revenue were rich, while the people were poor. " They fight," said a tribune, " to maintain the luxury and wealth of others, and they die, with the title of lords of the earth, without possessing a single clod to call their own." The condition of the people in an imperialism is no^ one of happiness. Iv the midst of the external power THE NATION THE ANTAGONIST OF THE EMPIBE. 351 of imperial Rome, there was in tlie people no satisfaction of the spirit. This exists only in the conscious energy, — the freedom of the people ; but in the empire there is the depression of the spirit. There is no comprehension of a moral end. The imperial government, if it acts in respect to the people, acts only in doing what is good for them, while in the nation the individual is called, in its organic and moral being, to act in the realization of that which i9 in itself good. There is in the empire the creation of a love of power for its own sake, and of domination for itself. It is the view of powers and principalities. The people exist for the government, and not the government for the people. The former is not the servitor of the people, but the people is only its instrument, — the means for its end. It is thus that it is only in its inception, or in certain transient intervals, that the " empire is peace," and the tendency of mere power acting itself out is to impel the people into war. The influence of imperiahsm, in the subversion of the freedom of the individual personality, tends to induce an impression of fate. The people when it acts, acts in an order which is external to it, and mechanically and blindly, as if impelled by some external power, and not in the conscious determination of men. There thus arises a sense of incapacity in the presence of the evils weighing upon it. There is the want of responsibility in respect to them, and as the people is excluded fi'om public affairs, the decay of public conscience follows, and there is no energy nor effort toward the reform of abuses or the removal of wrongs. The government, in the destruction of the fi'ee- dom of the individual person, is led to invade the sphere of the individual, and to assume the immediate conduct of life, destroying all individuality, and determining the vocation, the home, the marriage, the work and rest of men. The government also tends to become a mere system of police, 352 THE NATION. — although as in its civil system its police may be very highly organized, — since in its isolation from the people, in order that their course may not also become secret from it, it has to set spies over them, and gradually comes tc regard them with suspicion and distrust. There is a ten- dency also to regulate life by a formal and artificial stand- ard, to introduce some scale of virtues to denote the relative excellence of deportment, and the reward of virtue is in some ribbon or prize, and the periods of life, as of marriage, or rest from labor in age, are assigned in conformance to some uniform and external scheme of notation. It is thus in the empire that life becomes superficial and frivolous, and men are diverted with toys and playthings, as in China. Then the order of the state becomes mechanical, and this is the character of administration in China, with its competitive examinations, where political trusts and civil offices are assigned by a graduated scale in a pedantic sys- tem. It is thus also in the empire that there is the absence of all event in their history, and there is in the people an apathy, and in their long chronological records only a monotony. The tendency of imperialism has thus always been, to induce a fatalism. The nation may exist in some transient period, through confederate or imperial forms,^ but their characteristic, if 1 In Russia there has been, with an imperial form, the advance of the people in the development of a national life and in freedom; but in its imperfect devel- opment the immediate danger to civilization is in the identification of the state, with the physical power of a race. In France, the imperial policy has been in- volved with constant contradictions. It established in universal suffrage the strongest guaranty of the rights of th^ people, and in its constitution, says Bluntschli, " full deference is given to the majesty of the people of France, as the 30urce of the power of the state, the legislative body is made immediately de- pendent upon its confidence, and the imperial power derived from its will." The title of the emperor is " par la grace de Dieu et la volente nationale, Empereur des Francais." Its strength also has been in holding through imperial forms the conception of the nation, and its disaster has been in its later abandonment of it, as in its policy in Mexico and in its later course in Italy. In England th% tendency in imperialism is more apparent. Its sympathy, Michelet says, iti "grosses mitgefuhl," was with the confederacy. Its main alliance in this ag« THE NATION THE ANTAGONIST OF THE EMI'IRE. 353 the nation does not fail in its intefn'al organic and moral power, is the lack of permanence. The nation has always to contend with them and to meet them sometimes in secret is with the empire of the Turks, and with an historical fitness, but with no con- sciousness of its propriety, it received the Sultan at a banquet, at the expense of the Indian administration, and at a table covered with the plunder cf Rajas' palaces. The influence of imperialism may be traced in the increase in it of Roman ecclesiasticism, and in its literature not more in the open avowal of fts old men, as Mr. Carlyle and Mr. Ruskin, than in the more than pagan fatalism of its younger men. It has built an empire in India, whose policy has been to crush every germ of national spirit in its native populations; and as the national spirit in England, in the defect of moral strength, has diminished, the power in India has been held as the power in a race, and that race the English; in its In- dian administration it has had no power to overcome caste, since its own gov- ernment is imbedded in caste: it has degraded the people, and while under Moghul rule, the highest offices in the army and the state were open to them, all participation in the government has been denied them under English rule; it has destroyed the physical condition of national well being, in a varied industry, instead of encouraging this as a securance against famine or accident, as ia Orissa it suppressed the salt manufacture, which had existed for ages, in order to swell British revenue, and in the single failure of the rice crop, there was noth- ing for the people to fall back on: in its constitutional formalism it established a system of civil justice, which a people, before prompt to punish crime, found so alien that they preferred to submit to crime rather than the infliction of the civil system; in its own action it found in the superstition of ignorant Sepoys its in- strument, with which to send them to meet death; in its contact with a people from whom has sprung in literature the speculative hytnns of the Vedas, and the delicate purity of Kalidasas verse, and the subtle metaphysical contemplation of the Maha Bahrata, and which in art has filled India with cities of architecture so imposing; it has not sought to develop the spirit of the people, but to crush and deface it. Thus under English rule, while it may conceal a real weakness, there has been an apparent increase in Hinduism, and a more lavish consump- tion of gold on its idols; and even Mohammedanism has increased under it, but the latter has come to discern elements of peril, only in the advance of Rus- sia, while England's relation toward it is regarded as one of indifference. In its foreign policy it left Denmark, when every higher principle would have led it to sustain it; it might fight for the independence of Belgium, which is more integral to France than Scotland or Ireland to England, and whose independ- ence, as R. von Mohl says, in its origin is laughable, since this is an outpost for itself on the continent; it might fight to prevent the independence of Egj-pt, since this is on the way to its Indian empire; it opposes a vast work, of conti- nental beneficence, as the Suez Canal, and the most eflfer tual check to the slave trade, with secret and bitter diplomacy. The measure of reform in its suf- frage may tend to check its imperialism; but its main characteristic is the .^capacity to deal with the evils which it recognizes, in its suffrage, and educa- tion, and lease of land, and military organization. There seems to be no con- sciousness of responsibility in the people for them. The characteristic of itt policy is the destitution of conscience. "In the eyes of her people," says M. 23 354 THE NATION. and again open alliance, and in many disguisements ; it is not on a single field, nor in a single age that the conflict is over. The close of the history of two of the great na- tions, in the ancient world, is the warning of the evil. The hfe of the nation perished, — in Greece, in the con- federacy, in Rome, in the empire. The nation has always to contend with the dissolution of a confederate principal, and the domination of an imperial principal. De Tocqueville, " that which is most useful to England is always the cause of justice, and the criterion of justice is to be found in the degree of favor or opptH ■ition to English interests." CHAPTER XIX. THE NATION THE INTEGRAL ELEMENT IN HI&TORT. The nation is the integi-al element in history. It is as old as history. The phrase which describes " the new doctrine of nationahties," has scarcely a superficial justifi- cation. The process of history is a development in the realiza- .on of the moral order of the world. There is in it an organic unity and growth, which is the condition of its continuous life. There is the unity of the divine idea, and it holds a purpose appearing in and through and uniting the ages. It is a moral order, and thus it has been said, " the history of the world cannot be understood apart fi'om the government of the world." It is in history as the realization of the moral order of the world, that the nation is formed as an integral power. It is in this that the vocation of the nation is given to it, as in the fulfilling of its vocation its being as a moral per- son is realized. This is also implied in the reahzation of a moral order, since its condition is in freedom, and there can be no history in the law and sequence of a physical necessity. The nation is not then of itself a righteous power, but the reahzation of its being through its voca- tion in a moral order is in righteousness ; not only the ^aw of its beino;, but the condition of the realization of its being, is in righteousness. In its necessary being it moves toward this end. Thus in anarchy and oppression and violence and crime there is the neo;ation of its beino;. Thus, also, in so far as it fails of its end, ;t ])asses from his- tory. As history is in the realization of a