THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW MANUAL POLITICAL ETHICS, DESIGNED CHIEFLY FOR THE USE OF COLLEGES AND STUDENTS AT LAW. Lex, communis reipublicae sponsio. — Sbnbca. BY FRANCIS I^IEBER, LL.D., CORRESPONDING MEMBER OF THE INSTITUTE OF FRANCE, ETC.; AUTHOR OP "on CrVlI. LIBBRTT AND SBLF-GOVBRNMENT," "PRINCIPLES OP LEGAL AND POLITICAL INTERPRETATION," ETC., ETC. VOL. I. SECOND EDITION, REVISED. EDITED BY THEODORE D. WOOLSEY. PHILADELPHIA: J. B. LIPPINCOTT & CO. LONDON : i6 SOUTHAMPTON ST., STRAND. 1881. Entered, according to Act of Congress, in the year 1874, by MATILDA LIEBER, In the Office of the Librarian of Congress at Washington. I mi PREFACE TO THE SECOND EDITION. The Political Ethics, of which the second edition is now offered to the public, received very high commendation from some of the first men in the United States on its first appear- ance in 1838. "Chancellor Kent," says Judge M. Russell Thayer, in his discourse delivered before the Historical So- ciety of Pennsylvania, "commended it in the strongest terms for the excellence of its doctrines and its various and profound erudition, and observed, that 'when he read Lieber's works he always felt that he had a sure pilot on board, however dan- gerous the navigation.' " In a letter to Lieber, Judge Story said of it, " It contains by far the fullest and most correct development of the true theory of what constitutes the State that I have ever seen. It abounds with profound views of government, which are illustrated by various learning. To me many of the thoughts are new, and as striking as they are new. I do not hesitate to say that it constitutes one of the best theoretical treatises on the true nature and objects of government which have been produced in modern times, con- taining much for instruction, much for admonition, and much for deep meditation, addressing itself to the wise and virtuous of all countries. It solves the question what government is best by the answer, illustrated in a thousand ways, that it is that which best promotes the substantial interests of the whole people of the nation on which it acts. Such a work is pecu- liarly important in these times, when so many false theories are afloat and so many disturbing doctrines are promulgated." 714532 LAW 4 PREFACE TO THE SECOND EDITION. Besides these testimonies from the two first jurists of the generation next preceding ours, additional ones from the historian Prescott, from Hallam, and others, may be found in the discourse of Judge Thayer. Dr. Lieber suffered the edition which appeared more than thirty-three years before his death to become exhausted, without bringing a second before the public. This was not owing to the work having been superseded, nor to want of interest in the subject, nor to unattractiveness of style or method of treatment : on the contrary, it has from its copiousness of illustration, and its earnest, somewhat unsci- entific manner, a great attraction. But probably Dr. Lieber, whose mind was full of literary projects, never found time to get the work again ready for the press, or he shrank from the tedium of giving it a thorough revision. The care of a new edition was intrusted by Dr. Lieber's family to the present editor, who will say a word or two on the plan according to which he has attempted to discharge his office. It was found that a large mass of materials, consist- ing of original notes, quotations from other works illustrative of the author's positions, and clippings from newspapers con- taining public documents, speeches, or other matter thought to be important enough for preservation, was pasted into a copy of the work. In looking over these materials, the editor perceived that much of all this was not intended for insertion, but was rather "materiaux pour servir" for a future revision. Some of this matter, again, had meanwhile ap- peared in a finished shape in the " Civil Liberty." Very few of the author's notes modified his views expressed in the work, and might be passed by without serious loss. And now came up the question how far it was expedient to increase the size of a book already quite large enough for the persons for PREFACE TO THE SECOXD EDITION. 5 whose uses it was designed, and in fact, owing to its copious- ness and discursiveness, not seldom overflowing its regular channel. The attempt has been made to satisfy all practical demands by inserting only those notes of Dr. Lieber's which were judged to be of primary value or which bore in the way of modification or correction upon the text. Sometimes this new matter appears in an abridged form ; sometimes part of a note is omitted. In all cases these noteg are marked in the margin by a star accompanying the numeral used for refer- ence. The notes in general are put at the foot of the pages to which they belong, instead of having their places assigned to them, as in the original edition, at the end of the sections. A very few notes by the editor show their source by being enclosed in brackets. The two volumes are made nearly equal in size by incorporating the earlier chapters of the second part in the first. In the author's preface to the first volume he acknowledges the kindness of Mr. George S. Hillard in helping him to carry his work through the press, — " a service," he adds, " which those especially will know how to appreciate who write in an idiom which they have not learned from their mothers' lips." No aid could have been more valuable; but a swarm of small corrections, which needed a responsible editor's eye, still re- mained to be made. The editor has not scrupled to make them, while he has been inclined to allow some new-coined words, and some double forms (like ethic, ethical, monarchic, monarchical), to remain uncorrected or unharmonized. The citations through the book, so far as they referred to authors within the editor's reach, have been verified, and in general found to be correct. Theodore D. Woolsey. New Haven. PREFACE TO THE FIRST EDITION. The work itself will show the precise branch to which I have assigned the name of political ethics : it remains for me only to give here the assurance that the second part, contain- ing a discussion of those many relations in which a citizen finds himself called upon to act, and for which, however im- portant, the positive law does not or cannot furnish a suf- ficient rule of action, will be offered to the public at the beginning of the next year, if I remain in health. The present vdlume forms, as may be conjectured from the title, a separate whole of itself, and has for that reason been called part first, and not volume first. In carrying the work through the press, I have derived great advantage from the valuable advice and indefatigable kindness of my friend Mr. George S. Hillard, of Boston. He has done to me, and, I fondly hope, through me, to the public, a service which literary men will know how to appre- ciate, especially those who write in an idiom which they have not learned from their mothers' lips. Columbia, S. C, August, 1838. CONTENTS. BOOK I. ETHICS IN GENERAL; POLITICAL ETHICS IN PARTICULAR. CHAPTER I. PAGB Science. — Name and Subject of Ethics. — Sympathy or Fellow-feeling. — The Human Intellect. — Thinking, Reflection. —Difference of Mental Action in Animals and Man. — Experience of Animals. — Animals do not exchange Labor or Produce. — Instinct.— Combinatory Action of the Animal Mind *7 CHAPTER IL Sensuality and Rationality. — Man can determine his own Action — is free. — Animal Affection. — Right and Wrong; Ought and Ought not. — Con- science. — What it is. — Its Origin. — Locke's Opinion discussed. — Univer- sality of Conscience. — Uniformity of Moral Codes and Views. — The Thugs and Battas. — Can we explain Man's Moral Character by Sympathy alone? .... .......•• 3' CHAPTER III. Ethic Character of Man. — How does Conscience act? — Is it alone an Oracle or perfect Index ?— Practical Moral Law. — Man's Individuality. — Morality founded upon it. — Our Ethic Character is inalienable, hence our Respon- sibility likewise.— Ethic Experience and Skill.— Various Ethic Systems . 53 CHAPTER IV. Man, a Being having his own End and Purpose, or an Ens autoteles. — Natural Law. — Its only Axiom. — Its Object. — Difference of Natural Law and Ethics. — Science of Politics. — Disastrous Consequences of confound- ing Natural Law and Politics proper.— Good Faith necessary wherever Man acts.— Political Ethics. — Its relation to the other Sciences which treat of Man "7 9 lO CONTENTS. CHAPTER V. PAGB Does Political Ethics deserve to be treated separately? — Can Ethics be applied to Politics? — The People at large ought to know their Political Duties. — Political Ethics not for the Statesman alone. — Demoralizing Effect of a politically debased Society upon the Individual. — Political Ethics especially important in Free Countries. — Attempts of Govern- ments and Nations to justify Public Crimes, which proves that Men agree that public Acts ought to be founded on Ethic Grounds. — Ethics cannot be applied to Politics precisely as to Private Relations. — Mere Expedi- ency; mere Theory .......... 7^ CHAPTER VI. Does Religion or Common Sense dispense with Ethics in Politics? — Hume's View of Common Sense. — What is Common Sense? — It does not dispense either with a proper Knowledge of Politics and Ethics, or with constant Exertion and much Industry ...... 90 BOOK II. THE STATE. CHAPTER I. The Law is ever)'where. — What is Law? — Sociality. — Origin of the Family. — Of Society. — Everything conspires to lead Men to Society. — Strong and natural Ties in Family Affection, Language, Division and Union of Labor 99 CHAPTER II. Property. — Mine and Thine. — Origin of Property. — Various Titles. — Indi- vidual Property is necessary for Man. — Does not arise from Man's Iniquity. — Man never lives or can live without Property. — Slow Devel- opment of Property. — International Acknowledgment. — Copyright. — Property among Agriculturists. — Civilization and Population depend upon it ............ 108 CHAPTER III. Civilization. — What does it consist of? — Requires Society. — It develops Man, is his truly Natural State. — Futile Dreams of Innocence and Vir- tue without Civilization. — Shepherds are savage. — Destiny of Woman. High Importance and Sacred Character of the Family. — Virtues developed by it. — The true Nursery of Patriotism . . . .127 CONTENTS. 1 1 CHAPTER IV. PACK What is the State ? — By what Characteristics does it differ from the Family? — The State a Society. — Various Human Societies, according to the various Relations. — Relations of Consanguinity, Exchange, Comity, Intellectual Communion, of Right. — What is Right? — The State is the Society of Right. — The Just is its Fundamental Idea. — Objects of the .State. — What is Protection? — The State requires General Rules; its Members are not absorbed by it ; every one has Claims upon it ; it is a Moral Society; it exists of Necessity. — The State remains a Means. — The Individual above the State; the State above the Individual. — The State, as such, has Rights and Obligations; the State does not make Rights, but acknowledges them. — Civilized States far the most power- ful. — Man by Nature a Political Being. — Man never exists without the State. — The State is no Insurance Company. — Protection of Life and Property not the only Objects, nor the highest 145 CHAPTER V. Legitimate Objects of the State. — Danger of Intermeddling Legislation; Instances. — Primordial Rights and Claims. — Physical Life and Health, — Law of Necessity. — Personal Liberty. — Right of Individuality; no Absolute Obedience possible. — Right of .Share in the Protection of the State. — Jural Reciprocity. — Right to be judged by Laws, and Laws only. — Right of Communion or Utterance. — Liberty of the Press.— Right of Morality. — Immoral Laws, no Laws. — Right of Honor, Reputation. — Family. — Religion, Creed, Worship. — Right of Property, Acquisition, Exchange. — Right of Emigration.— Inalienable Rights. — State cannot take Revenge; the Crown cannot feel Wrath. — Political Aljsurdity of speaking of King's Anger or Nation's Revenge as Political Body . .172 CHAPTER VI. The State necessarily comprises all. — No one can declare himself out of it; no one can be considered out of it. — Different Meanings attached to the word State at different Periods. — Mankind divided into many States. —Why ?— Sovereignty.— Definition.— There were never individual Sov- ereigns before the Formation of the State. — Who is the Sovereign? Manifestations of Sovereignty. — Public Opinion, Generation of Law, Power. — Public Opinion. — Law : what does it consist of? — Public Will. —Nature, Common Sense, Custom and Usage, Common Law, Charters, Codes and Statute Law, Decisions, Precedents, Interpretation, Aulhentic Interpretation, Digests.— Judge-made Law, so called.— Power rests with Society, cannot rest anywhere else. — Government, what it is.— Various Kinds of Governments as to their Origin. — Always rest on Opinion. — Importance of distinguishing State, Government, Sovereignty, Supreme 12 CONTENTS. FAGB Power. — Divine Right. — Monarchs called of God. — Frederic's and Jo- seph's View. — No Monarch ever was or can be Sovereign in the true Sense. — Meaning of the word Sovereign if used of the British Mon- arch. — Declaration of Rights. — True Relation of Monarch and People. — Can the King really do no Wrong, constitutionally or legally? — He can do so, and it has been decided that he can. — British Monarch the Fountain of Honor. — Its Meaning. — Different Title of Monarchs; some of the Land, some of the People ...... 210 CHAPTER VII. Public Power. — Why necessary. — Why must it be restrained ? — Abuse of Power general. — Man justly loves to act, to produce, to effect something. — It is the inherent Character of all Power to increase if unchecked. — Power delights, and is not willingly given up. — Power, in all Men and all Spheres, is irritated at Opposition. — Man judges according to his Posi- tion, those in Power differently from those out of it. — Power is in its Character imposing .......... 264 CHAPTER VIII. Legitimacy of Governments. — Governments de jure, de facto. — Divine Right. — Legitimacy of Governments with Reference to International Intercourse. — Can the Legitimacy of Government be ascertained !)y its Origin ? — Filmer, Locke, Rousseau, Haller. — The Origin of all States essentially the same ; yet Infinity of Circumstances which influence and modify its Development. — Ancient View on the Origin of Governments. — Aristotle, Polybius. — Various Theories. — Social Contract. — Various Facia. — Hobbes, his Error. — Theocratic Theoiy 275 CHAPTER IX. View of the Origin and Character of the State in the Middle Ages. — Dante. — Thomas More. — Bodinus. — The Netherlands first proclaim broadly that Monarchs are for the Benefit of the People, and may be deposed. — The Development of the Idea of the Sovereignty of the People owing to the Jesuits.. — William Allen. — Persons. — BellaiTnin. — Jesuits defend Regicide under certain Circumstances. — Mariana. — Suarez. — Luther. — Calvin. — Bacon. — English Revolution a great Period for liberal Ideas in Politics. — Puffendorf. — Leibnitz. — Montesquieu. — Hume. — Quesnay. — Turgot and Malherbes. — Mably. — Adam Smith. — Blackstone. — Delolme. — Bentham. — Hallam. — Revolution of 1830 . 297 CHAPTER X. Various Standards of great Political Periods. — The Government must de- pend upon given Circumstances and Materials. — Which is the best Gov- ernment ? — Errors as to an Ideal Government. — Governments cannot CONTENTS. 13 FAGS be made in the Closet, or decreed. — Characteristics of a good Govern- ment. — Civil Liberty. — What it is. — Errors respecting it. — Majority and Minority. — The Majority are not the People. — The Athenians checked their own Power. — Great and true Value of Representative Government. — Whoever has the Power, One, Many, or the Majority, may abuse it, and must be checked 3'° CHAPTER XI. Political Atony one of the greatest Evils. — The Ancient Tyrannies. — Variety of Means to check the Abuse of Power. — Can Power be con- trolled ? — Who controls the controlling Power ? — Constitutions. — Are written Constitutions of any Value ? — Constitutions are Indispensable. — Various Reasons why and Circumstances when Written Constitutions are desirable or necessary. — Division of Power: Legislative, Executive, and Judiciary. — Great Danger resulting from Confusion of these Branches, in Republics as much as in Monarchies. — Importance of the Separation of the Executive from the Legislature. — Vast Importance of an Independent Judiciary. — What does Independent Judiciary mean ? — The farther Political Civilization advances, the more independent does the Judiciary become 334 CHAPTER XII. Classification of Greek Constitutions by Aristotle. — Classification of Gov- ernments according to the Number of those who hold the Supreme Power, — Polity: Meaning in which it is used in the Present Work. — Autarchic and Hamacratic Polities. — Autarchy, Hamarchy. — Absolutism.— Demo- cratic Absolutism. — Different Operation in the Autarchy and Hamarchy. — Hamarchy materially republican in its Character. — The Polity of England is a Hamarchy. — The Polity of the United States likewise. — Hamacratic Character of the City of Rome. — Hamarchy rises with the Teutonic Race. — Anglican Hamarchy 35 1 CHAPTER XIII. Political Spirit of the Ancients. — The Ancients had not what we call Law of Nature. — Essential Difference between the View of the State taken by the Ancients and the Modems. — Greek Meaning of Liberty : absolute Equality, even disavowing the Inequality of Talent and Virtue. — Protec- tion of the Individual, first object of the Moderns; the Existence of the State, of the Ancients : hence high Importance of Judicial Forms with the Moderns. — He who has Supreme Power, be it One, Many, or All, must not sit in Judgment. — Greek Laws often very oppressive to the Individual. — The most private Affairs frequently interfered with. — Socrates' View of the State. — Lavalette, Hugo Grotius, and Lord John Russell, on the other hand. — Ostracism. — Causes of the powerful Change in the View of the State. — Christianity. — Conquest of the 14 CONTENTS. PAGB. Roman Empire by Teutonic Tribes. — Feudalism. — Increased Extent of States. — Printing. — Increased Wants of Government. — Taxation. — Rise of the Third Estate. — Increased Industry. — Discovery of America . 358 IF J^ lE^ T II. BOOK III. POLITICAL ETHICS PROPER. CHAPTER I. Reciprocal Relation of Right and Obligation. — The more Liberty, the more Rights, hence the more Obligations. — Danger of Absolutism in Republics, without due Attention to Political Ethics. — Additional Rea- son of their Importance derived from our Race. — Another Reason, from the Period in which we live and the Direction which the Study of Political Sciences of late has taken: — Private Morality necessary for Public Success, especially in Free States, yet not sufficient. — Justice and Fortitude or Perseverance chief Virtues in Political Life. — Justice the Basis of the other Virtues. — Reputation of Individuals and States chiefly founded upon it. — Power and Passion equally apt to blind against Justice. — Justice afTords Power. — Coteries are unjust because they see distortedly. — May we do what the Law either positively, or by not pro- hibiting, permits ? . 383 CHAPTER IL Perseverance. — Justus et tenax. — Necessity and great Effects of Perse- verance. — To persevere, our Purpose ought to be good, the Means adapted to the Purpose and the Purpose to the Means ; the Means concentrated. — Repeated Action may supply Power; undaunted Perse- verance may finally decide by a Trifle. — Fortitude. — Alarmists. — Ex- citement and Injustice. — Rabies civica. — Calmness of Soul. — Political Fretfulness. — Great Souls are calm. — Peevishness. — Political Grum- blers (Frondeurs). — Chief Points respecting Firmness. — Consistency. — Inconsistency. — Obstinacy 412 CHAPTER III. Moderation. — Excitement. — Passion. — Revenge. — Obscuration of Judg- ment by Excitement. — Honesty. — Veracity. — Kant's Opinion. — Hon- esty in Money Matters. — Desire of Wealth. — Love of Independence. — Poverty; its Effect on Public Men in ancient and in modern Times. — Necessity of being free from Debt. — Liberality. — Peculation. — Bane of Public Covetousness. — Public Defaulters. — Periods of Speculation. — Smuggling ........•.•• 43^ PART I. ETHICS GENERAL AND POLITICAL. IS POLITICAL ETHICS. BOOK I. ETHICS IN GENERAL; POLITICAL ETHICS IN PARTICULAR. CHAPTER I. Science. — Name and Subject of Ethics. — Sympathy or Fellow-feeling. — The Human Intellect. — Thinking, Reflection. — Difference of Mental Action in Animals and Man. — Experience of Animals. — Animals do not exchange Labor or Produce. — Instinct. — Combinatory Action of the Animal Mind. I. A SCIENCE is a branch of knowledge or collection of ideas systematically developed according to principles peculiar to the subject-matter itself A science is independent within its own sphere. Everything is worthy of being scientifically investigated, that is, worthy of being investigated as to its essentials, separately and for itself, with the view of arriving at principles and laws. Every principle and law thus arrived at extends the sphere of knowledge, expands the human mind, increases the stock of civilization, and is emphatically useful. We are uselessly employed when occupying ourselves with accidentals ; usefully, when with the essentials of things, i.e. with their nature, that which makes them what they are. This constitutes the difference between idle curiosity or a pedantic accumulation of facts, and scientific inquiry — that noble employment of man.^ Whether we are worthily occu- ' A person in England has counted how often the word And occurs in the Bible. Yet facts ascertained by mere curiosity may be used by others for higher purposes : for instance, in this case, if a scholar were desirous of showing how late children or nations free themselves, in using prose, from a continual re- 2 17 1 8 ETHICS IN GENERAL. pied does not depend, in an abstract point of view, upon the subject we inquire into, but upon the mode and object of inquiry; yet it may depend upon the subject relatively to other important considerations. Whether the subject be mind or matter; the soul, thought, appetites, the organs or the size of man;' the laws of nature or society, truth, error, or fiction ; things as they are or the changes through which they have become such — everything may be scientifically in- vestigated, is worthy of being so, and contributes essentially to our knowledge of the nature of things, their connection, their order, and the Being that prescribed it. II. That science which treats of what is good, noble, and meet, wise and right, because it is good,^ as well as the opposite of these, of the origin of our notions of the good^ noble, and meet, the peculiar nature of man, without which he could not have had these notions, and his consequent essential attributes, the duties flowing from these attributes, and the relations necessarily founded upon our knowledge of the good — that science is called ethics or morals. Ethics constitutes a science, which treats of our moral character; of the good as an idea within us, and its application to our appetites and impulses, dispositions, actions, and habits. The former — the good as an idea within us and man's moral nature — forms the subject of the metaphysical or strictly philosophical part of ethics ; the latter, its application to our natural dispositions currence to the conjunction And. So may scientific minds make proper use of facts collected for very different purposes : for instance, when Hippocrates studied the votive tablets in the Grecian temples,- containing a brief description of diseases and the remedies, believed to have effected the cure, for which the grateful convalescent dedicated the table to the deity by whose assistance he sup- posed himself to have recovered ; and when he laid upon this study and his own observation the foundation upon which the science of medicine mainly rests to this day. ' As Mr. Quetelet, of Brussels, has published very interesting and important inquiries upon this subject. * Section xxix., chap. iv. of Book I. explains why I have said " right because it is good." SCIENCE. 19 and the various relations between man and man, belongs to the province of applied or practical ethics, called likewise, by- some, the science of duties and virtues.' * Dodrina de Officiis ; e.g. Cicero, De Offlciis. The Germans have Pflichten- lehre (Doctrine of duties), and Tugendlehre (Doctrine of virtues). Etymology. Words which designate a cause, principle, something general or abstract, have, in almost all cases, designated at an earlier period some effect, something specific or real. The mind proceeds from the concrete to the abstract, and then returns from the abstract to the concrete. The effect strikes the mind at once ; the cause is arrived at by reflection. We observe the same process respecting the signification of the words ethics and morals. Ethics is derived from the Greek word r/-&iK6g, moral, from Mof, custom, and ij&oc, the accustomed dwelling, home. Plato de Legg. 7 : tzuv 7/-&og did. £i?of. Aristotle derives it in various places in his Ethics from ei^of. The word ^iJof means — first, dwelling, home; secondly, that which is customary there, among men who have homes, among civilized beings; thirdly, habit; and lastly, the expression of our affections. "EiJof means always custom, usage, manners — that which has been settled among men as custom, that on which men agree that it is proper, propriety, to which the ideas of decorum, of what is right, what ought to be done, are closely related. At a later period man reflected on what was really general custom, what is essential in it, and what merely accidental, and why it is and ought to be so, or whether it ought to be different. The word Idog, the seat, chair, basis, also dwelling, especially of the gods, belongs likewise to this family of words, as the Latin solum soil, and so/ere, are connected, the first signi- fying that which has settled, is firm, the latter indicating a settled disposition, a being in the habit of doing a thing. The idea of something settled, stable — rest- ing, therefore, on some general principle, for settling does not mean here an arbitrary agreement upon some fashion, but a custom which has become settled, tacitly and gradually so — is then to be found in all words connected with that of ethics, as is also the case with the corresponding words in the Teutonic languages. 'Ei?of in German is Sitte, a word closely related to the words Sitz, in English seat (which signifies both in German and in English also a dwelling- place, as, a country-seat, the seat of a tribe), Gesetz, the German for Laio, that which has been settled, as the English la7v is connected with the verb to lay, that which has been laid down; Satzung, an ordained and well-established law. In Low German one of the meanings of the word setten is to ordain, and sale is ordinance, law. See a Dictionary of the Low Saxon Dialect, Bremen, 1770, under the words setten and sate. [So wohnen and gewohnen, German, ivon and wont, English, are cognates.] Sitte is an ancient Teutonic word. Situ, Sidde, Sid, are used in earliest times ; in Anglo-Saxon Sida, Sitka, in Swedish Sed, in Icelandic Sidr. Sittlich in German means moral; Sittenlehre, the science of that which is sittlich, ethics; gesittet denotes the behavior which is the effect of Sittlichkeit, i.e. morality. The word 7norals is derived from the Latin moralis,\v\i\zti was first introduced 20 ETHICS IN GENERAL. Taking a popular view of all sciences, we may comprehend them within two classes, namely : sciences which teach zvhat is or has been, such as natural philosophy, natural history, statistics, geography, the philosophy of the mind, mathe- matics, civil histor}--, etc. ; or ivhat ought to be — the subject of the moral sciences. This ought to be would have no meaning, wherever it applies to anything not wholly belonging to the physical world, were there not some actions which we cannot but consider as good, and others as evil, were man not a moral being, had he not a moral character, as soon and as long as he is master of his actions, Man is responsible for what he does. III. Why is man responsible? Why is he accountable for what he does ? — Because he has an essentially ethic character. What is this ? in what does it consist ? It belongs to the province of ethics proper to furnish us with satisfactory answers and proofs as to the questions just made; but a clear and distinct understanding of some points involved in these answers is so necessary for a correct solution of numerous questions to be discussed in the course of this work, that it will be necessary to pay some attention to them here. In the first place, the physiologist shows the superiority of the human organization, its various functions, and all that is connected with the animal life of man, over those of the rest of the animate creation. This subject forms one of the most interesting results of comparative anatomy and physiology. IV. Man is endowed with sympathy or fellow-feeling, i.e. a feeling for the pains and pleasures of others, though uncon- by Cicero, de Fato, i. i : Nos enim partem philosophise de moribus appellare solemus, sed decet, augentem latinam linguam, nominare mo7-alem. Moralis, therefore, is derived from mores, very similar in its meaning to rjBoz, signifying, in its widest application, according to Quintilian, omnes habitus mentis. Seneca (Ep. 89) says that philosop'iy is divided by most people \n\.o phiiosophia tnoralis, naturalis, and rationalis. SYMPATHY OR FELLOW-FEELING. 2 1 nected with any interest of his own, or standing in no direct connection with him, even by way of fear for his own future protection ; and with a pecuHarly expansive feeling of attach- ment. The latter, an element of the greatest importance in everything at all connected with man's social state — and what is not? — is reducible to the first, or, if it be preferred, is a species of sympathy peculiarly developed, so that I feel justi- fied in comprehending it under this head. The existence of the family, love of country, public spirit, devotion to our family, fellow-citizens, or species, disinterestedness, love, charity, friendship, the fine arts, the existence of the state, and what- ever is noblest and best in man, is, in part or wholly, founded upon this great element of the human soul. Fellow-feeling, being an elementary attribute of our soul, cannot be proved otherwise than by our consciousness of it, and its effects being observable everywhere. Were a man to deny his being or ever having been conscious of any fellow-feeling, of ever having suffered except in consequence of injury done directly to himself, or having felt pleasure except as an effect of bene- fits done to himself; and were he farther to assert that he sees the effect of sympathy nowhere around him ; it would be im- possible to demonstrate its existence to him, any more than the existence of the sense of sight to any one who would boldly deny our direct and absolute conscio-usness of its ex- istence and the consequent perceptions of colors. The denial of this feeling as an essential and original attri- bute of the human soul, on the ground that we do not discover it with the lowest beings of the human race, is unfounded ; for, first of all, we do actually find it with individuals to whatever tribe they may belong, or in whatever degree of civilization they may stand, though we may observe it only in its incipient stages, and it may, indeed, not manifest itself in many cases, in which individuals of the society we live in would show it in a strong degree. We shall have to treat at some length of the capital error into which numerous philosophers have fallen, to the perversion of truth, in supposing that that only is natural in man which, according to their presumption, 22 ETHICS IN GENERAL. is to be found in a supposed primitive stage of human society. Suffice it here to say that nothing can be more fallacious and subversive of all truth than the supposition that man's nature, be it intellectual, moral, or physical, can be found out best, or only, by observing him in what is supposed to be his state of nature, and a confusion of this supposed natural state with the state of savageness. V. Nor can sympathy be denied to constitute an essential attribute of the ethic character of man, on the ground that we may discover it in animals likewise. We observe, indeed, in animals a feeling which forms in ourselves one of the in- cipient stages of sympathy ; the anxiety of the parent for its offspring ; with some animals the protection afforded by the male to the female, and with other species a decided dispo- sition for living socially together. But how limited as to time and individuals is this feeling even with those species of the brute creation which rank highest in the animal scale, and in how many cases can we distinctly refer it to an impulse of nature, to instinct, with which it stops short, or to a mere feeling of common danger. The wild hogs are known to be peculiarly sensitive to common danger. If one be attacked, it will attract the rest of the herd by its violent cries, and all will resolutely attack the enemy. Yet this very animal is peculiarly prone to destroy its own offspring. The hen, which but a moment ago was the image of maternal solicitude, when the hawk was hovering over her brood, betrays no symptom of grief when she sees two or three of her chickens carelessly trampled to death by herself The most striking instances of animal sympathy on record are, perhaps, those where animals of different species had so accustomed themselves to each other that the removal or death of the one caused the other to pine away ; as, for instance, in the case of the dog and lion in the Garden of Plants at Paris. The Chinese rice-bird, when in a cage, will die when its mate is removed. Yet how limited is this, the highest instance of animal desire for the company of another, compared to the expanded sympathy of SYMPATHY OR FELLOW-FEELIXG. 23 man — sympathy which is founded, as we characterized it, on a feehng for another individual unconnected with our own interest. Some writers have acknowledged the existence of sym- pathy, indeed, but reduced it to self-interest, to egotism. It is the office of ethics to refute this doctrine, which, were it established, would destroy the basis of nearly all that is good, noble, or worth living, laboring, and striving for. It does not lie within the province of the present work to undertake this task ; we will decide it in a practical way, only by asking. Are you a brother, or a son, or a friend ? Have you ever seen a venerable old man insulted by a wanton youth ? Have you never read the last farewell of Socrates? Does it not make you feel elevated and yet pained when you hear that Spinoza gave up his inheritance, small yet sufficient for his modest wants, rather than have a word of dispute with his sister, and that in consequence he had to work as glass-grinder in the daytime, that he might follow at night his profound studies? Did you feel nothing when you heard of the noble Poles who were torn from their families and sent to Siberia for having loved their country, and whose children were taken far into the interior of Russia? Have you never perused with satisfac- tion a vindication of a person against whom grave and plausi- ble charges had been brought ? Have you ever heard of the delight which burst from the lips of the ancient mathematician, in the words " I have found it," when he at length had solved the great problem, and felt the whole magnitude of his dis- covery for thousands of generations yet unborn ? Has the perseverance of Columbus never reached your ears ? And have you heard of these things without feeling joy or pain ? Has no drama ever touched you ? On what, indeed, is nearly the whole literature of belles-lettres founded, if not on sym- pathy — sympathy even with fictitious beings ? Who peruses without emotion the agony of poor Jeanie in Scott's Heart of Mid-Lothian, when she is forced to testify against her sister, — the overwhelming joy when she has obtained the king's par- don for Effie ? How many millions after millions have been 24 ETHICS IN GENERAL. touched by the return of Ulysses to his servants, son, and wife ! How many thousands have felt sorrow at the sorrows of Juliet and Romeo, — ^joy at the joy of Robinson Crusoe when he finds Friday ! How can all this be accounted for by egotism ? VI. Man is endowed with intellect, the faculty of reflection. Thinking begins with the perception of effects produced on our external senses, as well as of certain changes produced within ourselves. The mind then proceeds to the reproduc- tion within us of that which we have perceived, or, in other words, of impressions. The faculties necessary for the im- portant process by which we endeavor to know and under- stand the perceptions and the functions of the mind, performing this process, form, perhaps, that which more strictly is called the human intellect. Man analyzes total impressions, that is, impressions produced by an object considered as an entire and undivided whole, compares the simple qualities, thus dis covered, with others obtained by the analysis of other total impressions, and reduces them to generic or general ideas (the process of generalization). He combines these again and draws conclusions (he reasons). Man analyzes, compares, combines, abstracts, concludes, and judges; he arrives at the ideas of truth and fallacy ; he separates, and arrives at the causes of effects; he combines, and elevates himself above the sensible world. It is thus alone, for instance, that he acknowl- edges himself as the citizen of a state. It has been maintained that, though there be a great dif- ference between the capacities of man and the thinking of animals, yet the difference is not in the kind, but merely in the degree, and that the mental powers of the highest animal approach so closely to those of the lowest man that in fact it may be said there is no essential difference, but merely a gradual transition, and that therefore no conclusion, important in an ethic point of view, can be drawn from this difference. This objection may be answered thus. First, whether the existing state of mind of the lowest man approaches very MENTAL ACTION IN ANIMALS AND MAN 25 closely to the intellect of the highest animal, or sinks even below its level, is not the important point to be discussed. The question is. Can the low intellect of man be raised and developed, or not, and is the mind of the animal which ap- proaches to that of the lowest man, in its highest manifesta- tion ? Everything else is accidental, not essential. The eyes of a new-born eagle may be weaker, and, considered in their actual state, more defective organs of sight, than perhaps those of a mole. Yet the eyes of the eagle are far superior, and differ strongly in their organization from those of a mole. Secondly, I believe we do not venture too far in considering it as a settled truth that the mental activity of the animal, which it undoubtedly possesses, does not elevate itself above some of the most elementary combinations of impressions received through the senses — combinations which the mind of the brute performs without consciousness. We ourselves perform numerous combinatory processes without conscious- ness of the performance, e.g. when we avoid a disagreeable disturbance, which we have repeatedly met with, on our usual walk, by taking a different direction, and become conscious of the cause only after we have been reminded of our change by the fact of having chosen already a different walk. The animal undoubtedly thinks, but man reflects. "A mule," says Fred- eric the Great, in his Considerations on the Manner of Waging War with Austria (1758), "though it might have made ten campaigns under Prince Eugene, would not become for all that a better tactician." Man reflects upon his re''ection; thinks on his thoughts; makes the mind itself the subject of its inquiry. The animal can do no such thing. If it could, it would speak ; for though its organs of speech may not be so favorably formed for the expression of a great variety of tones and accents, as the high-arched palate, the peculiar construc- tion of the windpipe, the peculiarly movable lips, and the many other organs of man which contribute to the variety, pliability, and beauty of language, yet there are many animals which possess a scale of tones, even now uncultivated as they are, sufficient to become the basis of articulate communica- 26 ETHICS IN GENERAL. tion. It is not because the animals have no perfect organs of speech that they have no language, as Anaxagoras said that animals would be men had they but hands ; but they have no language because they have not the ideas to be expressed. I doubt not but that some of the most intelligent animals feel at times a degree of that unspeakable pain which man suffers when language forsakes him and his soul is anxious to express more than words can convey. I believe that I have observed this painful effect of a struggle between the mind and means of utterance in a dog, which was anxious to communicate a serious accident and yet did not succeed in doing so for a long time. But this proves nothing against the position just taken. We* observe the same pain in children. Did this pain always press upon the mind of the dog, the means of utterance would finally be raised to the wants of the mind, of whatever com- pound of sounds and signs this utterance should consist. It is the want of thought which makes the brute the " mute creation." William Humboldt says, " The /«/^«//<9« and the capacity of expressing something, and not only a general one, but the distinct one of representing something thongJit, is the only thing which characterizes the articulate sound ; and nothing else can be fixed upon to designate its difference from the animal cry on the one hand, or the musical tone on the other." » I am aware that there existed formerly a ready way of accounting for many intellectual phenomena in the brute world, by ascribing them simply to instinct. This is not accounting for the phenomenon. First the superiority of man was said to exist in his acting by reason, while the animal acts by instinct; and when phenomena- were cited which showed undeniable traces of combinatory powers, and which would have contradicted this dictum, it was said, these phe- I On the Kawi Language on the Island of Java, etc., vol. i. (in Gentian), Ber- lin, 1 836, page 83 of the Introd. on the Diversity of the Organization of Human Languages. The whole in the Transactions of the Royal Academy of Sciences at Berlin for the year 1832, vol. ii. EXPERIENCE IN ANIMALS. 27 nomena must be explained by instinct, because animals have nothing else to guide them. With this argument in a circle many seemed to be satisfied. It can, however, undeniably be proved that, in some cases, animals act not because impelled by instinct, but in consequence of mental action within them, though it may be, and most probably is, unconscious to them. Ask any hunter whether some pointers think or not. VII. Yet though this mental action in the brute animal is allowed — and some instances will be given directly — there is still a line which very distinctly marks, even in a popular point of view, the difference between man and brute. I. Man gathers experience and transmits it from genera- tion to generation, conscious of its being experience and thus capable of receiving new additions. The animal improves likewise by experience ; we find around us daily proofs of this fact. All drilling, which does not produce a new habit, is founded upon it. Animals entirely change their habits in different countries, and acquire gradually a facility in pro- tecting themselves against the inclemency of weather or in procuring food. Young animals learn from the old ones, and what thus appears to many, at first glance, to be in.stinct, i.e. a primitive and direct impulse of nature, will be found, on closer examination, to be the effect of experience. The most timid animals, in parts of the world which had never been visited by intruders, showed no fear at their first approach. The birds or seals on the solitary islets in the Pacific show no apprehension of any danger, no shyness, when first at- tacked ; but they acquire it as soon as they know the char- acter of their pursuers. Whether the beaver builds its curious hut because it cannot resist an impulse entirely independent upon its volition, as the bee, for instance, forms its regular cell, or whether this species has formed its architecture by a stock of common experience gradually acquired, might be tested by observation ; but this seems certain, that knowledge — and experience is a species of knowledge — is transmitted in animals by mere imitation, and remains within a very 28 ETHICS IN GENERAL. limited circle, even with the most favored animals; while man improves it infinitely. The beavers of North America build to-day as they were found the day when the first white men settled on the Western continent. There is likewise a greater uniformity in the actions of animals in different parts of the world ; the natural impulses, though acted upon by experience, seem therefore to be more prominent. 2. There is foresight in animals, and yet their foresight differs from that of man, even of the lowest grade, by a marked characteristic. The beaver builds very cunningly his dams at a great distance from his lodge, following entirely the necessity arising out of the shape and current of the river. Animals collect stores for the winter, build bridges, prepare for battles, concert upon plans to decoy, entrap, or otherwise to catch their prey, endeavor to mislead the disturber of their young ones or the enemy of their females, wait for favorable winds, observe a fixed order in travelling, relieve each other in the performance of laborious tasks, change their nests ac- cording to a change of circumstances, observe in some cases a certain degree of division of labor (as is the case with the beavers); the fox resorts to a series of actions having distinct reference to one another, in order finally to arrive at his ob- ject : indeed, very many things done by animals indicate fore- sight, or a faculty to combine received impressions. Eut there exists, as far as I know, no solitary instance of exchange among animals, or of anything that could be fairly considered as approaching it. The animal elevates itself in no case to any exchange of labor or produce, of which a certain degree exists among all men, the very lowest Hottentot or the most barbarous South-Sea Islander not excepted. There is no human tribe known which has not risen to this incipient stage of all civilization, however impeded its farther progress may be by constant disturbances, such as incessant warfare, the permanence of savage habits, famine, or disease. Even the most brutish Pelew Islander will willingly part with the fish which he has caught, for a piece of iron. So common an act of man is the exchange of articles and of labor, en- EXCHANGE, PECULIAR TO MAN. 29 grossing so much of his attention, and so large a number of all human actions in common life consist in exchanging, that in German the word acting means carrying on trade, and action a commercial house. Yet the etymology of the Ger- man word indicates nothing of the kind ; for handeln (etymo- logically the same with the English to handle) is derived from Hand, and means, still, acting, because our visible actions are chiefly performed with the hands. VIII. It is not necessary for the present purpose to ascer- tain when the animal acts, simply impelled by instinct or not. If it be shown that in many cases the brute thinks, it suffices for our purpose, which, in this particular case, is to prove on the one hand that it is an erroneous notion, and, I believe, one unworthy of the Creator, to imagine that the whole brute creation moves and acts in no other way than the dissolved chemical elements of some body when they crystallize ; on the other hand, that it is equally erroneous to deny any essen- tial difference in the thinking of the animal and that of man. If a bird builds its nest for the first time, we cannot suppose that it has retained during the whole time it was living singly, a recollection of its parental nest, or that any idea of the fact that at the proper season it will have young ones in its turn, and that it ought, consequently, to provide for them before- hand, has been imparted to it by any other individual of its species. This would necessarily indicate operations of the mind, which we entirely miss where we should certainly expect them soonest. But if, on the other hand, a rising freshet threatens to reach the nest of a granivorous bird, built in a hedge, and the bird hastily builds a temporary nest in a safer place, and carries, against its natural disposition, and contrary to the common use for which the beak is formed, its young with care from the endangered spot to the new nest, we cannot possibly explain it by instinct, if this word is meant, to express any definite idea. When the land-crabs of the West Indies sally forth, at the proper season, in long proces- sion from the interior mountains and proceed in as straight a 30 ETHICS IN GENERAL. line as possible to the sea-shore, to deposit their eggs and shed their shell, and then return in the same order, we can hardly bring ourselves to consider these movements in so low an animal to be the effect of experience and thinking. Take, on the other hand, a Newfoundland dog, which, as is common with dogs, took great pleasure in walking with his master. He soon found out that the act of taking hat and gloves, or of merely putting aside books and papers, at certain times of the day, was an indication of the master's intention of going out, and he expressed his anticipation of pleasure by manifest signs. Several times, however, the dog had been sent home, as his company could not always be convenient to the mas- ter. The consequence was that the dog would take good care not to show that he expected to leave the house, but he would slyly steal out of the room, as soon as he thought that any indications of a walk had been given, and wait at a certain corner which the master had to pass daily, and which was at a considerable distance from home. Surely this indi- cates some operation of the mind, not to be accounted for by instinct.^ ' The above instance has not been mentioned because peculiarly remarkable, but simply because it fell under my own observation. I can give another more striking instance of mental operation in this intelligent animal. He accompanied a servant, who rode to a place at some distance from home. The horse was tied to a tree in front of a house, while the servant executed his message. When, after some delay, he came out of the house, the horse was gone ; he went on a hill, and from this elevated spot he observed the dog leading the horse by the bridle, which the canine leader held in his mouth, both trotting at a moderate pace. The dog brought home the horse and led it to its proper place in the stable. So he was in the habit of leading one of the horses to be watered. This animal was sent from the coast of Labrador, and was not of the common long- haired breed of Newfoundland dogs. Several interesting works have been written on the instinct, habits, and extent of thinking in animals. Some great physiologists, such as Haller, have collected most remarkable facts. There are some interesting anecdotes, connected with this subject, to be found in various volumes of the London Library of Entertain- ing Knowledge. The reader who has any curiosity to know the old writers on the question whether animals have souls or not — a subject much discussed at one time, on religious grounds — may refer to the article Rorarius, in Bayle's Dictionary. CHAPTER II. Sensuality and Rationality. — Man can determine his own Action— is free. — Ani mal Affection.— Right and Wrong; Ought and Ought not.— Conscience.