moral order, in 356 THE NATION. the unity of a divine purpose, when the nation ceases to work in its own vocation in it, and to act as a constructive power in the harmony of its design, then it no more has a place in it. It is this constant possibiHty of e\'il in the nation that involves the most real obligation, and is the incitement to the utmost energy and vigilance, and it is this which gives solemnity to history. The continuous process of history is in the nation. There is formed in it the transition from the vague and the indefinite to the determinate spirit of a conscious life. That which lies beyond it has for its characteristic the undefined. The life of the nation in its beginning, as in the individual, holds the slow awakening of a conscious aim. It is in the moments of its existence, hidden fi-om sight, as are the changes in the process of life in every form. The early incident and circumstance in the life of the people offer but the faint premonition of its course, and there is but the dim dawning of that vocation, Avhich in the retrospect of a fulfilled purpose, rises into clearer light. But as the indication of its spirit, these events may be wrought in traditions, or again, in the type they hold, while in their immediate event of no significance, they are kept in reverent memory, and are cherished in the reminiscence of the people. They are often, in the pur- pose which they prefigure, and through the refraction of events, invested with a light " which was not on sea or shore," but become always more clear in the march of the people. Then in the advance of its conscious life, it may be that language has a more unitary and ampler development ; but while language may of itself often indi- cate the boundary of a people, it is yet only the incident and not the foundation of its unity. Then tribunals and institutions of justice, and codes and instruments of law, are defined and established. There are in its services and solemnities, in its days and festivals, the memorials of the greater events in its course. There is, then, is THE NATION THE INTEGRAL ELEilEirT IN HISTORY. 857 literature and art, the work of its creative power, the impress of its character and the reflection of its spirit. There is indeed in each of these, and in all their forms, — in law and literature and art, — a universal element, and their excellence is in its more perfect expression, but this instead of formino- an external limitation to the being of the nation as a moral person, is implied in personality, and is more manifest in its hiirher realization. Then law and literature and art have their continuous development in the nation, and their conservation in it ; it is thus that one speaks not only of the Greek and Roman mind, its quality and character, but of the unity apparent through the pohty and Hteratiu'e and art of Greece and Rome. The nation is formed in the elevation of man above an animal existence. It is not defined in a merely physical basis, and in certain physical relations. Its end is not the satisfaction of physical wants alone, nor is it compre- hended in the sequence of physical necessity. It is as the course of freedom that it becomes the expression of a determinate spirit, and the assertion of the dominion of man over nature. It is in its fi'ee spirit that man is raised from the stupidity of an animal condition. There is the inspiration of a conscious energy. Thus in Greek and Roman art there is the expression of the exaltation of humanity, — a victory wliich it gains, — which gives to it its highest type. In the Greek it is the victory of the human over the earthly and sensual ; and in the Ro- man it is a moral discipline and vu'tue, in which there is the sign of a conquest over the merely unorganized and imdisciplined mass, and it is this in each which gives a spu'itual element to its ideal. The nation, as it is the power in history, is formed in the conditions of history. Its course must be one of confhct and endeavor. Its battle and victory is in no aim- less conquest. Its vocation i? n:) indefeasible inheritance. Its freedom is realized only in its ceaseless work ; it doep 358 THE NATION. not come, as things are let to fare on. Its strength is not born out of the sky, nor wrought in dreams. It is indeed maintained only by eternal vigilance. The nation must always strive, and it is not here nor now that it can cease from its labor nor enter its rest. There can be no danger so great as that in which it shall dream in any moment that it is saved, and that its struggle is over, and its con- flict is closed. It is with many doubts and many fears, and with discipline and sacrifice, that it is to work out its sal- vation. The nation is the work of God in history. Its miity and its continuity through the generations is in Him. He is present Avith it as with the individual person, and this is the condition of its being, as a moral person. Its vocation is from God, and its obhgation is only to God, and its free- dom is His gift. The ti'ansmitted purpose which it bears in its vocation, is in the ftilfillment of His will. The pro- cession of history is in the life of nations, and in the per- fected nation, is the goal of history. There is before the nation the attainment of the end of history. It is the constituent power in which history is borne to its end. It is to act not only in but for the order of God. This is apparent in its relations. It is given to the nation to act in the realization of the individ- ual personality — the formation of human character. The individual first becomes a person in the nation. The pow- ers of the individual are called forth, in the sphere of its law and its fi-eedom. The nation has also to maintain in conformance to their moral conception aU the relations of life as integral in a moral order.^ It is given to the nation to assert and establish its au- hority as law. It is. a law regulative of the action of the .ndividual. This power belongs to no individual, and to no collection of individuals, but it is in the nation. 1 " Ein kosmopolitisches menschliches Leben, ist eine leere werthlose Abstno tion." — Rothe, Anfanye der Christlichen Kirche, p. 16. THE NATION THE INTEGRAL ELEMENT IN HISTORY. 359 It is given to the nation to bear to its issue, the conflict with slavery. It is not only formed in the determination of the spirit in its freedom, but it has to contend with the dominations over men, in the bondage of the world. To contend with slavery is the work which through providence in history has been given to the nation. This is only the statement of an historical fact ; the work has been given to no individual, and to no special or ecclesiastical associa- tion of men, but to the nation. The nation in the realiza- tion of its own being, — in the maintenance of its own unity and its own life, — is borne on to an inevitable con- flict with slavery. It may be for the nation gradually to overcome it by ameliorating laws and institutions, or in some sudden moment to meet it in direct conflict, when slaveiy aims at its Hfe, and it is only through convulsive effort that it uproots it in oi'der to live. Yet it is never utterly removed, but will take root in other fields and in other forms. The forces in antagonism to the nation it joins in its alliance. The struggle of Greece was with slavery as the ally of confederatism, and of Rome with slavery as the ally of imperialism. The conflict has fol- lowed with clearer issue in the new world, and victory has been given to the nation in its redemptive years. There is given to the nation no separate and special end, but its vocation and its work is for humanity. This end is presumed in its being as a constituent element in and for the moral order of the world, for the moral order of the world is the fulfillment of humanity in God. The con- ception and reahzation of the life of humanity does not exclude the being of the nation, as if it was simply ex- ternal to it, nor as if it was to disappear merged into it. The nation on the contrary comes forth in the realiza- tion of the life of humanity. The life of humanity is not a restriction, as in some external limitation, to the nation ds a moral person, but its fa'fillment is in the nation as a moral person. It is thus that there If in tne nation a con- 360 THE NATION. stant exclusion of a selfish egoism instead of a construction of society out of it. It is thus also — as becomes more apparent in the course of the modern world — that it is not in the power of men to hold the nation in their own exclusive possession, nor to have their own way in it, nor to warp it after their own arbitrary schemes and designs, nor to identify it with their own selfish and private ends. It is thus also that it cannot be retained in the exclusive claim of a family or a race. In its work for humanity, and its ftilfillment in its divine origin and relations, the nation has been formed in the modern world. The Turks appear as a power in identity with a race, but there is ap- parent the absence of a national being, and there is want- ino; the organization of law and freedom and rights. There is, in a certain school, a tendency to refer the whole course and development of civilization to races, and to regard separate races in their racial character, as the integral powers in history. In this assumption the history of the world is apprehended as consequent not from the special and physical properties of the soil, the climate, and the like, but from the properties of races. The devel- opment of history is presumed in the institution of the power and supremacy of a race. The most complete construction of history is traced through the suggestion of names in ancient genealoo-ical records, and the most elab- orate and far-reaching theories are literally built upon no other foundation than the scattered bricks of the ruins of the tower of Babel, in whose hieroglyphics modern philolo- gists decipher the whole course of history, and find the key that opens all its changes. The only exodus of na- tions which it allows, is in the judgment on the dispersion of the builders, and the only genesis is in the confusion of their language. The same tendency appears in the shap- ing of history, after theories of Aryan spirit and Aryan life. There may be in the physical distinction of races the elements of diversitude, and of an ampler and more THE NATION THE INTEGRAL ELEMENT IN HISTORY. 361 opulent cultui'e and character, and the physical laws and properties of races are to be studied and not to be disre- garded ; but to assert the identity of the nation with a race is to assume for it a physical foiuidation, and involves the denial of its mora, unity and moral order. If the utmost that language and architecture and art and every mode of culture may indicate, be allowed to racial characteristics, the conclusion yet remains, which has the universality of a law, that there may be the widest possible contrast in re- spect to civilization in the same race, alike in the same age, or in mainly the same condition of soil and climate in succeedino; ages, and that this contrast will be in exact proportion to the development of the life of the nation. It also conversely remains, that in the destruction of the na- tion there will appear anarchy, violence, slavery, and the want of a continuity of purpose, that is the extinction of civilization, whatever be the racial capacities and charac- teristics of men. The conception also of a power whose strength is in a race, and whose distinction is in the separa- tion of a race, does not represent the hope which is mov- ing in history, and is in direct antagonism to the historical course of the modern world. The dream of a vast feder- ation of the Anglo-Saxon race, which recent English pub- licists have told, in which certain nations were to act and to subsist, as the defense of the deposit of modern civil- ization, is an illusion which could only arise with the decay of national spirit in England. The project of a federa- tion of the Latin race which the Emperor of the French may at one time have indulged, which was to embrace t^vo continents, and to hold in security the same deposit, met with immediate disaster, and its weakness was apparent as it came in conflict with the nations. The attempt to or- ganize as a political power the Slavonic races, becomes a source of the utmost neril, and not of progress in ciA-iliza- tion ; and there is nothino; in the cry of Panslavism which will move the spirits of men and inspire the courage of 362 THE NATION. armies, as do the words which express the moral boii.g of the nation, — the cry of " Holy Russia ! " It is the nation in its oi'ganic and moral unity, which acts as a power in history, and not a race in its special and separate physi- cal character. The fact in correspondence with this has always been, that the nation has been rent and broken in its strength and swept from the foundation on which it alone can subsist, when it has assumed to identify itself exclusively with a race, or to build upon the distinction of races. It has no longer a moral foundation, nor a universal end when it asserts as its ground the rights of a race, and not the rights of man ; and the government which no longer recognizes justice as necessary, nor subsists in the sovereignty and freedom of the people in a moral organ- ism, but is in identity with a race, is the sign of an expir- ing civilization.^ The nation is the power on which is laid the work of history. The power has not been with the more vast populations, nor extensive territories, nor long dynas- ties, but in the nation. The empires lie apart from the line of the historical development of humanity. It is not in them that its purpose is discerned, nor in their years 1 "The thought — that everj' one, even the least, his welfare, his rights, his dignity, is the concern of the state — that every one in his own personality is to be regarded, and protected, and honored, and esteemed, without respect to ances- try, or rank, or race, or gifts, if only he bear the human face and form ; this is the characteristic principle of the age, and its true distinction. This principle is alien to the earlier ages, and even to the age of the Keformation. It is first in the modern age, that humanity in its full conception has become an energizing principle of right and duty, determining the whole order of society." — Stahl, Philosojjhie cks Rechts, vol. ii. sec. 1, p. 345. " The inner life of man is manifested in the evolution of society; the love of the famil}' passes into the love of the state, and the love of the state rises into the all-embracing love of humanity." — Comte, Politique Positive, ii. 14. Bluntschli, writing simplj' as the historian of political movements, says ot '' nationality and humanitj' as the two conceptions at once limit and till each Other. In the earlier ages a national spirit has had an apparent influence in Politics and the formation of the state; but in none has it wrought with rhe con- Bcious energy of this age. Clearly discerned as the guiding-star of coming political life appears the highest conception of humanity."— Gcsthickle dei JUegem. Statarechts unci der Politik, p. 659. THE NATION THE INTEGRAL ELEMENT IN HISTORY. 363 that its continuous design is traced, nor in their coni^uests has' there appeared the progress of mankind. There has not been in them the awakening of the spiritual energies of men. The discovery of all that remains of them, the colossal fi'agments of the architecture which they raised, indicate as their characteristic the representation of animal existence, and the worship of animal forms. Their spiritual powers were sunk in an animal condition, with them there was no Odyssey of the adventure of a moral life, and no Iliad of march and battle to maintain the relations of a moral order. Their names, in the monotony of their ex- istence, often owe their preservation to a passing allusion in the hterature of some nation with whom in some mo- ment they were brought in contact, or the bare record of the dates in their cycles is deciphered in the fading lines on the broken and scattered stones of their buildings. Thus in the ancient ages it was not in the vast empires of the east, as Nineveh and Babylon and Assyria, that there was the work of history, nor that the development of the spirit appears, but it was almost alone in three nations, — in Judaea and Greece and Rome. Their advance was the progress of civilization. In them was kept the prophecy of humanity in history, their victory was its moral con- quest, and its imperishable renown. In the modern ages the course of history is in the peoples in whom is the real- jzation of the national being. It is thus in France and in England. With the unfolding of the ages this becomes more manifest. The movements of this age apart from it are incomprehensible, its battles have no significance, and its crises no decision. Thus Italy, from weakness and division in her separate provinces and rival cities, with the call of a united Italy, is struggling toward a national unity. Germany, from its narrow communities and sove- reignties, each with its pedantic pretensions to legitiniacy and the trivial forms of its courts, with their orders of •cholars and soldiers, is rising to thf unity of the Gernoau 864 THE NATION. nation ; and on the United States was Lad the call to tha< battle, in which victory through long sacrifice is the mani Testation of the unity and being of the nation in the reali- ization of the fi'eedom of humanity. These events are indeed the witness borne through the sacrifice of nations, to the resunection of the spiritual powers of man, and the dehverance of the redemptive life.^ They are the dawning of the new ages of humanity. They who live in them stand in an Apocalypse. It is because the nation is formed as a power in histoiy that in its decay it passes from history. Its decay is the dissolution of the moral order and the severance of the moral relations, in which the individual exists. The out- ward circumstance may remain the same. There is the same race or races, the same people who dwell among the memorials of the toil and sacrifice of their fathers, and the same land which was their ancient inheritance. The moun- tains and field and sky are still the same, but in the con trast with that which has been, they who dwell among them in the course of physical nature that changes not, are as those that " 'gin to be a'weary o' the sun." The presence has vanished in whose light all things were transfigured. There is no more the glory they have known. They hold no more in the strength of a conscious purpose, the hope of humanity. This dissolution of the moral being and unity of the nation, can follow only in the most awful crime and corruption of a people, and its consequence is in the most far-reaching disaster. There is in it a con- suming of power, and withering of energy, which only >vil can effect. It is only in the denial of the calling, vhich has been borne toward its fulfillment by the fathers, and in the consequent degradation of humanity, that the 1 " Whoever does not assume unconditionally the might of goodness in th» world, and its ultimate victory: whoever starts from moral unbelief, not only cannot lead in human atFairs, but must follow with reluctant steps. We live in deed in the kingdoms of the redemption, and no more in the kingdoms of thi» world." — B,othe, Theolofjfische Etkik, vol. iii. sec. 2, p. 901. THE NATION THE INTEGRAL ELEMENT IN HISTORY. 365 nation can perish. There is in it the judgment of history. ' The convulsions of the physical world have no corre- spondence for it ; in the words of the Roman statesman, it is as if " the whole world were to perish, and to tumble in ruins." ^ The voice of no prophet, however trem- ulous with the burden of its sorrow, can express the woe to come. It is the severance from the generations which have been, and from the generations which are to be ; it is " a day of woe unto them that are with child, and there shall be great distress in the land, and wrath upon this people, and they shall fall by the edge of the sword, and shall be led away captive into all nations." The doom falls upon the whole land, and there is none exempt. Judaea, when the life of the nation was dying, and its calling was forgotten, and its unity broken in the assumption of sects and the pretension of parties, and it was to reject in its royal Hne One who came to it as the eternal King and Priest and Prophet of humanity, who wept over its Cap- ital at the vision of its approaching desolation, is no longer a power in history, and the people pass from the gates of its immortal city, not yet returning again. It is scattered over the world, and among nations is as no na- tion. The days come to them as to the stranger, and their path through distant lands is marked by persecution. There Avas in Greece, in the conflict with the multitudes of the East and their empires, a conscious moral spirit, which has placed the scene of them among the immortal battle-fields of the world; but when there succeeded the ontention of her separate communities, in which the life ^ the nation perished, the ideal fades from her art, while tkere yet remains the versatile and crafty skill, and the supple cunning of the hand. The character of the people becomes frivolous, and thefr rjui'pose vain and empty ; they become traders and tricksters in words, the sophists and 1 " Simile est quodam modo, ac si OTinis L!c mundus intereat et conc'dat." - Cicero, De Repvblica, iii. 23. 366 THE NATION. rhetoricians who wander from city to city, and are led away as slaves by other peoples to be made their tutors ■ their land is converted into a province of a foreign em- pire, and for centuries they are subject to the dominion of the Turks.