— What it is. — Its Origin. — Locke's Opinion discussed. — Universality of Conscience. — Uniformity of Moral Codes and Views.— The Thugs and Battas.— Can we explain Man's Moral Character by Sympathy alone ? IX. The infinitely superior intellect of man leads to another more important difference between him and the brute creation. The animal is, with rare exceptions, strictly confined within its own sensuality, that is, within the sphere of its senses alone. They direct its actions, or afford those impressions on which its limited sphere of thinking depends. Its affections are founded on its sensual impressions and impulses; the brute lives and moves within the sensible world alone. I said, "with rare exceptions." If a dog, as lately happened, rushes into a house wrapt in flames, to save an infant far too young to have ever bestowed any act of kindness upon the animal, and if the animal, nevertheless, saves no article to which it had been accustomed for years, it cannot be denied that this is, in its kind, affection, to which the sensuality of the animal alone cannot have prompted or the mere sensual nature impelled it. These exceptions have nothing startling for us. Who will say that he has seen the whole order of things in its details ? who can aver that he knows for what the Great Ruler has destined his brute creation ? X. Man, belonging likewise in part to the sensible world, and being subject to the necessity of matter, according to his sensuality, i.e. to his belonging to the sensible world and its laws in which everything is determined, and does not deter- mine itself, has, on the other hand, the great and grave privi- lege to determine himself He can guide, determine himself 31 32 ETHICS IN GENERAL. by reason, within certain limits given by the material world; he can cJioosc. According to his sensuality, man is bound ; if Ive feels pain, he cannot help being prevented by it from freely thinking; according to his rationality he is free, he reflects and chooses — he enjoys freedom. His will is free, because he can determine himself, with regard to willing an object of which he is conscious. The proof of this is our consciousness of being able to will something which is repugnant to our sensuality, or which may cost us the greatest sacrifices of our warmest affections. The dog could be driven by its affection to act against its senses and common instincts ; but it cannot elevate itself by reason above even this affection.^ XI. If man acts, he may be impelled by instinct, or prompted by his sensuality, e.g. when he drinks, being thirsty, or strug- gles to save himself from drowning, in which case he acts in common with the animal. Or he may determine his own will. In the latter case, he may be actuated either by motives of expediency, when he simply judges whether his action will lead to the object he has in view, e.g. when he grinds the sickle to reap his wheat; or by moral motives (which in this case include the immoral ones, as illness is included in the state ' It is one of the greatest and most difficult problems of philosophy to show how the free agency of man, or self-determination, is compatible with the neces- sary order of things, the omniscience of the Deity, and the dependence of man on society, or, which is the same, how man's ethical individuality exists along with his close and intimate connection both with the matter around him and the general course of the development of human mind, his close dependence upon the times he happens to live in. Though far from being sqlved, whatever some recent philosophers may have advanced, deceiving themselves by an amplification of words rather than an explanation of the subject, we know enough, and it can be sufficiently proved, even were not the consciousness of our ethic character so primary an element of the human soul, that both do exist, and that therefore the solution of tlie difficulty must be possible,— whether in this world is another ques- tion. Mr. Qu6telet, a writer of uncommon merit, has given most interesting statistical details on tlie physical laws which influence the intellect and moral character of man, in one of his recent works, entitled On Man and the Develop- ment of his Faculties, or Essay on Social Physics, Paris, 1835, 2 vols., in French — a work deserving attention. RIGHT AND WRONG. 33 of health). The moral motives make an action good or bad, praiseworthy or hateful, deserving of applause or condemna- tion. Whence arises this new element in the human soul ? — this principle according to which we call actions good or bad, and which we are unable to apply to matter, or to the animal mind, but to the human actions alone? XII. It is evident that had we not the sense of sight it would be absolutely impossible for us to arrive at the notion of color by the operation even of the keenest intellect, or the most comprehensive genius upon perceptions received through the other senses. Yet we are conscious of the perception of color, and could not possibly alienate it from our mind, even were we to attempt it, for the very reason that we are con- scious of it in precisely the same degree as we are conscious of our existence. No man can prove either. If a person were to ask us to prove our consciousness of the notion of color, we could not do so — the question relates to a primordial con- sciousness of the mind itself; but we would answer perhaps thus: "All we can say is, we know, we are conscious of the fact, that we exist, that we see, that we have the notions of different colors. If you deny it, there is no remedy ; but, whatever you may pretend, the truth is, you yourself cannot help acknowledging them to exist in every one whom you see endowed, like your- self, with the organs of sight. Your own consciousness of the perception of colors forces you — not by a long course of reasoning — to acknowledge it in others, as soon as you see them endowed with active organs of sight. And, what is far more important, you do not only allow the consciousness of color to exist in others, but you demand it, you insist upon it, you presuppose it in every fellow-creature, and found your conversation, arguments, social and political intercourse, upon it. You would go so far as to punish the pretence of its non- existence, e.g. if an officer were to pretend that he perceived somehow or other a flag being hoisted on the admiral's vessel, but he knew nothing about the colors exhibited by the flag; 3 ETHICS IN GENERAL. or you would be dissatisfied with a servant were he to gather fruits which evidently show by their color that they are not ripe. You acknowledge and demand the consciousness of color in others, because you are conscious that you possess it qua homo, i.e. you do not only feel, believe, but you have the undoubted, primitive, and absolute certainty of it; you knozv that this consciousness constitutes an essential attribute of your being, and that it is not accidental.'" Greater certainty than this absolute consciousness we can- not possibly obtain. We might show the great probability that all men qua homines, if provided with sound eyes, have the consciousness of color, because we find traces of this sense among all men, and conclude that future generations will re- semble their forefathers ; but it can be made probable only in this manner ; while absolute consciousness gives us absolute certainty. Take, for instance, " I know I am ;" this is more certain than any mathematical proof can be made, for even that has first to rely on some axioms, which presuppose not only my existence, but also a belief in my own judgment and the power of the mind to draw correct conclusions. XIIT. Precisely similar to the foregoing, with regard to its origin, is the idea, "we ought," "thou shalt" or " shalt not" — the idea or consciousness of right or wrong. The subtlest intellect, the most vigorous mind, unaided by anything else, cannot arrive at any other idea, with regard to an action, than that of expediency, fitness, correctness, respecting the choice of means for the object in view. Yet we find in all men, even in the lowest or most barbarous, the feeling denoted by " lie ought," or "he ought not," entirely independent of the ex- pediency or judiciousness of our action — in a word, we find the moral element in the human soul — the consciousness of right and wrong, not of a particular right or wrong, but simply that there are actions which can be called right, and others ' [Yet some men are color-blind. We assume, from what we know of our- selves, a general aggregate of human qualities, unless we find proof to the con- trary.] RIGHT AND WRONG. 35 which are wrong independently of their expediency. Neither experience, nor revelation, nor anything else could have given or can have been a substitute for this original consciousness of ought or ought not — of right or wrong. Suppose for a moment there was no idea of right or wrong in your mind — no feeling of ought or ojight not ; though this supposition is as difficult a process as that of imagining our- selves for a moment without any notion whatsoever of color ; for we are primitively conscious of them, and it is exceedingly difficult to imagine ourselves even for a moment not to be conscious of that of which we are conscious. Indeed, we never can wholly succeed in this process, because this con- sciousness forms part of our very self Suppose, however, as well as you can, you had no feeling whatever of right or wrong, what could possibly prevent you from stealing anything of which you are in want, and if convinced, as in some cases you well might be, that detection of the theft itself is impos- sible, that the article will never be missed ? Experience ? I ask, what experience ? — external experience ? For instance, that thefts are generally discovered ? Our experience may lead us to the very contrary. We may be lawyers, and by experience have become convinced that the greater number of thefts remain undiscovered and unpunished. Or that we know by experience, from observing others or ourselves, that doing wrong does not afford lasting pleasure? Then I ask, what pleasure ? — external or internal ? If external be meant, the assertion is unfounded, for many men live a most comfort- able life to the end of their days with means fraudulently or criminally acquired. If internal pleasure be meant, it is only another expression for the pleasure, or applause, we feel inde- pendently of the expediency of our action, which is the very thing I insist upon. Or because we know by experience that no one will prosper upon fraud ? This is unsound again. People, families, dynasties, many successive generations, have prospered upon fraud and crime ; every day's experience, as well as history, proves the fact. God has given to man a far higher character, and the order of things in creation is founded -6 ETHICS IN GENERAL. upon a far different principle than the gross one that worldly misery follows upon wrong, and prosperity upon ri-ht. in each case. Indeed, it would not be a moral world, if the necessary consequence of theft were the withering of the arm that com- mitted it; if the tongue that lies were stricken with palsy. On the contrary, it would be a non-moral world, a world of necessity and not of freedom of action. It is unsound, it is immoral, to teach the young that by virtue they necessarily insure worldly success. The truth ought early to be incul- cated, that virtue may not lead to success, that it may lead to far greater pangs than those who are not virtuous ever can feci, for the very reason that they are not virtuous. — Or because revelation says, Thou shalt not steal ? Suppose we have no feeling of right and wrong, or, which is the same, that we ought to do what is right, and ought not to do what is wrong — and it will be recollected that we argue under this supposition — what should induce us to obey revelation, even if we had acknowledged it as such ? It must needs remain an entirely extraneous matter to us. Xo revelation could be ad to non-moral beings. Or do we obey revelation mt! cause punishment is threatened to the disobedient here as in the world to come ? This will not be claimed by any true believer, for two reasons. Fear, of itself, is no moral motive. The animal which does or omits certain things because it knows that chastisement will follow disobedience, docs not act morally on this account. So marked is the diflcrcnce between the action of the animal and man in these cases, that some languages, e.g. the German, have distinct words for the inflic- tion of evil in consequence of prohibited action, one with, another without, reference to the moral character of the pun- ished action. But let us even waive this point; what can at all give birth to a belief in the punishment with which we are threatened for immoral acts or the wrong we do, if we have not previously the notion of right and wrong, and that there- fore the latter desemes punishment, because we ought not to have done it? CONSCIENCE. 37 XIV. This original consciousness of right and wrong — this consciousness of luc ought or ought not, — is called conscience, from the Latin word conscicntia, consciousness, from conscio, con and scire to know, applied to this specific consciousness of right and wrong, conscicntia boni et uiali, recti ct pravi, be- cause it is the most important of the different species of con- sciousness. In many, perhaps most languages, the word which designates this consciousness is derived from a corre- sponding root. The German Gcwisscn is derived from the verb ZL'isscn, to know, to wit; the Greek life of political fraud, faithlessness, and immorality, which totally disregarded justice or the sacredness of engagements ? XXXIII. If we wish to assign the proper rank to what I mean by political ethics, among all the sciences whose sub- ject is man, it would be this : man can be considered as he is, or ought to be, and as he has been ; again, individually or socially ; again, physically, morally, or intellectually. In- dividually, physically as he is, man forms the subject of anatomy, comparative anatomy, physiology, etc., or medicine. Socially, physically and as he is, by political economy. Indi- vidually, morally, as he is, and ought to be, by ethics, the science of education, etc. Individually, intellectually as he is, by the philosophy of the mind, or, according to English terminology, by metaphysics. Socially, according to the relations of right, as it ought to be, by natural law, politics proper, etc. ; as it is, by diplomacy, positive law, etc. Socially and morally, by political ethics. Socially and intellectually, by the science of national education, or, in general, national POLITICAL ETHICS. 75 civilization. The two relationi- of time as it is and as it has been, together with the ethic re lation, as it ought to be, give, applied to law for instance, the positive or existing law and the history of law ; natural law and theoretic politics. All ricfht, as we have seen, starts from the moral character of man, and ethics, again, applied to man's pohtical relations, has to shed light upon the many relations within the con- fines of the law, upon those actions which the law leaves wisely to the judgment of the citizen, and which yet are of great importance to the whole well-being of the common- wealth. I repeat, it is this branch of applied ethics which I call political ethics. CHAPTER V. Does Political Ethics deserve to be treated separately? — Can Ethics be applied to Politics? — The People at large ought to know their Political Duties. — Political Ethics is not for the Statesman alone. — Demoralizing Effect of a Politically- Debased Society upon the Individual. — Political Ethics especially important in Free Countries. — Attempts of Governments and Nations to justify Public Crimes, which proves that Men agree that public Acts ought to be founded on Ethic Grounds. — Ethics cannot be applied to Politics precisely as to Private Relations. — Mere Expediency ; mere Theory. XXXIV. If it has thus been shown what place in the chain of sciences political ethics occupies, and what forms the subject- matter of this division of ethics, it remains for us to answer two questions : 1. Though they may be important, are they sufficiently so to be treated separately ? for in a similar way we might sepa- rately discuss family ethics, or forensic ethics, meaning by the latter a system of duties concerning the citizen in a forensic character, as judge, juryman, lawyer, even as witness, informer, or prosecutor. 2. Is politics really a subject to which ethics can be ap- plied ? For it cannot be denied that the actions of many persons indicate that, according to their opinion, little con- nection exists between the one and the other, or that, accord- ing to their desire, little ought to exist. XXXV. As to the first, whether political ethics forms a branch of sufficient importance to be treated separately, we must refer to the next book, by which it will be seen that man, or at any rate the least elevated races of his species, can- not exist without the institution called the state, because he is essentially a social being, according to his animal propensities and organization as well as his intellectual faculties and moral characteristics. Yet a man may be a dutiful son, a loving 76 ITS GENERAL IMPORTANCE. yy brother, a kind husband, a judicious father, a faithful friend, a charitable neighbor, industrious in his calling, a sincere well- wisher to his species, and still he may omit a strict perform- ance of his duties as a citizen. He may even boast of his political apathy. So that it appears necessary that we should know all our civil obligations. Whenever nations have risen to a high degree of civilization, they have reflected on the art of government, the principles of legislation, and the origin and object of the state ; wherever man has omitted to do so, he has relapsed into barbarity, or never elevated himself above it. Man cannot be what he ought to be, without the state, and nations rise by wise laws ; never do they maintain them- selves, after having risen in an elevated position, except by good laws and sound institutions supported and carried out by active patriotism. Europe on the one side, Asia on the other, form the mighty commentaries which history has writ- ten and continues to take down upon these truths. There is no nobler sight to contemplate, no object more invigor- ating to dwell upon, than a man of manly energy and wisdom welded and wedded in vivid patriotism to his country, living and laboring faithfully, in glory or difficulty, honored or mis- judged, wisely, firmly, steadily, and devotedly, for his people. No one contemplates a Turgot, De Witte, Sir John Eliot, Washington, Epaminondas, Chatham, without feeling the better, the more reassured for it. XXXVI. Many subjects, however, though useful or neces- sary to some, are not so to every one. Political ethics may form a very proper branch for a leading statesman, or the citizen who makes a profession of politics, yet ought it to be well understood by everybody? Is it, in particular, necessary to instruct the young in it? I believe it is most emphatically so. It is every man's business to know his duty, and his duties as citizen are among the most sacred and important, especially so in countries which enjoy civil liberty and have what is commonly, though inaptly, called a free government. The success of the whole depends upon the whole ; and 78 POLITICAL ETHICS. there is no subject connected with the state which does not vitally affect the interests of every one. Laws and institutions are nothing more than dead forms of words, unless they operate. Constitutions do not create liberty ; political welfare cannot be decreed or effected by an edict or statute. Liberty must grow and live, live in the heart of every one, not only as an ardent desire or an indefinite though exciting notion, but as a knowl- edge of our political obligations and a profound reverence for political morality. No William of Orange can free his coun- trymen from the Spaniards, no Thrasybulus can rescue his city, no Solon can make her prosper, though the laws he gives were inspired, if they find not support in every bosom ; if there be not the chord to vibrate in unison with them ; if the mass of citizens are not willing to follow, because the leader acts right and wisely. The wisest statesman is in this respect but like the poet. He cannot delight, elevate, or in- spire, unless the elements to act upon are in the hearts of the hearers. He cannot make new truths, and, if he could, how could he gain entrance for them into the hearts of the people who were wanting in the very sense to perceive them ? But he can boldly and strikingly pronounce what until then was but dimly felt in the soul of the hearer, or latent though unperceived in his heart. So can the statesman clearly pro- nounce and boldly act out or gradually cultivate what was but vaguely felt by the masses ; he can concentrate what was scattered, awaken what was dormant, impel, regulate, restrain ; but he cannot create his elements. Harrison, in his Political Aphorisms, says, " The people cannot see, but they can feel." If so, it is the duty of the statesman to see, and his foresight cannot be acknowledged unless the people feel right and are well instructed. The freer a country, that is, the more action is guaranteed to every individual, the more necessary becomes a well-founded and general knowledge of political duty. Without it, that free action will serve but for evil ends. XXXVn. No doubt can be entertained but that there are at all times, among millions, some individuals endowed with ITS GENERAL IMPORTANCE. 79 great gifts, with talents equal to those of the eminent and successful men of happier periods, but they cannot make and construct a state and breathe into it the inspiration of life, nor can they guide it by the noblest principles, if the people do not correspond to their exertions, or if the times do not call upon them. And what are the times but the acts of the people? Was there not in all Italy one great soul left at the times of the emperors, not one who at the fairer periods of the republic would have won the civic crown ? XXXVIII. The state is so intimately connected with nearly everything which concerns man, all our interests are so closely interwoven with its weal, that it cannot prosper, or fail of being a source of injury, without a faithful and correct discharge of duties on the part of every citizen. The state — the greatest institution on earth — elevates everything that appertains to it, every duty, interest, or measure, into great importance, for the simple reason that it affects all, and, what with its direct and indirect operation, it very materially influences the moral well- being of every individual. Cicero justly acknowledges the sacredness of this institution in the sight of God, when he says, " Nihil est enim illi principi Deo, quiomnem hunc mun- dum regit, quod quidem in terris fiat, acceptius, quam concilia et coetus hominum jure sociati, quae civitates appellantur." (Somn. Scip., c. 3.) The state (with its laws and government) affects materially the manhood of all living in it. Good laws elevate man ; bad laws, if persisted in for a series of years, will degrade any society. Unfortunately, history and the existing state of many countries prove this truth so abun- dantly that it is useless to instance any facts. Mr. O'Connell's speech, House of Commons, April 28, 1837, on the Irish Poor Law Bill, respecting crime and poverty in his native country as the effect of bad legislation, is worthy of all attention. It is one of the greatest blessings to live under wise laws administered by an upright government and obeyed and carried out by good and stanch citizens ; it is most grateful and animating to a generous heart, and a mind which cheer- 8o POLITICAL ETHICS. fully assists in the promotion of the general good, or salutary institutions. It greatly contributes to our self-esteem if we live in a community which we respect, among fellow-men we gladly acknowledge as fellow-citizens. Many of the noblest actions which now adorn the pages of history have originated from this source of inspiration. On the contrary, we feel our- selves humbled and dispirited, we find our own views con- tracted and our moral vigor relaxed, we feel deprived of that buoyancy without which no manly and resolute self-posses- sion can exist, it wears off the edge of moral sensitiveness, when we see ourselves surrounded by men with loose political principles, by a society destitute of active public opinion, which neither cheers the honest nor frowns down immoral boldness; when we hear of bribed judges, perjured officers, suborned witnesses, of favor instead of law, and can perceive only listless spectators, without any opinion of their own, any spirit of veracity and trustworthiness or mutual dependence. Moral susceptibility gradually vanishes ; the feeling becomes daily more blunted ; for everything in society has a reciprocal effect. What is effect to-day becomes cause to-morrow. Hence the rapid downfall of empires when once corruption and depravity begin ; evil begets evil ; the suc- ceeding generation is worse than the preceding one, until final dissolution follows, or a combination of happy and extraneous circumstances produces a sudden change, which, in the nature of things, cannot be frequently the case. Read the history of Rome for proofs of this. We see, therefore, the great im- portance of imprinting deeply on our mind sound principles of public morality ; and when can this be done to greater advantage and with more certain consequences than in our youth? If Erasmus says, "At bonus princeps esse non po- test, qui non idem sit vir bonus," his remark has equal force and truth if you substitute civis for pnnceps. (See his Instit. Principis Christiani, page 583, B, vol. iv. of his Opera Omnia, Leyden, 1703.) If this knowledge has been of much importance wherever nations have attained to anything like wise and lasting insti- ETHICS AND POLITICS. 8 1 tutions, it is peculiarly so in modern times. For one of the main and characteristic differences between ancient states — I mean the Greek and Roman — and modern ones is this, that in antiquity the state nearly absorbed the rights and interests of the individual, and public attention was directed far more towards the preservation of the whole than the protection of the individual. Politics, however, established according to the point of view which is taken in modern times, places the protection of the individual, the individual rights of man, in the most prominent position among all the objects of the state. This point will be more fully discussed in the next book. What has been said, however, suffices for the present, to indicate the peculiar importance which in modern times the individual, as such, occupies in the state, and the conse- quent necessity of a sound knowledge of everything that concerns him with regard to the relation he bears to the state. XXXIX. As to the second question: Is politics susceptible of being treated in an ethical point of view? the answer is simply this : Either the state, and all the institutions and laws which have emanated from it, exist for the satisfaction of an ambitious and interested or privileged few, or the state is an institution for a distinct moral end, or politics is the effect of mere chance. One of the three must necessarily be the case. The first is so repugnant to every man's feeling, as well as to common sense, that none have ever dared publicly to acknowledge it, however they may have been inclined to act on some such view. If man is a rational being, the state must have a rational end, i.e. it must be founded in reason, which would not be the case were it a mere contrivance for the benefit, or rather the satisfaction of the desires and ap- petites, of a few. For science would then have to single out the iz\^!, and establish scientifically their claims. None can possibly be above reason. " Popes and kings, therefore, should seek a reason above their own wills." (Wiclif, in one of his sermons. See Webb le Bas, Life of Wiclif, New York, 1832, page 193.) And not only popes and kings should do 6 82 POLITICAL ETHICS. so, but every man, the politician, leader, orator, general, presi- dent, or whatever his station, employment, or aim may be. "Res publica est res populi" (Cicero, de Rep., i. 25), and Augustin, de Civitate Dei, v. 18, enlarges it: "Res publica, id est res populi, res patriae, res communis." Whatever is founded in reason cannot have an immoral end ; it would be a contradiction in itself. A very great statesman, Oxenstierna, wrote, indeed, to his son, " Nescis, mi fili, quam parvula sapi- entia regitur mundus," when he encouraged his hesitating son to take charge of an important embassy; but, though this is unfortunately often the case, it is not necessary on this ac- count that it should be so, either in the intercourse between nations or in municipal politics. Common sense has long decided the matter; for when has there, in modern times, a declaration of war been issued which did not endeavor, at least apparently, to seek for a just cause of war — one founded in reason ? On the other hand, we hear nowhere more of virtue, and all the moral feelings of man more frequently ap- pealed to, than in politics, even in those times when political notions are in the greatest confusion, nay, then perhaps most vehemently. Marat and Robespierre, Reubell and St.-Just, had the name of virtue always on their lips. Does this not show abundantly that all men are well agreed that the state, and consequently all politics, do not admit of immorality? Does any man ever appeal to our generosity and virtue when an entirely non-ethical act is to be performed, for instance, the building of a railroad ? Exceptions, indeed, there exist, but they remain exceptions, and are rare. Thus, a most distin- guished member of the French chamber of deputies pro- nounced, in the year 1831, from the tribune, that France ought to make war, for a new dynasty ought to surround itself with glory — which, to be sure, supposed that the war must needs end victoriously for France. Charles Gustavus of Sweden said, when he treacherously broke the peace of Roskild (concluded in 1658) because success had incited his thirst for farther aggrandizement, that after the conquest he would easily prove his right, and that there is always a just PUBLIC ACTS MUST BE MORAL. 83 cause for war, as soon as there can be found a realm or prince who is incapable of resisting. (Raumer, History of Europe since the Fifteenth Century, vol. v. p. 387.) XL. Still, it must be remembered, these are but exceptions. Look at the hypocrisy studiously carried through so long a life as that of Louis XI. of France. During all the protracted iniquitous transactions of the Castilian government against the Moriscos, the former will always be found desirous of glossing over its own actions with the appearance of justice. While Lerma persecuted these unhappy beings with studied cruelty in 1609, the king spoke of mild and tender means {suavcs y blandos ; in a letter of the king to the "Sworn" of Valencia, dated September ii, 1609, to be found in Raumer's Letters, etc., vol. i. p. 214).^ When one of the blackest crimes that soil the pages of history, the massacre of St. Bartholo- mew, had been perpetrated with unexampled treachery, cruelty, and disgusting vice and villany by Catherine of Medici and Charles IX., on August 24, 1572, the king, after a long and cold-bloo"ded consultation between his wicked mother and Anjou, as to the invention of the best means of justifying themselves (Tavannes, xxvii. 275), proceeded on August 26 to parliament, and there added to this stupendous wrong the solemn lie, after having heard high mass, that all had been done to save themselves from a vast yet timely-discovered conspiracy of the Huguenots. Their bodies were weltering in blood and could not gainsay the falsehood; but on August 24, the day of the carnage itself, the king and queen sent a declaration into all the provinces that the whole had been ' This act of treacherous crime, and, with regard to the physical welfare of Spain, of egregious folly, has been represented in its true light in Raumer's History of Modern Europe, already quoted in the text, where most of the sources of the history of this protracted act of cruel perfidy may be found. Mr. Cape- figue, a French writer, considers, in his work entitled Richelieu, this act not so shameful nor so absurd ; but his defence is a poor piece of special pleading. So was the massacre of St. Bartholomew called, in 1824, by the ultra-royalist papers, une riirneur salutaire. 84 POLITICAL ETHICS. done against their will by the Guises. (Thuanus, 1. ii. 9, 10.) Nay, though Philip II. of Spain celebrated this event by the performance of a drama representing the Triumph of the Church Militant, and Pope Gregory XIII. ordered a solemn Te Deum to be performed in the church of St. Louis, Charles IX, or his wily mother found it necessary to order, even two months after the bloody deed, the torturing and execution of an old nobleman, Briquemant, and of Cavannes, one of the royal councillors, as having been accessories, so that the appearance of truth as to a Huguenot conspiracy might be kept up. (Walsingham, iii. 228 ; L'Art de verifier les Dates, ii. 191; Serres, 451.) The most striking instance of the pressing necessity of justifying public acts is perhaps offered by Louis XIV., who used to handle fraud like algebraic letters. He, who had a clerk of the department of foreign affairs hung for having betrayed state secrets, and at the same moment sent money to the privy secretary of the Spanish prime minister to buy his secrets, — he, whose minister De Lionne wrote to Cheva- lier de Gremonville, French ambassador at Vienna, " The king finds that you are the most impudent minister on earth ; but in this piece his majesty bestows upon you the highest possible praise you can wish for;"' — this same 'king, who broke treaties while almost in the act of concluding them, who never hesitated at cruelty or falsehood if expedient, still was obliged to pay his tribute, in the cloak of hypocrisy, to political morality. All the endeavors of this monarch in foreign politics were directed to this sole object, to place a branch of his house upon the throne of Spain, after the extinction of the Austrian- ' Mignet, N6gociations relatives Ji la Succession d'Espagne sous Louis XIV, prec6dees d'une introduction et accompagn^es d'un texte historique, 2 vols. 8vo, Paris, 1836. Mr. Guizot, while minister, caused the abundant sources of the French archives to be used for historic publications. The title of the whole work is : Collection de Documens inedits sur I'Histoire de France, publics par ordre du Roi et par les soins du Ministre de I'lnstruction publique — of which valuable publication the above forms a part. PUBLIC ACTS MUST BE MORAL. 85 Spanish branch should have taken place. Neither time nor money, patience, cunning, treachery, deceit, and fraud, nor corruption of any kind, was spared. The road to this great object was opened as early as in the treaty of the Pyrenees, for even then all possible precautions were resorted to in order to nullify at the proper time all the renunciations which Maria Theresa, a Spanish infanta and wife to Louis XIV., had been obliged to make with regard to the Spanish succession at the time when her marriage-contract was formed. The French cabinet proceeded systematically to collect all sorts of pretences, to use them at the desired period.^ Why did not the French cabinet quietly wait until the death of the Spanish monarch, and then strive to place a French prince on the Spanish throne by mere force of arms, without alleging one lawful reason ? Because there is that mighty voice in every man's bosom which tells him that there is such a thing as right and wrong, and that, though it may be in our way, though the individual may have made up his mind to disre- gard this difference, he knows the world will not, — nay, more, that by openly proclaiming this disregard he would take away the only ground upon which a claim could be made ; for a claim presupposes a right; a right presupposes the ethical ground upon which it must rest. Animals have no right towards each other, because non-ethical creatures; but we have rights and duties. The Indians of South America appeared to the conquering Spaniards to be possessed of but very inferior claims when compared with their own. Not even the common laws of humanity were considered sacred towards the aborigines, and yet did the Spaniard feel the necessity of some justification before his own conscience ; even his cruel conquest he wished to found upon some right, some moral basis. From the time of Alonzo de Ojeda a manifesto in Spanish was read to every newly-discovered tribe, in which, at great length, the rights of the pope, as vicegerent of God, were exhibited, how he had » See note on page 84. > 86 POLITICAL ETHICS. presented the Spanish crown with all the Americas, and how the Indians, therefore, owed allegiance to it, and a refusal of which would be visited by extirpation. The manifesto had been drawn up with great care by the united effort of divines and lawyers.' Frederic the Great found it necessary to justify himself respecting the part he had taken in the unhallowed partition of Poland. When provinces or colonies rise against their mother-countries, they issue justificatory manifestoes; the sultan, some years ago, published an elaborate justification of the conduct of his government towards the Greeks. And it is to be remarked here again, that the more civilized the nations, the more they acknowledge the necessity of vindicating their acts on ethical grounds. The rude alone make their sword the tongue of the balance of justice, or bow without murmur to the stronger, XLI. Men have felt at all times that the unchangeable principles of morality are not applicable to domestic and foreign politics precisely in the same manner as in private transactions or family relations. To demand letters not directed to us, in a way that is calculated to deceive the per- son who possesses them, in order to induce him to give them up, and then to publish those letters, would be considered, in ordinary cases, no very honorable act indeed. Yet who is there at present, American or Englishman, that would blame Dr. Hugh Williamson of Pennsylvania for the manner in which he obtained the dangerous and treacherous letters of Governor Hutchinson of Massachusetts Bay, from an officer in London, who supposed him to be an officer of the British government himself, judging from his positive demand, when the superior clerks were absent from the office? and who blames Dr. Franklin for publishing them ?^ Did the Gueux, ' The document is to be found in the appendix to Washington Irving's Voy- ages and Discoveries of the Companions of Cohmibus. " The manner in which Dr. Franklin obtained these important letters, which caused so much excitement at the time they were published, in 1772, and for ETHICS AND POLITICS. 8/ in 1566, in the Netherlands, act wrong in stopping the mes- senger from the Spanish ambassador Alava at Paris, to Mar- garet, governant of the Low Countries, and in searching his despatches, by which they at length obtained incontrovertible evidence of King Philip II. 's sinister and revengeful plans? This amounts, however, to nothing more than that circum- stances exercise always their influence upon the application of ethical principles. I never heard any one blame Columbus for making use of an eclipse, in the year 1502, to deceive the natives of Jamaica, in order to induce them by fear to con- tinue to supply him and his crew with food, when that great man was shamelessly abandoned by the Spaniards in his colo- nies, who ought to have honored him most, wrecked in the saddest condition of health and with a mutinous crew.' These instances, then, prove in no manner an absence of the moral element in politics. If such acts were not justifi- able on other grounds than merely because they were political measures, they would not be justifiable at all. There was actually a time when, in Italy for instance towards the end of the middle ages, ethics was almost totally discarded from international intercourse, which in consequence became nothing more than the merest calculation of expediency. Such contemptible means as vanishing ink were resorted to in diplomatic affairs.^ As to municipal politics, some men have boldly avowed that " all means are fair in politics," not in times of revolutionary disorder, but of profound peace and social prosperity; not in the ardor of debate, but in print; not at that age of Italian expediency when the holy host would which he was violently assailed, was a secret which he faithfully took with him to the grave. Dr. Williamson avowed the fact to James Read, of Philadelphia, who communicated it to Dr. Hosack, of New York. See his biographical memoir of H. Williamson, in vol. i. of Hosack's Essays on Various Subjects of Medical Science, New York, 1824. The great simplicity, boldness, and yet sagacity of the scheme add much to its interest. ' See Washington Irving's Life of Columbus, » I have not mentioned in this place Macchiavelli, probably as some readers might expect; I take a very different view of this great man, which I have given in the article on him in the Encyclopaedia Americana. 88 POLITICAL ETHICS. be used to convey poison to the lips of the communicant, but of late, in our times, in our country. Yet in a similar way have men asserted, and in printed works too, therefore well weighing what they said, that all means, the foulest not excepted, are fair for the promotion of religion.' If we may give up ethics in one thing, we may do so in all ; the princi- ple is the same ; and Charles V. when he refused the offer made by the baker of Barbarossa to poison his master, though he was an outlawed pirate,^ or Fox when he informed the great enemy of England that offers had been made to the British government to assassinate him, acted but as a poor politician. Not so, I trust.^ It is one of the chief objects of this work to show how the principles of ethics are applicable to politics. If there is at present in some countries so great a confusion of ethico- political ideas that the observer would well nigh lose his hope, let us not forget that nations may rise from a state of political torpor or immorality and assume a station worthier of the nature of man. Who would deny that England of to-day stands, as to politics and public political opinion, far above the times of Charles II. and the political corruption under James II. ? Who would deny that France has polit- ically improved, if we compare her as she is, with the times of the Regent and of Louis XV. ? Who can deny that the probity of the papal church government has vastly improved since the times of the Reformation, if we compare it to what it was under the popes of the fifteenth century ? ' " Let the women who complain of the vices or ill humor of their husbands be instructed secretly to withdraw a sum of money, that by making an offering thereof to God they may expiate the crimes of their sinful helpmates and secure a pardon for them." Secreta Monita Societatis Jesu, ix. l6. 2 Charles said, " I conquer my enemies with arms, not with fraud and treach- ery." Sandoval, Historia de la Vida y Hechos del Imperador Carlos V., ii. 243. Vera, Epitome de la Vida y Hechos del Emperador Carlos V., 71. 3 * Beyer (Political State, 1719, vol. ii. 344) mentions that Paul Miller, a pri- vate trooper, offered to Secretary Craggs to assassinate the Pretender. Craggs informed the Lords Justices, who ordered his dismissal and procedure against him with the utmost severity. See Mahon's England, i. 523. ETHICS IN POLITICS. 89 What minister of state would now dare to take a pension from a foreign monarch, or what judge a present or bribe ? Yet nothing was more common, perhaps, all over Europe, in the seventeenth century. Much, however, seems yet in an unsettled state. Very doubtful, and, at times, decidedly immoral, principles are publicly, sometimes unwittingly, proclaimed. Our task is to proceed in this branch as mankind proceeded with regard to ethics in general. Let us gather what is acknowledged as stable, let us ascertain why it is so, and on these principles rest our further conclusions. CHAPTER VI. Does Religion or Common Sense dispense with Ethics in Politics ? — Hume's View of Common Sense. — What is Common Sense ? — It does not dispense either with a proper Knowledge of Politics and Ethics, or with constant Exer- tion and much Industry. XLII. Political Ethics has not appeared to many per- sons in as important a light as it otherwise would, had not false reliance been placed upon religion and common sense ; both of which are as important in politics as in any other sphere of human action ; but they do not dispense with morals in politics any more than anywhere else. As to the distinct sphere of religion, and the effects of confounding it, from whatever cause or motive, with politics or matters of right, and especially of taking the Bible, a code of religion and morals, for a political code, I must refer the reader to the sequel of the work. It is a subject which requires the calmest investigation. Respecting common sense as the sole guide in politics, the following is the view I take. XLIII. Hume, in his Essays, vol. ii. p. 246, says, "Though an appeal to general opinion may justly, in the speculative sciences of metaphysics, natural philosophy, and astronomy, be esteemed unfair and inconclusive; yet in all questions with regard to morals, as well as criticism, there is really no other standard by which any controversy can ever be decided. And nothing is a clearer proof that a theory of this kind is erroneous than to find that it leads to paradoxes, which are repugnant to the common sentiments of mankind and to gen- eral practice and opinion." No one will deny that this is true in a great degree, yet it requires very much to be limited, or we should have in matters of taste as well as ethics the most unsettled standard. First, as to the words " mankind" and 90 COMMON SENSE. qi "general practice," they are vague. All mankind cannot be meant, for the diversity of opinion as to details is very great, both at different ages and at the same time. The African slave-trade, now declared by all Christian nations a piratical crime — Portugal, the first power who introduced it, abolished it last by a decree of December lo, 1836, and Texas sprang into existence almost with a declaration of its iniquity on her lips, which had but just pronounced her independence — was once a "general practice," and Roscoe, the pride of Liverpool, was hooted by that very community on his return from Par- liament in 1807, for having voted for the abolition of that traffic (page 290, vol. ii. of Life of William Roscoe, Boston, 1833). Is then meant by mankind our peculiar race or tribe, or our nation, or our community, or whatever other repre- sentative of mankind be taken ? If so, we shall find that in many cases what is a paradox with one nation is very far from being so with another. Respecting paradoxes themselves, we have only to remark that every great truth, when first pro- mulgated, sounded paradoxical to the multitude. When the Eastern i^hilosopher first called upon his followers to do good even unto enemies and to be like the sandal-tree which sheds perfume upon the axe that fells it, no doubt it appeared very odd, as we have the proof that Christ's precept to love our enemies was but a paradox according to the "general prac- tice" and opinion of" mankind." There was a time when the idea that the people are after all the great and true fountain of power, or that they should have the right to criticise the acts of government, was nothing more than an odd paradox. It was decidedly repugnant to the general feeling of mankind in antiquity and the middle ages that the man " disgraced by labor" should in any way stand equal to those who did not labor. To gainsay it would have appeared as a mere paradox. When the French rules of taste prevailed, it was a sheer para- dox to prize a glowing lyric or pathetic ballad of the middle ages more highly than cold and stately declamation expressed in formal alexandrines — nay, to value Shakspeare higher than Racine or Voltaire. There was a time when it was an abso- 92 POLITICAL ETHICS. lute paradox to esteem the grandeur and slender gracefulness of Gothic edifices anything more than the architecture of a barbarous age, I do not make use of instances such as are afforded by witchcraft, or the ideas of free trade, and a thousand others, which sufficiently prove that we could not easily err more dangerously than by adopting the "common sentiments of mankind" as our sole guide, unless we have good reason for doing so. The instances which have been cited are taken from morals and criticism, the spheres for which Hume gives the rules. Yet, on the other hand, nothing can be more way- ward, and even arrogant, than to set up private opinion, judg- ment, and feeling on all occasions, against general opinion or what has been sanctioned by successive generations. Proper limits are to be observed : the present chapter, as well as that on public opinion and the Political Hermeneutics, will, I hope, either show them or aid in drawing them with greater dis- tinctness. XLIV. For the present I have to do with common sense only. What is common sense ? It appears to me that the word is used in different meanings, two of which appear as the most important. It either expresses a peculiar species of judgment, which I shall designate more accurately, or that which has been settled as right, proper, allowable, by the aggregate judgment of a community or successive genera- tions. In the latter sense it must be taken when Guizot says, " it is good sense which gives to the words their common signification" (he might have said, " it is practical life which necessarily forms, shapes, extends, and contracts the meaning of words), " and good sense is the genius (spirit) of mankind." ' In this case common sense is not without a close connection with public opinion. ' The original is, " C'est le bon sens qui donne aux mots leur signification com- mune, et le bon sens est le g^nie de I'humanit^." (Hist. g^n. de la Civilisation en Europe, Lecture I.) Degerando, in his Comparative History of the Philo- sophical Systems, in French, calls, vol. i. p. 312, common sense: vulgar (he ought to have said comtnon) reason indeed, yet practical. COMMON SENSE. 93 The phrase common sense has come down to us from the ancient philosophers and those of the middle ages. Intclli- getitia cflimminis expresses more what we now mean by com- mon sense. Se7istis covnminis wSs with the schoolmen the communis radix et principiiim exteriorum sensmim. (See St. Thomas, Summa Theologica, pars prima primae partis, quest. Ixxix.). With us, common sense — called in German gesiinder Moischeiiverstaiid, i.e. literally, sound human understanding, in French, bon sens, i.e. good sense — means, I believe, if duly investigated, sound practical judgment [i.e. that sound judg- ment which guides us in acting), unaided by any art or sys- tematic train of argumentation, but sharpened and cultivated by practical life. That it be sound involves its being unwarped by prejudice (be this individual, territorial, clannish, etc.), pas- sion, fancy, fear, or anything else; but sound native sense alone is not common sense; it is only the foundation. Native sense must have been invigorated or practised by practical life, to become common sense. An Indian who has never lived among the whites might be possessed of much common sense among his red brethren, but it would be necessary for him to live among civilized people, and to learn how to apply his native sense to their practical life, before we could ascribe common sense to him.' XLV. The term " common" is not used in this connection to indicate that common sense is of peculiarly common occur- rence, but to express its relative position to the cultivated intellect, searching and comprehensive reflection, elevated reason, or expanded genius, as well as that its exercise is ' Archbishop Whately gives the following definition of common sense, in the preface to his Elements of Logic, and likewise in his Introductory Lectures on Political Economy: "Common sense is an exercise of the judgment, unaided by any art or system of rules." This definition seems to be deficient; for com- mon sense cannot be an exercise, an action, it must be a faculty; and it would include genius, — which, in the case of a young general, finds vast and new re- sources, unaided by any system of rules, — as well as the humblest intellectual effort of an idiot. 