^ The decadence of the national life of Rome was the beginning of the end of its history. The figures of noble dignity and severity pass away with her triumphal processions. The elements of the moral being of the nation, the unity of organization, the devotion to pubHc ends, the strength of discipline, the reverence for law, the sacredness of the family, all perish. The people are overcome by invaders whom once two or three legions could hold in easy subjection ; and the land is open to for- eign peoples, and shakes ^vith the tread of foreign armies. The fall of the nation in its influence upon the individual is reflected through centuries, and the crimes which occa- sioned it leave their impress upon him. As its maintenance in its imity and moral being is the highest blessing, and for those who are to be, so also in its destruction the disaster sweeps on and embraces them. While the destruction of the nation can come only in the issue of the most awful crime, and is manifest in the judgment of history, it has not in history its final close. The life whose unity was revealed in sacrifice, does not wholly perish. There may intervene centuries of humili- ation and defeat, and the people be scattered or carried into distant captivities, but its spirit still lives. Though it is overborne by the migrations of races and the vicissi- 1 Niebuhr saj-s of Greece: " All its ancient institutions, nay its faith itself, had vanished, and there was nothinj^ to compensate for the loss. The Greeks possessed no less intelligence, perhaps even more than before; there was more knowledge, insight, etc. Whatever can be made they did make; but what can- not be made by every one who has diligence and ambition to exert his powers, such as epic and lyric poetrj', these were lacking. Instead of the venerable tragedies of old, they had comedies. But on the other hand the}' were furthet advanced in the arts and the mechanical skill which belongs to practical lifr Their speculations were more subtle and logical, but there was no more gram philosophy of nature ; they still possessed political cleverness, but we find nC political orators." — Ancient History, vol. iii. p. 18. THE NATION THE INTEGRAL ELEMENT IN HISTORY. 367 hides of empires, yet the type of its being is not effaced The faith of the fathers and the hope of the children does not all fail. The words of its prophets are not all vain. There may come in the life of nations the renewal of its years, and there is manifest in them the power which can "restore the leaves which the locust has eaten." There is the faith that the nation is immortal. There is in na- tions the witness to the power of a resurrection. In some hour its sleep is broken by the gray of the new dawn, and its sealed springs are touched again. This is no allusive phrase and no vague imagery, drawn fi-om the sphere of the spiritual life of the individual, but it is the reality of history, and its recognition is in the conscious life of na- tions. There is in this age an increasing testimony to it, and not only in the later, but in the ancient nations. Judaea through centuries of wanderino; does not lose her national character ; and the last words of her prophets spoke of the restoration of Israel. In Greece, so long overborne by a foreign domination, there is yet a sleep that is foil of dreams, and the stirrings of a new energy, and the broken signs of a new spirit. The life of Rome in its historic unity, is yet apparent in the purpose of a people, and is being renewed in its ancient seats. In the evidence of history the most utter and isolated indi\-idual- ism, the most exclusive and distant ecclesiasticism, cannot affirm the extinction of the life of nations.^ The moral order of the world is the fulfillment of hu- manity in God. This is the development of history. The 1 " The key to the political movements in Europe is obviously the resurrection of nationalities." — Mr. Bancroft's Letter, 1867. The evidence of the power of a resurrection in nations has been stated, not •pparently by any design nor with any reference to a real presence, as the char- acteristic of the modern world, that is, the world since the manifestation of the Christ. " All ancient states were short-lived. Once declining they never recov- ered. Their course was that of a projectile, — a rise, a maximum, a precipitat« descent. Modem nations are long lived, and possess recuperative powers wholly unknown to antiquity." — Dr. Lieber Amer. Presb. Rev., 1368. 868 THE NATION. realization of the moral is toward a definitely Cluistian principle. This is necessarily implied in the Christian principle, as the universal and the immutable, that is the moral. As the nation is called to be a power in history, it is in the realization of its being the Christian nation. It is this in its necessary conception. It has not in its option the alternative to determine whether it shall be, but yet shall or shall not be this, but its necessary realization is the Christian nation. And conversely, as history is in its development the realization of a moral order, it is only as the nation acts in and for that order that the nation has its being in history. It is thus that its freedom has been wrought in the power of the redemption, and its renewal in the power of the resurrection. In other words, the only completion of the state is in the Christian state, and it is as a power in history, which is the redemptive life of humanity, that it has its vocation and its destination.^ The nations of the ancient ages, Judsea and Greece and Rome, in their historical calling, held in their ongoing toward the coming of the Christ, the fiilfillment of the divine purpose. In the new ages, the ages of the Christ and his coming, the nations have existed in the historical Christian development. The formative principle of their life has been derivative from the Life. The nation con- versely, has no realization in the new ages beyond the line of the historical Christian development. Whatever may be the preconception of events, or the inference of politi- cal theories or speculations, this is the realism of history. 1 " We know nothing of an antithesis between the moral and the politicf.1. The Rtate in which the Christian is to live must be bound by the same divine will that bmds him, and it must have the same for its nature which he recognizes as his innermost nature." — Schleiermacher, Christliche Side, p. 279. " There is, in voncreio, no state corresponding to the conception that can be conceived, but the Christian state, that is, the state as determined through the moral principle, which is definitelj' Christian. " Christianit}' is essential!}' a political principle, and a politics, jcwer. It is constructive of the state, and bears in itself the power of forming tl e state and of developing it to its full completeness." — Rothe, Theologische RJiik, vol. iiJ lec. 2, p. 968. THE NATION THE INTEGRAL ELEMENT IN HISTORY. 369 And there has been no people in wliom the life revealed in the Christian development has been implanted, and has become a Kving energy, but it has acted as a formative pohtical principle, and formative of the nation. There is no fact more significant than that in the same centu- ries, in the lands in which Mohammedanism has existed, there has been no national life. It has prevailed among vast populations, and races who in eveiy racial charac- teristic were incomparably beyond the rude races of Northern Europe, and it has had long continued pos- session of the most varied and fertile territories, but it has created no nation. Its central and representative power stands now on the verge of Christendom, a totter- ing and discordant empire, sustained by other peoples, and identified with a race and degenerating into a mere horde .^ The same absence of a spirit formative of a national development appears in Buddhism. This has consisted only with the power of a race or an empire. Thus cultivated Hindus complain of the want of a power of political continuity, a power which the continuation of tradition does not supply. But the absence of a formative political principle and national life is more apparent in Mohammedanism, and more significant fi'om its immediate contact with the historical Christian development. The ancient nations stood in the prophecy of the coming of the Christ, the manifestation of the divine origin and unity and affinity of humanity. It was in the conditions of a moral life, that is through conflict and sacrifice, that the later nations came into being, whose calling was in the comino- of Him of whom the ancient nations held the prophecy. The church in its unity and its power was the realization of a spiritual kingdom in the world. Its end was universal. There was in it the assertion of tlie di^-ine origin and relations and destination of humanity. It waa 1 See Goldwin Smith, The Empire, pp. 228-225. 24 370 THE NATION. in identity witli no family and no race. It was the church of the people. The spiritual was not the abstract, and because it was the spiritual it was not therefore the unreal but in it there was the revelation of the real, — the foun- dation which is lying, and other can no man lay. There was the manifestation of a spiritual kingdom on the earth, in the unfolding of the spiritual powers of man. The church was formed, in the realization of a spiritual king- dom in the world, in the new ages. It was the witness to the redemption of the spiritual powers of man, from all that had dominion over them. It was the conflict of the Christ, the true Lord of man, in whom alone is fi'eedom, with principalities and powers of evil. The battle of the church with the empu'e in the Middle Age was in the en- deavor toward the realization of a spiritual kingdom on the earth. It was in its spu'itual freedom that the nations were called into being. The germ of their life was hidden in it. In the redemption of the spirit of man there was the development of the life of nations. The realization of freedom was in the individual and in the nation, — the realization of the individual personality, and the moral personahty of the nation. The power which was central in the world, and proceed- ing from Rome asserted a universal dominion over all men and all nations, proclaiming that Csesar is king, and that humanity is to recognize no other and higher, was to fall before the power of a spiritual kingdom, in which was the manifestation of the eternal king, whose coming is the deliverance of humanity. The chm:ch rose over the ruins of the empire, which had striven to establish a universal dominion, in the witness to the deliverance of the spiritual powers of man in the Christ ; in this was the sign of its conquest. But it succeeded to claim the dominion in itself, which it had denied in the empire. It proclaimed no longer the deliverance of man. Then when it as* THE NATION THE INTEGRAL ELEMENT IN HISTORr. 371 earned in and for itself the life which was revealed in the Christ, when it refused to recognize a spiritual life in men and in nations, it became itself something external. It was the divine order, in the redemptive process of his- tory, that the spiritual should become manifest as the real. The realization of the individual personality, and of the moral personality of the nation, was in the manifest power of the redemption. The denial of the realization of the spiritual life and powers of the individual personality and the moral personality of the nation, apart from the external order of the chui'ch, involved a necessary con- flict. The power of Rome in its denial confronted the realization of the spiritual hfe of man. It was the cluu'cli which assumed to stand in the place of the Christ, and it denied an immediate relation in the individual and the nation in their freedom and their life, through the Christ, to God. It became tlie contradiction of the spiritual and the catholic, itself the unspiritual and the uncatholic. It asserted m itself a dominion over men, and not their de- liverance. The bonds and fetters it forged were so subtle and strong, that it would seem that the mightiest spiritual effort of humanity could not break them, and no power in heaven or earth could rend them. The conflict in the realization of spiritual freedom, be- comes then, the beginnmg of a new age. The central fact in the Reformation is the reahzation of personahty, its freedom, its duties, its rights, in the individual and the na- tion. It is the conflict of the indi\adual and the nation in the realization of their being, with the dominion of Rome as the force of principalities and powers had been wi'ought in that to crush human freedom. The witness to the re- demption of the world, the sign of the conquest of the Christ, was not in the church against the world, but it was in the nations of Christendom in their conflict with the chmx-h. The spiritcal conflict was the conflict of the nations. 372 THE NATION. This has its repeated illustration in modem history, aud appears through the complications of its events and the comminghng of its actors, and its record is in pages which are not yet closed. The nations have been involved in a conflict with Rome for their integral unity and being. The struggle has been for their existence, theu' order, their fi'eedom. There is none as it has sought to realize its freedom, that has been exempt from the secret or open assault of Rome. Its attack has taken on every form, and there is no weapon however cruel, and no device however false, which it has not used, and no ally however evil, which it has not engaged. It has appeared on every field as the foe of the life and liberties of nations. The record is in the earher as in the later nations, and is crowded with its evidence. In Italy no other fact has wider or more patent illustration. It is there indeed more complex in its phases, since upon her was bestowed the fatal gift which wrung fi'om Dante his sad and bitter protest. The result is summed up in the conclusion of a recent winter, " The papacy has been the eternal, implacable foe of Ital- ian independence and Italian unity. It never would per- mit a powerfrd native kingdom to unite Italy." ^ Mac- chiaveUi, who inscribed his " History of Florence " to Clement VII., says, " all the wars which were brought upon Italy by the barbarians," — that is, foreigners, — "were caused mainly by the Popes, and all the barbarians who overrun Italy were invited in by them. This has kept Italy in a state of dismiion and weakness." In France the con- flict appears in varying forms, through century after cen- tury. The life of the nation was maintained by none Avith a higher purpose, and its powers were guarded by none with a profounder spfrit than by the holiest of her kings, Louis IX. The edict, in the name of " Louis, by the Grace of God, King of the French," has been called " the great charter of independence to the Galilean Church;' 1 Milman's Latin Chi-istianity, vol. i. p. 477. THE NATION THE INTEGRAL ELEMENT IN HISTORY. 373 and in its course, it has been said of it that, " seized by the ParHaments, defended, interpreted, extended by the law- yers, it became the barrier against which the encroach- ments of the ecclesiastical power were destined to break ; nor was it swept away until a stronger barrier had arisen in the unlimited power of the French crown." The issue was never more clear than in the lono; drawn battle of Boniface and Philip the Fair. It has been continued by her Crown and Parliaments and Courts ; it has suffered interruption neither in monarchical nor republican epochs ; it underlay the prolonged controversy of the canon and the civil lawyers ; it was to justify the language of a philo- sophic historian, — " the Galilean liberties are the standing anti-Pope." In England, the conflict of Rome with the nation, through all her better centuries, has been borne in the front of her battles. It has summoned her Kings and people to the field more often than any other cause. The strife of the Tudor age, which made the mightiest of her kings, Henry VIII., " the only supreme head in earth of the Church of England," and the wars of the fif- teenth and sixteenth centuries, whatever the immediate form they took, were the battle of the nations against the universal domination of Rome, and in them the nations were contending for their verv being and freedom. The wars of the Low Countries, of Elizabeth, and of William of Orange, which, so frequently renewed, closed for at least one epoch on the field of Blenheim, involved this for their actual issue. The alliance of Rome against the na- tions was with imperialism. It is with that her power has combined, and she has wielded that to crush nations. It is thus that she found her instrument in Philip II., in Louis XIV., in Napoleon III. As Spain, in her imperial »ge, sought to fasten the domination of Rome upon the nations, in her swift decline the fetters she strove to rivet upon them were drawn more closely upon her, and France has fortified wi' hin and against herself the ^^ower she went 374 THE NATION. to Italy to sustain. It is this conflict which has never been absent from the thought of the greater modern statesmen, as William of Orange and Cromwell.^ In Germany the con- flict has been more apparent with the German nation. The work of Luther was the aw^akening of a national sp:r:'t. The power of the Electors was his constant support. The issue is continued in the most recent events. The alliance of Rome with imperialism in Austria has been always in antagonism to the unity of Germany and its freedom. The battle of Sadowa was the triumph of Protestantism, the triumph of the German nation, the Germany of Lu- ther and Hegel. Its immediate result was the widest dis- aster to Rome. In every nation where Rome has a vestige of authority, the conflict appears. The irreconcilable hostility of Rome to the being of nations has never had more open avowal than in this centmy.^ In Italy it is still the unceasing an- tagonist to the nation. It does not acknowledge the exist- ence of the nation of Italy, and recruits an army out of 1 " The conservation of that, ' namely', our national being, is first to be viewed with respect to those that seek to undo it, and so make it not to be." " What- ever could serve the glory of God and the interests of his people, they see more eminenth' in this nation than in all the nations in the world; this is the common ground of the common enmity entertained against the prosperit}' (>f our nation, against the very being of it. All the honest interests, all the interests of Prot- estants in Germany, Denmark, etc., are the same as yours. Therefore the dan- ger is from the common enem}' abroad, who is the head of the Papal interest." — Cromwell's Letters and Speeches, vol. iii. p. 150. 2 In the Encyclical of December 6, 1864, Pius claims the exemption of the clergy from the authority of secular tribunals, and asserts a divine sanction in " refusing to permit their cases to be subject to the judgment of the latter." The traditions of ecclesiastical supremacy are not forgotten for one moment, and it is asserted that " rulers are subject to the jurisdiction of the church," and even that "in the state, internal municipal laws are involved in the same subjection." The necessary antagonism to modern civilization is indicated, and the syllabus in its close deems it a fatal error, that " Romanus Fontifex potest ac debet cum progressu, cum liberalismo, et cum recenti civilitate sese reconciliare, et com- ponere." — Pii, P. P. IX., Syllab., December 6, 1864. Milman, in his conclusion on the condition of the Latin Church, says- " Th» elergy in general, there were noble exceptions, were first the subjects of th« Pope, then the subjects of the temporal sovereign." — History of Latin Christian i(y, vol. viii. p. 158. THE NATION THE INTEGRAL ELEMENT IN HISTORY. 375 all lands, and its dram beats the roll-call of a motlej? crowd, and once more, in alliance with imperialism and with foreign soldiers, its flag is borne before them to battle with the people of Italy. In America, with some eminent individual exceptions, the influence of Rome was with confederatism, and while it is not clear whether the act was in her spiritual or temporal capacity, nor what guise was worn, Rome was the only power to recognize the con- federacy. In Mexico and the South American Republics, it is the unceasing foe of their unity and Ireedom. In every sphere of diplomacy its emissaries are engaged, and its poHcy seeks supremacy. It is the so-called clerical party in these unhappy and disordered states, that is al- ways in league with secession ; there is no powder that works so secretly through municipalities and provinces, and in combinations with factions and parties, to subvert the whole to its own ends. It is the foe in all to their progress and education and order and freedom. This antagonism of Roman ecclesiasticism to the nation is involved in its necessary postulate. The domination it has assumed, its authority, its scope, cannot consist with the realization of moral freedom. The Reformation was in the realization of freedom. There was in Protestant his- tory the development of a positive principle. It was not a merely negative movement, only the protest against cer- tain errors and abuses, but there was the manifestation of moral fi'eedom, — the positive realization of personality in the individual and the nation,^ — the life, the being of each as existent in its orio-in in God, and in its nnilv and continuity derivative only fi'om God. The great postulate of Protestantism is the assertion of the immediate relation of the human spirit to the Christ, and between the human Bou- and Him, there can stand neither priest nor book. It 1 "The principle of moral individualism stamps the movement with its chai» •cteristic impress. " It was the reality of moral freedom in Christ, that more than all else gav# triumph to the Reformation." — TuUoch, Leaders of the Reformation, p. 135. 