94 POLITICAL ETHICS. daily called for by the common occurrences of life. When common sense is well versed and practised, and judging for the given present case only, we call it tact. Tact is instinct- ive, practical judgment ; alid by instinctive I do not mean, in this case, a species of practical judgment implanted, ready- made, by nature, but that judgment which has been so well practised by experience as to operate in ordinary cases so rapidly that we are ourselves unconscious of the operation. From these remarks it will plainly appear that no man can dispense with a degree of common sense, not only as being requisite for the common concerns of life, but likewise for the application of any rules, whether scientific, religious, or aesthetic. The divine, without common sense, acts as inju- diciously as the most learned lawyer, the most gifted poet, or the best-bred physician with a similar deficiency. The more we move in a sphere of action, such as politics eminently are, the more important strong common sense be- comes. We want it always to apply our rules, to fix on the proper limits beyond which any rule transcends its own spirit, to select the proper means of action, and to discover the true wants. But indolence, arrogance, ignorance, and cunning alone pretend that common sense suffices for all the many intricate and momentous questions in politics, es- pecially when, what is frequently the case, people mean by common sense little else than something given to man in a finished state, which requires no cultivation or practice, but decides intuitively always right, as the dog which searches for truffles stops where these plants are deep beneath the surface of the earth. XLVI. There has always existed a class of flatterers who tell the unlettered that common sense is sufficient to pene- trate the subjects which cannot be comprehended but by patient study and faithfully gathered experience. There are books the titles of which promise to teach the art of riding perfectly, or to speak French completely, in two hours. I have heard a professor of philosophy publicly assert that COMMON SENSE. 95 nothing but what could be made plain to the intellect of a child was worth anything in philosophy, and that the greatest truths of philosophy could be made thus plain. How or why I have never learned. Why not the same in all other far less abstract sciences ? I have heard " the unsophisticated, un- educated minds of people who sit under their own vine and fig-tree," publicly flattered. Sophistry is very objectionable indeed; but cultivation of mind is not sophistry, and an un- cultivated mind, I mean uncultivated by the times, the general civilization we live in, the life of the individual, etc., is a very rude thing. Look at the unsophisticated New Zealanders. The world was not made for the indolent ; the active rule. We have to work faithfully, to learn honestly, and gather in- dustriously, that we may learn to do right. We must not minister to one of the worst dispositions, by telling the idle that they have to learn nothing, that the cultivation of the mind is useless. This flattery, however, has nowhere been so much resorted to as in politics. Courtiers have told young monarchs that they are far above learning and studious application, and demagogues have told the people that com- mon sense is sufficient for everything. Do we navigate by common sense, or by observations taken skilfully and regu- larly ? Do we cultivate the ground by dint of common sense, or by all the experience of century upon century stored up in agriculture, and applied, not without common sense as a matter of course ? There have always been prominent men without learning; but because Napoleon conquered Italy when twenty-seven years old, or Alexander, Asia, before his thirtieth year, is there no art of war, no science of tactics ? And, above all, were their minds cultivated or not ? Besides, we are often greatly mistaken respecting the time and in- dustry bestowed by those who have excelled on their pecu- liar subject. At times this appeal becomes peculiarly danger- ous, because all men are but too apt to consider that to be plainly pointed out, to be proved by common sense, which we see, nevertheless, much distorted by our peculiar state of feelings or prejudices. As to whether "plain common sense" 96 POLITICAL ETHICS. be sufficient to grapple with law questions, see what I say on Interpretation in Political and Legal Hermeneutics. XLVII. I cannot conclude this chapter without adding one more remark, which is not without its application in politics and law. It is a common and nevertheless capitally erroneous notion, that the uncultivated in any art or science are the best judges. A picture maybe very poor indeed and yet be mis- taken by children or animals for reality. It is an observation of frequent occurrence ; and he who told first the well-known anecdote of Apelles, or repeats it, to prove how well the Greeks painted, because the birds flew at the painted grapes, shows that he knows little about the art. Nothing is easier than to make even wild beasts mistake coarse imitations for real animals. No uncultivated mind loves music which con- sists of anything more than loud and various sounds. Pure harmonious music not unfrequently pains the savage. Nature has no charm for the uncultivated, except perhaps by way of roving in the open air. But the starlight sky, the moon sil- vering the vast expanse of a rippled ocean, the richness of thick foliage interwoven with slendjr flowers, the grace of the blade and the strength of the oak, have no charm for the so-called natural man. The most picturesque scenes of England were considered no better than barren, unpleasant spots, even at the time of Lady Montagu. (See her Letters, late edition by Lord Wharncliffe.) So we are told that the truly great in the moral world will never fail to strike the uncultivated. It is radically wrong; only we must not confound cultivation of soul with school education, which may or may not be bad, or with the distortion of the mind — the effect of vitiated times. Life and times also educate. It is true that that which is essentially great, beautiful, good, strikes that in us which is essentially human, and therefore will strike generally, i.e. be- yond the bounds of nations and ages, as the works of Praxit- eles, or a noble deed or delicate trait related by Herodotus, will be appreciated forever ; while that which pleases by way of fashion sinks and withers with the caprice or mistaken re- CULTIVA TION INDISPENSABLE. 97 finement which produced it. Yet it requires due cultivation to value it. This mistake is founded upon the still more gen- eral confusion of ideas by which rude and uncultivated minds are considered as being in a more natural state than cultivated ones. More of this in the next book. It is very true that men fall in love with what has cost them much labor, and many abuses are perpetuated, simply because it has given those who ought to effect a reform much trouble and perseverance to bring their minds to submit to them. But this proves nothing against us. Many excellent law reforms have been started by non-professional men, because they saw more freely, judged more boldly, felt more deeply. In the second book I shall quote a remarkable passage of Lord Bacon's on this subject. Yet what they saw or felt or judged of they did not perceive intuitively. The nobler anything in creation, the more it requires cultivation, development; the lower the animal, the closer it is connected with the whole ma- terial world around it, the less it acts by volition. The noblest object in the scale of our terrestrial creation is the human mind, which, considering the degree of perfection which it may reach, starts less finished into existence than anything else. It may be compared to a few given points or positions in the highest analysis, from which a vast solution is to be derived. Again, the noblest, vastest, highest institution is the state, which for that very reason requires more cultivation and exertion of the highest and best powers than any other. His- tory abundantly shows that it is the cultivated, not the pe- dantically learned, who are the leaders ; the instinctive fear of ignorance makes it shun or yield obedience to cultivation. The belief that learning trammels the mind for practical pur- poses, and especially for politics, is very common; yet throw a glance at the list of the great counsellors of monarchs or nations, and select those who have served them best and most truly, they have been nearly all hard, honest students ; look at such men as Michel I'Hospital, Sir Thomas More, or the friar Sarpi, whom Venice, the shrewdest of all republics, ap- pointed adviser to the state. Nor shall you arrive at different 7 98 POLITICAL ETHICS. results if you view the nations of the earth, Greece, which stands at their head, did not arrive at that proud historical eminence by mere instinctive genius; see how her great men labored and toiled, though no nation probably was at the same time more happily gifted ; how earnestly her states- men as well as artists studied. Think and act, and you will influence. XLVIII. If we are desirous of doing our duty, we must know it ; and we cannot know it without an accurate appre- ciation of the relations which may call for its exercise. In political ethics, therefore, it will be necessary, before all, to have a distinct idea of what the state essentially is. I have given my views of this greatest institution in the next book. I shall be obliged to treat in it many problems properly belonging to natural law; but the reader will find that this apparent deviation from the subject strictly before us was necessary. We cannot thoroughly discuss and investigate the duties of the citizen, for instance, when in the opposition, his obligation as to unwise, unjust, or depraving laws, his rightful conduct as an executive officer, in a word, all his ethical rela- tions growing out of the state, without first inquiring into the essence of this institution ; and as I cannot, without many reservations, subscribe to any extant political theory, I shall be obliged to give my own views, before I proceed to treat of political ethics proper. BOOK II. THE STATE. CHAPTER I. The Law is everywhere. — What is Law ? — Sociality. — Origin of the Family. — Of Society. — Everything conspires to lead Men to Society.— Strong and natural Ties in Family Affection, Language, Division and Union of Labor. I. If you leave your home to take an airing, you may walk in security on the side-walk of the street, because you know that no rider will disturb you. Who or what prevents the people on horseback from making use of that part of the pub- lic road? The law, or, if they were to disregard it, certain officers, that is, men invested with authority likewise by the law, who have been charged to enforce this among other laws. This law, then, protects you. You proceed farther, and find these words on the sign-board of a bridge, " Keep to the right, as the law directs," addressed to those who guide a vehicle. It is a law which commands something. You may pass an orchard with inviting fruits; the fence surrounding it might be easily scaled, and you feel an urgent impulse to slake your thirst with the juicy apples before you ; yet you must not do it. Were you to follow the dictates of your de- sires, though most natural and perfectly innocent, the law would punish you, because it protects the orchard as the property of some one else. The law is made already, and thus it warns you. A decrepit and poor man is prevented by certain officers from asking those persons, who show by their dress that they live in ease, to give him from their superfluity that which he is unable to obtain by his own exertions; he is taken to a house designated by the law as a home for those 99 lOO THE STATE. persons who cannot earn their hving. You sail on the vast ocean, at a great distance from all society ; a man-of-war, per- haps belonging to a different nation, thousands of miles from your own, bids you to lie to and show your colors. An officer comes on board your vessel, asking for your papers, and requesting you to go with him on board his own. If you refuse to comply with his request you expose yourself to vexations, perhaps to danger. It is the law of your land, and that observed among nations, which obliges you to provide yourself with those papers and to produce them under these circumstances. In a foreign port a consul of your own nation advises and, if need be, protects you. The law directs him to do so. You see an individual depriving another of his life, violently and considerately; yet nobody attacks the one who kills, or rescues the other, doomed to die, because the law has decided that he should die in this manner — it is an execution. The law establishes schools and obliges parents to send their children to them. The law assists a poor man to obtain his dues from a rich one, and again it protects the rich so that the poor shall have no more than their due. A single indi- vidual says the harshest things of those in power, yet no one molests him, because the law has said that he may do so; and again, there are laws which all or nearly all dislike, or declare unprofitable, nay, even cruel, and yet they are obeyed unaided by physical force. The law has built highways, united rivers, severed mountains ; it takes away property for the public benefit, and protects it; sends expeditions into re- mote regions, founds libraries and collections of works of art, adorns and beautifies ; takes care that the merchant measures with a true yard-stick, and tells him in what money he must pay his debts; it condemns unwholesome food, prohibits your having more than one wife, punishes public immorality, interferes if your occupation disturbs or annoys others, obliges you at times to take up arms, at others prevents you from using them to avenge the most signal injustice, and at others, again, it permits you to use them. What, then, is this law, invisible, yet seen in its effects everywhere ? Whence WHAT IS THE LAW? 10 1 does its binding power flow, that we obey it, even though we disapprove of it, and though we are unactuated by fear; which interferes with my most natural appetites, may deprive me even of the simple right of locomotion and confine me in a lonely cell ; gives, divides, and defends, or takes away, prop- erty; assures me that it will carry out my will and dispo- sition, even after my death, and defeats my will though dis- tinctly pronounced ; protects my life, and yet may demand of me to expose it, or may take it under certain circum- stances ; prohibits me from avenging wrongs, interferes with my own disputes, tells me I must not do a thousand things, though I may have a strong desire to do them, or that I must do things to which I feel a decided aversion ; in fine, which accompanies me wherever I may go, penetrates into all relations of men to men, to animals and things, and, what is most remarkable, is never intermitted or suspended, but continues to act and every day creates new rules and regula- tions for man's conduct and his various relations, and with unceasing and inexhaustible energy seizes upon every new condition of men or things that may spring up ? What is this law, that is so closely connected with ourselves and everything relating to us that few things, indeed, are out of its reach, that it is carried along with every individual into all new relations, actions, and operations; which extends overmen, animals, the fruits of the field, the game and trees of the forest, the rocks and minerals in the bowels of the earth; which is so inseparable from man that whatever he touches he brings under its domain, even the produce of the vast and distant sea, in fish, whale, seal, plants, shells, amber, and pearls, and appro- priates what the fury of the winds had carried to the bottom of the ocean, ownerless as it may be, the moment it is brought to light, to human use again ? What is this law? Law is the direct or indirect, explicit or implied, real or supposed' expression of the will of human society, repre- ' Direct or indirect, i.e. by laws which emanate directly from the highest au- thority of the state, or from societies founded or permitted to exist by the state. 102 THE STATE. sented in the state, or, of a part of human society constituted into a state. And what is this state ? Whence does this derive its all-pervading power, and, more especially, its right to this power? How did it originate? How far does its right- ful power extend, or is it unlimited, and is there absolutely nothing beyond its reach ? n. We have seen, in the first book, that morality neces- sarily implies individuality. No virtue, merit, fault, or crime, in the strict sense of the term, can be common stock among several individuals. There is no accountability without indi- viduality. If three men jointly save the life of a fellow-man, at the imminent risk of their own, or murder him, that which is good or wicked in these joint actions belongs separately or individually to each of them. In the latter case, the death of the murdered man was the joint effect of the separate actions of three individuals ; but the crime, the murder, that is, the criminality of the action, is each one's own, provided the aid of each in perpetrating the act was equally essen- tial in bringing about the criminal act. Simple as this truth is, yet there have been people who reasoned in this manner : "Since but one murder was committed, and three persons jointly effected it, it appears that each one cannot have com- mitted a murder, but only part of it," thus confounding the effect, that is, the extinction of the life of one human being, with the moral action, the murder. As if among the thugs in the East Indies, the shumseea, or " holder of hands," were not as much a murderer, and as guilty, as the bhurlote, or " strangler." III. Besides man's individuality, we have now to notice his sociality, or the necessity imposed upon him to associate, both for the purpose of obtaining ends of the highest importance in the physical as well as intellectual and moral world. Explicit or implied, i.e. by way of custom, which again may have been acknowl- edged distinctly or tacitly. (See on Obedience to the Laws). THE FAMILY. 103 IV. Of all animals, man is born not only in the most help- less state, but the infant requires the care of its mother long after it has ceased to derive its nourishment from her, which causes not only a physical but also an intellectual education. Hence the fact that the attachment between human parents and their offspring is far more enduring than between other animals. This education lasts so long, the child requires the care, protection, and guidance of its parents for so extensive a period, that they may have other children before the first is able to take care of itself From this circumstance, and the continuity of conjugal attachment, which is not, as with ani- mals, limited to certain seasons, origipates the perpetuity of the conjugal union, as well as a mutual attachment among the children, while with other animals no connection, or a very limited one indeed, exists between the offspring of the various seasons. The protracted state of the child's depend- ency upon the parents produces habits of obedience, respect, and love, and, at a more advanced period, a consciousness of mutual dependence. The family, with its many mutual and lasting relations,, increasing in intensity, is formed. The members of a family soon discover how much benefit they derive from reciprocal assistance, and from a division of occu- pation among them, since man is placed in the world without most of those strong and irresistible instincts which are given to other animals for protection or support, and which seem to increase in specific intensity the lower the animal stands in the scale of animate creation, thus approaching more and more the plant, which lives without any self-action — an abso- lute slave to season, clime, and soil. So little is man instinctive, that even, his sociality, so indis- pensable to his whole existence, has first to be developed. He is led to it indeed by the natural relations between the progenitors and their ofiTspring, as we have seen ; but he is not, strictly speaking, a gregarious animal.^ Gregarious ani- ' See Cuvier's Le Regne Attimal, article Homme, page 69 et. seq of vol. i., Paris edition of 1829, The work has been translated. I04 THE STATE. mals do now congregate as they have ever done ; but man's sociahty increases infinitely with every step he makes in the progreoS of civilization. His sociality is, on this account, not the lesj natural. We shall presently see the true meaning of this term applied to man. Man does neither act by instinctive impulses, so numer- ous and so strong regarding specific actions, as we find them with the brute, nor does he lay the foundations of the many institutions which become important in course of time, after mature reflection, as if he knew at the time to what momentous consequences they would lead. It is a common error, which has misled many of the greatest philosophers, to ascribe to the free action of ripe judgment and forecast what must be derived from quite a different source. Nearly all the mistaken notions of the origin of the state can be reduced to this fallacy. Mr. Say ' says, the first men united into societies ' Tableau ghiirale de F Economic des Socikis, page 544, et seq., in Say's Cours C07nplet d'Economie politique pratique, 3d edit., Brussels, 1836. I may mention another mistake of Say's ; his name stands in this case but for a large class of reasoners. On page 545 of the above work and edition, he says, the principal object of all human societies is to provide for their wants (by which physical wants are meant). How does he know that this is the chief object? Because, says he, we find this trait in all societies, rude or cultivated. As an in- stance how to proceed in order to find the essential point of any institution and to separate it from what may be accidental, he mentions, on a previous page, ■ marriage, and argues thus : " We shall immediately see that it is the want of nature which induces man to unite with woman, to produce children, and to bring them up, in order to see himself replaced by them in the course of time. This is the essential in marriage, that which constitutes it." All the rest, as ceremonies, etc., he declares as accidental. Does man, desirous of marrying, really argue thus? Has he really, at that period, the continuation of mankind so much at heart ? Is marriage with most men the effect of reflection ? But we ■waive this, and shall only remark the grossly illogical process of argumentation. That which is common to all the species of a genus is therefore the essential point of them ! All apples are round or nearly so, all horses have four feet, therefore roundness is the essential point of apples, and quadrupedity of horses. Procrea- tion is not the characteristic of marriage, for if so then it belongs to all animals. It is, among other things, the permanency of this union of persons belonging to different sexes, and the exclusiveness (whether monogamic or polygamic), which makes the union a marriage; and its object is far higher than mere procreation, which, as we see from the animals, does not require a permanent union. It is THE FAMILY. I05 to protect themselves and to assist each other in obtaining food. This is erroneous : doubtless they soon found out that they might protect and assist each other in hunting, fish- ing, tilling the ground ; but they were already united when they found it out, or they would never, perhaps, have dis- covered it. How rare are the instances, and these few only at how advanced a period of human society, of a number of people congregating together purposely and after well- weighed dehberation ! It is fallacious, I repeat, to ascribe our knowledge, experience, and views to former, and especially the earliest, ages. The ancients were well aware of the fact that men had not united into societies by the free consent of previously disunited individuals, but were kept together by their nature. They went, however, too far on the other side. Cicero says, bees do not congregate for the purpose of con- structing a honeycomb, but, being by nature gregarious ani- mals, combine their labors in making the comb; and man even still more is formed by nature for society, and subse- quently as a member of society promotes the common good in conjunction with his fellow-creatures. Neither one nor the other is the case. It is true, indeed, that man is led to pro- mote the final ends of society, to move towards them, long before he is fully aware of them ; but he is not, as has been stated, instinctively gregarious, nor does he join society in consequence of reflection. He is led to do it by his nature, physical and intellectual, which gradually unfolds itself with every step of progress he makes. By the nature of man is understood something very different from instinct, as will appear from the sequel. But why did men unite or remain the family life, the development of all the fruitful relations within the family, and the protection of the female, and education of the young, which form some of the essential objects of marriage. The characteristics of marriage are the per- manency and exclusiveness of union between individuals of different sexes ; for the marriage is marriage though theje be no issue. But Say fell into this mistake because he adopted the almost universal error of looking backward instead of for- ward, of looking to the savage man, yet ascribing to him views and foresight of more advanced periods — instead of considering the civilized man and the in- variable fruits of civilization, when the problem is to discover man's true nature. I06 THE STATE. united ? How did they come to congregate, long before they were aware or could be conscious of the many advantages derivable from association ? Because they could not help it. Their nature, physical and moral, their constitution, their affections, kept them together, but did not originally lead them to it from a state of isolation. Separation is only a second step ; total and protracted insulation, however, the unnatural state of some later periods. V. The fact that men remained socially together, lived united in a family, caused them to make ample use of the organs of speech, so peculiar to man' — language developed itself, the most powerful of all ties. Experience, knowledge, acquired skill, could now be transmitted from one to another, from the older to the younger, traditionally from one gen- eration to another. The same with regard to affections, to experience, enjoyments, dangers, sufferance, and supposed or really great actions. Language gave continuity to the family, tribe, or larger society as such ; by language and its power of transmitting ideas, distant members of the same family were enabled to know that they belonged to the same stock, were people of the same extraction ; family recollections, prejudices, and affections expanded into the common feelings of the tribe. Language became a new and potent agent, both in the development of man's character and the progress of civilization, however slow this must have been in the begin- ning, especially before the art of writing was invented ; in uniting generations with generations, and in awakening in man the consciousness that he is essentially a member of a ' See Herder's Treatise upon the Origin of Language (a " crowned" prize Essay), translated from the German, London, 1837. I wish, however, not to be understood as agreeing with those scholars who ascribe the origin of language to this superiority of the organs alone. The noblest organ would not have pro- duced language, had man not felt Urged to express thoughts and feelings. See likewise the various works on the human voice, for instance that of Dr. Rush. [/.^., language could not exist without high degrees of memory, forecast, imagi- nation, abstraction, generalization, etc. Language is the voice of a highly- endowed soul. A brute soul does not need it.] DIVISION OF LABOR. 107 society, not only as to its present existence, but likewise as to its connection with previous and future generations, that he is indebted to the former, and that the latter will depend upon him, Man began to perceive that he is closely united with a permanent society, that his weal and woe are interwoven with it. As he has affection for the members of the same family, so he found them enlarged into affections for a wider society, he felt himself mingled with it, with its recollections, its his- tory, and its future destiny ; he loves his tribe, his nation, his country, until at last this feeling becomes a distinct and ardent devotedness to his country, becomes patriotism, and the phi- losopher pronounces, non nobis sed rei-publicse nati sumus. VI. The various members of a family could not live to- gether for any length of time without a certain degree of division of labor. No number of individuals can associate with one another, for whatever purpose this may be, not even children for the sake of playing, without dividing, in a degree, labor among them.^ Indeed, the first division of labor must needs have begun between man and wife, brought and kept together originally by physical difference and social desires. Division of labor, and what is indispensably connected with it, union of labor or association of energy, leads naturally to, and, in fact, is of itself, exchange, bartering, so peculiar and characteristic of the human species, as we have seen in the first book. This forms another bond of society. The division of labor and consequent exchange lead, moreover, soon to the idea of property, the desire of retaining free mastership over that which we have acquired by our own industry, per- severance, courage, sagacity, or any other exertion of our mind or body, or by good fortune. ' Men, ever so strange to one another, if brought together, nitist divide labor. All cannot row and steer at the same time. When a caravan halts after a day's journey, one of each mess will naturally attend to the camels, another will pre- pare the pillau, a third will unroll the mats. The inmates of each room in a hospital always form soon a little community founded on the division of labor. Everything conspires naturally to unite men ; reflection, at a later period, finds out how salutary, what a blessing, sociality is. CHAPTER II. Property. — Mine and Thine. — Origin of Property. — Various Titles. — Individual Property is necessaiy for Man. — Does not arise from Man's Iniquity. — Man never lives or can live without Property. — Slow Development of Property. — International Acknov/ledgment. — Copyright. — Property with Agriculturists. — Civilization and Population depend upon it. VII. The terms mine and thine signify a comparatively close or exclusive relation between a person and some thing or another person. That thing to which we apply the term in its most intense meaning, that is, expressive of perfect master- ship over it, the right, the power of free disposal over it, is called the property of this person. Though there is an infi- nite gradation of all the various relations to which the words mine and thine are applied, yet they all have this in common, that a peculiar relation between the two things or beings is meant. We say, my country, my king, my son, my horse, my beauty (if we wish to designate one we admire particularly), my sunset, etc. Man did not at once distinguish very ac- curately between all these relations ; peculiar closeness of relation, founded on whatever ground, was frequently con- sidered as establishing that which we now call exclusively property. The father felt that his child was in a peculiarly close relation to him, both on account of his physical relation to himself, and also because he protected the son ; the child, therefore, was long considered the property of the father. The close relation of the wife to the husband, her dependence upon him, made her to be considered the property of the husband. She was, and to this day with many tribes is, sold to him ; even with nations with whom she has acquired a more independent position, she continues, by way of ancient marriage ceremony, to be sold to the wooer. The ideas mine and thine must have originated with the io8 MINE AND THINE. 109 first thoughts of man. As soon as there existed more than one family, more than one couple of parents with their re- spective children, the idea of this close relation must neces- sarily have been clear in the mind of men. The child is much more emphatically the parent's, than the wife is her husband's. She may cease to be his, the child cannot change its relation to its parents. Besides, conjugal relations are but loosely defined and acknowledged with most tribes, I believe, perhaps with all, in the early stages of society ; and, on the other hand, the human mind has not yet succeeeded, as already alluded to, in drawing a distinct line between that relation to which the word mine is applicable on account of affection, duty, etc., and that to which the same term may be applied on account of absolute disposition over it. Most nations have started from the idea that the child is bona fide property of the father, to be sold or exposed and killed according to his pleasure. Esquimaux children were offered to Captain Back by their parents for a needle or a saw. Again, affection itself must soon have given birth to the idea of mine and thine. There is no heart so cold, no intellect so dull, which is not struck at once by the force of the term, or the feeling ex- pressed by the words, " my child," " thy son." Animals have undoubtedly this feeling too, and, for a time, in a very strong degree. We see it by the readiness with which the parent sacrifices itself for its offspring ; but the feeling vanishes soon, and the brute intellect is too confined to develop it in any high degree. Applied to things, to objects of the inanimate world, the idea must present itself at an equally early period. The father has to provide for his children ; the absolute neces- sity establishes the absolute duty to do it. If he has broken off a branch of bananas for himself or his children, and some one else would take it from him, he would answer at once, in the most practical and most philosophical manner, "The bananas are mine, I plucked them." The title is proved in this case in the most forcible manner by that mode by which we prove, and conclusively, too, so many elementary positions — the exclusion of all the contraries, " To whom should this belong, no THE STATE. if not to me ?" Has he not exerted himself to obtain them ? has he not, by his industry, established already a closer rela tion between them and himself, than any one else ? The same is the case with his arrow, spear, the first animals he tamed, the first plants he saved, the first trap he made. They wear the imprint of his labor, they are identified with himself' If the thing to be appropriated belonged to no one, to whom can it possibly belong, if not to him who took pains to obtain it ? Man continues to establish thus his title to property every day. All unappropriated things, for instance, the fish in the ocean, become appropriated as soon as caught, that is, as soon as placed in an exclusive relation to some one. The whale is the property of no one until the harpoon of the hardy whaler has wounded it. From that moment it is his. Even the mere chasing would establish, though no legal title, yet a socially acknowledged one, and it would be considered very unfair among whalers if others were to interfere in the pursuit of this, considered already an appropriated whale. This right of property by assimilation or imprint of labor or industry, if not appropriated before, confers certainly a strong title, and it might be said that as all capital is accumulated labor, labor saved, we likewise establish our title to property in civilized societies if we buy it lawfully, that is, if we give accumulated labor for it. So strong is the title conferred by labor that men are ever unwilling to dislodge, without any consideration, settlers who have improved the soil though it did not belong to them, and on which they have, conse- quently, settled unlawfully. Many legislatures in the United States and other countries have afforded instances of this partial acknowledgment of a title under these circumstances. VIII. There remain, however, various important questions yet to be answered, and many other titles to property yet to be examined. Why, it has been asked, should man be allowed to appro- ' See Locke on Civil Government, chap. v. 45, et seq. ORIGIN OF PROPERTY. Ill priate more than is necessary for his support ? We ask, what support is meant? The momentary satisfying of his hunger, by shooting a deer, plucking a fruit ? Is he allowed to shoot several deer and dry the meat for the winter? Is he not allowed to cultivate a tree which shall give him fruit for cer- tainty, so that he may not be exposed again to hunger, the pain of w^hich he knows already? May he not cultivate a patch of land to have corn for his children ? If he has slain a buck to satisfy his hunger, is he allowed to appropriate the skin, to himself and call it his own ? If the industrious fisherman sails to the banks of Newfoundland to appropriate to himself the unappropriated codfish, has he no right to catch as many as he thinks he and his children shall want for the whole year? But they cannot live upon codfish alone ; may he not take so many codfish as to exchange part of them for other food, for clothing ? Does supporting his family not include the send- ing of his children to school ? May he not catch some more to save the money he may obtain for it, that, should he perish at sea, his wife and children may not suffer from want or be- come a burden to others? Where does the meaning of support stop? Why should it apply to the satisfying of physical wants only ? There are wants far higher than these — the wants of civilization. We want accumulated property; without it, no ease; without ease, no leisure; without leisure, no earnest and persevering pursuit of knowledge, no high degree of national civilization.^ Aristotle already lays it down as the basis of high civilization, to be free and have leisure. Still the question would remain, why have private property ? It is the very same ease which is promised to us by those who recommend to us a system of common property. IX. Each man is a being of himself, an individual ; his individuality is all-important. He has a natural aversion to being absorbed in an undefined generality. From early child- » That by leisure I do not mean idleness, is clear. No harder working men than those who pursue sciences ; but knowledge must sink, where every one has to work for his momentary and daily support. 112 THE STATE. hood man feels an anxiety to be a distinct individual, to ex- press it, and consequently to individualize everything around him. ]\Ian must ever represent in the outward world that which moves his inmost soul, the inmost agents of his mind. Property is nothing else than the application of man's indi- viduality to external things, or the realization and manifesta- tion of man's individuality in the material world. Man cannot be, never was, without property, without Diinc and thine. If he could, he would not be man. In all stages of civilization, at all ages of his life, we find him anxious to individualize things, to rescue them as it were from undefined generality — to appropriate. It is a desire most deeply implanted in man. Children will call a certain peach on the tree mine, another thine, without the least reference to its final consumption. The child is anxious to have a bed in the garden of his parent, merely to call it his own. When children look at flying birds, at passing clouds, they are apt to single out one or the other and call it mine, yours, etc. No complaint of the poet is more melancholy than that no heavy blade fells under his own sickle. Children in houses of refuge are most anxious to have a little box of their own, to have something in the wide world which they may call their own. The most abject galley- slave and the most powerful king strive equally to acquire some property, to have something they can call specifically their own. The former contrives to obtain a box or chest which may belong to him exclusively ; the latter saves and buys property. And why should this anxiety have been so deeply implanted in the human breast? Because, as will be shown, private property is the most powerful agent in the promotion of civilization — an agent which has this striking peculiarity, that while it originates with man's individuality, it is at the same time the surest and firmest bond of society. Whatever is absolutely necessary for man's physical or intel- lectual existence. Providence has accompanied with pleasure. It is a pleasure to eat when hungry, to drink when thirsty, to sleep when tired, to awake after a long sleep, to love and care for one's children, to speak and commune with others after INDIVIDUAL PROPERTY. 113 long solitude; the mere utterance delights the child. It is a pleasure to meditate, to analyze and combine ; a pleasure of itself to produce, to work with effect; it is a pleasure to assist others, a pleasure to accumulate property — to individualize things and to place them in a closer relation to yourself The first field you buy makes you feel happy, not because it will give you more or better fruit than you have enjoyed before, but because it is yours, just as the child is delighted to call a dog or bird its own. The human heart is delighted at finding its individuality reflected in the external world. The deep- rooted and noble love of independence is founded upon nothing else but the original anxiety of constituting a distinctly sepa- rate individual and being acknowledged as such. And as unrestrained pleasure in eating or drinking degenerates into gluttony or intemperance, so does the immoderate desire of appropriation degenerate into avarice. There was good reason for placing avarice as the second of the cardinal vices, because man has so strong a temptation to fall into it. All vices that beset us most are those which consist in a degenerate excess of the most natural and, therefore, most deeply implanted principles of our soul. X. The process of the individualization of things, or effect- ing a relation between man and things, is various. It may be effected — by production — if I make a boat, a book ; by appropriation — if I gather fruits, or take fish ; by occupancy — if I declare things mine and am able to maintain my declaration, a. by force (conquest, see further below) ; b. by law ; and here, again, by pre-emption, by positive declaration of law, etc, ; by mixed production — if I tame animals, cultivate the ground ; by conveyance of the right of others — by grant, by sale ; etc., etc. 8 114 THE STATE. It is by no means said that these titles are absolute, or that they may not be regulated or interfered with by law. Many civilized societies prohibit too large an accumulation of prop- erty and too multiplied a division of real estate. Nor is it said that there is not somewhere a power which can change it. I do not mean to convey the idea that all sorts of titles are unimpeachable. If a country is really over-peopled, and if they cannot in any other way obtain additional land, al- though it may be unsettled, they are perfectly right in con- quering it. Who would deny it? All I maintain is the prin- ciple that man must live with individual property. It is for natural and positive law to inquire fully into the nature of the various titles, and all their bearings upon society. XI. The idea of property, that is, of a peculiar relation of man to things without him — a relation distinguished by a degree of exclusiveness and by peculiar reference to him, which involves the power over it, of disposing of it — grows out of the very nature of man, and, consequently, we find him at no stage without property. We do not, indeed, meet with landed property in all tribes ; but the rudest islander of the Indian Archipelago, the lowest inhabitant of the Aleutian group, will call the fish-hook he made, the canoe he bartered for, the dress which he prepared of skins obtained by himself, his own, and consider every attempt to d-ispossess him of these articles as a gross outrage. Nor has there ever existed a society without property. We have seen trials made of estab- lishing societies within which no individual property on a large scale was to be acknowledged, e.g. that of Mr. Owen in New Harmony, or that of the St.-Simonists in France, Some have succeeded in a degree, as Mr. Rapp at Harmony ; so does the sect commonly called Shakers allow of no individual landed property, as many Catholic monastic communities do. But, first, their resignation of private property never extended much beyond what is generally called real estate; and, sec- ondly, what more did the individual, in resigning, do than give up his property to the community he joins? They did INDIVIDUAL PROPERTY. ne by no means abandon all idea of property, nor could they. If St. Francis prohibits his order from holding property, he wishes them nevertheless to hold churches, convents, etc. ; and if he enjoins them to beg for the daily support, he thereby acknowledges the right of property in the donors of the alms. Suppose even that a whole nation could be induced to adopt the plan of Mr. Owen — and a most lamentable event it would be, because it would be reducing society to a chaos, out of which it needs must struggle to elevate itself, the very next moment after its reduction to it — would not that nation insist upon its joint property against the claims which another nation might set up? In a word, can we for a moment pos- sibly imagine mankind without property? All that fanciful minds have dreamed of a supposed golden age extends no farther than to very confined limits. Brjng yourself for a moment to imagine the idea of property erased from the human mind; what a state! Nothing but brute force to support each single individual — a pack of hungry wolves. XII. It would not be much better were we to acknowledge the right of property in general, while we annihilated indi- vidual property within the limits of a state, nation, or what- ever other society. The personality of man, the fact that every human being is, and of right ought to be, a moral being of himself, requires, generally speaking, private property. Men are not destined to become, after being united into a society, like a mass of liquid, every drop of which loses all character of individuality. Man is, and forever shall be, an individual. His goodness, his greatness, his activity, his energy and industry— everything good and characteristic of him as man is connected with the idea of individual property, if we include in this term, as we ought to do, the certainty of securing individually the benefit of individual exertion, of labor. Depriving man of indi- vidual property would amount to depriving him of half his humanity. Man strives, and laudably so, to see his individual industry, skill, and perseverance palpably, visibly, bodily repre- sented in gathered property, this " nourisher of mankind, in- Il6 THE STATE. centive of industry, and cement of human society." (Sir James Mackintosh's speech in the Commons on the Reform bill.) Property is intimately connected with the idea of the family as a separate body, and on this account, as well as on many others, with the whole province of civilization. Without a progressive advance of industry there is no civilization, though industry alone does not constitute civilization ; and man's great destiny is civilization. XIII. That primary agent within man which we may call the desire of action, of which I shall speak more fully by- and-by, when treatingof power, impels him likewise to obtain property, as on the other hand, as we have seen already^ property gives impulse to this activity. Whatever point of view we may take^we find that individual property is natural to man, connected with the inmost principles of his soul, and necessary for him as a social being. It is not to be ascribed, therefore, solely and originally to covetousness, Covetous- ness is a vitiated excess of an agent or principle originally good or innocent. The desire of property springs so directly from the nature of the human soul that it is universal, and, it being universal, its vitiated state is also of frequent occur- rence. We see the same with respect to incontinency. The fact that covetousness is a widely-diffused vice, has induced many people, however, to consider property altogether as having its origin in a vicious disposition of man. This view, together with the erroneous conception of a state of nature, in which man has been supposed to have lived before a division of property had been made (instead of considering property as having grown inseparably with man), of the principle of mutual love, taught by Christianity, and the community of property, which in a considerable degree may have existed among the first Christians as long as they remained a small sect and an oppressed church, induced the early doctors of the church to consider the division of property, though not any longer iniquitous, yet as having arisen from the sin of man, and as being now necessary only in consequence of sm's PROPERTY WAS NEVER CEAERAL. 117 continuance. St. Ambrose, in chap. xii. Luc, St. Chrysostom, Horn. I in Cor., St. Basil, Serm., all declare that no one should say, this is mine, this is thine, because everything is common (meaning of course among Christians). St. Thomas Aquinas says, Divisio bonorum non est iniqua, sed iniquitatis occasione et ad iniquitatem avertendam sit facta." The assumption of a division of property, as having taken place at some definite time, does not belong to the early Christians alone. The an- cient Greek and Roman philosophers speak of it ; nor can we be surprised at this view. It is a common error to ascribe general phenomena, presenting themselves to the eye of the observer as a definite thing, to an origin as definite, to specific general actions and agreements of society, instead of search- ing for their origin in the gradual but steady and natural operation of principles founded within us, or conditions which are the necessary effects of the relation of our nature to ex- ternal and given circumstances. The origin of languages, of governments, of religions, has likewise been ascribed to arbitrary, sometimes fraudulent, agreements or inventions of individuals. The fallacy in the case before us is great. It was first assumed that property was at some period or other divided. If so, it is clear that those who had the right to divide must collectively have had possession of the whole — a state of things which was considered to be much purer. An errone- ous interpretation of a passage in the Bible (Gen. i. 28), by which man is declared to be ruler over all the earth, contrib- uted to confirm this mistaken view. Things which are not owned by any individual do not on that account belong to all.