376 THE NATION. is the assertion in the life of humanity in history, not of a formal but a real theocracy, — the divine order of the world in the Christendom of nations. This antagonism is necessary also in the assumption of Roman ecclesiasticism, since it denies to the individual and to the nation a real and integral moral being, — the reali- zation of a divine vocation in the moral order of the world — which is not formulated through it. The individual and the nation apart from the church, are regarded as in iden- tity with the world, — only the kingdoms of this world, — and the church will concede to them, therefore, no spiritual life or powers, no real freedom, no fulfillment of a divine vocation, in conscious obedience to a divine will. It as- sumes the working of the divine energy, and the fulfill- ment of the divine purpose in itself alone, and in the indi- vidual and the nation only as formulated through it, and the moral — that is in its definite Christian realization, the moral order of history, apart fi'om itself is unreal, only the legal, the unspiritual condition of man. It assumes that in and through itself alone the redemptive life is formed, and in it alone is manifest the power of the redemption and the power of the resurrection. It alone is built upon " the foundation which is lying ; " and itself external, all which is external to it, is a baseless structure. It alone stands in the living and eternal will, and that only has a real and a moral continuity which is formed in it. It will not concede that in the individual and the nation as separ- ate from itself, there is wrought the work of righteousness on the earth. Therefore when Protestantism asserts that the nation has the condition of its being in righteousness, and in righteousness alone its strength and exaltation, and that its unity and continuity is only in the will of One, who will establish righteousness on the earth, and its free- dom in the obedience to that will, and its being and re- sponsibilities in an immediate relation to that, — these truths Roman ecclesiasticism, in its primary assumption denies and discards. THE NATION THE INTEGRAL ELEMENT IN HISTORY. 377 The inevitable character of this antagonism in Roman 3cclesiasticism appears also in the fact that it will not con- cede a real and immediate relation in the individual or the nation to God, — to God as manifest in the Christ, — nor that their life and personality are immediately and only derivative fi*om Him. The life of the individual, the moral life as definitely Christian, it asserts to be mediated and formulated in it, and that the nation is only the prov- ince of physical forces, the combination of material inter- ests, a secular kingdom, in whose course there is only what it calls a phenomenal morality.^ It will not admit the divine guidance of the people in its history, and holding the light only in. itself, it discerns not the presence which goes before the march of the people. It does not allow in the nation a means or agency of actual good, nor that it derives its wisdom and courage and understanding only from God, nor that its obligation is to no other power on earth, but only to Him. It will not admit in it a vocation, whose duty cannot be transferred to another. In its as- sumption, the nation is not a poAver in the realization of the divine kingdom in the world, but in its origin and end is in ahenation from it, — only a kingdom of this world. The church, in this conception, comes to regard the beino;, the unitv and the freedom of the nation with in- difference, when it is not its avowed antagonist. The nation is regarded at the most as only formal and abstract, and existent in indifference to right and wrong, and the church is not to stoop to what it represents as the secular 1 " The Catholic confession, although sharing the Christian name with the Protestant, does not concede to the state an inherent justice and morality — a concession which in the Protestant principle is fundamental. This ses'erance of the political morality, which is necessary to the being of the state from its natural connection, is characteristic of that religion, since it does not recognise justice and righteousness as something 'ntegral and substantial. But thus iso- lated and torn away from their inner centre, the sanctuary tof conscience which is their last refuge, and the still retreat where religion has its abode, the princi- ples and institutions of political legislation are destitute of a real unity in th« same measure in which they are compelled to remain abstract and undetined.' — Hegel, Pliihsophie der GescM^:hte, p. 64. B78 THE NATION. aims in the life of humanity. In its view, the unitj and continuity of the nation in which the fathers are turnea to the children and the children to the fathers, the author- ity of government and the reverence for law, and the punishment of crime on the earth, and the triumph over oppression, over principalities and powers which have held dominion over men, involve no immediate and divine obli- ofation. The aim of the statesman is no longer the con- formance of legislation to a divine law of righteousness, and the end of the state is no longer the fulfillment of an order Avhich he did not create, but whose principle he is to obey. The faith of the people, the fulfillment of its work through all the trials of its years, the very devotion and sacrifice of its children, the wisdom and courage of its leaders, have no real moral significance, but are only the continuance of a sacrilegious coiu'se, the circumstance of a profane history.^ 1 This is also the attitude of many of the sects, and the conchision of their logic, when it does not avoid its premise. A recent writer says: "The secular career of man is a violation of sacred oblifrations and of a divinely established order. In reference to the divine idea and intent, it is a sacrilege — well denom- inated profane — the history of the world as the opposite and antagonist of the church, only the ordinary workings of the human mind, and such products aa are confessedly in its competence to originate, etc." Then the construction of the Nicene formula is described in Its parallel, in the sseculum necessary to it, "As long a time as was required for pagan Rome to conquer and subjugate the Italian tribes, and to lay the foundations of a nationality that was to last a mil- lennium in its own particular form; as long a time as was required for the thor- ough mixing and fusion of British, Saxon, and Norman elements into that mod- ern national character which in the Englishman and Anglo-American is perhaps destined to mould and rule the future, more than even Rome has the past." Then the parallel of the Nicene formula is continued. " The one is metaphysical the other is political and relates to the rise and formation of merelj' secular sover- eignties, exceedingly impressive to the natural mind and dazzling to the carna eye; these metaphysical victories secured a correct faith, etc." — Shedd's History of Christian Doctrine, vol. i. p. 18, p. 374. This is the conception, in which, in the consistent and necessary sequence of its premise, national life is appre- hended. It is evident that the character of the appeal to the eye is consequent upon the content of the object; but there has never been in the life of nations an immediate appeal to the carnal eye to compare with that made in the centurie» included in this parallel, by the visible church. There is the assumotion in this description also of the apprehensi n of truti THE NATION THE INTEGRAL ELEMENT IN HIS TORY. 379 There is a so-called catliolic church, beyond the pale of Rome, which assumes the same. If a nation is strug- gling for its unity and being against forces of division and dissolution, it is a subject of no moral concernment. The life of the nation and the sacred oblio-ations of its citizenship, which so inspu'e common men that they will die for them, and pass those gates of holy and willing sac- rifice with the sacrament of the nation upon their lips, it regards only with moral indifference. If a people in a gi'eat crisis are redeemed from slavery, it sees not the glory of their deliverance. It heeds not the roll of the waves parted by the right hand of Majesty on high, but asks only that it still may catch the murmur of waters, breaking on the shores of ancient wrong. It repeats its protest against sedition, conspiracy, and rebellion, but to their reality its conscience is dead. It asks in the litany of human hopes and sorrows, for the unity of all nations, but for those who hold the unity of the nation as a divine only as a proposition. It is represented in its scientific precision as an abstract formula, and the contrast is with the real conflict of history. The analog' m the centuries of the construction of this formula may have another pres'>ntation. This metaphj-sical speculation never had more exclusive control of tlie thoughts of men, nor more regard for its scientific precision than in the city of Constan- tine, under Heraclius, in the beginning of the seventh century. It passed on to the controversy as to the two wills; but the impressiveness of its themes did not affect the lives of men. It was the sign of the division of the schools, it sepa- rated society in the avenues of fashion, it started the mob and tumult in the streets, it was the signal of parties in miserable circus-tights; but it awakened no moral energj'. It was apprehended only as a dogma — an abstraction — and with no reference to the actual condition of men. It was a strife only measured by the scientific accuracy of terms, in which a dogma was held. It was then that their foundations on which they built — the foundations of a system, but not of a living Person whose Will had been revealed to men — were shaken by the coming of a conqueror, as a voice from the desert. It has been said by an historical writer, " his words and deeds carried out the moral of the previ- ous history. Mohammed proclaimed an actual God, to men who were disputing concerning his nature and attributes. Mohammed affirmed that there was an actual will, before which the will of man must bow down. It was a tremendous proclamation. Philosophy shrinks and shrivels before it. All ethical specula- tions are concluded by the one maxim, — that God s commands are to be obeyed ; all metaphysical speculations are silenced by the shout of a nest, " Hs is, and we are sent to establish his authoritj- over the hose of other races. The Jewish nation, in short, was a nation and not a mira- cle. Had it been a miracle, it might have shown forth the power of God, like the stars in Heaven, but it would have been nothing to the rest of mankind, nor could its spiritual life have helped to awaken theirs." — Goldwin Smith, The Bible on Slavery, etc., p. 5. Spinoza represents the position of Judaea as isolated in historj'. The second inquiry in the introduction to the Tractalus Theologico Politicus is, " Why the Hebrews were called and chosen of God V " to which the answer is, " When I saw that this meant nothing more than that God gave them a certain spot of the earth, where they might dwell securely and commodiously, I learned that the .aws revealed to Moses by God, were nothing but the laws of the special Hebrew empire, and therefore that none except the Hebrews were bound to receiv* them; nay, that ev3n they were not bound by them, except so long as their •mpire in Palestine lasted.'' THE BEGINNING AND GOAL OF HISTORY. 