^ What meaning would the word property have, if ap- » * Why did men never declare the stars common property? They are things, too, not owned by any one. Because all know that we cannot exercise con- trol over them. The same with the birds on the islets of the Pacific. They were born and died unseen, unknown, uncontrolled, and were as little common property as the stars. But does a thing become common property only the mo- ment that an individual seizes upon it, that is, at the moment when it ceases to be common property ? This is absurd. Il8 THE STATE. plied to things which are out of the reach of man and have for- ever remained so? Have the millions of birds on the islands in the Pacific, which have lived and died unseen by human eye, been the property of any one individual or society ? The passage in the Bible means tlxat man shall be the ruler, shall, wherever he goes, subject the creature beneath him and make it his own ; it means his inherent right to obtain, acquire, produce, individual property, and the superiority of his mind which will aid him in doing so. The uncaught fish in the ocean does not belong to all ; it belongs to no one. Else it could not possibly become the property of him who catches it, at the moment he does so. Besides, the argument would apply to existing things only ; how is it with those which man produces ? We have a poem entitled the Division of the Earth, but I have seen nowhere such an event recorded in history. " To suppose a state of man prior to the existence of any notions of separate property, when all things were common, and when men, throughout the world, lived without law or government, in innocence and simplicity, is a mere dream of the imagination." (Kent's Comment., part v. lect. xxxiv.) Modern writers have generally followed this idea of original common property, confounding non-appropriation with common property, with more or less acuteness, from Hugo Grotius and Puffendorf down to Blackstone, who but follows the two first-named writers. Chancellor Kent, in the lecture just quoted, elevates himself to a far higher view; I therefore recommend in particular its perusal.' XIV. If I say that individual property is natural to man, I do not wish to express the idea that I am opposed to all com- binations of property. On the contrary, I do believe that institutions in which persons of very limited property, de- ' Justin., lib. xliii. ; Hugo Grotius, De Jure Belli ac Pads, lib. ii. cap. iii. ; Puf- fendorf, Droit de la Nature, ed. Barbeyrac, liv. iv., c. iii. iv., v., et seq.; Blackstone^ ii., p. I, etseq. — Hugo Grotius, always to be read with advantage, is no less so in the above book, and I advise the student to reflect well on it, though I differ from that great writer on the original principle. PIRACY CONSIDERED HONORABLE. 119 prived of family connections and advanced in life, should join their scanty means, in order to secure greater comfort, and perhaps even a more proper sphere of activity might prove highly advantageous. On the other hand, it might be urged that, if property is natural to man, that is, consentaneous to the principles of his soul, how is it that robbery and piracy are considered an honorable trade with nearly all, perhaps with all, early nations, and if not absolutely honorable, still an occupation at which the general feeling of society does not seem to revolt ? When Telemachus visited Nestor, to obtain some information re- specting his father, his aged host, after having refreshed his guest and prayed with him, says, "And now it may be meet to inquire and ask who the strangers are, after they have refreshed themselves. Strangers, who are you ? From whence do you navigate the watery way ? Is it for settled purpose, or do you roam at hazard, like robbers over the sea, who wander wagering their own lives, bearing evil to others ?" (Odyssey, iii. 70, et seq.) Homer does not represent those who were asked as spurning this question ; those who asked did not mean to offend.' So we have only to look at the mid- ' The following passage from Thucydides, at the beginning of his first book, is interesting respecting the above subject : " The Hellenes formerly, as -well as those barbarians who lived upon the coast of the continent or occupied the islands, when they had better learned how to pass to and fro in their vessels, took up the business of piracy under the command of persons of the greatest ability among them, for the sake of enriching such adventurers and supporting their poor. They landed and plundered by surprise unfortified places and scattered villages, and from hence they principally gained a subsistence. This was by no means at that time an employment of reproach, but rather brought them somewhat of reputation. Some people of the continent are even to this day a proof of this, who still attribute honor to such exploits if handsomely performed ; so also are the ancient poets, in whom those that sail along the coasts are everywhere equally accosted with this question, whether they are pirates ; as if neither they to whom the question was put would disown their employment, nor they who are desirous to be informed would reproach them with it. The people of the continent also used to exercise robberies upon one another, and to this very day many people of Hellas are supported by the same practices: for instance, the Ozolian Locrians, and .(Etolians, and Acarnanians, and their neighbors on the continent ; and the custom of wearing their weapons, I20 THE STATE. die ages, to find the trade of piracy and land-robbery held in honor for centuries. But I have not said that, because the idea of property is natural to man, it represents itself at once perfect to his mind in all its bearing ; on the contrary, we shall see farther below that man, a rational being and destined for progressive civilization, has to develop every institution which is natural to him. Was not the holding of robbery in honor a distorted view which people took of the means of acquiring property, as if boldness, danger, adventure, were fit employ- ment for freemen, but toiling for it fit for bondmen only, rather than a denial of property? They differed from us respecting the means, not the matter itself; for had they not had the idea of property, or felt the impetus of acquiring it, why should they have incurred dangers to do so ? They believed power or courage sufficient to establish a title, not that everything belonged promiscuously to every one. XV. The subject which occupies our present attention re- quires that. I should anticipate a few remarks on a point which will presently engage us more fully, and to which I have had occasion to allude several times. The right of prop- erty has been but gradually recognized ; each step in the way of civilization has obliged men to acknowledge it in one more of its many ramifications and peculiar forms. Still, I do not say, ^^ yet property is natural," but "therefore property is natural to man." Everything that characterizes man as man appears clearer and more distinct with each advancing stage of civilization, the true aim, not the artificial end, of human society. We must lay it down as a rule, that whatever is truly natural to man, that is, essential to and characteristic of him, unfolds itself more perspicuously with the progress of civilization, and whatever shows itself in a steady gradation more perspicuously with the progress of civilization, is truly introduced by this old life of rapine, is still retained among them." So far Thu- cydides. Piracy was considered peculiarly honorable by many tribes around the Baltic or on the Northern Ocean in the middle ages, for instance, by the North- men. COPYRIGHT. 121 natural to man. The leaf is not less natural to the tree than the root, though it only shows itself under the influence of vernal sunshine. Much confusion has arisen from mistaking man's sav^age or rude state for his natural state, in consequence of which man's civilized state necessarily appeared as an arti- ficial one, owing to the looseness with which the word nature has been used, applying it in different meanings to plants, animals, etc., or to the character essential to them, or, again, to man differing by his reason from them. The next erroneous step was that, since the civilized state of man was considered an artificial one, all rights which were gradually unfolded as it were by civilization appeared to be made and not acknowl- edged by society. We have a striking instance in the right of property. In some limited form it was acknowledged at an early period. Gradually it became more clearly defined, more distinctly recognized in the various spheres of human activity and enterprise, spheres to which man could elevate himself only by civilization. The law of individual inherit- ance has developed itself but very slowly with all nations, as the legal history of every civilized nation shows — for instance, that of the Romans or Teutonic tribes. Yet we find it with every civilized nation ; and are we not bound on this account alone, even if there were not other powerful reasons, to ac- knowledge it as natural to man ? If it is artificial, invented, then who invented it ? Who had or has the gigantic power to force all mankind into a course contrary to nature ? What is there in existence that can long and continually remain in a state against its nature ? We are surprised at the undefined state of property in those early stages of society, when piracy is considered a noble employment, fit to be extolled by bards, but we must not forget that there are rights of property to this day unacknowl- edged, which future generations will consider as sacred as we do those acknowledged centuries ago. Because there was no copyright in early times — because there were no books, or books did not yield any profit to make copyright worth any- thing — it is believed by many to this day that copy-right is 122 THE STATE. an invented thing, and held as a grant bestowed by the mere grace and pleasure of society ; while, on the contrary, the right of property in a book seems to be clearer and more easily to be deduced from absolute principle than any other. I^ is the title of actual production and of preoccupancy. If a canoe is mine because I made it, shall not that be mine which I actually created — a composition ? It has been as- serted that the author owes his ideas to society, therefore he has no particular right in them. Does the agriculturist not owe his ideas to society, present and past ? Could he get a price for his produce except by society ? But a work of compilation, it is objected, is not creation or invention. In the form in which it is presented, it is invention. The ideas thus connected, though they are, separately, common stock, like the wild pigeons flying over my farm, are the compiler's, are preoccupied by him, and belong to him in their present order and arrangement. The chief difficulty has arisen from the fact that ideas thus treated, thrown into a book, had for a long time no moneyed value to be expressed numerically, and that copyright has therefore not the strength of antiquity on its side. Yet observe how matters still stand with regard to this right. Prussia has passed, only last year (1837), an extensive and well-grounded copyright law.' In most countries, thea- tres may make whatever money they can by the performance of a play, without permission of the inventor ; that is, they may use my boat to earn as much ferry-toll as they can. In the United States and in England, any man may make an abridgment of the work of another; that is, any man has a right to cut the ears of my corn, provided he leaves the stalks untouched — to drink my wine, provided he leaves me the ' By this law of June 1 1, 1S37, authors of works of literature, the sciences and arts, are secured an exclusive privilege of publishing, multiplying, and copying them during the term of their lives, and the same privilege is extended to their representatives for a period of thirty years from the day of their deaths. The whole law, altogether well digested, is applicable to works published in a foreign state — in whatever language — in so far as the rights established in that state are conferred equally by the laws of the said state to works published in Prussia. COPYRIGHT. 123 casks.' Those nations who speak the same language, as the English and Americans, French and Belgians, and several of the German States (with the exception of Prussia and proba- bly some others), have not yet international copyright, though they acknowledge other property of each other's citizens. It strikes every one, nowadays, as very barbarous, that in former times commodities belonging »to any foreign nation were considered as good prize, yet we allow robbing in the shape of reprint, to the manifest injury of the author. The flour raised in Pennsylvania has full value in Europe, and is acknowledged as private property, but the composition of a book, the production of which has cost far more pains, is not considered as private property. A regular piratical trade is carried on in Austria, and by Austria with other countries, in books published in other parts of Germany. It was an ill- chosen expression in the British acts relating to copyright, that they were passed for "the further encouragement of learning." The legislature had, in this case, nothing to do with that sub- ject, and Sergeant Talfourd, in bringing his new bill into the house, justly said that it was for "the further justice to learning." I do not mean to say that perpetual copyright is absolutely necessary according to natural justice. The sovereign action of society can regulate the tenure of this species of property as well as any other; though the same learned gentleman states that '* perpetual copyright was never disputed until literature had received a fatal present in the first act of parlia- ment on the subject, passed in 1709."^ It seems very clear to me that the shortest term for which copyright ought to be secured by law is the life of the author and his next heirs, if both are not less than sixty years, the average time of two generations ; but I strongly incline to believe that a century ' Soon after Mr. Washington Irving had issued his Life of Columbus, his pub- lisher was obliged to give notice that the author, being informed that some un- authorized person intended to publish an abridgment, had himself engaged in making one. * Speech of Sergeant Talfourd in the Commons, May i8, 1837 — able as every- thing that comes from that distinguished poet and lawyer. 124 THE STATE. would be a proper term, and for the benefit both of the com- munity and the author, if perpetual copyright be not adopted, which may offer objections, not to be discussed here.^ XVI. Though men, when as yet but hunters, fishermen, or nomads, cannot live without some property, the first great step takes place when man passes from the hunting or roam- ing life to that of agriculture. So long as there is no indi- vidual property among the agriculturists, so long is the ground but poorly tilled. Witness some Indian tribes. And so soon as there is a real desire to till the ground, so soon does man revolt at the idea of laboring for the indolent. If he were forced to do it, degradation would be the necessary conse- quence. Who would be on a par with the inert and inefficient? Idleness, with its concomitants, vice and crime, must follow. Mr. O'Connell, in his speech already referred to, singles out the legal incapacity of holding property as one of the two main causes of crime in Ireland.^ Let us not be told that I The right of international copyright is considered by some with a view to profit only, that is, as it strikes me, in a piratical point of view. As it is well to see the arguments on both sides, I would refer the student to a publication of Mr. Nicklin, of Philadelphia, against the proposed international copyright between the United States and England. [Since the author wrote, international copy- right has been greatly extended in Europe.] * On April 28, 1837, in the British Commons, on the Irish Poor-Law Bill. He said " I need not go far back. It is unnecessary for me to go farther back than the last century and a half; and, looking at that, no one can be surprised to find Ireland in the state that she is in. I allude merely to two heads of those which are called the penal laws. By two distinct branches of those laws, ignorance was enforced by act of Parliament and poverty was enacted. Such were the effects of the penal laws. It vs^as enacted that no Roman Catholic should teach or have a school in Ireland. Such instruction of youth was prohibited. No Roman Catholic could be an usher in a Protestant school ; it was an offence punishable by confine- ment until banishment. To teach a Catholic child was a felony punishable by death. The Catholics were prohibited from being educated. For any child re- ceiving instruction, there was a penalty of ;^io a day, and when the penalty was two or three times incurred, then the parties were subjected to a prczmunire—ihe forfeiture of goods and chattels. To send a child out of Ireland to be educated was a similar offence ; to send it subsistence from Ireland was subjected to the same forfeiture; and, what was still more violent and unjust, even the child incurred AGRICULTURE. 125 we see the contrary in those societies already mentioned, the Shakers and that founded by Mr, Rapp. They live as a com- munity contradistinguished from all who surround them, and enjoy the benefit of the general civilization brought about by the division of property in their whole nation. So may a family live very peaceably without ever calling in the protec- tion of the law, or ever hearing of it, but that they can live so quietly, and do live so amicably, is nevertheless the effect of law and justice. Without property, society would never have risen so high that those communities now may live so peace- ably and have so civilized intercourse with one another. Property now assumes a more striking and a more elevated character. The progress of civilization is intimately connected with the division of the soil and hereditary property, as with agricultural pursuits altogether. For the other branches of industry cannot be cultivated if men have not previously become tillers of the soil. Civilization, moreover, requires increased population, and the former likewise promotes the latter ; but the human species cannot multiply to any great extent unless supported by agriculture.^ Property, again, a forfeiture. By these laws there was encouragement given to ignorance, and a prohibition imposed upon knowledge. I am not now to be told that these laws were part of ancient history : they were in full force when I was born. Another part of this code of laws prohibited the acquisition of property. No Roman Catholic could acquire property. He might, indeed, acquire it; but if he did, so, any Protestant had a right to come into a court of equity and say, ' Such a man has, I know, purchased an estate — such a man is a Roman Catholic ; give me his estate ;' and it would be given to him. To take a lease beyond thirty-one years was prohibited ; and even if within thirty-one years, and the tenant by his in- dustry made the land one-third in value above the rent he paid for if, it could be transferred to a Protestant. These were laws that were in force for a full century. For a full century we had laws requiring the people to be ignorant and punishing them for being industrious — laws that declared the acquisition of property criminal, and subjected it to forfeiture. For one century ignorance and poverty were enacted by law as only fit for the Irish people. The consequences of a system of that kind are still felt."- — The speech contains some very interest- ing agricultural statistics comparing Ireland and England. ' Cuvier, RSgne Animal, vol. i. p. 78, Paris edit., 1827. The ancients were well acquainted with the fact that the human species does but slowly increase while in a state of barbarism. " As it seems to me," says Herodotus, i. 58, " the 126 THE STATE. must be protected against intruders as well as invaders ; this, too, leads men to resort to mutual support, to live socially united. I speak now of a state of mankind when they have so far increased in number that the mere family tie is not any longer sufficiently powerful to make the individuals consider themselves as members of one family, when the various fami- lies have become estranged from each other, owing to the extensive number as well as the distance at which they must necessarily live from one another. Security of property, which includes individual property, is the mainspring of cultivation, as, among others, Mr. Henry Carey has abundantly proved in his Political Economy. The Hon. Mountstuart Elphinstone gives, on the other hand, on page 334 of his Account of the Kingdom of Caubul, London, i8i5,the description of a pecu- liar tenure of land, by which it is distributed among various tribes every ten years by lot — an insecurity leading of course to neglect of culture.^ Pelasgic tribe has never become numerous, because it was in a state of barbarism." The history of all barbarous nations proves the same. » * For some remarks on the fact that with property in soil the idea of private property, and, consequently, of the necessity of protecting it, first presents itself distinctly, and that states can become then only stable and the true foundations of progressive civilization, see section Ixxxix. of this book. All uncivilized tribes furnish us with examples. They are not, indeed, without property, since man cannot be without it, but the idea is loosely defined ; property does not yet fur- nish a solid substratum for social development. The Rev. Mr. Yate, in his Ac- count of New Zealand, 2d ed., London, 1835, speaking, on page 32, of the desire of the New Zealanders to obtain money, instead of blankets and other com- modities, says, " If they possessed any property (meaning personal), and it were known to any one else, they would be bound in honor to distribute it amongst their friends and adherents, or be liable, on the first cause of oftence, to be dis- possessed of all." We may observe the same respecting many chiefs in the middle ages. Mr. Yate also says that the New Zealanders like money because they can hide it, carry it about their person — ^just like the Turks. CHAPTER HI. Civilization. — What does it consist of? — Requires Society. — It develops Man, is his truly Natural State. — Futile dreams of Innocence and Virtue without Civil- ization. — Shepherds are savage. — Destiny of Woman. — High Importance and Sacred Character of the Family.— Virtues developed by it. — The true Nursery of Patriotism. XVII. Men thus led to keep together in families, and in- duced by every farther progress of their species to live in society, discover that its importance rises the more civilized they become, and, as has been stated, man's destiny is civil- ization. If we define the latter as the cultivation, develop- m.ent, and expansion of all our powers and endowments, with reference, both as effect and as cause, to the social state of man, no one will deny, I suppose, the position.' Man was either made to be stationary or for civilization ; a medium is not imaginable. If he was made to remain stationary, we oupfht to know in what stage. That of the lowest barbarism ? ' Lieber's Remarks on the Relation between Education and Crime, printed by the Philadelphia Prison Society, Philadelphia, 1835, page 4 et seq. Whatever definition we may give of civilization, my remarks will apply. We may say, the civilization of a nation is its aggregate manifestation of mind as ruling over mat- ter. We call a nation more or less civilized according to the variety and the greater or less, deeper or more superficial extent of this manifestation : to be brief, that nation, I believe, will be called most civilized among which the greatest number of ideas are most widely diffused. A nation which has very distinct and widely diffused ideas of a proper administration of justice or of tech- nical skill will be called more civilized than one which is wanting in these ideas, and less so than one which adds to this stock all the ideas of refined taste, in the fine arts, literature, social intercourse, etc. I recommend the perusal of the first lecture of Mr. Guizot's History of European Civilization, respecting the meaning of the word civilization. Deserving of attention are the remarks of William Humboldt on Civilization, Culture, and that which, higher than both, is desig- nated by the German word Bildung, page 37 of Introduction to the Kawi Lan- guage, etc., already quoted. 127 128 THE STATE. If not, then he must be intended for movement ; and where is this movement to stop? What direction is it to take? Certainly that of melioration. By civilization man develops his moral, intellectual, and physical powers, and by civilization man becomes more and more master over matter. But civilization cannot be conceived of without society, by which I do not mean large congregated masses only, but men closely united by a variety of important relations and strongly affecting each other's wel- fare. He was great "qui dissipatos homines congregavit et ad societatem vitae convocavit." (Cic, Tusc, i, 25.) Without so- ciety, no fellow-feeling, no kindness' and sympathy; without society, no public opinion, no shame, no virtue, no religion ; without society, no impulse for industry, no mental develop- ment, no intellectual progress from generation to generation, no common stock of science, no common stock of moral expe- rience, no literature, no taste, no music, no fine arts, no exalted love of the beautiful, no deep reflection, no refinement ; with- out society, no expanded idea of justice and mutual respect of rights, property, and independence, no public spirit and all that is connected with this elevating quality ; without society, no true family life, the source of so much that is pure, kindly, and great ; without society, no great degree of individual or territorial division of labor, no extensive exchange of produce, ' Man may live in solitude, yet aid effectually in the progress of mankind and feel the liveliest sympathy for its welfare. Few more active citizens have ever lived than Fra Paolo Sarpi, already mentioned, in his solitary cell, but though in a cell he still lived in society, because closely connected with it by his books, the active interest he took in the mighty changes of his time, in science, religion, and politics, and by his intercourse with the first men of his state. So does soli- tude exercise a most powerful effect upon the reflecting mind, both morally and intellectually, an effect of its own, not to be supplanted by anything else ; nor can we prepare ourselves better for any great event, in which we know that we shall have to act an important part, than by retiring for a time into solitude. The ancient philosophers, the prophets, Christ himself, give the example ; nor will any one who has ever tried absolute solitude deny its powerful, salutary, and lasting effect. This proves, however, nothing against my position. Man, in these cases, takes the amount of civilization gained by society with him, and remains united with it by all the ties of intellect. CIVILIZATION DEVELOPS MAN. 129 of customs and ideas, no calming and enlarging commerce;^ without society, no polish of manners, no urbanity of inter- course, no saving of time, no increase of productiveness, no union of labor, of capital, of mind and various means, no works to benefit the many, no roads, no canals, no insurance against the elements, no schools, no protection, no cultivation to its greatest extent, no multiplied and animating enjoy- ments, no raising of the standard of comfort; without society, no great increase of numbers ; without society, no humanity in man. Civilization develops man, and if he is, according to his whole character and destiny, made for development, civiliza- tion is his truly natural state, because adapted to and effected by his nature. " Naturaliter ergo homo est animal sociabile." (^gidius de Regimine Principum, Venice, 1497, ii. I, c. i.) XVIII. Civilization develops man's physical powers in various ways. We find, indeed, that the senses of savages are peculiarly acute as to some objects, but infinitely more developed are the senses of civilized man by mechanical trades and other occupations, the fine arts, and in many other ways peculiar to civilization. A savage may excel him in one way; in how many, however, does he not excel the former ! Civilized man can undergo far greater fatigues, both purely physical and of a mixed character. The North American Indian can journey longer with his heavy burden across the portages than a white man ; but how would he stand the fatigues of a campaign in Egypt or Russia ? how would he endure a climate so unaccustomed to him as tlie parching rays of the tropic regions or the ice of the pole were * Free nations esteem commerce as a public benefit. The English, the Vene» tians, the Americans, the Greeks, are instances. The ifiTropia or commerce on a large scale was highly valued by the Greek, though he undervalued the /caTTjy/lof or shopkeeper. We have to imagine the Greek not only as the artist, poet, scholar, politician, enthusiastic lover of liberty, but also as the active, shrewd, and persevering merchant of antiquity. See Heeren's different works on the ancient nations. 9 I30 THE STATE. to the Humboldts, Parrys, Cailles, Rosses, Backs, Clapper- tons ? The muscular strength of civilized man has been as- certained to be greater than that of uncivilized man, as shown by the dynamometer, an instrument with a graduated scale for measuring muscular force. The sailors of a British ship were able to carry the index some degrees farther than any of the various tribes of the South Sea islands upon whom it was tried. Lastly, it is with advancing civilization that longevity invariably increases, as all bills of mortality abundantly prove. XIX. The toils and woes of the human species incident to the frailty of their bodies, ill-guided and jarring appetites, and misconceived interests, led men at a very early time to im- agine a period when plenty rendered labor unnecessary, and universal content prevented contest and clashing of private interests. Poets dwell with satisfaction upon this agreeable dream, which gave, at least to the fancy, that for which the heart yearned, and to which reality offered so decided a con- trast. The more degenerate the times, the more trouble and misery and vice there was in the world, the more vividly was this state of pristine happiness depicted ; and a Juvenal, before he lashes the depravity of the women at his time, first paints the golden age (Satire VI.). It was forgotten, or not distinctly seen, that man was destined to gain by exertion, to conquer all that is necessary for him, that there is no ready-made happiness, not even comfort for him. No fur protects his body, he has to clothe himself; no shelter is made for him, he must learn to build one; his hand is no weapon like the corresponding limbs of many animals, he has to invent arms and instruments for it. Instead of the many specific physical instincts with which the brute creation has been endowed, he has received superior intellect, but this intellect itself has first to be developed gradually from generation to generation. The golden dream of original happiness was coupled with another equally erroneous view. Man saw the perfect laws of nature on the one hand, and the many real or supposed imperfections of human institutions on the other, degeneracy CIVILIZATION IS NATURAL. I3I and enervation, folly and discontent ; it was concluded there- fore that all was owing to his abandoning or counteracting nature, as if it had been the object of the maker of all to place man on a par with the brute or inanimate creation. The fact, which could not escape observation, that in many cases man had actually left his true nature, came in support of this view. Times like those in which Rousseau wrote, when the most burdensome and disfiguring dress corresponded to the shorn, crippled, and denaturalized parks and gardens, and when vice in the king's mistresses was elevated to political rank, established almost as a state institution, furnish us easily with a key by which we may explain the opening sen- tences of Emile, his work on education. " All is good," he says, " as it comes out of the hands of the author of things : everything degenerates in the hands of man. He forces one land to nourish" the productions of another, one tree to bear the fruits of another ; he mixes and confounds the climates, the elements, the seasons ; he mutilates his dog, his horse, his slaye ; he overturns everything, disfigures all ; he loves deformity, monsters; he wishes nothing to be such as nature has made it, not even man; he must be drilled like a horse in the riding-school ; he must be tortured according to fashion, like the tree of his garden." ' Rousseau forgot, how- ever, that it is man too who improves upon unaided nature everywhere ; he makes the soil bear hundred-fold, he en- • I am not desirous of mutilating in quoting, and shall add, therefore, the pas- sage which explains the view of the author, and modifies, in a degree, what the reader may have conceived to be the meaning of the above. " Sans cela," adds Rousseau, " tout iroit plus mal encore, et notre espece ne veut pas etre fa9onnee a demi. Dans I'etat ou sont desormais les choses, un homme abandonne des sa naissance k lui-raeme parmi les autres, seroit le plus defigure de tous. Les pre- juges, I'autorite, la necessite, I'exemple, toutes les institutions sociales dans les- quelles nous nous trouvons submerges, dtoufferoient en lui la nature et ne mettroient rien a la place. Elle y seroit comme un arbrisseau que le hasard fait naitre au milieu d'un chemin, et que les passans font bientot perir en le heurtant de toute part et le pliant dans tous les sens." It will be seen, however, even from this passage, that Rousseau did share with so many other writers of his age the mistaken notion that man in a state of nature was as perfect as a tree. 132 THE STATE, larges the fruits, ennobles the stock, saves from destruction, unites what was severed, carries the blessings and pleasures of one climate to another,' and renders palatable what was repulsive, harmless what was poisonous; his horse runs more swiftly than the wild horse, his mule endures greater fatigue. Where is the heavy wheat with bending ear, except on his cultivated ground ? where the grapes so delicious as those of his vineyard ? Where in nature, as it is styled, are all the cerealia ? The overcoming of the disadvantages and defects of climate is one of the boldest, noblest traits of man. XX. Trees, rocks, and rivers once being considered in a state of nature, and civilized man not, nothing was clearer than that the savage man was believed more natural, and consequently, by some, less depraved, than the civilized. Some of the acutest philosophers, as Hobbes, speak of the savage as man in a state of nature, from which it necessarily follows that they conceived civilized man as being in an arti- ficial — a made — state. In fact, he and so many others with him were partly induced to consider the savage in a state of nature because government, the state, appeared to him as something made, agreed upon. If so, it was clear that some state of things must have existed before the state zuas made, and this state of things might, if such had ever been the case, be called a state of nature. It would be difficult indeed to settle what, according to those philosophers, is the precise state of nature. Does man live in it only for one moment after his creation ? Or does ' A simple list of the useful and ornamental plants brought to England from the various quarters of the globe, with the time when first introduced, such as I have seen in various works, for instance, I believe, in Loudon's Encyclopsedia of Gardening, and in one of the companions to the British Almanac, is well worth a moment's reflection. To how incalculable a degree have not comfort, health, enjoyment, delight, refinement, nay, life itself, been increased in England from the first rye and wheat which were carried across the Channel to the last tree imported from New Holland, by the " forcing of one land to bear the productions of another," as Rousseau calls it. Imagine Europe without this bouleversement, in ancient Celtic simplicity ! CIVILIZATION IS NATURAL. 133 the tattooed savage, who beautifies, as he supposes, the body of his child with a variety of artificial and tormenting means, live still in a state of nature ? Or is that a state of nature where men live without any sort of authority? If so, then he cannot be found anywhere in a state of nature. Or is that the state of nature where small hordes pursue each other, or where they live peaceably together ? We find these uncivil- ized tribes in all these conditions and relations to one another. Why is war a state of nature, and not peace ? Many of the rudest tribes disfigure their bodies far more extravagantly than any courtier of Louis XIV. or Charles II. did by his periwig and hair-powder ? Why is the savage more natural ? But we have to ask, what is, philosophically speaking, the true state of nature of any being or thing ? Doubtless that in which it fulfils most completely that end and object for which it is made according to its organization, and the principles of its vitality — the fundamental law of its life and being. A dwarfish pine-tree on the high Alps, near the confines of per- petual snow, would, in its crippled state, certainly not be con- sidered in a natural state ; nor would a plant be called of natural growth if a too luxuriant soil has given it precocious exuberance, of which a deranged organism and early decay must be the consequence. Neither the haggard look of hun- ger nor the flush of fever is natural. Man, with his expansive faculties, progressive capacities, and moral endowments, capa- ble of cultivation and requiring it; man, who has received an unprotected body indeed, but one which adapts itself to all varieties of climes, which is able to carry him through various stages of social progress, and is by its fine organization adapted to his moral and intellectual destiny, is not in a state of nature when all that characterizes him as man, and distinguishes him from the brute, is stinted and stifled by a life of savageness, Man was essentially made for progressive civilization, and this, therefore, is Ids natural state. XXI. The reports of travellers on the moral state of man in the presumed state of nature corroborate what I maintain. 134 THE STATE. The inhabitants of Lord North's island are probably as un- connected with any other portion of the human family as we can imagine any community to be. Contrast Holden's Narra- tive of a Shipwreck on the Pelew Islands ' with the presumed primitive excellence of man in a state of nature, severed from civilization. Their mind so contracted that they would not use the fish-hooks offered by the wrecked sailors, though they acknowledged them to be much superior to their own, made of turtle-shell, because Yarris, their god, would be angry at their abandoning the old-fashioned hook (in which particular, however, it must be owned, they substantially resemble many white and refined people) ; their disposition cruel, their habits indolent ; their sense of right and wrong, and of decency, hardly awakened ; improvident in the highest degree. Or ponder on such occurrences as Captain Back relates in his Narrative of the Arctic Land Expedition in 1833-1835, of the Cree Indian named Pepper (p. 175, in the American edition). They, at least, do not exhibit any inviting picture of the harm- less state among the uncivilized. Nothing can bridle man's passions, and the undue action of the necessary primary agents of the human soul, but civilization, society, and that which can be cultivated in it alone in any high degree, knowl- edge and religion. Religion belongs to civilization. It is true, indeed, that each farther-advanced stage of society offers new opportunities for crime. Each new branch of industry, new field of activity, increased intercourse between man and man, offers, of necessity, an additional opportunity for offences. Use carries with it the possibility of abuse, and it thus fre- quently happens that the number of indictable and punishable crimes increases with a progress in civilization, but not neces- sarily, on that account, criminality. The art of writing alone made all the crimes of forgery possible — one of the most nu- merous offences in highly civilized countries; an Indian in the West cannot commit it.^ The increase of the number of laws ' Boston, 1836. = I have given my views on this subject in the Remaiks on the Relation betv/een Education and Crime, aheady quoted. LAIVS CANNOT BUT INCREASE. 135 with the progress of civilization produced an early belief that increased immorality and criminality were the cause. But it is not so, notwithstanding the high authorities to the con- trary. " Many men marvel," says Lord Coke, " the reason that so many acts and statutes are daily made ; this verse answereth : Quasritur ut crescunt tot magna volumina legis, In promptu causa est; crescit in orbe dolus." (Twyne's case. Coke's Reports, iii. 80.) So says Tacitus : " Cor- ruptissima republica plurimse leges" (Ann., iii. 27). I do not say that laws are not multiplied by corruption, but civilization must increase their number though corruption may diminish. It necessarily multiplies men's relations, because it develops their activity, and each new relation draws after it new laws to protect or regulate it. Each year brings forth, at present, many new laws, while the middle ages had comparatively few; and will it be maintained that immorality is now greater? Works like Wachsmuth's Moral History of Europe — a very extensive work — or Chateaubriand's Etudes Historiques will convince us at once of the contrary.' The number of the boxes in the apothecary's shop has increased ; the variety of diseases is probably increasing with civilization, but not so mortality ; mortality decreases with civilization. The variety of offences increases, but not criminality. There are, besides, many other reasons why the number of laws should increase, fhey are not collected, classed, and condensed, that is, codi- fied at the proper time. Sir Francis Bacon and Chief-Justice Hale (see his preface to Rolle's Abridgment) already pro- posed and urged codification. Another reason is, that what- ever people have a right to do, they will do too much of, if it involves some sort of privilege. The legislator likes to legis- late; so those who have the right like to speak: lawyers, legis- lators, ministers, speak too much. Luther found it necessary * The many tables of moral statistics, drawn up from official documents, which have of late been published, are not discouraging. 136 THE STATE. to enumerate among the nine " qualities and virtues of a good preacher," as the sixth, that he ought to know when to stop (vol. xxii. p. 991). It is vain, however, to hope that the laws of a civilized nation can possibly be reduced to a few principles. They would produce incalculable litigation. Still, it is true, on the other hand, that civilization tends likewise to simplification, to a classification of what before was a mere mass without order — in common machinery as well as in scientific or political matters. XXII. My remarks do not only apply to the difference be- tween civilized and uncivilized tribes; they hold good in other respects. The innocence of shepherds has been a frequent theme of former poets, so much so that pastoral poetry forms an important class in the literature of many nations. Lambs are innocent; but shepherds are not lambs. The ideas of rural simplicity and happiness associated with Arcadia are of a purely poetic origin. Shepherds, where they form a class, unconnected with society, are generally ferocious men, given to violence and brutality, and very frequently either in con nection with robbers, or robbers themselves. I found the Greek shepherds a rude and wild race, described to me as dangerous people ; the Italian shepherds or herdsmen form a part of the worst population ; the herdsmen of Hungary are a rude and little restrained race. What sort of men, in a moral point of view, the Spanish shepherds are, who traverse the country with their merino flocks, I do not know ; but we all know against how many revolting crimes Moses found him- self obliged to provide by his laws. The Jews were then a nomadic tribe. The Bashkeers, likewise a nomadic people, tributary to the crown of Russia, and who followed the army against the French in the year 1813, were so rude that they could not be billeted in the houses of cities, but had to biv- ouac in the open squares. And yet does a man who spends his whole life on the back of his horse, and drives his camels from one steppe to another, not live " in a natural state" ? In countries in which there are many shepherds, yet not form- WOMAN. 137 ing a separate class, as in Germany, they are frequently dis- tinguished by some peculiar knowledge, for instance, of medicinal herbs, but not, that I am aware of, for any higher or lower degree of morality. The early founders of cities have been justly renowned with all nations. Theseus was deified for having, among other deeds, united the inhabitants of Attica into a city ; and annual feasts showed how much importance the Athenians attached to this step in the civiliza- tion of their chosen peninsula. The German emperor Henry the City-Builder is ranked among the greatest benefactors of Germany,^ XXIII. The family, so important an agent in leading man to society, to civilization, obtains a higher importance with every progress which society makes in civilization ; for the family is natural to man, and all that is natural to him, that is essentially human, is more clearly developed with each ad- vancing movement in civilization. With the higher impor- tance of the family the woman likewise approaches that true position for which she is calculated. This higher importance of the family, and in it of the woman as wife and mother, is ' Our languages, likewise, testify against the poets. Villain is from villantis, which signified in Low-Latin a villager; and though it might be objected that the present meaning of villain is attached to the word owing to its having meant originally a bondsman, a vile fellow, there are other languages which involve the same idea. Dorperheid, from dorp, the Dutch and old English for village, so that the word literally translated would be dorpishness, signified in the seven- teenth century (the word is not any longer much in use), in Dutch, vileness, villany. I do not mean to intimate that the rural population in our times forms the focus of crime and worthlessness. Far be it. Criminal statistics show that in most civilized countries the agricultural districts are less productive of crime than others. The reason is because the latter are generally of a manufacturing character; and manufactures, together with other circumstances, existing in many countries, furnish an abundance of crimes. This last remark does not apply to the United States ; but the works of Guerry, Dupin, Julius, and other statistical writers on criminal matters show this relation to exist pretty generally in Europe. I merely intended to show that the languages indicate that civiliza- tion and morality do not necessarily go hand in hand with a separation from society, and that both are originally the fruits of a life taking the forms of larger communities. 138 THE STATE. not only a general one by way of influence upon society, but it is more distinctly manifested and acknowledged by specific laws, which pronounce the sacredness of matrimony, secure the rights of the woman in her capacity as wife, mother, or in her single state, by the laws of inheritance, by securing the rights and protection of children in infancy, by providing that relations in an ascending or descending line are not bound to inform against one another,' that escapes favored by relations shall not be punished, etc.^ Woman has received, in the great order of things, a dif- ferent physiologic organization and mental bias from those of man. The Creator has directed her to receive her impres- ' Kinsmen in the ascending or descending line, sisters and brothers, husband and wife, and those related by marriage in the first degi-ee, are not bound to inform against one another, nor are they bound to such preventive actions as would necessarily lead to such information. (Bavarian Penal Code, article 79.) But ascending kinsmen, husbands, are bound to endeavor to prevent the crime, or they are punishable. The explanation of this law, in the Notes to the Penal Code, vol. i. p. 212, speaks of the sacredness of the ties of blood, which the state shall not tear asunder. * The Proposition of a Penal Code for the kingdom of Wurtemberg, Stuttgard, 1835, declares relations in a still more remote degree free from penalty if they personally protect the criminal, without of course injuring others or interfering with public authority. See article 86. The Proposition of a Penal Code for the kingdom of Norway, Christiania, 1835, declares the same free from penalty if they hide or assist a criminal kinsman to escape. See article 10. See the Motives published with both these Propositions, which by this time may have become the law of the land. It is curious that the Chinese penal code, throughout of a severe character, still holds relations who assist a criminal free from guilt. The great reverence incul- cated by the Chinese towards parents was undoubtedly one of the motives. The code decrees, " All relations connected in the first and second degree, and living under the same root, maternal grandparents and their grandchildren, fathers- and mothers-in-law, sons- and daughters-in-law, grandchildren's wives, husbands, brothers and brothers' wives, when mutually assisting each other and concealing the offences one of another, and, moreover, slaves and hired servants assisting their masters and concealing their offences, shall not in any such case be punish- able for so doing." More distant relations are punished more severely, accord- ing to the more remote degree of relationship. Ta Tsing Leu Lee, Penal Code of China, translated from the Chinese by Sir George T. Staunton, London, 1810, 4to, p. 34 et seq. MONOGAMY. 139 sions more through the channel of feehng ; she has been en- dowed with a more tender sensibihty ; man has to rely more upon reflection. Her consequent position in the state, and natural sphere of action, will be treated of in a subsequent part of the work. Suffice it here to say that she steps beyond her proper circle of activity, which is emphatically that of the family, through which nevertheless she becomes a most essential ingredient of the state, if she abandons the sphere of tender sentiment, of affection, peace, and love. And as nowhere the essential order of things can be violated without incurring great danger, so does the woman expose her morality and whole true character, and, therefore, society, to danger, the moment she interferes with politics. "When a woman gives her mind to politics, she becomes best ac- quainted with what is least respectable in them — their per- sonalities." ^ On the other hand, we find her in a deplorable condition before she has been raised by some degree of civilization, Ledyard and Mungo Park received kind attentions at their hands, while we find in Holden's Narrative, cited already twice, the following passage on page 93 : " And what may be regarded as remarkable, the female portion of the inhabitants (of Lord North's island) outstrip the men in cruelty and sav- age depravity, so much so that we were frequently indebted to the tender mercies of the men for escapes from death at the hands of the women." ' XXIV. The family cannot exist without marriage, nor can it develop its highest importance, it would seem, without monogamy. Civilization, in its highest state, requires it, as well as the natural organization and wants of man, Cuvier, ' Taylor's Statesman, London, 1836, page 72. » The great depth of immorality to which a woman is much more apt to sink at once by crime, and how exceedingly difficult it becomes to reclaim female offenders, have been treated in the Introduction to Lieber's Translation of the Penitentiary System in the United States, by Messrs. de Beaumont and de Tocque- ville, Philadelphia, 1833, page xiii. et seq. I40 THE STATE. in his repeatedly quoted Animal Kingdom (vol. i. pages ^6, yy), says, " The nearly equal number of individuals of the sexes, and the difficulty of nourishing more than one wife when riches do not supply physical strength, show that monogamy is that sort of connection which is natural to our species, as well as the fact that among all those animals with whom this species of union exists, the father takes part in the rearing of the child." Where polygamy is lawful, few avail themselves of this permission, simply because the support of several wives with their offspring requires means beyond the reach of far the greater majority of people. On the other hand, it will generally be found that those who can support several wives select one in particular who is pre-eminently considered the companion to the master of the house. In many cases she is distinguished by a peculiar title. The Greeks mentioned it as an important step in civilizing their country, that the mythical Cecrops established monogamy. They knew monogamy only;^ so did the Romans. They held this most elementary of all institutions and first requi- site of civilization in high honor, until the period of universal degeneracy under the emperors, and then even did the im- perial laws evince that marriage, viewed with regard to the merest political utility, is of essential importance ; as like- wise late statistical accounts seem satisfactorily to prove that concubinage extends its enervation to the offspring.^ Cato the Censor said, according to Plutarch, that he considered an honest husband higher than a great senator, and Ulysses, returning from war and glory, wishes kind Nausicaa, for all her humanity shown him, a husband and a house. " May the gods grant thee all thy heart desires, a husband and a house; and bless you with peace and concord. Happy ones! ' The tales of the bigamy of Socrates and Euripides have long been disproved. Two cases only form an exception, that of Anaxandrides in Sparta, obliged to take a second wife on political grounds (Herod., 5, 40), and of Dionysius the Elder, of Syracuse (Diod., 14, 44). ' See chap. iii. of the first book of Quetelet sur I'Homme et le D6veloppement de ses Facullds, Paris, 1835. PATRIOTISM. 141 Nothing', in truth, is more desirable and rejoicing than when husband and wife, united in faithful love, administer quietly their house — a bitter sight to the enemy, but a delight to the friend." (Odyssey, 6, 180 et seq.) XXV. It is in the family, between parents and children, and sisters and brothers, that those strong sympathies and deep-rooted affections grow up which become the vital spark of so many good actions, which are the medium through which we view other and vaster spheres with purer, intenser feelings, and which survive those blasts of later life which would fain chill most hearts into cold egotism. With them is mingled and a thousandfold entwined all that attachment which expands into patriotism — that warm devotion to our country which loves to dwell in every noble heart, and with- out which no free state can long exist. The love of our parents, of our children, of our brothers and sisters, makes patriotism a thrilling reality. Why is it, otherwise, an ex- pression which goes through all centuries and appeals di- rectly to every soul to fight for our hearths ? Why has the word hearth been chosen for country ? Because there we see it most clearly, feel it most deeply. Return from an arduous war, from a long absence, and see the first high mountains of your country; it is a happy feeling indeed, but it is more thrilling still when you see the stile which leads to your father's meadow. Why does the word home speak so di- rectly to our heart ? Because the home contains what is choicest for us in the country. How full of meaning are the words " bound home," when they sound from a vessel which you pass, yourself sailing to distant climes ! Leonidas, when he prepared himself for his heroic sacrifice and selected those who were honored to die with him, chose men of a mature age and who had children. The sight of Rome could not melt the stern heart of Coriolanus ; his wife and mother could. When a hero, with encircled brow, has passed through the crowded streets, and has received the thanks of his country in the capitol, and his heart is big with 142 777^ STATE. glory and throbs with joy, he hastens home to drink the joy of joys, in the arms of his wife and his parents. When he is doomed to die a martyr to his country, as Padilla, Egmont, or Barneveldt, his last words are directed to his wife, to his children, to his family. These ties, indeed, must be severed when the alternative is between family and country; so must at times the love of country yield, when the alternative is between it and the love of mankind. (See Patriotism.) When Timoleon saw he could not prevail on his brother Timophanes to desist from his tyrannical course of usurpation, the faithful lover of liberty conspired even against him, but still " Timo- leon stepped aside, and stood weeping, with his face covered, while the other two drew their swords" and slew the tyrant. When Arnold Winkelried, in the battle at Sempach, saw that his countrymen could not advance against the dense wall of Austrian lances, he stepped forward and said, " Dear confed- erates, I'll break a path for you ; think of my wife and dearest children," and buried in his breast as many lances as he could clasp, and tore them down with him. But who can say how much at that very moment the thought urged him that he would purchase liberty with his blood for the land of his very children ? XXVI. The family is the focus of patriotism. Public spirit, patriotism, devotion to our country, are nurtured by family ties, by the attachment to our community, the interest in our country, the associations with our district, our province, as the love of our country enables us best to understand the deeds of other nations. We have little regard for a man who loves his country in general, in the abstract, and does not take an interest in the improvement or embellishment of his own place. A man who does not love his hamlet will not die for his country, still less live, labor, toil for his nation. We shall presently see how mistaken those are who believe that the state is nothing but an association founded upon material interest, and not a society of closely united men. If they were right, the state might dispense with public spirit; IMPORTANCE OF THE FAMILY. ^AX but it cannot. Where public spirit has departed, the common- wealth is corrupt; but public spirit is generated first in the family, for through it we are in a visible and tangible way- connected with what otherwise would remain for most men a bare abstract idea, unable to animate, raise, inspire, cheer on, and prepare for sacrifices. The members of a state are not wheels of clock-work, working, indeed, with each other, but not feeling for one another. Let sympathy and disinterested affection come whence it may, so that we have it — a refresh- ing dew upon the arid fields of practical life. XXVII. The Jesuits condemn the love of our kinsmen as a carnal inclination,' and they praise a member of their so- ciety for having so entirely conquered his feelings that he could quietly pass his native place after a long absence, and in spite of the strongest desire to see his relations.^ But so is parental love, in its origin, carnal ; so is marriage, which we have found to be so important an element of civilization, originally founded in the material world. It is a principle in nature that the first impulse is given by the physical world, by relations of matter; but we have to develop, perfect, trans- form, ennoble, spiritualize them. It is a well-known fact that the vast machinery of industry, so necessary to civilization, is chiefly set in motion by the wants of man to satisfy his appe- tite, far more so than by the want of protecting his body or the necessity of clothing and housing. C est la f aim, c est le petit ventre qui fait mouvoir le inonde, said Napoleon (Las Cases, vol. V. p. 32, Paris edit, of 1824). But is, on this account, all in- dustry a mere matter of the belly ? There are, at times, higher considerations than those of our family and our country; but take these elements away, and you blot out at once a thou- sand of our noblest emotions, most effective agents of the moral world, and surest principles of society. There is much ■ Summarium Constitutionum, \ 8, in the Corpus Institutorum Societatis Jesu, Antvverpise, 1709, t. i. * Orlandinus, iii. 66, mentions the case. The Jiisuil's name was Faber. 144 ^-^^ STATE. truth in the remark of Madame de Stael, that " it is necessary to make the choice of our object with enthusiasm (if we only understand this word right), but we must march towards it by the aid of character. Thought is nothing without enthu- siasm, nor action without character. Enthusiasm is every- thing for literary nations ; character is everything for acting nations; free nations are in need of one and the other." ^ And what kindles this enthusiasm, by which we are to understand an inspired attacliment to what is good and great, independ- ent of the calculations of interest? Chiefly the family and a noble and inspiring history of our own nation. If ancient philosophers maintain that, according to the example of the Lacedaemonians, the family ought to be abol- ished, and even Plato, in his Republic, proposes to take the new-born babes from the parents of the first class of citizens who had been previously united by the state, with a view of propagating a sound race, it will be easy to understand them, after we shall have seen the essential difference between the views which the ancients took of the state and its object, and those of modern times. When, however, modern writers pro- pose a similar annihilation of the family, as some actually have done, it only shows that they have no correct views of man's individual value, of the family, and of what they ought to be in modern times, or that they have proposed a false remedy for the existing evils in private education. » De rAUemagne, par Mme. de Stael-Holstein, Paris, l8io, tome vi. p. 90. CHAPTER IV. What is the State? — By what Characteristics does it differ from the Family? — The State a Society. — Various Human Societies, according to the various Re- lations. — Relations of Consanguinity, Exchange, Comity, Intellectual Commu- nion, of Right. — What is Right ? — The State is the Society of Right. — The Just is its Fundamental Idea. — Objects of the State. — What is Protection ? — The State requires General Rules; its Members are not absorbed by it; every one has Claims upon it ; it is a Moral Society ; it exists of Necessity. — The State remains a Means. — The Individual above the State ; the State above the Individual. — The State, as such, has Rights and Obligations ; the State does not make Rights, but acknowledges them. — Civilized States far the most powerful. — Man by Nature a Political Being. — Man never exists without the State. — The State is no Insurance Company. — Protection of Life and Property not the only Objects, nor the highest. XXVIII. The family, however important, is not a suffi- ciently extended society to lead man to his great destiny — to civilization. Men must live in wider unions, they have to establish relations and to develop ideas, which can never be fully obtained in the family alone. A union of a different character is required — it is called the State. The prevailing idea in the family, that determines the character of the inter- course between the members, is mutual attachment depending on personal relations, to which man is first induced by the ties of consanguinity, on kindness and forbearance, on a de- gree of disregard of one's own personal considerations. That which rendei"s the family so admirable, so holy, is love, and a continued forgetfulness of a separate individual interest. The fundamental idea of the state, on the other hand, is justice, the right which exists between man and man. That which renders the state so great and important is, that it maintains right, protects and is a continual guard over the individual right of every one ; that it demands of no member an obliga- tion on his side alone, but knows of mutual obligations only. There shall be no duty in the state for the performance of lo 145 146 THE STATE. which the citizen does not receive an equivalent. Family and state, then, do not only differ as to size, but they differ in their characteristics and essentials, whatever confusion to the con- trary may in many parts of the world exist. The monarch is frequently represented as the father of his subjects ; and this misrepresentation alone has caused mankind to pass through infinite suffering. In few instances has the danger of analogy shown itself more banefully than in this. It has induced peo- ple to establish claims, or to submit to them, which are cal- culated to throw society into disorder, and to lead it to those disastrous consequences which never fail to be the effect of mistaken notions respecting elementary principles of society.' Still, I do not mean to say that in the course of civilization stages were not necessary, in which the ideas of family and state were yet closely interwoven with one another, and were mixed up in the patriarch; nor that the state in many in- stances actually did not grow out of the family. The Asiatic nations prove this fact. The family grows into a tribe, the tribe into a nation ; ^ and even with those nations and states which originated from a fusion of many discordant elements, as the noble people of Attica out of the mixture of Pelasgi, ^ * [From a long paper left by Dr. Lieber we select the following passages :] If the principle of the family is applied to a state of any extent, in which per- sonal acquaintance and attachment of some degree becomes impossible, if the patria potestas is applied to the state, or, as thp Chinese say, filial duty is the base of the state, it cannot otherwise than lead to absolutism and tyranny. For we have seen that one of the characteristics of the family is the discarding of strict right and the adhering to mutual attachment, while the just authority of the parent is restricted only by this personal attachment and the natural relations of consanguinity. But this personal attachment cannot exist in an extensive state, and but in a very limited degree in the smallest one, so that nothing remains but unlimited authority without the moral control existing in the parental relation. [He then illustrates what he has said by the state of things in China, citing especially Davis's Chinese, u. s. i. 202.] 2 I know of no more striking instance of divisions and subdivisions according to family relationship, and a government founded upon it, than the one described by the Hon. Mountstuart Elphinstone, in his Account of the Kingdom of Caubul, etc., London, 1815, chap. ii. p. 158, et seq. Mr. Elphinstone was sent as envoy to the kin<^ of Caubul. The work is valuable in many respects. . VARIOUS SOCIETIES. 147 lonians, and others, and the British nation out of Britons, Ro- mans, Saxons, Danes, and Normans, the state grew originally out of the family, in so far as the idea of justice grew with its enlargement; but everything, every institution, every art, every science, begins in an undefined state, mixed up with others, and is more distinctly developed only with the pro- gress of civilization. Medicine, architecture, and the ministry are, at present, questionless three very distinct employments, though originally all three were united and undistinguished from one another in the priest. Painting and writing were at first the same thing, they are now essentially different things. XXIX. Again, what is the state? All civilized nations are now agreed that the state is a society ; no man will be so bold as to pretend that an individual, a monarch, can be the state, as Louis XIV., when a boy, asserted of himself As to the essential character of the state, however, its true foun- dation and origin, its aim and object, power and extent, peo- ple are not agreed. Let us see whether it be not possible to arrive at a satisfactory answer to so momentous a question. The state is a society. What is a society ? A society is a number of individuals between all of whom exists the same relation — the same as to its principle, however modified it may be in other respects ; or it is a number of individuals who have the same interest and strive unitedly for it. The individuals or members of a society exercise, therefore, a more or less intense influence upon one another. The Cath- olic Church is a society ; between all members, the cardinal and lowest layman, exists the relation of religion and the same religious discipline. These fundamental relations constitute the peculiar character of the society, and are called its ties. Societies may be temporary unions with stated objects, or they may rest on relations not entirely or not at all control- lable by the members — on given relations, with general objects chiefly to be learned from the fundamental relations them- selves between the members. By way of greater distinction, I would call the former associations companies, the latter, 148 THE STATE. by way of excellence, societies. Insurance companies, chari- table societies, academies of science, are associations; nations, states, communities, are societies. Now, all the relations in which man may be placed are : Relations to things, comprehending within this term ani- mate and inanimate things. Property, as we have seen, rests on one of these relations. Relations between man and man. Relations between man as the creature, the made being, and his Creator or Maker, or between man as the inferior and guided being, and the superior and guiding being. All that appertains to these relations is included in the compre- hensive term of religion. The chief relations between man and man seem to be these : 1, The relation of consanguinity. One of the societies resting on this relation is the family. 2. The relation of exchange. Labor must be divided, as we have seen, and men stand in constant need of each other according to the individual and territorial division of labor. The shoemaker must have bread from the baker; the German wants rice from the Carolinian, and sends linen to the South American. Let us call this the catallactic or diallactic rela- tion, from y.araXXd(7(TU), ov diaX)A lie says, "The people may be compared to mules, which, being accus- tomed to the load, are more spoiled by a long rest than by work ; but as this work ought to be moderate, and as the load of these animals ought to be proportionate to their strength, it is the same with regard to the subsidies to be paid by the people. If they are not moderate, even if they were useful to the public, they would be nevertheless unjust." Considering those times, when the term politics meant a system of wisdom and experience to manage the affairs of the king, and when '■^ la gloire de S. MP was often used as designating the great and main object of the state, precisely as now frequently the success of the party is substituted for the " welfare of the people," these words of Richelieu's appear quite moderate. 3 See the Testament of Louis XIV. 214 "^^^ STATE. considered, however contrary the actions of the rulers fre- quently were. When the same Louis XIV. who had said, "I am the state," was at the point of death, he said, " Je m'en vais, mais I'Etat demeurera toujours." (I depart, but the state will endure forever.) He acknowledged he was not the state, but, at the highest, its representative, for otherwise the state must have departed with him. Thus, when the king of France died, it was customary to proclaim the death by the words, "The king is dead, long live the king." And what ■was this "state" which would endure forever ? Did the court form the state, or the nobles, or the employes, the navy or army, the judicial courts? The people have always instinct- ively discerned, sometimes in spite of the professed doctrines, between the monarch with his government, and the country, i.e. the state. There was never yet a Frenchman, plebeian or courtier, for whom the words la France, though politically considered, had not a very different sound from that of the word nionarqiie or roy. The state is what the ancients fitly called res pitblica, and defined by being res coimminis, res popidi. LXI. Mankind extends over so vast a space, the various countries have characters so different, the several portions of mankind stand in so different degrees of civilization, their Avants, physical and intellectual, their taste and genius pro- moted or retarded by circumstances and events uncontrollable by them, the objects they strive for by joint exertions, their dangers, desires, interests and views, languages and religions, capacities and means, are of such infinite variety — that human society does not, and, according to the order of things, ought not to, form one state. There exist many states ; that is, man- kind is divided, in consequence of countless concurring cir- cumstances, into a number of societies, in each of which exists the absolute necessity of forming a state— a necessity without which man cannot rise higher — a necessity which is felt by all at all times, however different the view that people take of the state, or though the state may not even yet have developed itself in their minds as a separate idea, distinct from all other DIVISION OF MANKIND INTO STATES. 215 societies. Men cannot exist without the state ; men never have existed without the state ; for everywhere we find rights acknowledged, laws and rules observed, authorities estab- lished. The idea of law itself need not have presented itself very distinctly to the mind ; it may yet be in a great measure bound up with the personality of the authority, whom all obey, who commands and gives the rules ; yet even then the state exists in its incipient stage, because a law — although not of necessity a written one — which the others obey, gives him who is the superior, power or authority to prescribe rules and settle differences. So have men never lived without the administration of justice ; they cannot by any possibility. Yet there is avast difference between the first summary procedure of a patriarch, and the elaborate, well-poised trial of a highly civilized community. Though man has never existed without some at least incipient manifestations of the love of the beau- tiful, still there is a great difference between the tattooing of the savage or his first uncouth idols, and the perfect beauty and simplicity of the Grecian Aphrodite. Does this difference justify us in asserting that the love of the beautiful is not natural in man but acquired, that there is no original aesthetic disposition in him ? If so, why does taste, rude, correct, or perverted, pervade all mankind and form one of the main- springs of all industry ? Men, be it repeated, are nowhere without the state, and this is one of their distinctions from the brute. Brutes nowhere acknowledge a superior or leader. If they follow greater force, or if many females follow one male, it is the yielding to physical power or the operation of physical laws, not the acknowledgment of superiority. It is the high distinction of man to acknowledge authority. Wherever we find men, in whatever stage of social devel- opment, the barbarous Patagonian, the restless son of the desert, the moving hunter of the prairie, the piratical Malay, the forlorn Esquimaux, the slavish Asiatic or the free Amer- ican, the submissive Russian or the manly Briton, where there are men, there are also rules, rulers and ruled, ordainers and obeyers, judges and judged, those that have power and 2i6 THE STATE. those that yield obedience, chieftain and followers, princes and subjects, magistrates and citizens — alwaj^s superiors and inferiors. The state is natural to man, is absolutely necessary to man. Each state carries within itself the absolute neces- sity of existence; not that each separate state must necessarily exist separately for itself, but that the people who constitute the state must needs live in a state, in a jural society. There is an absolute necessity of man's living with man in relations of right, of rules which guide his actions, of power to enforce these rules when not willingly obeyed, or of deciding where the rights of various individuals clash with each other — an absolute necessity of man's living in society and of his being protected therein. And this absolute necessity, with the power necessarily flowing from it over all outward relations, we call sovereignty. The right, obligation, and power which human society or the state has to do all ■ that is necessary for the existence of man in society, is the true sovereign power. It is the basis of all derived, vested, or delegated powers, the source of all other political authority — itself without any source, imprescriptible in the nature of man. It exists by absolute necessity, and draws from its own self-sufficient plenitude. Since society, and hence the state, never ceases, and since with them their necessity of existence never ceases, so is the sovereign power never exhausted or extinct, but acts in all cases in which the derived or vested powers, the powers of trust, are at an end, it being the never-ceasing fountain and the last resort of all power, the "summum imperium," the "summa potestas nulli subjecta." The true definition of sovereignty, therefore, would be that it is. Prima et summa civitatis vis et potestas — vis, because of its being the primitive energy of the state ; potestas, because of its being the ultimate and supreme, chief and ever-active power. It has been seen that justice in its broadest sense, as that which is just, is the foundation of the state, and its vital element; and thus Milton is right when he says, "Justice is the only true sovereign and supreme majesty upon earth." (Tenure of Kings and Magistrates, vol. ii. p. SOVEREIGNTY. 217 IJ2 of Milton's Prose Works, Boston ed.) This is the true divine right of sovereignty. " Item author justitiae est deus, secundum quod justitia est in creatore," (Bracton de Leg. et Consuet. Angl,, lib. i. cap. 3.) LXII. To repeat briefly the train of the argument: As axiom I stated, Man is made to be man, or, I am a man, therefore I have a right to be a man. Man cannot be man without society. Society cannot exist without jural relations between its members, because no member ought to give up, or can give up, his individuality. Society, considered as to its jural relations, or jural society, is the state. The neces- sary existence of the state, and that right and power which necessarily or naturally flow from it, is sovereignty. Sover- eignty derives its power from no previous or superior one, but is the source of all vested power. If a man were to ask in earnest, whence does this power flow, he could only be answered by a counter-question, such as, whence do you derive the right of breathing ? He would answer, " my existence is the self-evident proof of my right of existence; and in order to exist, breathing is absolutely necessary." The same applies to sovereignty. Absolute necessity gives in all cases sovereign power, namely, that primitive power which supersedes all other, as it is its source. The crew of a vessel are in a state of mutiny; the captain has been killed ; an energetic man among the passengers unites the latter and part of the crew with himself; he seizes the mutinous sailors ; there is no possibility of subduing or preventing them in any other way from piratical acts. He tries them with the assistance of his fellow-passengers, and hangs them. He is right, and, provided he can prove every- thing as stated above, he will be justified by any court which decides according to strict justice and this alone. The French vessel La Meduse (Medusa) went in 18 16 to the river Gambia, and was wrecked. About one hundred and fifty of the crew built a raft and suffered incredibly. They enacted a law that any one who, unauthorized, should open 2i8 THE STATE. the wine-casks, which were of infinite importance to them, should be thrown overboard. Some consequently were thrown into the sea, having opened a cask in the night. They likewise passed a law that thirty of their half-dead comrades should be consigned to a watery grave, because they could not live long and still were consumers of the very small stock of provisions, which but barely kept the stronger ones from starvation. Without this law the remaining ones would have lost their chance of living.' Provided the people who tried and executed the murderer Patrick O'Conner, as related in the Galenian of June 23, 1834 — a paper published at Galena, in the northwest angle of the state of Illinois — could not by possibility obtain in their then wilderness the means of trying this dangerous man, who had for a long time committed crimes against them, they were right in doing so for themselves.^ It may have been the fault of the state not to provide that part of its territory with sufficient means of administering justice; I only speak here of the supposed necessity under which the people labored, and the consequent right. Equally necessary with physical existence and its protec- tion is, as has been shown, the social existence of man, and consequently its insurance, from which follows sovereign power. This is not the place to treat of the great danger of resorting to this sovereign power, implied in necessity, in single cases, and of the enormous abuse to which it may lead, if wrongly applied. LXIII. It appears, then, that sovereignty is a power and energy naturally and necessarily inherent in society ; it only » An account of this thrilling transaction may be found in the London Satur- day Magazine of April 12, 1834. See also Captain Ross's Voyage in 1829 to 1833, page 430, American edition, with regard to the opinion of the English ]5ublic res] ecting his sick men, and the brave captain's indignation. ' This very peculiar affair was reprinted, among other papers, in the National Gazette (Philadelphia) of July 16, 1834, which will be more accessible to- many readers than the Galena paper. SOCIETY ALONE IS SOVEREIGN. 219 exists with society, it cannot pass from it It is the vital principle of the state, and any one can no more live for an- other than one or more can have sovereignty for another. The assertion that society, or the people, divest themselves of sovereignty and delegate it to some one else, is as contra- dictory in itself, and can be as little imagined, as if we should force our mind to suppose the trees of a forest delegating one tree to be green for them, or to sprout in spring for them — nay, more difficult, because sovereignty and state are ideas essentially united, one being only the attribute of the other, as omniscience is of God. Nor is it any more correct to im- agine a human individual at some period or other a sovereign for himself Mably said, " Man appears to me only to be a dethroned king." (Des Droits et des Devoirs du Citoyen, p. 12.) Strange kings (that is, holders of supreme power), without kingdoms (that is, with power over nothing). Man imagined without the state is merely an individual man; but sovereignty is the inherent attribute of society. Had people always traced out the true nature of the state, and acknowl- edged that this alone is the state of nature for men, they would not have fallen on the one hand into the grave error of imagining each man "before the state was formed" as stalking about with an imperial crown on his head, and a sceptre for his walking-stick ; on the other, that men, forming a joint-stock sovereignty company, could delegate this sov- ereignty to any one whomsoever. Of this more hereafter. Society never can delegate or pledge away sovereignty, and, of course, never has done so. It is clear, from what has been stated before, and it will be shown by histor.cal evidence in the sequel of the work. He in whom rests sovereignty is called the sovereign. Who is it ? Who else can it be but society ? Not, I repeat it, by a union of millions of little sovereignties ; nor is each member of the state possessed of a fragment of sovereignty. Sovereignty has nothing whatsoever to do with the individual. Notions which are radically wrong never show their unten- ableness in so glaring a light as when reduced to plain reality. 220 THE STATE. There are about fourteen millions of people in the United States, of whom perhaps three millions are grown white male citizens. If the people are the sovereign by a union — a con- glomeration of previously detached parcels of sovereignty — each member holds a share in the sovereignty. Now, let me for a moment withdraw my one three-millionth part of sov- ereignty, which would be my due for myself and family, and make use of it; for instance, let me make a one three-millionth part of war against a foreign power, giving up, on the other hand, all protection I might otherwise claim of the United States. I declare a three-millionth part of a war against Great Britain. I will not kill, I will only wage what might be fairly considered a three-millionth part of a war. I take for- cibly the purse of an Englishman ; they catch me ; but, in spite of my open declaration of war, they will not treat me with a three-millionth part of that consideration with which even a common soldier, if prisoner of war, is treated. They try and transport or hang me, as the case may be ; nor is this the worst. Not one pang of sympathy, not one voice in vindication of my rights at home ! Not one speaker on the floor of Congress, who shows that Great Britain, by disre- garding my fraction of sovereignty, has seriously endangered his! LXIV. Blackstone acknowledges the sovereignty of so- ciety, not indeed in so many words, but the relations in which the laws and history of Great Britain stand to each other forced him to state it nevertheless. The reason why he did not distinctly acknowledge it as a principle was because he would not go beyond the positive law, and indeed he speaks of " fertile imaginations" being requisite to furnish the cases of such a violation of the constitution by the king as would amount to abdication. But it does not require a fertile imagi- nation" to think over what has actually happened in history so many times. Still, he cannot help going at times to the very limits and borders of positive law. Thus, he says, "For, as to such public oppressions as tend to dissolve the constitu- SOCIETY ALONE IS SOVEREIGN. 221 tion and subvert the fundamentals of government, they are cases which the law will not, out of decency, suppose." (Vol. i. 244.) Constitutional law has nothing to do with decency, but with right, and right alone. The constitution of England does not contemplate these cases, because positive law must end somewhere, and though the constitution were to adopt the rocoss of Poland, which was a " lawful form of insurrec- tion" in the former elective monarchy of that country, it would again remain to be decided whether there is or is not lawful reason for the rocoss. The passage in which Black- stone acknowledges the sovereignty of society is tbis (vol. i. 245) : " Indeed, it is found by experience that whenever the un- constitutional oppressions, even of the sovereign power" (meaning the royal power), " advance with gigantic strides and threaten desolation to a state, mankind will not be rea- soned out of the feelings of humanity; nor will sacrifice their liberty by a scrupulous adherence to those political maxims which were originally established to preserve it. And there- fore, though the positive laws are silent, experience will fur- nish us with a very remarkable case, wherein nature and reason prevailed. When King James the Second invaded the fundamental constitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced a new settlement of the crown. And so far as this precedent leads, and no farther, we may now be allowed to lay down the law of redress against public oppression. If, therefore, any future prince should endeavor to subvert the constitution by breaking the original contract between king and people, should violate the fundamental laws, and should withdraw himself out of the kingdom ; we are now author- ized to declare that this conjunction of circumstances would amount to an abdication, and the throne would be thereby vacant. But it is not for us to say that any one, or two, of these ingredients would amount to such a situation ; for there our precedent would fail us. In these, therefore, or other circumstances, which a fertile imagination may furnish, since 222 THE STATE. both law and history are silent, it becomes us to be silent too; leaving to future generations, whenever necessity and the safety of the whole shall require it, the exertion of those inherent (though latent) powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish." So far Blackstone. I have only to remark that the "nature and reason" which prevailed in the case of James II. is all I claim for the foundation of the state with its sov- ereignty, that the end of the passage quoted is the amplest acknowledgment of the sovereign power of society, and that I prefev to call sovereign power that " inherent power" whidi is even above the power called by Blackstone and generally sovereign power, and shall designate the latter by a different name. From the next section it will appear, however, that this " inherent power" is ever active, and not so entirely " latent," and that without its action society could not exist for a moment. May I be permitted to conclude the present section with an extract from Hallam (Const. Hist, i. page 393), strongly sup- porting the view just given :' " In point of fact, neither James I. nor any of his posterity were legitimate sovereigns, according to the sense which that word ought properly to bear. The house of Stuart no more came in by a lawful title than the house of Brunswick ; by such a title, I mean, as the constitution and established laws of this kingdom had recognized. No private man could have recovered an acre of land without proving a better right than they could make out to the crown of England. What then had James to rest upon ? What renders it absurd to call him and his children usurpers ? He had that which the flatterers of his family most affected to disdain, the will of the people ; not certainly expressed in regular suffrage or declared elec- tion, but unanimously and voluntarily ratifying that which in ' * I think the best name for what is usually called sovereignty in a monarch, and which, according to me, is but monarchical supreme power, would he. prin- cipate, not principality. We speak of the principate of Caesar; the word bears its legitimacy within it. PUBLIC OPINION. 223 itself could surely give no right, the determination of the late queen's council to proclaim his accession to the throne." LXV. The sovereignty of society manifests itself: 1. By public opinion. 2. By the generation of the law. 3. By power, I. Public opinion. The term is taken here in its most com- prehensive sense, not only meaning the opinion of the com- munity in as far as it has been made public, especially with regard to some specific measures, pending or adopted, but as the opinion of the public, of civil society, as we are apt to term public anything connected with the state, for instance, public life, public character. I understand by public opinion the sense and sentiment of the community, necessarily irre- sistible, showing its sovereign power everywhere. It is this public opinion which gives sense to the letter, and life to the law: without it the written law is a mere husk. It is the aggregate opinion of the members of the state, as it has been formed by practical life ; it is the common sense of the com- munity, including public knowledge, and necessarily influenced by the taste and genius of the community. How is it formed? It is formed as the opinion of any society is formed, which must always consist of leaders, superior men, men of talents, or well-informed men, who had an opportunity to see or in- form themselves, and less gifted men, or less informed per- sons, the acquiescing or trusting ones. Not that the leaders prescribe with absolute power; they only either pronounce clearly what has been indistinctly felt by many, or they start a new idea, which, in being received by the acquiescing ones, has to accommodate and modify itself to the existing circum- stances. The leaders themselves are under the strongest influence of that sense and sentiment of the community, for from early childhood they live in the same relations with the others. Public opinion is not only an opinion pronounced upon some subject, but it is likewise that which daily and 224 ^-^-^ STATE. hourly interprets laws, carries them along or stops their oper- ation, which makes it possible to have any written laws, and without which any the wisest law might be made to mean nonsense. It is that which makes it possible to prescribe and observe forms without their becoming a daily hindrance of the most necessary procedures and actions ; it is that mighty power which abrogates the most positive laws and gives vast extent to the apparently narrow limits of others; according to which a monarch ever so absolute in theory cannot do a thousand things, and according to which a limited magistrate may dare a thousand things; which renders innocent what was most obnoxious, and at times makes useless the best intended measures, protecting sometimes even crime. I do not indeed say that this sense and sentiment of the community is always right. Who will deny that it was the public opinion of the seventeenth century that there were witches, that they ought to be killed — a power which forced judges against their judgment to allow the unhappy beings to be prosecuted, however distressing the whole procedure might be to them ? See an instance in the Life of the Lord Keeper Guilford, London, 1819, vol. i. page 250. But, gen- erally speaking, public opinion is less apt to be wrong on broad important questions than that of individuals, because it is nothing else than the result of individual opinions modified by one another. " I know one," said Talleyrand, according to De Pradt's Guarantees to be asked of Spain, chap, v., "who is wiser than Voltaire and has more understanding than Na- poleon himself and all ministers who ever were, are, or will be, and this one is public opinion." In the second part of this work I shall inquire into the question when a citizen is bound boldly to disregard public opinion, and when to submit to it his individual judgment; here I have to treat of it only as the attribute of sovereignty. Public opinion has abolished torture long ago in Denmark, yet but lately it was abolished by written law. The code of Charles V., still the penal law of several parts of Germany, prescribes most severe and frequently cruel punishments, PUBLIC OPINION. 225 entirely at variance with the spirit of the age, which is but a different name for public opinion applied to a larger society and considered as to a given period. The consequence has been that all manuals of German penal law give the respective punishments fixed by the code of Charles and those which are awarded according to "practice." Yet this "practice" has never been legislatively enacted. No one according to law shall be present at the debates of the British parliament, except members. This is the positive law. There are gal- leries built for the public, and convenient places for reporters; this is the public opinion. Let any one, let the ministers, let the monarch, dare to insist upon that law. The British con- stitution, that is, the law, says that the king may veto any bill which has passed through both houses ; British public opinion prevents the monarch from making direct use of the privilege, at least he has not withheld his approval for now nearly two centuries. A law banishes all members of the Bonaparte family from France. Lately one of them visited the king of the French at the Tuileries; all the papers mentioned it. Why are so many things absolutely impossible, in spite of all the law that might be cited in favor of it? Because public opinion decides thus, that is, in many cases, common sense, which must always decide on the application of rules, whether they be furnished by grammar, architecture, or politics. (See Hermeneutics.) When Queen Victoria went, on December 21, 1837, to the lords to give assent to various bills, the clerk called out, after the title of one had been read, Le roi le veut (the king wills it), instead oi La reine le 7^^/// (the queen, etc.). The clerk, accord- ing to the papers, did not correct himself Now, suppose a lawyer were to build an argument upon this bill's never having become a law, because it had never received the royal assent, there being at the time no king in England. He might bring most powerful arguments in favor of the neces- sity of observing strict forms, the more urgent the more important the respective spheres of action are; he might quote innumerable precedents of mere violated forms having 15 226 THE STATE. defeated otherwise legal measures ; he might bring powerful analogy within a hair's breadth of his case ; and yet would he be able to move his case one step? Every one would laugh, or, if not, so much the worse for the state of public opinion. There is to this day a law on the statute-book of South Carolina, unrepealed by the authority which made it, to the effect that every male of age shall go to church well armed. The dangerous state of the country at the time required it against the Indians. Suppose a conscientious citizen were to appear in church with a brace of pistols, cutlass, and rifle. The whole community with one voice would set him down as deranged, he would lose all public confidence, and would most materially injure his family, besides disturbing public worship. Suppose, on the other hand, any public officer were to take it into his head to fine a citizen for not having ap- peared well armed in church, according to the old law. Would he not be scouted by judge, jury, people, by every one ? And the law does stand repealed by the irresistible sense and sen- timent of the community. This does by no means preclude cases of strict adherence "to an obsolete law for the very pur- pose of drawing public attention to it and of effecting a final implicit expression of repeal by public authority. For laws, though obsolete, and universally acknowledged to be so, may still be of a character which renders them either dangerous or inconvenient in special cases. Or they may, in their char- acter, be iniquitous, and the public morality may demand their erasure merely on the score of public propriety, decorum, or morality. Public opinion, in this wide sense, is the continued sover- eign action of society, and also the link between society at large and the state, when a given society is either narrower or wider than a given state. We are apt to believe that, from the want of publicity, ab- solute states are not ruled by public opinion. It is true that public opinion does not act upon so many subjects, but it is in Asia as powerful as in Europe, on those subjects on which PUBLIC OPINION. 227 it acts at all/ Let an Eastern monarch attempt anything against the opinion of his people at large, — for instance, attempt public irreverence against the Prophet. The king of Denmark was, by the fundamental law of 1660, absolute in every way. The fancy of a man brought up in a constitutional country cannot invent a law which provides in so detailed a manner for the monarch's being above all law, and that nothing what- soever shall ever be binding for him or limit his power, not even he himself So far the theory or the letter; but was the Danish king really at liberty to do what he liked ? Suppose he had attempted so mean a thing as the prohibition of the Danish national dish, called grit : would his absolute power have supported him ? Theoretically, the king of Prussia was absolute when he ordered his minister, by cabinet order of July 18, 1798, to lay certain proposals of a union between Lutherans and Calvinists, before the public, and report to him, " when public opinion has decided upon their expedi- ency," etc. March 25, 181 3, the emperor of Russia and the king of Prussia issued a proclamation, which contains this passage : " Their majesties expect a faithful and complete co- operation of every German prince, and they are pleased to suppose that none will be found among them ready to be and remain a traitor to the cause of Germany, so that thereby he should deserve to be annihilated by the power of public opin- ion and the force of arms, which have been taken up" (against Napoleon). At times we see a man apparently act directly against public opinion. Richelieu saw the enormous extent to which ■ * " The emperor — the theoretical father of his people — does not find it so easy opeti/y to impose new taxes as his necessities may require them ; and his power, though absolute in name, is limited in reality by the endurance of the people, and by the laws of necessity." Davis, Chinese, vol. ii. p. 428. Guizot, in his History of Civilization in Europe, says that public opinion was stronger under Louis XIV. and Louis XV., and exercised more influence upon government, than at any previous period, yet at none had all the direct and offi- cial means by which the people can exercise any authority more completely been cut off. It impelled government more strongly than when the estates existed or the parliaments interfered in politics. See his Lecture VI. 228 THE STATE. duels were then carried in broad daylight. He dared to exe- cute according to law two noblemen (Bouteville and Chap- pelles) for this offence. The whole society seemed vehe- mently opposed to him, nor would he have been able to carry his point, had it not, after all, in a still larger society been felt that he was right. It is one of the greatest traits of a noble citizen to be able to see one layer of public opinion through another, or, if he does not see it, to trust in God that it must be there, and act accordingly. Napoleon, a good authority as to the practical operation of public opinion, said, "Public opinion is an invisible," mys- terious power, which nothing can resist; nothing is more movable, more vague, more powerful ; and, capricious as it is, it is nevertheless true, reasonable, just, far more frequently than one is apt to think." (Las Cases, Memorial, vol. i. p. 452, edit, of 1824.) LXVI. 2. Law, from the Anglo-Saxon Lagu, legu, that which is laid down, settled,'' is a rule of action with binding force, or law is a (general and) binding rule respecting effects to be produced by certain agents. These agents may be phys- ical or moral. Laws which refer to the former are called la^vs of nature, inasmuch as we imagine the principles of the phys- ical changes prescribed by the authority of the maker. Laws respecting moral agents determine human will as a free power of rational beings. They ought to be obeyed, but may be dis- obeyed. If these laws relate to the outward actions only, they are jural laws [leges juris) ; if they relate to the internal assent, depending upon man's motives, they are laws of virtue. If we call the first, principles ; the latter, commandments ; we may call jural laws, simply laws. We have to do here with ' Swedish laga, in ancient Low-Saxon lage, connected with German legen, the English to lay, lay down, which goes through all Teutonic and many other idioms. (See Adelung, ad verb. Legen.) The German for law is Gesetz, that which has been set, settled, set down. The Dutch is Wet, from weeten to know, of the same root with the English to wit, that which is known, acknowledged. The old Frisic, a, e, ewa. See likewise Jus in Ramshorn's Latin Synonymies, vol. ii. p. 125. LAW. 229 these alone, and I shall designate them by the simple term law ; using, however, for the present, the word in its most comprehensive sense, that is, for all rules which direct with binding power, no matter whence it arises, our jural actions, or actions relating to right. In as far as laws are rules ac- knowledged (sanctioned, authorized) by the state, that is, pub- licly by society, no matter in what manner, whether by dis- tinct legislative action or by gradual recognition, for instance, by repeated decisions of some proper authority, law is public will. In many cases the line where public opinion passes over into public will is distinct; in some cases public opinion is so strong, decided, and binding, respecting some specific subject, that the line cannot be so distinctly drawn. At other times some law distinctly says, or it has been settled by cus- tom, that well-settled usage, which is but a species of public opinion, shall be law. That public opinion, taken in the sense in which it has been used in the previous section, and law, must approach to each other in many cases very closely, is clear from their very nature. The process of public opinion passing into public will is in many cases imperceptible. The question now is. What are these rules which determine man's jural actions and serve to others as rules in judging of them ? They are the following : Nature and necessity. Common sense. Custom and usage (the unwritten expression of public will), either in any branch of practical life, or in judicial matters themselves, and, again, either existing, but as yet not specifically acknowledged by authority, or distinctly acknowledged, which becomes the Common Law of the land. Fundamental laws, charters, organic laws ; they gen- erally rest largely upon custom : hence the oath of mon- archs to administer the government according to law and custom. See Hermeneutics. Written constitutions. 