389 principle. It is the local and transient, and is a subject of concernment to a certain people, and therefore of no further concernment. It is only the special circumstance of history, and is comprehended in the special character- istics of a people. But it is, as containing the revelation of the being of the nation — it is as national, that the Hebrew Scriptures are of worth to every nation. If they represented the being of the nation with indifference, or as simply a formal organization, then they would have no immediate worth for this or for any nation. It is because they reveal the foundation of the unity and continuity of the first nation in history, that they may become also the book of the last. Mr. Lowell speaks of the mind of Cromwell in certain higher moments, as "working free from Judaic trammels." But in the age to which Cromwell was called, in the battle with unrighteousness in the land and with the allied imperialism and ecclesiasticism of which Spain was the front, it was not trammels which were forged for him in the Old Testament which he knew so well, and had studied as none of England's kings before or since. Would a knowledge of what is described as Arvan civilization have been a substitute for the record of that national life, so deep and ^o intense and linked to the Throne of God, and finding its unity in Him? There have been those whose thought was without " these trammels " — Julian, with a fair and catholic culture, whose aim was an intel- lectual imperialism, into which all nations were to be merged, as their images and divinities were to be gathered in one hall ; — Spinoza, whose ideal of the state was, that '' it should leave the philosophers fi^ee to think ; " — Groethe, as the courtier at a little principality, who com- plained that " in the state, no one was willing to live and enjoy, every one wanted to be ruling ; " — would Crom- well, working still in the trpe of his own individuality, have found in the riddance of " Judils trammels,'' with these, 390 THE NATION. elements of freedom? If we study the mind of Cromwell, every element of strength was wrought in the faith in which these words become an inspiration. There was another — his secretary — in the same work, who knew these Hebrew Scriptures not as a boy but as a man knows, but in that type of strength and freedom which is only of more worth if it have traces also of an Hellenic spirit, " the Samson Agonistes," still so perfect an expression of undying faith in the triumph of the nation over all its ene- mies, — is there the restraint of old trammels, — the defect of Milton's freedom ? They may not always have sepa- rated that which in the earthly vestui'e of the nation is local and transient, from its real being, but there have been few holding a conception so clear. It is not as men enter into the consciousness of the spirit of the nation that their march is trammelled and their fetters are forged. It is with the fi'ee that we are free. There has been no na- tion but as the mind enters more deeply into its spirit it is imbued with larger freedom. It was not in the Judaic, nor the Roman, nor the Hellenic life, that there was the forging of bonds for men. Thus there is a value for a peo- ple, in the study of the literature and art of Greece and Rome, beyond the study of the style and thought of their several poets and historians. It is the contact with the life of the nation which transcends the life of the individual, and is deeper than any separate work in literature and art. This representation of Judaic or Roman or Hellenic tram- mels has its source in the assumption of a negative notion of freedom.^ 1 The Bible has been removed from the course of study in universities, and then from academies, and has no place, corresponding simply as a history and litera- ture, to the history and literature of Greece and Rome. A well-known missionary in Syria, a recent graduate of Yale College, said to me, that scarcely any scholars left their schools in Syria, but with a more thorough knowledge of the Bible than the larger number of the recent graduates of Yale College. This omission of iti Btudy is partlv the result of the principle which has referred it exclusivelv to th ■phere of the dogmatist and the ecclesiast. The one regards it primarily as • ■vBtem of dogmas and a collection of isolated proof-texts detached to sustaiK THE BEGINNING AND GOAL OF HISTORY. 391 There is the record in these Scriptm*es of the reahzation of history of the family and the nation. There is the reve- lation not of a system, but of the divine order in the world. The nation has its own place and vocation in history. It is as with the individual ; the life of none is the same in its outward form and condition, and yet the life of each has the same origin, and is subject to tlie same law of moral action. There is thus a work for one nation which is not for another, and there is a field of outward circumstance which is the occasion for specific laws and regulations ; there is a conduct of affairs which concerns it alone, and them; and thus it becomes restricted to the schools in which these systems are taught and to their exposition on Sundays; while the other regards it primarily as the record of an ecclesiastical institution, and open only to the knowledge and understanding' of a corporalion of priests, and requiring the guidance of ecclesi- asts for its explanation, and in connection with a ritualism, to be kept in its special sanctity. It is thus removed from its place in the education of the people, and left to the doctor and the priest. It has no place corresponding to that given it by the great masters of thought, in the greater periods of universities, from William of Occam.to Hegel. It might be better to study it with the commen- tary of Spinoza and Hobbes, than to avoid it altogether. The recent tendency is not simply to give their fair place to the physical sciences in their great de- velopment, but to exclude the study also of the literature of Greece and Rome; the positivism of science in the revelation of the physical world, is preferred to the positivism of history in the revelation of the moral world, the dynamic is before the divine. For one who makes the phenomenal process of nature and the mind of man as involved in that process, the onlj' object of study and of thought, these Jewish Scriptures can have little value. And since their dates are not alwa3's consistent, and their chronology indicates that it has been hope- lessly tampered with, what is their value for those whose census is taken in the year 1870 V There is also no effort to convey information as to the authorship of the separate documents, and the situation of the writers, and the various ques- tions of the utmost consequence to the critical art of the grammarian. And to those who maintain in a superficial empiricism the only principle in which the state is formed, they must be but a very disjointed collection of documents, containing the record of the migration and fortunes of a very inferior race, who were sep- arated from other races by a narrow and exclusive prejudice, and who have contributed nothing to the questions whioh are alone prominent — the so-called freedom of trade and the progress of political enlightenment in the combination of wealth and labor, and who in superstitious and theological cycles, holding through poverty and captivity their faith in a calling in history from an invisible King, and their ultimate triumph, refused thro^igh every sacrifice wholl v to merge themselves into the empires around them, and thereby failed to obtain the vasi wealth which the traditions of these empires indicate, and of which the ruins of Jieir buildings and walls oear the trace. 892 THE NATION. there is a development in the ages in which it is formed ; in each age it has to contend with evils which are peculiar to it, and as it rises out of a condition in which slavery arid violence and the worship of animal fonns everywhere prevail, it is through its own conscious struggle and endeavor. There is in the divine order the callino; and founding of the family. It is the unfolding of the relations of father and brother and son. There is a careful tracino; of their descent in the simple succession of names. There are the hves of those who lived as their fathers, and were married, and had sons and daughters, and dying were gathered to then' fathers. Even the sins which mainly are described in the book of the Genesis, are those in which there is a \aolation of the moral unity and order of the family. There is then the record of the callino- and foundino; of the nation. It has its foundation in God, it subsists in the I am — the everlasting Will. The revelation of God, in the calling of the people, is as the God of their fathers. The words which the leader, who was to go forth in the beginning of their history, was to say to the people, were those in which was the revelation of the Name in which the nation stood, — "Behold, when I come unto the child- ren of Israel, and shall say unto them The God of your fathers hath sent me unto you, and they shall say to me What is his name ? what shall I say unto them ? And God said unto Moses, I am that I am, and he said Thus shalt thou say unto the children of Israel, I am hath sent me unto you." ^ The calling of the people was fi-om God , the nation is formed in no transient and no external cir- cumstance, but in the Eternal, the I am. It subsists in no compact of men, but in the everlasting Will. It was in this name they were to confront the t3rr- «nny which was over them, and in it they were to stanc 1 Exodus iii. 13, 14. THE BEGINNING AND GOAL OF HISTORY. 