230 THE STATE. Codes of other countries, which have force by the respect paid them, as the civil code of ancient Rome in many countries in cases on which the domestic law is silent. Statute law. Any other enacted law ^ Decisions. Precedents of any other sort, as repeated measures. Overruling decisions. Interpretation. Authentic interpretation. Codes, digests. LXVII. It is easy to see from this list what classes form the great bulk of laws, of which again infinitely the largest part emanate from society and are enacted by society, inas- much as the wants, sense, and sentiment of society demand it, and nothing can resist it. Lord Somers, the distinguished Lord High Chancellor of England under William III., de- clared that he knew of no good law, proposed and passed at his time, to which public papers had not directed attention. Perhaps it is necessary to say a word respecting one large class — namely, codes and written constitutions. They cer- tainly seem to be distinctly enacted, given to, not made by, the people. A monarch, for instance Frederic the Great, promulgates such a code. First, did he make it, or was it digested by a variety of committees, composed of men who brought with them nothing more nor less than what they had acquired through life by the study of the laws of the land, and again from teachers, by practice, and under the hourly influence of society itself? They could not by possibility bring with them anything else. How shall a man act to re- move himself extra societatcm ? Some laws were enacted in the code, which could not maintain themselves, and they were changed. Secondly, what is codification ? Not the spinning of a thread from out the solitary brain of an individual. It is the collection, condensation, systematizing, and reconciling LAW. 231 of what is scattered or contradictory; all that in a code which is not conformable 'to the spirit of society must fall to the ground. Men like Solon and Lycurgus did not make consti- tutions, like Condorcet, but rather collected them. This does not contradict the vast power of a great mind exercised over his community. That the latter acquiesce in or support what he proposes or does, belongs likewise to the sense and senti- ment of the community; and they will not, cannot acquiesce, except where that great mind acts out, completes, develops, and elevates, without making the rash attempt to establish something absolutely foreign and heterogeneous. Even for engrafting a nobler branch we want some kindred tree. There is hardly such a thing as judge-made law, but only judge- spoken law. The doctrine pronounced to-day from a bench may, indeed, not be found in any law-book; but the judge has ascertained and declared the sense of the community, as already evinced in its usages and habits of business. If he has not expressed it correctly, society will show its sovereign power ; his decision will be reversed to-morrow or corrected by a statute. In fact, a doubtful decision is not unfrequently followed by a statute, either affirming or overruling it, as the judge may have succeeded or failed in expressing the public opinion. For example, the British public in Queen Anne's time were in favor of permitting the indorsee of a promissory note to sue in his own name. The judges ruled that it was contrary to the doctrines of the common law. Whereupon the public will to the contrary was declared in the statute of Anne, In former times a heathen could not be admitted as a competent witness, because he could not appeal to the God of the Chris- tians. It was law, because a general and binding rule. Now this view is exploded ; his conscience is appealed to through the solemnities of his own religion. And this is law, because a general and binding rule. Who enacted it ? Society, by its power sovereign to all others. If the judge is not the true exponent of public opinion, be it that he misrepresents it, or that he truly administers the law, which law, however, is 232 THE STATE. against public opinion, the latter will prevail, as has been said, by way of a new statute. A very curious case of this sort is within the memory of all of us. In England, in 1818, the trial of wager by battle was claimed by the appellee who was proceeded against by a writ of appeal, after having been ac- quitted of murder upon an indictment. The final judgment of the court was not given, as the appellant declined exposing his life in the contest, and prayed no further judgment of the court, and the appellee was discharged. (Thornton v. Ash- ford, I Barn. & Aid. 405 ; 3 Chitty's Blackstone, 337, n.) This appeal, which was held by the court to be warranted by the existing law, gave occasion for the statute of 59 George III. c. 46, passed 23d June, 18 19, and which completely abolishes this mode of trial by single combat. It is a very great mistake to consider the gradual changes of the law and its deviations of to-day from what it was a century ago, without the public action of a legislature, as being abuses which have crept in. It is society which demands these changes, and effects them ; it is these changes, according to the changes of things, in every country more important than the public enactments, which are partly but the consequence of the effected changes, partly receive value and life only by the change of the sense of the community, that make it pos- sible for society to last. Or ought the German jural society, for the love of written law, to have continued all the revolt- ing cruelties of the penal code of Charles V., despite the essential change of the whole nation ? We have not to inquire here whether a monarch theoret- ically stands above the law or whether princeps legibus solutus est; we shall return to this point. Here we have only to inquire, does any monarch, ever so absolute in theory, feel himself in any degree free from the vast bulk of the laws of that society over which he rules?' Where is the question ' * We need not refer to free people only. It is a popular maxim of the Chi- nese, and one frequently quoted by them, that " to violate the law is the same crime in an emperor and in a subject. This plainly intimates that there are cer- POWER. 233 more earnestly discussed, day after day, what may be done, and what cannot, than in the palace of the absolute monarch? How many thousand irksome things must not a monarch submit to for no other reason than because it is the opinion of the society of which he forms a part ! Why is, as Euno- mus said, " the little finger of the law heavier than the loins of the prerogative" ?' What gives in all free countries such mighty meaning to the word law, and the more so, the more a country advances on the path of civil and political develop- ment ? It was not without a deep meaning that, with reference to the late interesting case of Stockdale v. Hansard, the printer to the Commons, some British papers (June, 1837) headed the article, in which they gave Lord Denman's decision, which is against the printers for having published, under the direction of the house, certain documents containing a libel, " The Law versus the House of Commons." (See Am. Jur., No. 38, July, 1838.) The whole case belongs to the series of cases- which are of historical importance, because representing and em- bodying a great principle, gradually developed by the strug- gles of many centuries.^ It may indeed be convenient in respect to some single meas- ures to claim the absolute power of a monarch ; but who will be bold enough to say that a monarch is not more subject, owing to the greater publicity and importance of his actions, to the fundamental laws and framework of society than others ? The words of Coke, in the memorable debate. May 12, on the right of the king to imprison a subject, previous to the passage of the Petition of Right, that " Magna Charta is such a fellow that he will have no sovereign" (Rushworth, vol. i. pp. 562- 579), contain a great truth and express what has been stated. The law comes from society, and therefore is powerful over tain sanctions that the people look upon a.s superior to the will of the sovereign himself. These are contained in their sacred books, whose principle is literally salits fopuli supretna lex." Davis, The Chinese, i. 25. ' Wynne, who wrote about the middle of the last century. ' [See the account of Stockdale's actions for libel, etc., in May, Const. Hist, of England, i. 423-427.] 234 THE STATE. every one. That which strikes the senses most is generally considered the most important, and hence the dehision that he who proclaims the law or completes it by affixing his ap- probation is considered as the most important authority in generating the law. Yet his approval is powerfully influenced by society again, and how very small is that number of laws or bills over which the supreme power exercises a more abso- lute control, compared to the immense bulk of all those which are generated by society and form in every state the groundwork for the regulation of all laws ! Does not all the law of a nation rest on usage ? Must it not ? The same remark applies to revolutions. There are few revolutions indeed which enter so deeply as the first French did. Because the chief of the state changes, or his dynasty, we are apt to believe that a total change of things has taken place. Yet that which remains is incalculably vaster than that which is changed ; that is, society with its laws remains master. The English revolution was not without essential changes, but if we consider how much remained of all laws which regulate the daily and therefore most important inter- course between man and man, we shall see at once that the changes are but a minimum. LXVIII. 3. Pozuer. — Where can possibly power be except in society? The question here is not even whether it is right that it is so, whether it ought to be so, but how else by the mere idea which the word power designates, sovereign power, power above all other power, can be imagined, except in society. Monarchs, a part of society, have of themselves but arms and feet like other men ; and physical power, such as armies and navies, still more that power which they exer- cise by moral agents, must of course be lent them ; that is, society forms the power, and may use it for one or the other purpose. Whatever opposes the power of society must yield ; whatever society insists upon is carried, " by parliament, through parliament, or over parliament," as Mr. Macaulay, in the memorable debates of 1832, said of the Reform bill. Nor POWER. 535 does society ever cease to consider itself as the object of itself — which is what I called the self-sufficient plenitude of sov- ereignty — and all its parts or separate functions, however ele- mentary the character of their authority may be declared by the fundamental law, may vanish and yet not take anything from the sovereignty of society, which is natural, inherent, unavoidable, and imprescriptible, not made, granted, declared, or arrogated. When the king of England was declared to have abdicated, which is nothing but an expression of constitutional termi- nology, or a fiction, in order not to use the harsher or to avoid debates on the plainer term of dethronement, the lords and commons did not believe British society had thereby lost any particle of its sovereignty, but they began the preamble of the Declaration of Right with the words, "Whereas the lords spiritual and temporal, and commons assembled at West- minster, lawfully, _/////;', and freely representing all the estates of the people of this realm," etc. Now, it is quite impossible that the lords and commons can represent the king according to the constitution ; but they can, according to that which is above even the fundamental law — the sovereignty of society. So, whenever the commons are at variance with the lords on a point on which the former have distinctly formed their opinion and speak in the name of the country, the latter must necessarily give way, simply because the country or society has the power. The lords are a wise institution, under the law, but society is that which prescribes the law. Subjoined the reader will find a statement which is as true as it is inter- esting, coming as it does from a minister of the British crown himself' Take on the other hand the case of an absolute ' If the papers of the time have reported correctly, Lord John Russell, one of the ministers of Queen Victoria, said to the electors of Stroud, soon after his elec- tion, in the month of September, 1837, " At the revolution in 1688, the decision of the house of lords was, that James the Second should continue upon the throne, and that certain persons should be chosen to exercise the regal power in his name. The house of commons, on the contrary, declared the throne vacant. There- fore, had the house of lords persevered in their decision, a civil war must have 236 THE STATE. monarch who becomes wholly unable to rule — by derange- been the result. But the lords, knowing their duty to the country, finding the house of commons determined, gave way, and William the Third was placed upon the throne. From that day to this, whenever the house of lords has fitly understood its duty, it has controlled what was hasty in the commons — has amended what was imperfect — discussed and matured what was not sufficiently considered ; but whenever the house of commons, speaking in the name of the country, have formally declared their opinion upon a certain topic, the house of lords has not made itself a resisting body to that opinion. On two occasions it did so, but only for a very short time. In the reign of Queen Anne the policy pur- sued by the ministry with respect to foreign affairs was contradicted by the house of lords; but Anne immediately redressed the evil, and by the exercise of her prerogative quickly compelled them to agree with the house of commons. On the second occasion, a measure, supported by a vast majority of the people in every part of the country, was rejected, as essentially mutilated by the house of lords; but Lord Grey immediately took stringent measures to remedy the evil, and, although his proposition was not immediately accepted, the lords shortly afterwards gave up and retired from the proposition they had previously made. This is the real duty of the house of lords, according to the constitution of the country, and I trust that in the end they will become fully aware of it. At the same time it must be acknowledged that among the various alterations, among the various corruptions which were introduced into our constitution by tory min- isters, who reigned supreme for upwards of fifty years, must be numbered that of pouring into the house of lords such a flood of persons of their own political opinions as to render that assembly the representative of a particular party rather than a sound constitutional body. I believe I am hardly exaggerating when I say that in the course of fifty years, in one way or another, sometimes by elec- tion, sometimes by nomination, sometimes by partiality in the creation of peers, not less than two hundred persons have been added to the house of lords. Of course the introduction of so large a mass of individuals, all belonging to one party, has in some respects changed the , character of the house. But, what- ever the amount of that change may have been, it has not entirely altered the sense which has always been entertained in the house of lords, that when the commons pronounce a decided opinion upon a great question, the opinion of the lords ought immediately to follow." So far Lord Russell. " Whatever may have been the right of the nobility and clergy to attend in cortes, their sanction was not deemed essential to the validity of legislative acts." Prescott's History of Ferdinand and Isabella, 2d ed., Boston, 1835, page xlix., Introduction. * On the other hand, in 1719, when Sunderland, Somerset, and others were anxious to get the Limitation bill passed, in order to keep the house of lords, after a few creations, from any further increase, Walpole said that " in all dis- putes between the lords and the commons, when the upper house is immutable, the lower must sooner or later be obliged to recede." It was at this time that PO WER. 237 ment, for instance.^ The heir presumptive declares himself regent, or monarch, and he is acknowledged as such. Any- one who opposes his authority is treated as guilty of treason. On what ground ? Because the heir declared himself such ? His declaration cannot be the foundation of his right, because when he made the declaration he was not yet monarch, and therefore had no right to do so. Because the heir has the power to do so ? That would be founding his whole right in force alone — it would be revolution declared permanent. Because the monarch is unable to rule ? But who says so ? The heir ? There is no law which gives him the right of doing so ; it would be a power above the supreme power of the monarch. His right can only be founded in the fact that the commons most strenuously opposed the intention of the king to divest him- self of the privilege of creating peers. [From Dr. Lieber's notes, abridged. Comp. Hallam's Const. Hist., iii. 319, May's Const. Hist., i. 225.] ' * So, when the commons in 1788 had ascertained that George IH. was de- ranged, Pitt moved three resolutions, in the second of which the same words are used, namely: " That it is the opinion of this committee that it is the right and duty of the lords spiritual and temporal and commons of Great Britain now as- sembled, and lawfully, fully, and freely representing all the estates of the people of this realm, to provide the means of supplying the defect of the personal exer- cise of the royal authority, arising from his majesty's said indisposition, in such manner as the exigency of the case may appear to require." Tomline, Mem. of Wm. Pitt, vol. ii. p. 407. And in the discussion upon this resolution Pitt used these momentous words, when Fox claimed the right of regency for the prince of Wales, as eo ipso belonging to him : " It was a right which could not exist, unless it were capable of being expressly and positively proved ; whereas the right of parliament was that which existed of course, unless some other right could be proved to exclude it. It was that which, on the principles of this free constitution, must always exist in every case where no positive provision had been made by law, and where the necessity of the case and the safety of the country called for their in- terpretation. The absence of any other right was in itself enough to constitute the right of the two houses ; and the bare admission that the right of the prince of Wales was not clearly and expressly proved virtually operated as an admission of every point which he wished to establish." Tomline, as above, p. 419. See also Pitt's opinion upon the statutes in 13 Charles II., declaring that the two houses cannot act without the king, as evidently meaning when there is a king to act. (As above, p. 471.) The whole important debate is but one com- mentary upon the sovereignty of society. 238 THE STATE. he is supported by society, whom common sense teaches that a deranged monarch ought not to rule, and whose opinion, therefore, either shown pubHcIy and directly or by acquies- cence, gives him the right. He draws it from the sovereignty of society, which in the nature of things overrules everything else, and has done so as long as history remembers facts, LXIX. Government is that institution or contrivance through which the state, that is, jural society, acts in all cases in which it does not act by direct operation of its sovereignty as mentioned above ; or, in other words, government is the aggregate of authorities with all that is directly controlled by them. It derives its power from the sovereign power of the state — that is, I repeat it, from the necessity of the existence of society. Governments have been frequently changed, dy- nasties which wielded the supreme (not sovereign) power have been supplanted by others, or by republican governments. Now, has the displaced government ever taken with it the sovereign power? that is, has the nation, or state, left behind, become incapable of providing in every way for itself from its own self-sufficient or sovereign power ? If the sovereign power rests in some one or somethiiig else than the state, then we have in the latter case two sovereign powers, which is absurd. How many governments has the world seen within the last fifty years in France ! Yet has France, the French state, that is, the jural society composed of all the French, ever ceased on that account ? Was France in England when Louis XVIII. resided there, or England in Holland when Charles II. resided in the United Provinces ? The following words of Erasmus, who surely was no revolutionist, apply to governments in general, and we must remind the reader here again of what was alluded to before, that to the unobserving the whole government seems to be changed when the dynasty only is changed, or the whole state seems to be changed when gov- ernment only, perhaps nothing more than the executive with a few institutions, has been altered. Erasmus says (Instit. ORIGIN OF GOVERNMENTS. 239 Princ. Christian!, vol. iv. p. 566, F, Leyden ed., 1703), "Si torques, si sceptrum, si purpura, si satellitium regem faciunt,. quid tandem vetat pro regibus haberi tragoediarum histriones, qui iisdem ornati prodeunt scenam ?" LXX. Governments may be established by a distinct con- scious action of society (see farther below on Majority and Minority), and pronounce the right to change it whenever that society deems proper, as is the case in the United States. It must not, however, be forgotten that even in this case the state is not formed by a voluntary joining of previously en- tirely independent elements. Who settles first that such or such a convention shall be held,' or that its decrees shall be binding? The state, that is, the society, exists already with millions of jural relations and laws ; and the very government which is newly established springs from and rests upon the previously existing relations of right. The radical error by which government and state are confounded has led to many very serious misconceptions, of which the chief is that which relates to the origin of the state, and to consequent obliga- tions of its members. Men have been obliged to resort to a variety of fictions. Thus, Rutherforth, who merely copies his predecessors, says (Instit. of Nat. Law, book ii. chap, i.), "A society is a number of men united together by mutual con- sent, in order to deliberate, determine, and act jointly for some common purpose" — thus designating only what we have termed an association, which, as has been seen, does not apply to the state, for when was this mutual consent pronounced ? Is Russia not a state? Yet there is indeed no deliberation. Much as we may disapprove of many acts of the Russian government, no one can deny her to be a state. Rutherforth then endeavors to make out that acts of the whole are bind- ing upon each, and, without argument or proof, he passes over from the whole to the majority, in this way: "Whatever is determined by the whole trby the greater part." This is not establishing rights. There are a few cases in history which approach very much to the above presumed formation of the 240 THE STATE. state, as that of the Providence colony, of which more will be said, but they are extremely rare cases, and besides do not solve the question of sovereignty inherent in society, by the political fiction of mutual agreement. The state is natural, necessary, uninvented. Or the government has grown up within the society with- out any specific act of rebeginning, but by many distinct expressions or acknowledgments of its most essential features, or with the distinct acknowledgment of certain mutual rela- tions between the government and the state, as is the case in England. With regard to the latter, I instance the act of settlement or bill of rights. Or the government has grown up within the society with- out any public and definite expression of its relations to the state, and has perhaps itself greatly co-operated to form that state, and receives the support of the people, as is the case in Prussia. Or the government is forced upon the people, as was the case, for instance, with the kingdom of Westphalia, founded by Napoleon, and given by him to his brother Jerome; or the people have never yet reflected on subjects of right, and live in a low state of political civilization. In the first case, society is the acknowledged source of power ; in the second, the source is more distinctly acknowledged by every act of the nature alluded to ; in the third, it is clear that government derives its power from society, which supports it, and which government rules in a manner to obtain this support. If the people were to rise against it, and to establish another one, the question would arise, which I have answered already in this paragraph. Does the government take the sovereignty along with it? The change once eflfected, who would deny the new government the lawfulness of its actions? In the last case, who imposes the government ? At the beginning, it may be an entirely foreign army, or foreign money, by which a sufficient party is bought to support it. But can this last any length of time, without at least the acquiescence of the people ? The question always turns upon this point, Does ORIGIN OF GOVERAMENTS. 241 the state accept the government, or the government the state? The answer is clear. The government is obHged, do what it may, to adopt the immense mass of existing jural relations and their corresponding laws.^ If we take the Barbary States as an example, where a soldiery recruited by foreigners rules with iron sway over the people, we shall find one of two things. Either even there the people acquiesce for the time in it, because they prefer this vicious government to the per- sonal dangers to which an attempt at change would expose them — and though I may have a right to do a thing, it may be inexpedient, and, in many cases, wicked, in consequence of inexpediency, to make use of the right, if I expose thereby inconsiderately many of my fellow-beings to danger — or the power of the soldiery effectually prevents all attempts at change. If the latter be the case, then it is a state of things entirely founded upon brutal force, which prevents for a time the sovereign power from acting, as brutal force may prevent almost any power from acting. Every institution must go through a transition-state at some period of its development. If an opponent were to object, "Still, is it not a state?" I would say, " Hardly ; but be it so, would any one, even the stanchest legitimist, deny the oppressed the perfect right to free themselves ?" Destroy that government, if government you can call it, and the dey, with his adherents, will not take the sovereign power with him, but the freed people will at once exercise it. All human institutions', all great ideas, de- velop themselves gradually, per intervalla ac spiramenta tem- poris, and whenever society chooses to act, it can do so, and has the right to provide for what is necessary for itself LXXI. As soon as the strictly patriarchal government * * In no case does this appear clearer than in conquests, and in none of these perhaps so palpably as in the conquest of China by the Mantchou Tartars. Tliey were able, indeed, to change the costume of the Chinese, to cause them to shave their heads in Tartar fashion ; but observe how the Tartars became Chinese, not the Chinese Tartars — language, law, tradition, politics, religion, industry — of everything the great bulk remained. Every conqueror is swallowed up, as it were, by the conquered. Alexander became ar Asiatic. 16 242 THE STATE. ceases, we find that the chiefs, sheiks, kings, or whatever they may be called, are most generally eligible, or the people elect them whenever they choose. Strictly hereditary gov- ernments, with a fixed line of descent, are but of late origin, gradually established by acquiescence, or according to some particular views prevailing at the time, e.g. that of inheritance in general in the feudal times, (See Palgrave's Anglo-Saxon Commonwealth, and Turner, History of the Anglo-Saxons, viii. I.) The descent of the crown by primogeniture is of but very late origin. The less the king became a mere feudal chief, and the more he came to be considered as the head of the government of society, in short, the more clearly the idea of the state rose out of the feudal system, the more the indi- visibility of the state became necessary,, and the more clearly did people see that' an elective monarchy is that govern- ment which offers, in most, perhaps in all cases, the least advantages of all. In Russia the czar is still held to have the right of appointing his successor. In England parliament has the acknowledged right of the settlement of the crown. But nowhere does history show that there is some divine right connected with the descent of the crown. Philip II. of Spain endeavored to exclude Don Carlos, his son. Was it a divine right in Philip to settle the succession? Carlos, the pretender, in 1833, declared that Ferdinand VII., his brother, had no right to change the succession ; he, therefore, according to Carlos, cannot have been sovereign in the full sense of the word. Frederic William I. of Prussia contem- plated the exclusion of his first-born son (Frederic the Great) from the throne. The sovereignty cannot reside in the reign- ing family, because the descent of the crown is variously regulated by law ; this law then regulating the descent of sovereignty must be superior to it, it seems ; then it cannot be sovereignty. In some countries the crown descends from male to male only, in others the women are included, yet the elder female giving way to the younger male in direct line ; and when Captain Cook visited Otaheite he found that the law of the land was, that the king ruled, the moment a son was POWER IN THE PEOPLE. 243 born to him, merely for the latter, who assumed the govern- ment as he became of age, whether the 'father was living or not ; in other countries, again, the monarch is elected. LXXII. When the German emperor had been elected by the seven chief princes of the empire, called electors, he showed himself to the people, who were asked whether they would have him. After they had exclaimed. Fiat! fiat! fiat! he was crowned. This had become, of course, a mere form, but it shows sufficiently the original view taken of the power of the emperor, or the theory upon which it was founded. (See section lix. of this book.) Endless, indeed, would be the instances to show that from earliest times the view was taken that rulers had their power from the people, that it is a vested and conditioned, not a primordial power, forfeited if the con- dition is not fulfilled. Thus, in Aragon the formula, " as long as thou performest that for which rulers are appointed, and if thou not, we not" {y sc no, no), and that in Sweden," we will remain faithful to the king, and keep our oaths, provided he do so,"— used at the diet of Suderkoping in 1595,— prove that society felt itself justified in making changes in government when the holders of supreme power used it to the essential disadvantage of society. Many persons call this the doctrine of revolution, because the people may often think that gov- ernment acts wTong, when, in fact, it acts most wisely, and that all stability of government, so important to society, would be undermined if society could change it whenever it deems proper. Apart from the fact that, whether pleasant or no, dangerous or no, such is the fact, founded in the very nature of things, it need only be suggested, whether indeed the theory that kings have a right of their own, no matter whence it comes, and that they do not owe their power to the people, is not far more revolutionary and dangerous to the stability of governments. People, history shows, are not so easily movable as individuals, nor can they be ; and where, indeed, is any guarantee that the monarch, a frail individual after all, like all the rest of mortals, will not abuse his power, nay, will 244 THE STATE. not be obliged to abuse it, because he is finite and subject to all the influences of humanity, united with a high degree of power ? ' LXXIII. From the foregoing it will be easy to judge in how far Hume was correct when he said that opinion is the first foundation of all power.^' It is, questionless, true that a monarch of himself can do nothing ; he may effect much against the true interest of the people, by an army and money. But who compose this army ? who gives the money ? The first cannot be drawn together by the physical force or any supernatural power of the monarch, nor can the latter be ex- tracted from the people by any such means. Consent, from whatever source it may flow, is requisite; for of himself the monarch is but a human individual, like any other mortal being, as we see at the moment when consent or support is I A lately-published work by Mr. Michelet, Origines du Droit Fran^ais, con- tains many passages interesting in regard to the subject treated of in the above section. It is always pleasing to find an important theory unequivocally and succinctly pronounced, be it in words or symbols, and I do not hesitate to quote, on that account, the following passage : " The duke of Carinthia was not allowed to sit upon his marble throne till he had given money. This donation was the coeniptio, the purchase of his right. • Nowhere does the sovereignty of the people (as a sleeping abstract annunciation) appear more haughtily declared than in this formality. It bears the seal of a re- mote antiquity, of an Homeric or Biblical simplicity. The duke walked towards the marble throne in the dress of a peasant. But a real peasant already occu- pied it, attended by the sad and severe symbols of the laboring people— the black bull and the lean horse. Then commenced this rude dialogue. ' And who so proudly dares enter here ?' said the peasant. ' Is he a just judge ? Has he the good of the country at heart ? Is he born free and a Christian ?' ' He is, and he will,' answered the duke. « I demand, then, by what right,' retorted the peasant, ' he will force me to quit this place.' ' He will buy it of you,' was the answer, ' for sixty pennies, and the horse and the bull shall be yours,' etc. No less ancient or deeply significant was another part of the same ceremony. Whilst the duke brandished his sword towards the four winds, whilst he sat with his face to the sun and conferred fiefs, three families had a right to mow, to pillage, and to burn. The interregnum of the sovereign power was thus represented as the sleep of the law ; and the people saw in this form that they must make haste to abdicate and to give themselves a defender." [See J. Grimm, Rechtsalt., ist ed., p. 253.] = Essay IV. of the First Principles of Government. FOUNDED ON OPINION. 245 withdrawn, if any doubt could exist. A state may, indeed, for a long time, be organized like a man-of-war, on board of which the marines are used to keep the sailors in due order, and to watch over them if in irons, and the sailors must keep the marines subdued should they become mutinous. But what could the captain and all the officers effect, if at heart the crew's opinion were not with them? Would they not be thrown overboard ? If, however, by opinion we mean some- thing of which we are clearly conscious, in this case an avowed and positive assent, and not only the absence of dis- sent, the expression is not so correct. States exist long before men come to a clear perception of the character and neces- sity of the state, as we have seen, because they cannot live without right, without law. Be it, however, granted that opinion is the first foundation of all power, it remains still to be explained whence opinion receives the authority to establish that power. Opinion is the support of all vested or secondary power, and a mighty one indeed, as has been seen, it is of itself. But the first source of all power is sovereignty. LXXIV. Had the terms state, government, sovereignty, supreme power, and other important ones in political termi- nology been always used with precision, or had it been possi- ble, according to the existing stages of civil progress, strictly to discriminate them, far less dispute with regard to the true source of power would have afflicted mankind. Attention is first attracted by outward, prominent marks, and the supreme power may well be called the prominent, outward mark of the state. It was natural, therefore, that this should be frequently taken for the sign, attribute, and essence of the state, and that great confusion should exist respecting the persons who wielded this power, the power itself, and the state for which it is wielded. But if the government is not the monarch, the monarch not the state, if " the state will endure" though Louis XIV. may die, it clearly follows that sovereignty is an attri- bute of the state, not of the monarch. Many circumstances 246 THE STATE. have contributed to increase the confusion, even the origin of the word sovereign. Sovereign (from the French, a word to be found in all the idioms of Latin origin, as if from superaims) meant, originally, highest, excellent, and was the same with supreme.^ It was applied therefore to the monarch, as highest, chief, especially in the feudal times, when the king or prince was not' monarch in the sense in which we take the word, but the chief one, the leader, frequently the pTimus mtcr pares. Thus, prince, from pnnceps, the first, chief one, the German Furst (which meant originally what the English first now signifies, and is the superlative of vor, pronounced fore, the English before, meaning therefore the foremost, the high- est, so that actually in the ancient Mirror of the Suabians, a collection of Suabian law, chap. cx\'., Pnnceps and Furst are explained by vorderst, i.e. foremost), the Swedish F'orste, Dan- ish Fyrste, and Dutch Vorst, all lead to the same original idea. The meaning was plain and simple, just as dux or duke and He7'zog, without any mysteriousness as to the extent or origin of the power. Religion, as embodied in the church, and not only as the spiritual life of the individual, being the main moving principle of the middle ages, and penetrating every form and substance, became the cause that ideas drawn 'Thus, we say still, "sovereign contempt," "a sovereign remedy." The French Dictionary of the Academy gives the following definition of soiiverain : ce qui «/ au phis haiit point en son ge7ire. It speaks of souverainte absolue, limitee, h^r^ditaire, etc. Consequently, it means nothing but supremacy, supreme power. The Nouveau Diciion7iaire tiniversel des Syno7tytfies, etc., by F. Guizot, Paris, 1833, distinguishes between souverain and suprhne, that the idea of power belongs to the first, and of any elevation to the highest degree to the latter. •' God," it says, "is the supreme being, since he is the being by way of excel- lence and by essence; he is the sovereign lord of all things, inasmuch as he is almighty and author of all things." The ancient parliaments in France, the highest judicial courts, were called cours sotiveraines. There existed in Holland, in the fifteenth centur\', certain societies of poets, or, at least, rhymestei-s, then called rhetoricians. Philip the Plandsome united the various societies or "cham- bers," in the year 1499, and appointed a chamber of fifteen, called " Jesus with the Balsam Flower," as " sovereign chamber," and the chaplain of the prince was made its "sovereign prince." Van Campeu's History of the Netherlands, Hamburg, 1831, vol. i. p. 317. THEOCRACY. 247 from the Bible were carried over to the crowned heads of Christianity. They came to be called the anointed of the Lord, as the kings of Israel were.' The essential character of the Israelitic government was theocratic, and it seem.s that Moses was not desirous of establishing a monarchy (Deut. xvii. 14-20). But, the theocratic government having almost entirely decayed after Joshua, the people asked Samuel to give them a king. He yielded with great reluctance (i Sam. viii. 5-22). The king, being called to the crown by theocratic choice, was considered the vicegerent of Jehovah, yet his regal authority was limited by the terms of election, the ancient liberties of the people, and the constitution of the tribes.^ These theocratic peculiarities found, as far as the altered state of things admitted, a ready reception, and though the » * With this view of inherent legitimacy is connected the superstition of the monarch's curing by touch. In France the formula was, " The king touches thee, God cures thee." * Manual of Hebrew-Jewish Archaeology, by W. M. L. de Wette, D.D., Prof, of Theol. in the Univ. of Basle, 2d ed., Leipsic, 1830, division Royalty. The Bible, if not taken as a book of religion and history only, may very naturally be abused to prove anything and any theory. It is always so when we confound dis- tinct spheres. The solar system, with its many stars, has been used to prove monarchy, nobility, and people to be an order of things founded in nature. From the passage in Luke xxii. 38, " Domine, ecce gladii hie duo : ille autem di.xit eis. Satis est," it was proved in the middle ages that the two powers, the pope and the emperor, must rule over all Christendom. There is nothing that cannot be made to support anything, if we once resort to what I have called, in the Hermeneutics, ex post facto interpretation. Every sort of government has been recommended as the most pleasing to God, because founded upon or copied from the Bible, from the theory of the divine right of monarchs to the harshest demo- cratic extravagance. Nor have the aristocrats remained behindhand. Scheele, a Dutch nobleman, in the middle of the seventeenth century, supported his defence of aristocratic government, in his two works De Jure Imperii and Libertas Pub- lica, as much by passages of the Bible as by political reasons. Who does not know the contradictory results in politics at which the various parties during the English revolution arrived, always deriving, as they pretended and sometimes sincerely thought, the truth of their theories from the Bible? We might with equal justice derive our penal law, architecture, or the theory of any science or art from it. I have already on former occasions referred to Archbishop Whately's remarks respecting this unhallowed abuse of the Bible, in his Introductory Lec- tures on Political Economy, London, 183 1, page 29, et seq. 248 THE STATE. supremacy of the church and absence of national churches did not allow the idea of the monarch's responsibility to be extinguished, yet some most extravagant ideas grew up. Charles IV., emperor of Germany, declared that the souls of princes are better endowed by the Lord than those of common people, and that, too, when he recommended so un- worthy a subject as his son Wenceslaus to the princes to be elected as his successor. The anointing of monarchs was believed by many to establish a more direct communion with the Deity. Indeed, there is no accounting for the strange views to which people may be led. Pope Alexander VII. preferred to promote persons of good birth, because he thought that as princes of the earth like to be served by in- dividuals of high families, it must be likewise pleasing to the King of kings to be served by priests alresfdy by their blood above the rest of men. (Ranke, Die Rom. Papste, book viii. § lo, vol. ii. p. 194 of Amer. ed. of Austin's translation.) When whole kingdoms, however, had become Protestant, the Jesuits, for the first time in history, distinctly pronounced the sovereignty of the people. We shall see how they were led to it. It was now for the Protestants to claim the entire independence of monarchs, and in some cases they went to a most extravagant idea of divine right. The idea that wher- ever there is an established church it ought to be under the superintendence of the state, else it would be in reality a state within the state, and a contradiction in terms, for who establishes ? certainly the state, by which is given already the foundation of the relation in which both must stand — led the Protestant monarchs to declare themselves the heads or supreme bishops of their respective national churches. It led them to do it, though it is by no means necessary. This, together with the gradually vanishing power of the pope, as the national governments rose in importance and power, and as the stream of civilization, industry, and consequent strength passed from the southern European nations to the northern, was a cause of a new theory of the divine right of kings, and unlimited power, which from the times of Filmer and SUPREME POWER. 249 Wandalin down to but recent periods has been, at times, pronounced with a degree of absurdity which can only be accounted for by all the surrounding circumstances of the time, and is, taken without them, utterly inconceivable. This extravagance is rapidly fading away, and even Chateaubriand asserted in one of his speeches in the chamber of peers, after the revolution of 1830, "I do not believe in the divine right of kings ; monarchy is no longer a religion ; it is a political form." The duke of Fitz-James, whose political views were solely formed upon the antiquated theories of French royalty, himself having followed the Bourbons into their exile, and being believed to have stood in the relation of consanguinity to his royal master Charles X., waived the idea of divine right, in the chamber of peers, on April 19, 183 1, and ap- pealed to the people, with a view td establish the right of the duke of Bordeaux to the French throne. Before the last revolution, it was not uncommon among the French royalists to speak of a ailte de la monarchie, meaning a veneration ap- proaching to worship of monarchy, with all the expressive symbols, if not entire worship. We, at present, must care- fully distinguish between sovereignty and supreme power, and, though etymologically the same words, we have as much right to distinguish between them as between royal and regal, and so many similarly related terms, LXXV. We are told that kings are of God. So they are, if good, and where monarchy is the best government for the given circumstances ; because it is the will of God that man should live in a state, and consequently have a government. But surely the people are of God too, and, what is more, they are ends for which governments are but a means. Nor can it be seriously maintained that every monarch that ever ruled has been such by the special direction or appointment of God. Was every Chinese emperor, every sultan, every African king, every Indian chief, specially appointed by divine inter- position ? They are not civilized, it is perhaps objected. Were Caligula and the long train of equally insane Roman 250 THE STATE. emperors of God ? They were not Christians. Then, was the Austrian h'ne of rulers in Spain, was the Bourbon line in that same country, of God ? Why should v/e pronounce blasphemies? Were James and Charles I., with their Buck- ingham, of God ? Were Charles II., Henry VIII., lewd Elizabeth of Russia, Charles IX. of France, Louis XV., Pope Alexander VI., was the lately expelled duke of Brunswick in his madness, of God ? He was ; but so are wolves in the forest. Was Napoleon of God ? If so, when did he begin to be so ? If, however, the expression means only that they were monarchs in consequence of a combination of many laws of the universe, then it means nothing, because then everything is of God, and we need not assert this of monarchs especially. Nor do I maintain that many dark pages of the history of the people cannot be mentioned : all I desire to say is, that nothing can be established in this way. If there is anything mysterious about the monarch, something by which sover- eignty is personally and indelibly attached to him, then, I repeat, Charles X. must have taken it in 1 830 to Holyrood Castle, and France was from that moment incapacitated to be a state and perform all necessary acts of sovereignty. Yet when Louis XVIII. returned to France in 18 14, all laws which were not specifically abolished remained in force, and even the pension of Robespierre's sister continued to be paid. Great Britain did not acknowledge Napoleon as emperor ; yet did she on that account consider Louis XVIIL, when residing in England, as sovereign ? Would not any grand jury have found a true bill against him had he transgressed the laws ? There is undoubtedly some indistinct idea that sovereignty once enjoyed prevents the individual from ever becoming an entire subject again, and kings who abdicate continue in many cases to enjoy the title of majesty ; but I do not speak here of matters of courtesy. Christina II. con- sidered herself still a sovereign after having abdicated the crown of Sweden, and her execution of Monaldeschi was LEGITIMACY. 2$ I founded upon this idea. With her the notion was peculiarly- wrong, because she acknowledged her successor. She cer- tainly therefore could not be sovereign of Sweden. Of what was she then sovereign ? Was she sovereign in her own person, without any reference to any country ? then why was she not sovereign from the moment of her birth, rather than when her father's crown devolved upon her? Until we can find individuals who are, somehow or other, sovereigns within themselves, without reference to anything without them, sov- ereigns of themselves, and not as rulers over a country, we cannot believe in the sovereignty of persons. LXXVI. If there is a legitimacy personally in the mon- arch, and not in the laws willed or suffered by society, then how does it happen that England, France, Portugal, Brazil, Sweden, Holland, Prussia, Spain, Russia, Belgium, Bruns- wick, are ruled by monarchs who hold the sceptre, or rule according to fundamental laws, established in consequence of revolutions, or have seated themselves upon the throne by force ? How did Russia acquire her right to rule ovr the Cossacks, who were severed from Poland by a revolution ? Yet all these monarchs considered themselves, and generally are considered, lawful rulers.