393 against all the tyi-annies of the world. God was revealed as the Deliverer. It was the redemption of the people ; theu' freedom was a divine gift. The words of triumph were, " I wUl rid you out of their bondage, and I will redeem you with a stretched out arm, and with great judg- ments." The words which are repeated beyond all other memorials are, " Thou shalt remember that tliou wast a bondman in Egypt, and the Lord thy God redeemed thee thence." The rest of the nation was in peace and free- dom, and the goal tOAvard which time was to bear them, was the sabbatical year, the year of jubilee, in which they were tc "proclaim hberty throughout the land, and to all the inhabitants thereof." ^ The succeeding event which is most impressive in their history, and that came in the most solemn circumstance of nature, was the witness to those elements, which can never be separated in the being of the people in a moral order. There was at Sinai, in the giving of the law and the gathering of the people, says Ewald, a twofold signifi- cance : there was the witness to the sacredness of the law and the sacredness of the people, — it was an holy law^ and " an holy nation." The commandments presmne the existence of the nation, as they proceed to define its institutes in a moral order, as the institutes of labor and rest, of property, of marriage. But the people is to remember in its law the living pres- ence, the divine Deliverer. The preamble to the law, which may never rightly be separated from it, is the declar- ation of their freedom as a divine gift ; their freedom is in identity with law and can never become the license in which man is separated fi'om God. The land which the people were to possess was given to them from God, and was appointed for them. They were to hold it as an inheritance. Yet they were to learn hat its possession alone was not the condition (f nitional 1 Leviticus xxv. aOl 894 THE NATION. life, that their national being was not the resultant of jihysical circumstance. The unity of the nation was in no visible bond, and was determined by no confine of land and sea. Their unity and continuity was in God, in the revelation which He made to them, " I am the God of thy fathers." There is in no hterature so deep an expression of the existence of the nation as an heritage to be transmitted fi-om the fathers to the children, but the fulfillment of the divine righteousness is always made the condition of the permanence of the people in the land. The education of the people through the centuries of their moral and political advancement, was in the knowl- edge of the relation in which they stood to the visible and the invisible world. They were learning in their national wars and trials, and through all changes and crises, to look to a Beino; who was not made in the likeness of things in the heaven above or in the earth beneath, and to know Him as their Law-giver and Deliverer and Judge. The unity of the nation was not defined in any special or temporal limitation. It was not limited to its existent occupants ; it was not shut up to " this bank and shoal of time." The nation was not, as in the false civilizations around it, defined in a merely physical condition. It was not as those whose course was only that of a civil cor- poration, associated by some external fear, or to obtain an individual and common external security, or to promote external interests in pleasure or possession. That was the character of the material civilizations around them, and if the nation was to lose itself in that, it was the destruction of its life. It could not continue merely as the civil commonwealth ; if it had no aim beyond that, its vocation as a nation was gone and it was undone. Id all its history it was in contrast to the surrounding civili- zations. The condition, against the evil of which it was he witness, began with the pui^ose " Go to, let us build THE BEGINNING AND GOAL OF fflSTORY. 395 ft city," and the unity it opposed was that determined in the measure of the city walls, as if the origin of society was in fear and distiaist, and the end was an external security through the division of men. The nation was formed in the relationships of life, and in the recognition of a relation to an invisible one ; it did not exist simply as an accumulation of men and in the construction of an external order. The circumstance of its beginning was not Avith the " building of a city," but on the wide and open plains, and in the journeying through the sea and the wilderness. It was only after struggle, and through trials and vicissitudes, in which there was the recognition of laws, and the institutions of order, and the common organization of the people, with noble memories, and with far hopes for their children, that they came to build a city. Then the memorials of the people w^ere gathered in it. Yet their unity was not in it, nor de- pendent upon it. The nation lived although its walls were leveled to the ground, and the stones of its temple were scattered and broken. The life of the nation was through a coiu'se of moral conflict and endeavor. It was not as in the civilization of the Philistine — an animal existence, with faith only in visible things and sunk in the worship of animal forms. It was throuoh unceasing wrestling with evil that its advance lay. It was not formed in moral indifference. The awful gates of the mountains were open before it, and through them its journey led. It was tried in great crises. " The Lord hath taken you and brought you forth out of the iron furnace." The national progress is one in which laws and institu- tions are acquired ; there is the organization of justice, and the form for its administration. .Justice is to be exe- cuted. " Judges and officers shalt thou make in all thy gates, which the Lord thy God giveth thee, throughout thy tribes : and they shall judge the people with just 896 THE NATION. judgment. Thou slialt not wrest judgment ; thou shall not respect persons, neither take a gift : for a gift doth blind the eyes of the wise, and pervert the words of the righteous." ^ The maintenance of justice is necessary to their continuance in the land. The universality of law is affirmed — the requisition of all men to a judgment by the law, and the equality of all men before the law. It is repeated from page to page, and there is warning against its denial, and the peril of its forgetfulness. " One law shall be to him that is home-born, and to the stranger that sojourneth among you." ^ " One ordinance shall be for you of the congre- gation, and also for the stranger that sojourneth with you, — an ordinance forever in your generations ; as ye are, so shall the strano;er be before the Lord."^ " Judn;e righteously between every man and his brother and the stranger that is with him. Ye shall not respect persons in judgment ; ye shall hear tlie small as well as the great ; ye shall not be afraid of the face of man, for the judgment is God's." * The words of the greatest of its kings, in his farewell to the people, are, " The rock of Israel spake to me, — he that ruleth over men must be just, ruling in the fear of God." ^ There is a singular beauty, among sentences of loftj'" severity, in the imagery in which the equity of the Judge is portrayed ; his judg- ment must be clear as the light, " as a morning without clouds," and yet, " as the tender grass, springing out of the earth, by clear shining after rain." The law is represented not as abstract, but as the man- ifestation of a righteous will, and therefore it is a power which will not conform to the arbitrary schemes, nor sub- serve the arbitrary aims, of men. It is the affirmation of «. righteous will against the self-willed powers which would •end society. It can be severed by no individual caprice 1 Deuteronomy xvi. 18, 19. 2 Exodus xii. 49. 8 Numbers xv. 16 < Deuteronomy i. 16, 17. ^ Samuel xxiii. 3, 4. THE BEGINNING AND GOAL OF HISTORY. 397 or individual interest. The ruler is not above the lawr, but is the minister of the law to maintain it unswervingly, and is " to keep the words of this law, and these statutes to do them, that his heart be not lifted up above his brethren, and that he turn not aside from the command- ment to the right hand or to the left." ^ The people in its organization was separated into com- munities or tribes ; but there was one tribe dispersed through the whole as the witness of its unity. Its exist- ence yas the witness that the strength of each stood in its relation to the whole, and the strength of the whole in its relation to an eternal King. It was a relationship. It was only in the denial that the unity of the nation was in the living and eternal Will, that they could be separated from God, and therefore from each other. The unity of the nation was not formal, that it should find in society an external limitation in any organization. It was formed as an organic whole. Aaron was chosen as the helper of Moses. There is the guidance, the care and love which is revealed to nations often in the darkest hours, and in apparent defeat, through the providential history of the people. There were the memorials of the renewal of the nation's faith when it was assailed by foes without and within. " I did bear you on eagle's wings ; " and again, " in the wilderness thou hast seen how the Lord thy God did bear thee, as a man doth bear his son, in all the way that ye went, until ye came unto this place." The nation is inclusive of the whole people in its divine foundation and its divine end. There is no diiference of wealth, or race, or physical condition, that can be made the ground of exclusion from it. There is none in it that can be isolated from the privileges and the duties of the covenant in which it is formed. " Ye stand this day, all of you, before the Lord ycur God ; your captains of your tribes, your elders, and yom* officers, with all the men of 1 Deutercaomy xvii. 19, 20. 398 THE NATION. Israel ; your little ones, your wives, and the stranger that is in thy can)p ; from the hewer of thy wood unto tlie drawer of thy water ; that thou shouldest enter into cov- enant with the Lord thy God, and into his oath which the Lord thy God maketh to thee this day, for a people to himself, and that he may be unto thee a God, as he hath said unto thee, and as he hath sworn unto thy Fathers, — to Abraham, to Isaac, and to Jacob." ^ The nation was to maintain a divine calling, which was manifest through all its history. It had a work which was its own and which it could not transfer nor abandon. If it betrayed the purpose to which it was called, it was no longer to have place in the power of history, but its name was to become a name of scorn, a proverb and a by-word among men, and it was to meet with shame and contempt. It was not to be diverted from a moral purpose by a lower object, nor to apprehend its end in the mere accu- mulation of material wealth, nor in the satisfaction of a physical existence. There was the most solemn warning against the gathering of wealth and possession for its own sake, and against the forgetfulness that it was the gift of God and involved duties and obligations,^ The moral ob- ligation which was manifest in the calling of the nation, was to be maintained in its immeasurable supremacy, as beyond the acquisition of wealth, and to be guarded that it should not be lost in some selfish end. " The gi'aven imacres of their gods shall ye burn with fire ; ye shall not desire the silver or the gold that is on them." ^ The nation was formed in the conditions of a moral life, and there were powers to be employed and energies to be unfolded. Its freedom was wrought through a divine deliverance, but as in the nature of freedom, it was not in the mere apathy and passivity of the spirit, it was not 1 Deuteronomy xxix. 10, 13. Milton says of Deuteronomy xxviii.: " A chapter which should be read again »nd again by those who have the direction of political affairs." — Treatise