^ ^ The government of England was settled by the " glorious revolution of 1688." The present dynasty of France v^as elevated upon the throne by the revolution of 1830. The house of Braganza obtained the Portuguese crown by the revolu- tion of 1640 against Spain, when John, duke of Braganza, was made King John IV. of Portugal. Brazil was raised into an independent empire in 1822, by a revolution which declared Don Pedro, son of the king of Portugal, first emperor. In Sweden, a revolution in 1809 forced Gustavus IV. to abdicate for himself and his descendants. His uncle Charles XIII. was made king, and when the elected crown prince, the duke Charles Augustus of Augustenburg, died, in 18 10, the French marshal Bernadotte, Prince of Pontecorvo, was elected crown prince. He ascended the throne in 1818, under the name of Charles XIV. John. The reigning house in the Netherlands are the descendants of the great William of Orange, the Silent, who directed the revolution of the Netherlands against Spain in the sixteenth century. Prussia Proper, which became the foundation of the kingdom of Prussia and gave it its name, was made, in 1525, a hereditary duke- dom by the revolution of Markgrave Albrecht, elected master of the Teutonic 252 THE STATE. There must, then, be something beyond them, which keeps them in those high stations ; it cannot be inherent. It is the state, which is infinitely above the monarch, which can see race after race pass away, and yet remain the same. Many enlightened monarchs have well penetrated the character of their office. Frederic the Great of Prussia, in his work on the Forms of Government, calls the king "the first servant of the state, obliged to act with probity, wisdom, and perfect dis- interestedness, as if at every moment he should give account to his fellow-citizens." (Frederic's Works, 1788, Berlin, vol. vi, page 84.) He speaks repeatedly of the- fellow-citizens of the king ; it is not an inadvertent expression, nor an over-modest one, as some late German philosophers, desirous to theorize the mysterious character of the word " sovereign," have called it. Frederic says in the same work, "the citizens have granted pre-eminence to one of their equals only," etc. Joseph II., emperor of Germany, and hereditary prince of the whole order, one of the Catholic orders of knights, who so remarkably united the char- acters of conquering knights with clerical vows. The country was not his, nor the government hereditary. He became Protestant and usurped supreme power. This is not the place to investigate what radical changes such mighty events as the Reformation may render necessary : all that is maintained is that Albrecht became duke of Prussia by high-handed revolution. (Stenzel's History of the Prussian States, in Heeren & Uckert's Series, Hamburg, 1830, vol. i. page 292, et seq.) The ruling race of Spain occupies the throne in consequence of conquest, for the decision of the war of the Spanish succession between the Bourbons and the house of Hapsburg, in favor of the former, can hardly be called anything else. In Russia, Catharine II. made herself empress by a revolution against her hus- band Peter III., who was killed. So was Ivan, who had the next claim upon the throne, according to the rules of hereditary descent of crowns. Her son, Paul I., was deposed and killed in 1801, and succeeded by Alexander I. In the middle of the seventeenth century the Cossacks revolted against Poland and threw themselves into the arms of Russia, to which empire they have ever since belonged. Belgium was severed from the kingdom of the Netherlands by a revolution in 1830, and constituted into a kingdom, calling Prince Leopold of Saxe-Coburg to the throne. William, the reigning duke of Brunswick, succeeded by a revolution in 1830 his elder brother Charles, who had committed most sur- prising extravagances, illegal acts, and cruelties, acknowledged as such by the neighboring governments as well as by the king of England, who repeatedly endeavored to bring him back to reason. MONARCHS NOT SOVEREIGNS. 253 Austrian monarchy, called himself the first subject of the state. (Memoires du Prince de Ligne, Paris, 1827, vol. i. page 237.) He knew, too, that the monarch is for the people, not the people for him. When on his death-bed he said to Prince de Ligne, a native of the Austrian Netherlands, which just then were in rebellion, " Go to the Netherlands ; make them return to their sovereign; and if you cannot succeed, remain there: you must not sacrifice your interests to me; you have chil- dren." (Ibid., vol. i. page 236.) Had not so untenable and undefinable a view of the inherent character of the monarch been taken, man would never have thought of claiming for him a position above the law, which it has been shown he never can, in reality, occupy. There have always been flatterers who would please the ears of kings with these ruinous theories. Anaxarchus de- clared to Alexander, after he had killed Clitus, "by the throne of Jupiter and of kings sits Themis and stamps their arbitrary will into what is right." Even without a veto ? Pliny's sim- ple " non est princeps supra leges, sed leges supra principem," can never be obliterated or changed. " Nihil aut a^quius aut tutius, quam ut regnet rex secundum leges moresque veteres." Grotius, Epist, pars i. ep. 1431, dated October 27, 1640. The Romans knew the difference between supreme and sovereign power well. " The granting the full franchise," says Niebuhr (Roman Hist, vol. ri. page 299, Amer. ed.), "to municipal towns was so strictly deemed an act of the sover- eign power, that the tribunes in the sixth century would not so much as allow the senate the right of proposing it." Who was the state when Philip H. of Spain declared, upon the de- cision of the Inquisition, that all the inhabitants of the Neth- erlands were guilty of high- treason, — that those, therefore, who did not fall under the executioner's axe enjoyed their life by royal grace alone ? ' Philip, or the people ? LXXVII. Yet the monarch of Great Britain is called the » Meterei^, History of the Netherlands, folio 49. 254 I'^E STATE. sovereign, and various maxims in the British constitutional law, such as, " the king can do no wrong," " he is the fountain of honor," " every British subject owes indissoluble allegiance to him," seem, at first glance, to express something of that power of powers, that self-sufficient source of all power, which has been designated in the course of this work as the great attri- bute of sovereignty. But is it so in reality? Are the maxims just mentioned substantial truths, that is, truths on which we can farther build, or from which we can deduce farther truths as binding as the first proposition, or are they rather constitu- tional technicalities, framed and worded to complete a system, to give it that logical symmetry which gives at least an ap- parent finish and absoluteness to a system, and for the sake of which we find that in all the fabrics which human reason has reared in the various theories of science and dogmatics, men have resorted to so many fictions ? The difference is impor- tant, and, unfortunately, frequently forgotten. If a position be a truth in itself, we may draw legitimate consequences from it ; if it be an illustration, a summing up of what has been stated by way of simile, then we must stop with its statement, or we shall expose ourselves to the most dangerous argumentation. For a simile, even the best, carries always along with it, not only that which applies to the given case, but also that which does not, and if we assume the simile itself as full and com- plete truth, the latter will be taken to be ground of truth as well as the former. If the British commentators upon constitutional law had always used the word crown, instead of king or sovereign, re- specting those important maxims, the danger of confounding the king's personality with his political authority would have been avoided in a great measure. Others would have borne much more the stamp of truth. Thus, it is said, "the king never dies," while it is meant that the crown never dies, or does not follow the head which wore it for a time to the tomb, because all individuals must die, all hands, even those that grasp a sceptre, are grasped in turn by the cold hand of death, but Britain dies not. The crown has always a living BRITISH MONARCH. 255 brow to support it, is the true and unparadoxical meaning of the maxim, "the king never dies." All members of parliament must die, but parliament dies not. In short, " the king never dies," means that the chancery does not die with the chancellor, the fleet with the admiral, the bank with the director, the city with the mayor, the people with their ruler, and no more. As to the oath of allegiance, I have treated of it already. The queen Victoria, in some of her late communications to the two houses, respecting the Canadas, speaks of" my prov- inces," " my colonies." Now, there is probably no English- man living who would pretend that the pronoun " my," which, as has been mentioned in a previous chapter, is used to ex- press an infinite variety of relations between two persons or persons and things, expresses in this case, used by a young lady of eighteen years, the same meaning as that in which she applies it daily — for instance, to household articles. The English believe not only that monarchy (not " surrounded by republican institutions," hwt forming, indeed, to all intents and purposes a great republic ; for which of the two, George III. and Pitt with the parliament, was substantially the ruler, and which became the executor of the other's v/ill ?) is for their given circumstances far the best government, but also that, upon the whole, the order of succession by which females may obtain the crown in default of male issue is more con- venient for them than any other would be ; but so good an authority as Dr. Lushington lately said in the commons, with regard to a suggestion of his that the king of Hanover might be excluded from the succession, " The line of succession, as well as the constitution itself, was framed for the good of the people, and if the existing law ceased to be operative in that respect, then it came for the consideration of parliament what was to be done." (As quoted by the papers of the day.) The queen, in her first proclamation, said, "By the death of his majesty, my beloved uncle, has devolved upon me the duty of administering the government of this empire. This awful responsibility," etc. There is nothing about her being the owner of England ; in short, she succeeds to the crown, that 256 THE STATE. is, to supreme, but even that far from being unlimited, power. There cannot be now an Englishman who pretends to maintain that there is a peculiar quality, called sovereignty, inherent in the monarch, and that what in England is called sovereignty is essentially something founded on a relation between the in- dividual whose brow supports the crown and the people. Startling as the declaration that " a people may be without a king, a king cannot be without a people" (Journals of the Commons, vol. i. p. 156) may have been for some persons under James I., it is now too well established a truth to detain us any longer. " Do not imagine," wrote Frederic the Great to the young duke of Wiirtemberg, who had been educated under his eyes, in his Monarch's Mirror, handed to the duke on the day of his departure from Berlin (1744), "that Wiir- temberg exists for you, but believe that Providence has placed you in the world to make the people happy." I have seen it stated, indeed, that the schoolmaster is like- wise for the school, and not the school for the teacher, yet that it would be senseless to claim for the children the right to prescribe rules for the teacher. All that is to be answered is, that men are not children, and children not men, and that there exists this slight difference, that the children without a master form no school, but the people without a monarch are still a people, and that that which makes the king a king, the ruling, may be done sometimes by others ; or have the Swiss, have the Americans, had all antiquity, no governments ? Are we all lost sheep without shepherds ? According to the principle laid down in this work, that we must learn the true nature of a thing from its most perfect or most developed state, and not from its incipient stages, still less from stages of corruption or violent distortion (" Non in depravatis, sed in his quae bene secundum naturam se habent, considerandum est quid sit naturale." Aristotle, Polit., lib. i), we are not bound to go to the most distant or the most des- potic periods of English history in order to understand its true character. Yet even if we pursue this plan, which was the one that Hume proposed to himself, we shall find that BRITISH MONARCH. 257 the British monarch was never considered as possessing those attributes without which no clear idea can be connected with the term "sovereignty," as has been successfully shown by Mr. Brodie, in his learned History of the British Empire, especially in the first volume, a work of great value for con- stitutional history. As to the later times, I refer the reader to Hallam's Constitutional History of England, and to Black- stone, i. 192, et seq., and iv. 440. I shall only cite here p5rt of a law of 25 Henry VHI., c. 21, from Sir Edward Coke, copied from Brodie, i. 286: "Wherein by authority of parlia- ment it is enacted and declared (directing this declaration to the king), that this your grace's realm, recognizing no supe- rior under God but only your grace, hath been, and is, free from subjection to any man's laws, but only to such as have been devised, made, and ordained within this realm for the wealth of the same, or to such other, as by sufferance of your grace and your progenitors, the people of this your realm have taken at their free liberty, by their own consent, to be used amongst them, and have bound themselves by long use and custom to the observance of the same, not as to the observance of the laws of any foreign prince, potentate, or prelate, but as to the customed and ancient laws of this realm, originally established as law of the same, by said suf- ferance, consents, and customs, and none otherwise." If the Declaration of Rights of 1688 is not a declaration of the sovereignty of society, then we really do not know what the instrument means, and what particle of right to the crown William and Mary ever had. But it is asserted by tory writers, for instance in the Book of the Constitution (Glasgow and Edinb., 1833, p. 121), that had the British possessed the right to choose their own governors, "it is clear that the English nation did at that time (1688) most solemnly renounce and abdicate it, for themselves and for all their posterity for- ever," because a subsequent clause of the Bill of Rights says that " the lords spiritual and temporal, and commons, do, in the name of all the people aforesaid, most humbly and faith- fully submit themselves, their heirs and posterity forever," 17 258 THE STATE. etc. Now, the question is, what is the meaning of the term "forever" in pohtics ? Has it an absolute meaning, or has it only a meaning under and within that sovereignty which is above all and everything ? History proves that the latter is the case ; else there could hardly be an organic change of any government. However, I waive the argument which lies in the total want of right in one generation absolutely to bind another, and prove my point from the Declaration of Rights itself The people of England submitted themselves " for- ever," that is, as will be admitted, on the terms declared in that bill. It is distinctly expressed. Now, that same bill says, in paragraph x., that every king or queen shall, on taking the coronation oath, " make, subscribe, and audibly repeat the declaration," mentioned in the act 30 Charles H., entitled, "An act for more effectually preserving the king's person and government, by disabling papists from sitting in either house of parliament." This, too, was " forever ;" yet Catholics do sit in the two houses since 1830, despite the Bill of Rights itself; and it was a tory administration under which this organic change took place. This paragraph may fitly conclude with the words of Lord Lansdowne, spoken after he had been premier, on December 26, 1788, when the regency question was under discussion : "The principles laid down at the revolution make the crown to be, not descendible property, like a pig-sty or a lay-stall, but a descendible trust for millions and ages yet unborn. I contend, therefore, that the hereditary succession cannot be considered as a right. It is a mere political expe- dient, capable of being altered by the two houses. In cases of exigence, they have always been termed the legislature, in order to prevent the greatest of all possible evils, a disputed succession." He also said, " The people, my lords, have rights. Kings and princes have none. The people want neither charters nor precedents to prove their rights ; for they are born with every man in every country, and exist in all countries alike, though in some they may have been lost. I wish, therefore, CAN THE KING DO NO WRONG? 259 that the question of right to exercise the royal authority, which has been claimed and asserted, may be decided ; in order that those who sufifer oppression under governmeiints the most despotic may be taught their rights as men. They will then learn that though their rights are not, like ours, secured by precedents and charters, yet as soon as they assert their rights they must be acknowledged,"' LXXVIII. The king: can do no wronsf, the kinsr is the fountain of honor, are precisely in the same sense true and not true, as the preceding maxim, that the king never dies ; that is, they are fictions or metaphoric expressions, and there- fore incapable of sustaining any argument to be deduced from them, but merely expressing an idea already established, and only so far as established. Blackstone distinctly claims the same inability of doing wrong for each branch of the kgislature (i. 244). They are, then, no peculiar attributes of sovereignty, using the term as applying to the person called by the English law sovereign. Besides, we know that the king, even constitutionally, can do wrong, and can be declared to have done so, as was the case in the Bill of Rights re- specting James II, ; that there is a " superiority of the laws above the king" (Blackstone, iv. 440); that the British law " confirms the doctrine of resistance when the executive magistrate endeavors to subvert the constitution" (Ibid.). Everything cnvi grano sails. Even the Catholics themselves, when the infallibility of the pope was received in a far wider meaning than at present, asserted, respecting the dispute be- tween the Jesuits and Jansenists, that the pope's infallibility cannot extend to facts. The pope had declared that certain doctrines were damnable. The Jansenists said they were not contained in the works of Jansenius, upon which the pope declared those damnable doctrines were contained in the work " St. Augustine" by Jansenius. It is well known that the pope had to yield in a considerable degree. It is certainly a Wraxall, Posthumous Memoirs, p. 467, American edit. 26o THE STATE. very curious fact in the history of constitutions that the fun- damental law of the kingdom of the Netherlands pronounces nowhere the irresponsibility of the king or the responsibility of ministers, but according to paragraph 179 receives "com- plaints against the king" and sends them to the supreme court, and that this constitution was drawn up by the king himself, who on his return in 181 3 insisted upon being made no more than what he had been, stadtholder. When at last he was obliged to yield to the earnest representations of the people, he consented to take the crown on condition of a con- stitution which should " protect the liberty of the citizens against all possible intrusions."' So convinced are the English that the king can do wrong, that they do not allow him to do anything which is not con- sidered as having been advised by his ministers, so that there may be men responsible for his great acts f and on the other hand tlT« law does not hear, if the king assures on his honor that certain objectionable acts were personally ordered by him, as was the case in Strafford's trial. No one shall obey the king personally and individually, but only politically, sur- rounded by the law. Whether the maxim, the king can do no wrong with responsible ministers, be a well-contrived expedi- ent, is another question. I consider it as one of the choicest productions in the course of constitutional history; but at the ' Van Campen, History of the Netherlands, vol. ii. p. 581, Heeren & Uckert's series, Hamburg, 1833. [Constit. of Aug. 24, 1815.] * * It seems that even the prerogative of pardon is virtually exercised with the advice of the minister for the home department, though the king might exercise it alone. Or would a minister resign if the king should exercise this power without advice? We find passages in the papers like this: " Lord John Russell has refused to accede to a petition from the inhabitants of Canterbury and Faversham for a mitigation of the sentence of transportation on the three men who were convicted of having been actively engaged with Courtenay when he committed the two murders." (Galignani's Messenger, Oct. I, 1838.) The pre- rogative of pardon of tlie British monarch is constitutionally limited, so far as pardon is concerned, in cases of impeachment, by the act of settlement, which provides that no pardon under the great seal of England shall be pleadable to an impeachment of the commons in Parliament. [But when a person is impeached and found guilty, the king can then remit the sentence.] THE KING THE FOUNTAIN OF HONOR. 26 1 same time I say, with Essex, " What ! cannot princes err ? Can- not subjects receive wrong? Is an earthly power or authority infinite ? . . . Let them (who mean to make their profit of princes) acknowledge an infinite absoluteness on earth that do not believe in an absolute infiniteness in heaven." (His letter to Lord-Keeper Egerton, in Essex's Original Letters.) The king is the fountain of honor, as he is of pardon, that is, as he is king altogether, namely, according to and limited by laws ; he is not personally the fountain of honor. No man would hesitate to receive rather the " thanks of parlia- ment" than a personal mark of honor from the monarch, or even an order. The history of this expression must probably be sought for in the feudal law, in which a barony was called an honor; the honors of feudal government were almost if not quite all annexed to the seisin and possession of fiefs or feuds, which were all holden mediately or immediately of the crown. So that saying that the king is the fountain of honor was but another mode of saying that he was the lord para- mount of the soil.' Hence, when in process of time the honorary title of nobility or office came to be conferred with- out the simultaneous grant of lands to support it, there was no occasion of any change of phraseology, though the import of the word "honor" had become somewhat narrower and less substantial than before. Real political honor can no more be bestowed by an individual than worth. It is society on which it depends. The expression therefore amounts only to this, that the monarch is the pronouncer of honors, and only of certain ones, for doubtless it is an honor to sit in parlia- ment, which the king does not bestow. The king of Prussia ' [Honor (as is shown by Prof. P. Roth, Gesch. d. Beneficialwesens, p. 432) denoted in the eighth century and the beginning of the ninth the office of the official person, — the count, for instance, who was usually appointed for life, hut his betteficium lapsed when the king who had bestowed it on him died. From the middle of the ninth century honor is scarcely to be distinguished from heite- Jicium, that is, to use later language, from ihefeudum, or fief. When the feuda- tory had count's jurisdiction, the two terms were necessarily liable to confusion. When this ceased, honor denoted title — nobility with the political precedence pertaining thereto.] 262 THE STATE. made General Bliicher prince ; the people called him Marshal Forward, by which name the Germans love to call him to this day. Which was the greater honor? The monarch can do nothing but pronounce political honor; and this prerogative, therefore, like any other, belongs to his political character, and proves no sovereignty, for it would always be a second-hand sovereignty, that of the law being superior to it, according to the commentators of the land themselves. When James II. left England, was the fountain of honor dried up ? William III. came and made Bentinck duke of Portland. Napoleon founded the Legion of Honor; it did not follow him to St. Helena, but Louis XVIII. became, according to English phraseology, its fountain. Charles X. left France, and Louis Philippe became the so-called fountain. Is it not then clear that society, the state, is the fountain, and the respective monarch merely the spout, the jet d'eau through which the well of honor flows ? If, therefore, sovereignty, as we have defined it, must be somewhere, it is certainly not in the king that we are to find it, and if the word sovereign is never- theless applied to the monarch, it means nothing more than supreme executive power within and under the constitution, which comes from sources of superior power. LXXIX. It would certainly be unwise in any British poli- tician to struggle for a change of the monarch's title, or that in future he should be called King of the English, and not of England, as long as no party assumes these words as a foundation to rest important claims upon; simply because it would be a waste of energy, while the substance has been already obtained. That, however, monarchs of civically de- veloped nations are the monarchs, i.e. chief magistrates, of the people, and not the monarchs of the soil, w^ill have suffi- ciently appeared. In France the change of the title was im- portant, because it was meant to indicate a change of things. By the first constitution (of 1791) the king was styled King of the French (ch. ii. sect. i. 2) ; Napoleon was styled Emperor of the French. When Louis XVIII. ascended the throne in TITLES OF THE KING. 263 1 8 14, he re-assumed the old title of King of France and Na- varre ; but in 1830, upon the expulsion of Charles X., the title of King of the French was re-established. Those who have endeavored to ridicule this idea as a modern fancy err greatly.' I repeat, as to mere correctness, there can be no doubt that this is the true title, in the eye of all who consider the king as part of and within the government of the country. ' Mary Queen of Scots. Philip IV. (1285-1314) styles himself, writing to Pope Boniface, Roi des Francois. (Chateaubriand, Etudes historiques, vol. iii. p. 331.) An engagement between Philip II. of France and Richard I. of England was signed thus: " Moi Philippe, roi des Fran9ois, envers Richard, mon ami et mon fidele vassal : Moi Richard, roi des Anglais, envers Philippe, mon seigneur et mon ami." (Biog. Universelle, vol xxxix. p. 94.) Gustavus Adolphus styled himself " by the grace of God chosen and hereditary prince of the Svredes, Goths, and Wends." (Zober, Unprinted Letters of Wallenstein and Gustavus Adolphus, Stralsund, 1830.) The instances might be greatly multiplied. In Latin the king of Prussia is styled Rex Borussorum,— analogous to the ancient Rex Romanorum. And yet, in 1655, during the transactions between Cromwell and Louis XIV., the French ambassador complained that Louis had been called " rex Gallorum," instead of " rex Gallias." Thurloe, State Papers, iv. 107. CHAPTER VII. Public Power. — Why necessary. — Why must it be restrained ? — Abuse of Power general.— Man justly loves to act, to produce, to effect something.— It is the inherent Character of all Power to increase if unchecked.— Powe rdelights, and is not willingly given up. — Power, in all Men and all Spheres, is irritated at Opposition. — Man judges according to his Position, those in Power differently from those out of it. — Power is in its Character imposing. LXXX. The state stands in need of power for its govern- ment, or organism through which it obtains, or strives to ob- tain, the state objects. Let us call it public power. Public power may rest on a moral basis : for instance, people obey a law because it is a law, not because a penalty is attached to it. In the year 1836, the members of the South Carolina legislature resolved unanimously, in a caucus, to throw away the presidential vote, or to vote for an imaginary person, because they were not satisfied with either candidate. When, however, the vote was to be taken upon this preliminary reso- lution, it was suggested that the constitution of the United States says (art. ii. sect, i, 3) that the electors "shall vote by ballot for two persons." The legislature, therefore, found themselves bound to vote for some actual citizen or other, and gave their vote for Mr. Mangum, who was no candidate. It was a purely moral act. In former times, the citizens of Hamburg contributed their quota of taxes, unseen and uncounted, after the general sum had been granted. Or government may have the right to bestow honors and thereby exercise power. Or public power may rest on a physical basis, — for instance, when the constable with his assistants carries off a person, or government sends soldiers to enforce obedience. Or it may rest on a basis of a mixed character, — for instance, on the pecuniary means at the disposal 264 PUBLIC POWER. 265 of government. Pecuniary reward cannot be strictly called physical or moral. Power and authority are promiscuously used in politics. Authority is the lawfully bestowed, or by common consent acknowledged, right of performing certain public acts. The supposition is that where this right exists, the power to make use of it exists, and hence the promiscuous use of the two terms. Thus, the constitution of the United States, art. i. sect. 8, says, " the congress shall have power," etc. We have seen already that all power must originally rest upon a moral basis, although not indeed in each individual case. LXXXI. Why does the state want power for its govern- ment ? Because : I. Man is a physical, intellectual, and moral individual of himself, and must remain so. His worth and value depend upon it; and yet he is bound to live in society, and this so- ciety must, according to the great plans of the Creator, move from one stage of civilization to another. Both require an infinite variety in the combination of the elements which con- stitute the inner man, and infinite changes of his social rela- tions, of which an infinite variety of character, desires, views, and actions is the necessary consequence and indeed the object. Astonishing as the power of combining throughout the rest of the creation may appear to us, in man it operates most surprisingly. Animals can live in large numbers to- gether without many jarring interests ; enormous herds of buffaloes graze together and rarely fight with one another, because their individuality is a merely physical one ; they all move simply according to the food they find. It has been very erroneously supposed that the interests of men cross each other, and that consequently governmental power is requisite merely on account of man's sinfulness. It is one of the first principles of mankind that infinite variety should exist. Without it all would stagnate. This variety must lead to different views, not only according to men's wicked- ness, but because they are finite beings. Infinite wisdom 266 THE STATE. alone, omniscience, can penetrate the essence of all things and, consequently, their essential relation to one another. Though no citizen were ever actuated by selfishness, still, power for the government would be necessary, in order to protect the jural relations of the citizens, each one of whom can only see and feel first through himself Each man, first of all, is the key through which he has to understand that which is around him.' The variety of pursuits and de- ' Let me not be misunderstood as if I were in any the slightest degree an ad- vocate of the theory of selfishness or egotism, but lately prevalent in some coun- tries. There is nothing more baneful to society than the corroding spirit of egotism, I have given my view on the importance of sympathy, in several previous pas- sages; still, it must not be forgotten that man cannot by any possibility see through other eyes than his own, feel through another heart than his own. He begins even with regard to his feelings for others from the circle around him. Your neighbor's father dies; you feel strongly for him, for you know what you felt when your own departed. Your neighbor's son breaks his arm ; you feel strongly, yet differently from what you did when your own son was brought home covered with blood. That which happens in my sight affects me more than that of which I only hear. Great miseiy in the street in which I live goes more di- rectly to my heart than misery at a greater distance. The distress of the Spital- fields or Lyons weavers is read by no one without commiseration and lively feel- ing, yet the distress in our country, our own slate, community, street, house, affects us more, in the same degree in which the circle narrows. The account that the maids of honor of Queen Catherine of France tore the clothes from the corpse of Baron Soubise, slain with so many other noblemen in the royal palace during the massacre of St. Bartholomew, and made themselves merry at the spectacle while his blood was yet streaming from his wounds (Aubigne, ii. 546; Lacretelle, ii. 352), or that Caesar Borgia, having successively murdered, with dagger or poison, his own brother, brother-in-law, and hundreds of victims to his lust of power or desire for money, killed Peroto, the favorite of Pope Alexander VI., Ccesar's father, while his victim had sought protection under the pontifical robe, and the pope pleaded for him, so that the blood of the favorite gushed into the face of the pontiff, and that Ccesar went forth unpunished (Ranke, Princes and Nations of Southern Europe, Berlin, 1834, vol. ii. p. 50, where all the Italian authorities are given)— these accounts affect us, however intense our feel- ings at all the loathsome crime may be, far differently from any act of less criminality which may occur in our own community. There is always, and necessarily must be, an essential difference between the effect of anything which affects us in a general way only, and that in which we are personally interested. If it were not so, the world would be in the greatest confusion. Every one would make the cause of every one his own. Who could read a single news- paper without being rendered wretched almost for life ? Or could we feel any PUBLIC POWER. 267 sires, of views which incline more either to that which has been and exists or to that which is expected, cause actions which intercept and contradict one another. A very large number of all civil law cases originate neither from insufficient laws, nor from the evil designs of the parties, nor even from their litigious spirit, but because both believe they are right and that it is their duty to maintain their right. If, then, every man shall have his due, how can it be otherwise done than by a higher authority and power to sustain the authority ? 2. The state, through its government, must protect each citizen against any violation of his rights by wrong-doers within or enemies without. 3. The state, as a whole, must maintain and protect itself from evil designs against its existence from within, and attacks upon its independence from without. 4. The state, a jural society, must maintain its character as such. It must punish violations of rights, not only with a view of individual protection (mentioned above, 2), but also to maintain its own character as the society of right. Without punishment of offences, the state would lose its essential character, and society, therefore, could no longer exist and pursue its ends as society. The state acquires the right to make use of its punitory power against offenders by the offence committed against it, that is, by each infraction of the law, and it is its duty to do so wherever the general protec- tion, physical or moral, requires it. By moral protection I mean that which exists in the maintenance of the character of the state, i.e. a society of right. Rights exist between moral beings only; animals have no rights. The state pro- tects against offences both in a psychologic way, by affixing beforehand a punishment to every offence — by warning every longer, at all, if all the joyous events and sad occurrences, past and present, were to excite our interest as much as our own ? In this necessary order of things, too, we have, as alluded to in a previous passage, to look for one of the deep sour.es of patriotism. 258 THE STATE. one; in doing so, it leaves every one free;' and in a physical way, after the offence, notwithstanding the penalty, has been committed. 5. One of the main state objects is, as has been seen, the obtaining jointly that which is necessary for society and can- not be obtained by individual exertion — to obtain publicly what cannot be obtained privately. This, too, requires power, LXXXII. Why must public power, if once granted, be carefully watched, modified, retarded ? Because public power is not a physical power which can be either expressed or lim- ited with absolute definiteness. The "vessel of the state" is not a steamboat, of which we can say it sails with so much horse-power. Public power is finally always founded upon confidence. Make a law ever so definite, circumscribe the limits of power which you grant, with ever so much care, you must repose confidence in him who has finally to carry out that law — the confidence of common sense and moral sense. Confidence, not indeed unlimited confidence, must be the last vital spark which makes a prescribed action a living thing. The claim of confidence, so continually proffered by James I. and Charles I., was not wrong in principle; the diffi- culty lay in the degree of confidence they claimed, and both showed themselves unworthy of a far less degree. All the wisdom of government depends upon a proper balance be- tween confidence and distrust. Confidence, then, is indispen- sable ; but this confidence will be abused. Why ? Because he who has power, whoever he or they may be, king, ministers, nobles, commons, clergy, soldiers, the people, abuse it. Po- lybius, the first who reduced the idea of a circle of political ' Feuerbach, Manual of Penal Law, loth ed., parag. 10 et seq. T^Iy views ol the punitory power of the state, or the primordial rigl;it of punishment, and the duty of punishment, as well as on various other subjects relating to these, have been given in a popular Essay on Subjects of Penal Law, and on Uninterrupted Solitary Confinement at Labor, as contradistinguished from Solitaiy Confinement at Night and Joint Labor by Day, printed by order of the Philadelphia Society for Alleviating the Miseries of Public Prisons, Philadelphia, 1838. LOVE OF POWER. 269 changes, namely, monarchy, aristocracy, democracy, which changes again into monarchy, to a system, founds already the necessity of these changes upon the degeneracy consequent to the abuse of public power in each form of government. (Lib. vi. c. 3, seq.) Why is this the case? For the following reasons : I. Republicans complain of the abuse of power practised by monarchs, their ministers, lords, commanders; and yet each complainant carries within himself the germ of a despot, and abuses power proportionately within his sphere as much as the others in theirs. The monarchs are men of the same organization with ourselves. Each party that is out com- plains of abuse of power in that which is in. Are then all these complaints mere declamation ? They are not. If so, the abuse of power must be founded on some natural principle within us, and its origin need not be bad. It must be bad on account of insufficient restraint. Let us trace, then, the origin of this phenomenon. The love of power is not necessarily bad in its origin. It is closely connected with what I should like to call the desire or urgency of action, an original principle of essential impor- tance. Where power, energy, or any faculty for action and activity (^ova/i;?) has been given, there exists likewise an in- tense desire to exercise, practise, apply it. Such is its. very nature, and without it the world would be at a stand. Whatever we may undertake originally by way of interest, the love of activity, the desire to leave some memorial of one's self, to produce and effect something, soon supersedes it. Does the merchant carry on his business in order to obtain a certain sum and then to stop? Or does he continue his operations even when, whatever the increase of his fortune may be, he cannot expect to live thereby more comfortably, give a better education to his children, or a surer prospect of independence to his wife, should he leave her a widow ? It is not ambition alone that may prompt him. There are many rich merchants, neither ambitious nor avaricious, who yet remain in busmess, and the community praises them for continuing it. Why do 270 THE STATE. nearly all men love farming in the evening of their lives, when they are excluded from the busier spheres of life ? Nearly all " retired men," merchants, lawyers, politicians, princes, love farming. Because in farming, though it is calm in its nature and therefore suitable to their situation, they still produce, act perceptibly to their own eyes, and they prove to themselves, by that which surrounds them, that they are still acting beings. Does the orator, who feels and sees that he wields power by his word of mouth, merely speak for the sake of usefulness, or does that peculiar delight which a sound and energetic speaker necessarily derives from the consciousness that he exercises a mighty power over his hearers, strongly commingle with it ? Did Fulton never think of anything else but of benefiting his fellow-creatures, or was he strongly pro- pelled by the pressing desire for activity and the application of that power which nature had given him, and the delight which the soul always feels in the activity of its powers, capacities, talents, whatever name they may have? What prompts an Ehrenberg to study the structure and vital organ- ization of insects in the burning clime of Egypt? Is it utility? What impels every votary of science to pursue his toilsome paths ? Is it interest? Is it utility alone, or chiefly ? or is it the delight which the human mind feels in the consciousness of activity? " Omnis enim scientia et admiratio (quse est semen scientiae) per se jucunda est," says Bacon. (De Aug- ment. Scientiarum, lib. i.) And what is this admiration but the delight of intense activity and consciousness of the power and penetrating or combining action of our mind? What prompts the true poet ? Was the first idea of Shakspeare to delight his fellow-men, or was it the yearning of his august genius to act, to manifest — to exteriorize itself, without which genius is a burning fever? What leads the painter, the sculp- tor, to produce? Was Columbus induced to sail into unknown seas only by the desire of obtaining means to drive the Sara- cens from Palestine, as he himself believed, or did he wish to obtain these means because his exalted mind urged him necessarily to act ? The nobler the mind, the more endowed ABUSE OF POWER. 271 the soul, the more intense also the thirst, the more pressing the anxiety to act, to produce, to exert our powers — to im- print our mind on the world without. It is indifferent what name we give ; our language has no term which expresses with one word the Greek 5waa>'^ai, tzouIv, the German schaffen and zvirkcn; but what I mean to convey is what the«e words express in their respective languages. The love of power, therefore, is intimately connected with a principle in the soul, by which man is stamped more as the image of his Creator than by any other. The love of power is a higher degree of the love of activity, which is found everywhere in men. All absence of activity pains us. We find it in all spheres, from the common cutting in wood or writing in sand to the grandest self-sacrifices in the scholar, who, like Leibnitz, knows he will die early if he perseveres in his studies, but still prefers a short life of intense thought to a long one of repose. This love of activity is also closely connected with ambition, on which see the proper chapter, LXXXIII. 2. It is likewise the character of power, phys- ical, mental, political, and moral, that it goes on increasing, if not counteracted. Indeed, it is the essential attribute of power that unchecked it will go on increasing. 3. The delight in the exercise of power, combined with the frailty of man, produces this effect, that few who have power are willing to give it up. Whether in the people or the mon- arch, power is a bewitching thing. There have been mon- archs, indeed, who have abdicated, as Charles V., emperor of Germany, and Diocletian of Rome, but as long as they had power did they not remove everything in its way ? I do not say that there may not be inducements still more urgent to give it up. Others, as the elector Frederic of Saxony, declined the German crown. But there is at times a great difference between a crown and power. When Holland was engaged in that glorious struggle with Spain, in which thousands of deeds were performed, by men 2/2 THE STATE. and women, which are hardly equalled by the Greeks in the Persian wars, when the whole people were animated by in- spiring enthusiasm, when William of Orange was at the height of his popularity, when the inhabitants of the country as well as the cities had to contribute all they could spare to defray the exhausting expenses of the war, even then that great man could not induce the cities of Holland, in 1573, to admit among their large number of representatives at least three from the country, though the farmers of northern Holland alone bore two-thirds of the public charges. They had not a single member in the states. How long did the English parliament resist all the fairest measures of reform, even though Pitt advocated them ! The Spanish cortes in 18 12 would allow Mexico no representation; Portugal behaved similarly towards Brazil. How many acts of crying injustice are recorded of Athens against those who depended upon her as allies ! As soon as the various re- ligious sects after the Reformation had obtained what they wanted, nearly all of them denied the same to others. In short, whoever gets in likes to lock the door behind him. 4. It is a psychological truth, that all power, however law- ful, being resisted, the first feeling in those intrusted with it is not that of regret at this resistance, on account of the object they had in view, but of offence at the opposition itself This, again, is not peculiar to one set of men or class of society, but without exception true of all. Monarchic power is not more offended at resistance than democratic or parental power. Many a father who complains of public functionaries on ac- count of their love of power forgets to ask himself at what he feels offended when his child is disobedient; because it dis- obeys a wise rule he has given ? or because it is disobedient and therefore acts wrong ? or because it has disobeyed what the father had ordained? The severity of all early penal laws arose from this source. The idea, the feeling, was, " You have dared to disobey my power, you have rebelled against my authority," not, " You have offended against society, acted wrong, because my authority is for the common good." ABUSE OF POWER. 273 This is likewise the case when we are justly opposed; for, whatever may be the ground of opposition to us, and though we may have a pretty distinct perception of the right of the opposer, the first feeling is the desire of overcoming the op- position. Few men indeed are ever opposed without at the first moment having the feeling of being wronged; and this extends even to the most atrocious criminal. And as the in- dividual, so the body. Whoever wields the public power feels irritated by opposition, be it ever so peaceful or loyal. Power therefore would overcome everything in its way, if not modi- fied, or, which is the best, if not generated in a manner which insures the least possible danger. This jealousy of opposition is frequently increased by a consciousness of greater weakness than the possessor of power wishes to have others know, or by a suspicion that new or delegated power may not be ac- knowledged to the full. Alva decreed, July 31, 1571, after much debate and opposition in his own council, a most hate- ful law, and farther declared that the honor of the king de- pended upon him, and that every one who opposed him was a fool or a traitor. (Raumer, Letters, etc., i. 179; Thuanus, lib. 20.) The correspondence of Strafford and Laud exhibits the same principles. 5. Man judges first according to his own perceptions, and it requires great skill and much honesty to view matters in the light of others. (See the previous section and note.) If I feel oppressively warm, I say the weather is warm, and believe all must feel oppressed, until I have learned that my body may be in a state in which a comparatively low tem- perature may produce the sensation of a very high one. Those in power can but with difficulty see things from above as those not in power see them from below. It is therefore the history of all governments, all revolutions, that those in power, from whatever part of the people they may have come, judge by their own view as it appears from their seats, as soon as fairly seated in them.' » There is a scene depicted in chap. x. of Mr. Buhver's Rienzi, so expiessive of what happens every day and everywhere, through all spheres of human life, iS 2/4 "^^^ STATE. 6, Power imposes ; power receives everywhere respect by its own character. However illegally acquired, the great ac- tion of power obtains homage. The success of usurpers is in part founded upon this fact; the people revere power j so that usurpation itself becomes a new acquisition to farther usurpa- tion. It is the energy which manifests itself and the capacity of action thus proved which overwhelm the beholder. This is of peculiar importance in its application to the limitation of the executive, the depository of this vast acting and imposing power, and to the independence of the judiciary, which rarely has an opportunity to act brilliantly like the other branches. 7. Even after careful limitations have been established, it will always be possible for those who have power to overstep them and to find aids and abettors. Hardly had parliament abolished the most ruinous monopolies, and declared a prin- ciple which may be considered as the germ of the Petition of Right, in 1623, when James I. sold new monopolies and levied anew arbitrary taxes on commerce, because, as he asserted, the constitution gave him the right to make com- mercial treaties. Soon after the Petition of Right had been obtained, Charles I. dissolved the parliament, and did not •SUTiimon another for twelve years, attempting meanwhile by various illegal ways of raising money to supply the needs of the treasury, and thus paving the way for the loss of his life and crown. Is there not, then, reason enough to limit and retard power and prevent it from growth ? that I feel tempted to quote it. The reader will recollect that a painting was exhibited for tlie purpose of testing and exciting the Roman people : «" Know you not,' at length said Pandulfo, 'the easy and palpable meaning of this design ? Behold how the painter has presented to you a vast and stormy sea — mark how it waves.' " ' Speak louder — louder !' shouted the impatient crowd. "'Hush!' cried those in the immediate vicinity of Pandulfo; 'the worthy Signor is perfectly audible !' " CHAPTER VIII. Legitimacy of Governments. — Governments de jure, de facto. — Divine Right. Legitimacy of Governments with Reference to International Intercourse.— Can the Legitimacy of Government be ascertained by its Origin ?—Filmer, Loclce, Rousseau* Halier. — The Origin of all States essentially the same; yet Infinity of Circumstances, which influence and modify its Development. — Ancient View on the Origin of Governments. — Aristotle, Polybius.— Various Theories. —Social Contract. — Various Pacta. — Hobbes, his Error. — Theocratic Theory. LXXXIV. Before the subject of limitation, or, as more fitly it might be called, of moderation of power, is treated, it will be necessary to consider some others. The first is the legitimacy of governments. What is a legitimate government, for which we have claimed power? What are governments de jure, and what de facto? If nations or states had never been considered the descend- ible property of the ruler and his family, and the ruler, there- fore, something above or without the state, and if people had not been dazzled by the supreme power, mistaking it for the government, and its change for a radical change of the state, while nevertheless such changes may take place with very little essential change in the great bulk of state institutions, as has been said before — the dispute about legitimate govern- ments would not have assumed the character which it actually has, in spite of all facts which history furnishes. After having settled the true meaning of state, sovereignty, government, public power, and supreme power, it is easier to arrive at a clearer notion of legitimate governments. Generally speaking, that government is legitimate which exists according to the fundamental laws and usages of the state, i.e. the society; or, if these organic laws have been changed, the existing government is legitimate if the people may be considered as acquiescing in it. If the people com- posing the state are really satisfied, it is perfectly clear that 275 276 THE STATE. no one else can doubt the government's legitimacy, for, trite as the truth is, it is still of fundamental importance, that the government is simply and solely for the benefit of the society. But frequently the people are kept in such a state that it is impossible to ascertain whether the people can be considered as acquiescing in it, even if we put the most ex- tensive interpretation upon this word, or whether they will break forth the moment after the demise of the ruler, and destroy his statues, execrating his memory : " Descendunt statute, lestemque sequuntur, . . . Aidet adoratum populo caput, et ciepat ingens Sejanus." JUVENAL, x. 60, seq. — a post-mortem censure repeated by the Romans against the pontiffs, — for instance, when Pope Paul IV. (Caraffa) died, in 1529, and the people dragged the head with the tiara of his statue through the mire, of which occurrence Mocenigo gives an account (Ranke, Popes, transl., i. 192). Suppose those who perform these acts are, as in some cases, e.g. under the Roman emperors, they must be considered, the correct ex- ponents of public opinion, all we can say is that the govern- ment, the agent of the state, may have committed many illegal acts, as agents of any sort may at times do. A government may grievously oppress the people for a series of years, and every one who could produce a favorable change might be a public benefactor. So long, however, as the government does exist, so long as the people prefer the oppression to the danger of a change, they must follow the , oppressive government. A government fairly established, which includes acquiescence of the people, must be con- sidered as legal, which, however, does not exclude the right or expediency of changing it, inherent in the state or society. The dispute about the legitimacy of governments is un- profitable, and it is far better to inquire into what are wise or ruinous, sound or rotten, just or unjust governments.' The ' * Divine Right. The red republicans, Socialists, etc., demanded it as a condition of being a candidate for election to the chamber in 1850 (in Paris), GOVERNMENTS DE JURE, DE FACTO. 277 peculiar theory of legitimacy maintained by the continental members of the Congress of Vienna is opposed to reason, history, and the course of policy which the proclaimers of that theory have been induced to adopt themselves. Louis Philippe was acknowledged, and his son intermarried with a reigning family. Napoleon was acknowledged by all powers, and received the hand of a daughter of an old imperial house. Talleyrand must be considered as the first who distinctly pro- nounced, at that congress, this remarkable theory, which at most can be adopted only by the devoutest legitimists. For the sake of order it is needful to agree to consider legitimate all European rulers that now exist, and those who shall de- scend from them by legitimate intermarriage with ruling families. This, however, would amount to nothing more than an expedient, about which people may have different opinions; for the question. When does the ruler become legiti- mate ? is not settled. Talleyrand had nothing else to bring forward in favor of the Bourbons, when Napoleon had returned from Elba, and it had become clear to many members of the congress that the Bourbons were not the men of the French nation, and Austria inclined to readmit the emperor on the throne. The principle was effective ; it saved the Bourbons. The English, of course, have never acknowledged this prin- ciple, because their constitutional law is founded upon the distinct acknowledgment of the nation, that calls rulers to govern according to certain rules, principles, and funda- mental laws laid down by the people. But, even according to the fanciful theory of the legitimists themselves, who is the legitimate ruler at present (1838) in Spain ? LXXXV. All sfovernments bes^in as so-called govern- among other things, that the candidate ought to acknowledge that tlie majority of the people, in universal suffrage, have not the right of establishing monarchy. Is this not a divine-rij^ht theory of republicanism, or divine right of reason, as they probably would call it? But does the republic exist on its own account, even though it may be the most mischievous government in a certain country^ at a certain period ? And if not, when does this divi e right begin ? 2/8 THE STATE. ments de facto, if the people do not actually and formally establish them. This is but rarely the case, and can be but rarely so, according to the political civilization of mankind. By this I do not mean that fact makes right, though fact has generally preceded right. The necessity of man's living in the state is so absolute that, whatever changes may take place, a legal relation will soon develop itself out of that which violence and fraud, or wisdom and devotedness, may have founded. The origin is not the thing. The first sounds from which the noblest idioms arose may have been utter- ances not much differing from those of animals, yet the subtle organization of the Greek idiom is something very different from a brutish means of communication. Society wants jural relations ; it cannot exist without them, and it cannot, there- fore, continually recur to its first elements, but must transform the given circumstances into jural relations. This shows the naturalness and energy of the state. So the people must live, and they want bread. If some one conquers the land and violently changes the owners of the soil, does not the same natural necessity of using the produce of that soil exist, and is it not lawful to buy the grain of the new possessor ? The urgent want of a state, the indispensable necessity of living within a state, is superior to all claims which may be set up as to the possession of power, just as the absolute want of nourishment is superior to any consideration of the title by which the land is held which produces it. If certain individuals had any distinct rights and claims of their own, derived from some source besides the necessity of the society existing over which they claim the right to rule, then we might speak with propriety of legitimate monarchs in contradistinction to changes of the government effected or fairly acquiesced in by the people. According to our theory, given in previous chapters, this is impossible. Was Louis XVIII., when an exile in England, the legitimate monarch of France, and not Napoleon ? He certainly was not the mon- arch of France, and therefore could not be the legitimate. " A wise man," says Sophocles (Qidipus Rex, 587), " would KINGS DE FACTO. 270 prize less a king's name than to do the works of a king." So soon as we give up the idea of rights personally and abso- lutely inherent in the monarch, and not dependent upon the laws of the land, the difficulty vanishes. This is not mere theory, but, in spite of all pretensions to the contrary, the people have always been obliged to acknowledge by facts that the state does not travel with the prince, but remains with society, with its everlasting legality and legitimacy, though a usurper may seize upon the supreme power and commit a number of illegal acts. We have seen already that Louis XVIII. could not help acknowledging the legal state of things which had grown up during his absence. It was not Louis XVIII. who had succeeded Louis XVII., who never reigned, that was received by France in 1814; he was a new ruler, really and truly succeeding Napoleon. Indeed, the idea that the monarch carries away with him the legality of the state is no less preposterous than it was in the emperor Frederic III. to count his amputated foot among the avulsa imperii: " now a leg has been cut off from the emperor and holy empire." (Griinbeck, 41.) When the elector of Hesse returned in 18 13 to his country, he declared the king of Westphalia, having been a usurper, to have possessed no right of selling the domains, and therefore took possession of them without any restitution of the sums for which they had been purchased. Prussia acknowledged the sales which the same kingdom of Westphalia had made of her domains. The Germanic diet decided against the elector and for the pur- chasers, and when that prince for years declined to yield to the diet, and all the endeavors even of Austria were in vain, the diet ordered the troops of the neighboring members of the confederacy to make the elector comply with its de- cision. V LXXXVI. The English go still flu'ther. "A king de facto and not de jure, or, in other words, a usurper [of the crown], is ^ king within the meaning of the statute which defines trea- son (25 Edw. III., c. 2), and therefore treasons committed 28o THE STATE. against Henry VI. were punished under Edward IV., though all the line of Lancaster had been previously declared usurpers by act of parliament. But the most rightful heir of the crown, or king de jure and not de facto, who hath never had plenary possession of the throne, as was the case of the house of York during the three reigns of the line of Lancaster, is not a king within this statute against whom treason can be committed." This passage and its continuation (taken from Blackstone, iv. y^ et seq. ; see also Hallam, Constitutional His- tory of England, vol. i. chap, i, pp. I2, 13) show in the clearest possible light that, according to English views, the state and monarch are totally different, and that treason is not so pecu- liar a crime on account of inherent qualities in the royal person, but simply because the king is seated on the throne on account of the safety of the state or the benefit of society. I would refer, as to these momentous points, to Hallam's Constitutional History in general. Protection, the main object of the state, requires, as we have seen, power; but governments sometimes lose for some reason or other, by their own fault or not, all necessary power. Is then a power- less government still a legal government? that is, is a gov- ernment which cannot any longer perform that for which it exists, still legal ? If so, then the people exist for the govern- ment, not the government for the people. St. Zachary, the pope, sent word to Pepin, who had demanded an answer, " that he who had the power had better possess also the title of king." That I do not strive to establish the theory of mere power, as it rules in Asia, must appear from all that has been said, and will appear still more from the sequel. And let me add, how has mankind at large decided the matter? Why is there universally made so broad a distinc- tion between treason against the government and any other crime ? Let a fugitive convicted of treason against his govern- ment at home go to any other country, is he treated as a criminal, received as a thief would be ? But let the fugitive have committed treason against his countiy and betrayed it, and will he still be received as a man with whose act society GOVERNMENTS DE JURE, DE FACTO. 28 1 has nothing to do ? In the British Peerage it is mentioned of the ancestors of some peers that they were executed for treason. Would it be mentioned if they had been beheaded for an act of treason against their country ? The effect upon us when we learn that such or such a lord conspired against the king is very different from that produced by the treachery of some ministers of Charles II. or the common murder com- mitted by Earl Ferrers. Is this universal difference not founded upon some true principle ? Surely it is. LXXXVII. Louisiana, bought in 1803 by the United States from the French, was, perhaps, illegally acquired; for, besides the great probability that the inhabitants of Louisiana terri- tory were averse to the purchase and called upon the Ameri- cans to act up to their principle of popular liberty, congress had a very questionable constitutional right, if any, to spend fifteen millions of dollars for the purchase of foreign territory. But there are reasons and circumstances which carry along states and nations. To be securely and truly master of the western country it was necessary for the United States to possess the mouth of the Mississippi ; and would now any one insist upon the members from Louisiana being excluded, because Louisiana was acquired unconstitutionally? With how many frauds and crimes has that country we now call France been brought together ! yet she forms at present a state with all legal requisites. Some call this the right of conquest. First, fraud is not conquest, and secondly, con- quest and right are entirely different things, for the very idea of conquest is that I acquire something by force and not by right. The fact is simply this : mankind rise gradually out of the state of force into that of reflection, in politics as in any other branch. But whatever these many different conditions may be, which affect the rise of various states, they could not rise and develop legal relations even out of the merest rela- tions of violence, if there did not exist the necessity of the state, i.e. of a jural society for men. The question of legiti- mate governments resolves itself into two : who shall be 282 THE STATE. acknowledged by foreign powers as the legitimate ruler or rulers, and which is the legitimate government at home. The first question, properly belonging to international law, has in practice always been decided according to fact ; that govern- ment which is fairly established is acknowledged, except it has been the interest of the foreign state not to do so, A sovereign nation is, because sovereign, free and independent, which involves that it has a right to establish any government it pleases. This does not exclude the necessity under which some states may be, of interfering with the affairs of another; for, whatever the theory may be, practically it is true that states are sometimes so closely connected and interlinked by various interests that they essentially affect each other, how- ever inconvenient it may be, or opposed to honestly professed principles. Self-preservation alone forces at times a state to interfere with the affairs of another. The second question is much simpler, if we recollect what has been said of the state, and that absolute or blind obedience to whatever authority is a moral incongruity. (See on Obe- dience to Laws.) If, however, the citizen must decide in a time of civil war, as at present (1837-1838) in Spain, he must make up his mind solely according to the question, which of the contending parties promises the comparatively best gov- ernment according to the principles on which it stands as a party, or on which it has set out in the contest, and which are, according to the natural course of things, most probably its inherent principles — to which it will owe its existence, not its proclaimed principles, or professions. For, be it repeated, no government, no dynasty, can possibly have any claims of its own, equivalent or opposed to those of the nation. If one of the contending parties is the government, according to the es- tablished laws, and yet the other party would be the eligible one according to the principle laid down, we must decide which will be for the more essential welfare of the state, to ad- here to the established laws, or to change them by the victory of the other party ; for no laws are immutable. Surely it would not have been wise or good to fight for the Merovingians ITS ORIGIN. 283 against the Carlovingians. (See Political and Legal Her- meneutics.) In the latter case the change may be partially or wholly a revolution. LXXXVIII. When the idea of the state became p-radu- o ally more clearly developed, as an institution with a character distinctly its own, and more and more separated from the ideas of force as well as that of the family union ; when the state, in the progress of the ideas of justice, began to be sepa- rated from the dross of foreign matter, and men endeavored to sift that which is essential to the institution of the state from that which is accidental and unessential, it was but natural that various attempts should be made which were partially or wholly unsuccessful. It has happened thus with most insti- tutions. Mankind required thousands of years before so sim- ple an institution as that of the judiciary, or even that of penal jurisdiction, could be clearly developed and separated from the entangling notions, first of private vengeance, and after- wards of public vengeance. One of the erroneous notions of the state, yet easily accounted for in the course of civilization, was that we should arrive at the essential character of the state by investigating its origin, a misconception to which the most opposite parties sedulously adhered. Filmer and Locke, Hobbes, Rousseau, and Louis von Haller,' have all in their turn believed it possible to ascertain the precise character of the state by this mode of inquiry, and every one of them has, as it now appears to us, unavoidably been obliged to recur to the strangest fictions. But when Euler endeavored to reduce the principles of music to mathematical laws, was he told that it was folly thus to ascertain the character of this soothing art, because the first people that beat the cymbal or the drum knew nothing of mathematics ? Is it wrong to say that music kindles the feeling of devotion, because the first conch that was blown may have served to animate people to contest and slaughter? Or is it wrong to treat of music separately, See the article on him in the Encyclopoedia Americana. 284 THE STATE. and acknowledge it as an art by itself, because music began and rose in combination with dance and poetry ? Is music forever destined to be inseparably united with dancing, be- cause the first notions of rhythm, essential to music, mani- fested themselves in the dance ? Are the vine-dressers not allowed to give utterance to their happy feelings at the con- clusion of a rich vintage, because all dances were, perhaps, originally of a religious or warlike character ? Do we learn anything with regard to the true character of the infinitesimal calculus or the celestial mechanics from the fact that all counting began with five fingers, so that it is believed that to five (to count by five) was the original expression for count- ing?^ Do we learn the true character of a healthy, comfort- able, and safe house for a civilized man from the first tents, which consisted perhaps of nothing more than the skin which served also as a cloak ? We may learn, indeed, that man is left physically so unprotected that, be it against burning sun or piercing cold, ray or rain, he is always found with some shelter or other, and that to him therefore, naked but en- dowed with reason as he is, a shelter, a hut, a house, is a consequence as natural to his organization as the well-lined burrow of the northern animals, or indeed their fur itself LXXXIX. The state originated always in one and the same way, that is, by the conception of the idea of the just, or by the development of the jural relations among men. These relations, however, developed themselves, and continue to develop themselves, out of an infinity of given circum- stances and conditions, produced by family adhesion, force, fraud, vengeance, pride, deliberate debate, slavery, kindness, and lov^e of liberty, conditions growing out of the life of mountaineers, or of herdsmen in the steppes, or in well- wooded plains, of countries with navigable rivers, inlets or barren wastes, islands or diked shores, or the summits of mountains,^ of hunters, agriculturists, mariners, merchants, or ' Homer, Odyssey, iv. 412. 2 See General Introduction to Heeren's Sketch of the Political History of An- ITS DIFFERENT ORIGIN. 285 warriors, men that had, or men that desired property, of pirates or protectors of the weak,' out of pure religion, or persecution.^ Hippocrates, Aristotle, INIontesquieu, mention the influence which soil and climate exercise upon the social relations, and the state : they influence, but I do not say that they determine, the latter.^ The reason is very clear. All the various relations which may subsist between men make up that, which unites them into society and leads to jural re- lations, or, if protected by pronounced laws, legal relations ; the sum total of which is the state with its government. A state is always something gradually grown and of progressive development, for a man can no more step out of his time than he can help being the offspring of his progenitor. He can and will improve and develop, or change and rebuild, but in no instance can he possibly begin anew. And were he to break down everything, or to build from scattered fragments, still the materials he has are the fragments of broken institu- tions, and his mind is necessarily formed and fashioned by his time. " Nee temporis unius nee hominis esse constitutionem reipublicae," are the words of Cato. Cicero, de Republ., ii. 21.* cient Greece, 2(3 ed. of the translation, Oxford, 1834, for the decided influence which the physical state of Europe, climate as well as surface, had on all her domestic and political institutions. The whole superintendence of the dikes in Holland came, in the natural course of things, to be managed by elective boards, and Van Campen shows that this circumstance essentially contributed to the growth of republican notions, as the Alps led the Swiss mountaineers to theirs. Van Campen, History of the Netherlands, vol. ii. page 12, et seq. (in German, in Heeren and Uckert's series of histories.) ' The French colony of St. Domingo, on the one hand, and the Knights of St. John (at Rhodes and Malta) on the other; for the latter formed a real state to all intents and purposes, with sovereign power. * Many sovereign bishoprics and archbishoprics; the state of the Jesuits in Paraguay, and the annexation of Granada to Spain, or in fact Spain herself, and so many Mahomedan states. 3 Dicta so true have been enlarged and carried out too far by many. See abundant instances in Falconer, Remarks on the Influence of Climate, Situation, Nature of Country, etc., 1781. ♦ * That which, in a more restricted sense, is called, in common parlance, a state, civitas, that is, stable society with government and laws, with fixed abodes in one particular country, necessarily begins only with the growth of landed 286 THE STATE. As to the larger states, they have, in many instances, actually originated in a contract. When families increase into tribes, and tribes again subdivide themselves, continued war between them, chiefly on account of revenge for some injury, especially for homicide, is often the consequence. To avenge the death of a kinsman, or fellow-member of the tribe, is considered by all early nations as a sacred duty. As, how- ever, the various tribes of common origin cultivate the same religion, the celebration of common holy rites leads these distracted parts at certain seasons together. In order to cele- brate these religious feasts in peace, it is necessary to suspend hostilities; this leads to agreements of peace for a limited period, and these become, in the course of time, the. founda- tions of national compacts. Finally, many of these confeder- property, in all larger states the most important part of property, to which our expression " real property" even now points. The early law of England took no cognizance of movable property (Blackstone, Com., ii. c. xxiv.), partly because there existed but little movable property claiming legislative attention, partly because the possession of land determined the relation of the individual to the political society in a far different degree from what the possession of any movable property could do. Heeren, in his Essay on the Rise and Progress of Political Theories, contained in the translation of his Historical Treatises, Oxford, 1836, says, " The first, though not the only, object of a state is the security of property : now, although movables are just as much property as land, yet it is only where the latter has been appropriated that the right of property attains to its full importance ; and not only this, but the necessity of defining its different forms by laws is then for the first time perceived, because land is, from its nature, the only permanent object of this right." This last remark is too strong, and does not keep sufficiently in view the immense importance which, at later periods, personal property in the shape of moneyed capitals acquires. So likewise must we limit Heeren's views as to the historical beginning of states. Previous to the acquisition of landed property he maintains that no state exists, and actually says, " no one would argue that the Calmucs, or the Kirgisian and Arabian Bedouins, foi-m what is properly termed a state (civitas)." As to civitas, we have the asso- ciation of a city, a compact community, in our mind, and if we may not ascribe to those nations what is " properly termed a state," most assuredly we must ascribe to them what is philosophically termed a state, else I do not know what we ought to call their jural society. This certainly exists, for they have laws, they judge delinquents, they declare war, they maintain right, in their fashion indeed, but still right and jural relations they do maintain. To be brief, have they or have they not a government ? If Heeren is right in this point, then I believe the expression patriarchal government to involve a contradiction. VARIOUS THEORIES. 287 acies grow into more consolidated states. Yet these com- pacts are not the first origins of the state ; the state, that is, poHtical society, exists already. The history of Sweden furnishes a striking example of this process of political gen- eration. XC. The chief theories respecting the origin of the state are those which start from a previous authority, from force, a religion (or priesthood), or contract. I take the latter first. Ancient and modern authors, in order to explain the right which a government has over the governed, have asserted that the state was founded upon a contract of its members for mutual protection and assistance, for which each one is will- ing to give up what has been termed natural liberty, a state in which man was supposed to depend upon his own will alone. Some writers, and among them are scholars of great distinc- tion, believe not only in the theory of an implied or tacit con- tract, but that all political law (or state law) has grown out of the germ to be found in the contract of a certain number of tribes.^ Aristotle says distinctly, in his Politics, that the regal power has been founded by the will of the people. Plato's view of the origin of the state coincides with that of Aris- totle. Polybius calls royalty {[iacihia) only that government which has originated out of the free will of the people, and which subsists more by public opinion and acknowledgment than by force and fear ; in the contrary case he calls it mon- archy. (Polybius, vi. 5, seq.) And well may be mentioned here again Herodotus (i. 96), where he gives an account of the origin of the monarchy of Deioces among the Medians, out of free choice of the people; for, whether the event actually occurred in this manner or not, the passage suffi- ciently shows the view of the ancients.^ See book ii. sect. xxxi. n. 3. ' Staatsrecht des Alterthums, by Charles D. Iliillmann, Cologne, 1S20, p. 59. Compare also his Fundamental Constitution of Rome, Bonn, 1832, p. 22, et seq. Mr. Hullmann is professor of history in the University of Honn. 2 I refer the reader to the very thorough work, Darstellung des Griech. Staats- 288 THE STATE. XCI. If we understand, by the theory of the pohtical or civil contract, that view of the state according to which it is a poHtically organized society of members, each of whom stands in a jural relation to every other member of the society, there- fore, in this point of view, in a relation of equality, namely, the equality of justice; and if we farther mean to express by civil contract that no jural relation, be it between the mightiest and the weakest, can possibly exist without a reci- procity of obligations (for the contrary destroys the idea of obligation, since obligation can only exist in moral beings, and obligation if on one side only would destroy the char- acter of a moral being with a moral value of his own), that the state is a society of common and mutual weal, guaran- teed by the law, which one of the ancients calls " communis reipublicse sponsio ;" if we finally mean by civil contract that those fundamental rules according to which some nations govern themselves are binding upon both parties until changed by the state, i.e. by society with inherent sovereignty — then the theory of the civil compact, or contract, is correct, and the only one which gives to the state its true, that is, jural character, and thus insures its lawful continuation. If, however, we imagine by civil contract an actual agreement made at some definite period between human beings, other- wise either running wild and harming one another, or pos- sessed of well-developed reflection, who enter, after mature consideration, into so solemn a covenant (the one supposed by Hobbes, the other by Locke), and that a contract of this sort with a particular government or dynasty is binding for- ever; nay, if we theorize this idea so far as to adopt three verfa^sungen, by F. W. Tittmann, Leipsic, 1822, p. 80, et seq. ; also to W. Wachsmuth, Hellenic ArcliDeology from a Political Point of View, Halle, 1S26, 4 vols., vol. i. pp. 92 and 100 — a work of vast research. That all the works of distinction on Greece and Rome, as those of Heeren, Miiller, Gibbon, Niebiihr, also Guizot, etc., are important here, need not be mentioned. I have not cited Cicero De Republica, for, as is the case in nearly all the writings of this author, he chiefly follows the Greeks when he discusses philosophical points. MAN NATURALLY CONFIDING. 289 different compacts — the pactum 2inionis, according to which the individuals determine by a majority of votes the end and object of the union or society ; the pactum oniiiiatioiiis, according to which the ruler and the fundamental laws are designated ; and the pactum subjcctionis, by which the contracting parties subject themselves and all future mem- bers to this ruler or government, as Puffendorf represented it — then the idea of the contract is radically wrong, and leads to dangerous conclusions, favoring tyranny or licen- tiousness. XCII. First of all we have to imagine man in a supposed state of nature, in which we never find him, nor is it possible to say which of the two early stages of human society is the state of nature, when, as Hobbes says,^ every one wars with every one, for which we have, as he says, to imagine a number of men just created. But politics is not an imagina- tive science, and we can find nowhere such a number of men. Or we must imagine a society living in peace but obliged to protect themselves against others. Hobbes says that every man naturally distrusts every other, and among other things he points at our locks and keys as a proof of his position. But he forgets that the knowledge or suspicion of one thief exist- ing in a community of twenty thousand would induce all the honest members to make use of locks. On the contrary, man trusts a thousand times before he distrusts once. Our whole life and intercourse are essentially founded upon trust ; look around you, and you will find innumerable instances. Nor is ' " Seeing then to the offensiveness of man's nature one to another, there is added a right of everything, whereby one man invadeth with right, and another man with right resists, and men live thereby in perpetual diffidence, and study how to preoccupate each other, the estate of men in this natural liberty is the estate of war," etc. Hobbes, De Corpore Politico, part i. chaj). i. The same great author says, in his Leviathan, part i. (Of Man), chap, xiii., " Again, men have no pleasure in keeping company, where there is no power able to overawe them all." Yet men will always congregate, even when public power has been relaxed. 19 290 THE STATE. this so only because we live in a regulated society and polit- ically protected. Caille started from the Senegal and worked his way to Timbuctoo and back to Fez through the desert, single-handed, without protection. He undoubtedly knew that there was great danger in his undertaking, but, on the other hand, was not his perilous journey mainly and essen- tially undertaken upon the idea of trust in utter strangers, that had not been visited by Europeans before, and had not even a common color with him ? He trusted because they were men, and for no other possible reason, and considered all the chances of perishing by the hands of the Africans, however great the danger, still as exceptions. If a stranger tells you something, to what do you incline, to believe or disbelieve him? You only disbelieve if there are particular reasons which induce you to do so ; if none, you believe, or incline to believe. Men, like animals, have to learn distrust; their nature is confiding.^ Hobbes, moreover, contradicts himself, for does not every idea of a compact show that each one has confidence in a greater number than he dis- trusts? His very idea is founded on trust. He who has' seen a body of troops which for some reason or other is seized with distrust in the officers and in one another, or which, composed of heterogeneous elements, has not yet ar- rived at mutual trust, knows how futile any attempt is to keep them together even by force. There is no imaginable force that can keep a body of men united, be it for whatever purpose, if they are not first morally united, be this upon » Clapperton found the ci"anes in Africa without any fear. Lieutenant Paul- ding (Cruise of the U. S. Schooner Dolphin, New York, 1S31) caught the birds on the Marquesas Islands with his hand. Bougainville found, in 1765, foxes and hares on the Falkland Islands, tame. Turkeys and deer, though hunted by the Indians, were comparatively tame when the Puritans landed in New England. The works of Cook, Kotzebue, or any circumnavigator state the same. So like- wise many reports of the first Spaniards who went to South America. What is more, the animal learns to regulate its caution according to the habitual danger. A hen flies frim the boy, but only to a certain distance. Many animals in the forest flee from man with a gun, but show comparative confidence if he be unarmed. HOBBES. 291 habit, prejudice, or even for criminal purposes : the union must be mental in its origin. XCIII. Secondly, it is thought by this contract to establish the reason why man shall obey the laws, why every member is bound to acknowledge public authority, even though he dislike it. No one can study the writers on natural and political law without perceiving at once that, whether they were always aware of it or not, when they spoke of govern- ment, as I have said already, the idea of the monarch was present in their minds. Hence government appeared to them as something separate from, opposed in a degree to, the people : in short, they did not conceive society as such, but people as the ruled part and government as the ruling, both materially separate and distinct. Hence the many incon- gruities in writers whom we have nevertheless to acknowl- edge as minds of great power and grasp, and hence, likewise, the totally opposite ends which they have arrived at by the same means. Hobbes, by his covenant, arrives at the most absolute monarchy, in which the ruler has power over life, death, and religion — over everything; and Locke arrives at a limited monarchy. He, indeed, made a great step towards the true understanding of the real source of power (which power Bodin, see chap, ix., not to speak of the ancients, had found already in the people) by acknowledging, at least, the family in that supposed state of nature, and making the cove- nant only between the heads of families, by which therefore he escapes the absolute submission of Hobbes. (See Locke's Two Treatises of Government.) If I thus show in what pre- vious writers have, as I believe, erred, I nevertheless acknowl- edge with gratitude their great merit, and believe, moreover, that political science could hardly have developed itself without passing through these gradual stages. Hobbes, whatever erro- neous consequences he may have derived from his supposed state of nature and consequent compact, yet made a great step, indeed, towards bringing home power to its true seat. He brought power, at least, to a human origin, which was no 292 THE STATE. mean service to rational politics. Without it, the state would not even now be acknowledged essentially a jural institution. XCIV. " No law can be made, till they (men) have agreed upon the person that shall make it," says Hobbes, in his Le- viathan, part i. chap. xiii. But is the agreement to invest a man with so important a trust as that of making laws for others, no law itself? It is the most important law of all — the fundamental law. And whence do men derive the power to elect, in other words, to fix, by a majority of voices, upon a man that shall rule ? Where is the right to bind the minority ? Here is the point that can never be solved by the theory of the contract, taken in the sense as I treat of it here. Even where the men assembled and joined, as in the case of the Rhode Island planters, previously mentioned, they never doubted for a moment that the majority have the right over the minority, which destroys, however, the idea of the contract, for a contract requires a voluntary agreeing in all parties, and the minority would not be voluntary parties. This, again, is a case in which a word has misled: "the people make a contract," but the people are not yet an ag- gregate. Every one is still insulated for himself. Each one, therefore, must agree for himself » * As to the history of the idea that power comes from and is granted by the people, I will remark here only, with regard to England, that Hooker, who died half a century before Hobbes's Leviathan was published, makes in his excellent Ecclesiastical Polity this remark : " So that in a word all public regiment, of what kind soever, seemeth evidently to have arisen from deliberate advice, con- sultation, and composition between men, judging it convenient and behoveful ; there being no impossibility in nature, considered by itself, but that men might have lived without any public regiment" (Eccl. Polit., i.) : yet he speaks of "times wherein there was as yet no manner of public regiment" (lb.). Practically the consent of the people we find acknowledged in the Parliamentary Declara- tion of 1648 : " They (parliament) suppose it will not be denied that the first in- stitution of the office of a king in this nation was by agreement of the people, who chose one to that office for the protection and good of those who chose him, and for their better government, according to such laws as they did consent unto." Translator of Heeren's Essay on the Rise, Progress, etc., of Political Theories, in his Historical Treatises, Oxford, 1836, p. 142. UNTENABLENESS OF THE CONTRACT. 293 Whence do the men derive the right to contract for women, children, and servants ? If in that so-called state of nature all are utterly free and unconnected with one another, whence above all the right to contract for those that do not yet live ? To contract for them after the laws of the land have once been established may be right, for private purposes, because it may be expedient in order to avoid certain evils ; in short, it may be right to give the right of contracting for unborn generations, if the sovereign power inherent in society de- clares it to be right, but it involves an absurdity if this sov- ereign power itself is the object. For the object of the phi- losopher was to establish legality and the right of demanding obedience on the side of the authority by mutual consent, which, therefore, is the first foundation of the authority, and yet here some persons do establish an authority which shall have power without the consent of some. The assertion that the original contractors represent the unborn generations, is an unmeaning evasion, for that which is not cannot be repre- sented. If we nevertheless use this phrase, it has significance only so far as a positive law gives meaning to it, but other- wise it has none. Moreover, the idea of representation in the first contractors is again a contradiction, because representa- tion requires previous arrangement, legalization. How could my forefather contract away my absolute freedom? To keep then the state in existence, it would be necessary to repeat this contract from time to time, say every twenty years. In the mean time, no one that had been born after his father had consented to it, and before he personally had consented to it himself, would be amenable to the laws. To be sure, accord- ing to the believers in a primordial state of nature, we should have the right to molest, torment, or kill them like wild beasts. Perhaps it might be proposed that they should wear a distinguishing mark, a cap of dog-skin, as the enslaved helots were forced to do by the Spartans.' It would be for * [This dog-skin cap, however, was no otlier than the ancient head-covering, worn liy Laertes in the Odyssey and by the Arcadians. The compulsion was the grievance. See Miiller, Dorier, ii. 40.] 294 THE STATE. the benefit of those natural men, to show that no constable had any right to seize them, and for the artificial men or citi- zens, that they might raise the hue and cry as soon as such a political non-juror showed himself. In what a state of things all society would be thrown every twenty years, when the contract must be renewed ! All property at an end, all insti- tutions broken up, all lives at the disposal of every one, all law dissolved, every one a perfect Adam in right and might, everything and every one belonging to every one — a state of savageness with all the horrors of a dense population and minds refined, stirred, and excited by civilization, \yithout the restraint and moderation of law, simultaneously and corre- spondingly developed. And, after the contract should have been renewed, what hunting down and killing of the non- contractors ! The new state must needs begin with offering a reward for the head of every non-conformist, as now we offer a pound for a wolf-skin or some shillings for a crow's head ; or, as of old, a price was offered for a dead Indian. For it is evident we have no right whatever to judge by our laws the proud non-contractor who, in the full consciousness of his natural lordship and absolute freedom, spurns the idea of becoming an abject contractor. As to relations with other nations, we should acknowledge piracy as the only one , for have they signed our bond, have we theirs? Can any state of physical and mental progressive development of our society or nation be imagined under these circumstances ? It is surprising that these necessary consequences of the theory of the contract, which would be precisely as I have represented them, have not shown before the untenableness of this theory. Indeed, it actually led a great statesman to perceive, in a measure, its consequences, for he says, in one of his letters, that, properly speaking, the contract ought to be renewed from time to time. How long ought the bind- ing period to last ? I repeat, then, the state exists by necessity; not this or that particular state, which has been modified by a thousand favorable or untoward conditions, geographical, historical, THEOCRATIC THEORY. 295 social, religious, or scientific ; but always does the state exist, however corrupt or pure. XCV. A iow words on the other theories of the origin of governments, mentioned above. Sir Robert Filmer, who died about 1688, wrote a work, Patriarchs, published in 1680, in which he derives all authority from the fact that Adam, the first monarch, was likewise absolute master of his children ; hence the people are naturally and from their births subject to their princes, when the monarch comes to be separated from the natural father. Whitaker again started this theory, about fifty years ago, and, strange to say, not without attract- ing some attention. Let us associate the name of Filmer rather with the fact that he wrote at so early a period against witch trials, than with this more than untenable theory. Men like Filmer saw that by the absolute contract it is impossible to gain a sure foundation for political authority, and therefore sought for a natural foundation of power, committing, how- ever, in turn, the common mistake of confounding power, government, and state. Others explain the origin of the state on theocratic grounds. All government, according to them, descends from the priest, that is, the authority of God proclaimed by the priest, or, all political relations originate from religion, the primary and fundamental relation of all society. It is a view which, incredible as it may sound, has found, of late, again some prominent advocates. I have already answered this theory : religion is not justice, the church is not the state. The fact that we find the character of the priest, father, and ruler blended in the rudest stages of society, if we choose to call sacrificing for the family, distinct priesthood, and giving rules for the house, ruling, is no proof that the state originated on theocratic grounds. There can be no doubt but that those primitive rulers were likewise the butchers and cooks for their family or little clan. Is it on that account philosophical to say all monarchy and civil government are derived from butchery or cookery ? 296 THE STATE. XCVI. Finally, some give as the origin of the state, force alone. They say, force makes right, which is about as true as that negative makes positive. Many states have been conquered, usurpers have estab- lished dynasties of flourishing kingdoms ; but because they have done so it is not proved that they originated or consti- tuted the state. This confusion of ideas, however, has been mentioned already. Charles Louis von Haller has acquired notoriety by his work entitled Restoration of Political Science, or Theory of the natural-social State opposed to the Chimera of the arti- ficial-civil State (1820). The substance of his theory is this, that the government over men depends upon the will of God, and is known by natural (that is, physical) superiority (power), excluding therefore the jural principle. According to him, the prince is before the people, as the master is before the slave. CHAPTER IX. View of the Origin and Character of the State in the Middle Ages. — Dante. — Thomas More, — Bodinus. — The Netherlands first proclaim broadly that Mon- archs are for the Benefit of the People, and may be deposed. — The Develop- ment of the Idea of the Sovereignty of the People owing to the Jesuits. — William Allen. — Persons. — Bellarmin. — Jesuits defend Regicide under certain Circumstances. — Mariana. — Suarez. — Luther. — Calvin. — Bacon. — English Revolution a great Period for liberal Ideas in Politics. — Puffendorf. — Leib- nitz. — Montesquieu. — Hume. — Quesnay. — Turgot and Malherbes. — Mably. — • Adam Smith. — Blackstone. — Delolme. — Bentham. — Hallam. — Revolution of 1830. XCVII. The views which the ancients took of the origin of the state have been briefly mentioned, and I shall return to the subject. The state of things in the middle ages was such that political law could not be expected to be much cultivated. Views derived from the Old Testament, combined with the overspreading system of the church, and the religious princi- ple as one of the most active agents in all public life in those periods, very naturally stood in the way of free inquiry into the elements of political law. The theory, however, differed more from practice during the middle ages than probably at any other period. On the one hand it was insisted upon that, as it is said in Proverbs viii. 15, " Per me reges regnant," per- fect obedience is due to the monarchs, so long as they are faithful to the orthodox church ; on the other hand, mon- archs were nearly all the time contending with their vassals. Dante's De Monarchia can hardly be mentioned here. Machiavelli touches upon many subjects relating to the state in his History of Florence, his Discourses on the First Dec- ade of Livy, and his Prince. He was a man of most un- common and penetrating inind;'' but we cannot enumerate » This powerful and grasping mind is, in my opinion, greatly misunderstood by a vast majority of all who know of his name. I may be excused, therefore, 297 298 THE STATE. him with propriety among those who have directly promoted pubh'c or political law. Chancellor Sir Thomas More (Morus) attracted much attention by his Utopia, in which-many ques- tions of the highest importance to the citizen are discussed in a spirit far in advance of his time. Thomas More recom- mended, under Henry VIII., perfect freedom of conscience, which was a thing absolutely unknown then and for centuries afterwards. Joannes Bodinus or Bodin, a Frenchman, who was member of the States-General assembled at Blois in 1576, wrote Six Livrcs de la Republiquc, also in Latin, a work of much merit,'' which to this day will not be studied without great profit, though it is affected by that peculiar and deceiv- ing reasoning from analogy and on similes which continued to influence the minds even of very superior men long after this writer, and cannot be said to have vanished entirely even in our days, though the reform produced by Bacon has had a strong tendency to rend these tissues of false ratiocination.^ Thus, Bodin's sixth book speaks of the distributive, commu- tative, and harmonic justice, shows that "royal monarchy" is harmony, and goes on to speak of the octave, fifth, and third in the state. This disposition to reason by analogy, and desire of finding the system and order of one thing always reflected in another, and fondness for logical symmetry — a for i-eferring to the article on him in the Encyclopedia Americana, where I have indicated my opinion of this great man. ' Les Six Livres de la R^publique de J. Bodin, Angevin, Paris, 1580. (There is in the Congress library at Washington a copy of this date, which has belonged to Mr. Jefferson, with pencil-marks by his hand.) See Introduction generale ^ I'Histoire du Droit, par M. Lerminier, Avocat a la Cour royale de Paris, 1S29, chap. V. 2 As an instance may be mentioned the Monarchy of Man, by Sir John Eliot, appended to his life by John Foster, in the second volume of British Statesmen, in Lardner's Cabinet Cyclopjedia. Nor are Sydney's writings at all free from this analogic train of ideas. Astrology, with all its macrocosm and microcosm, had, of course, a most powerful influence. I repeat for the youthful and ardent student, that too much cai-e cannot be taken against confounding illustration with argu- ment, the explanation with the basis. Quite different from misleading and seducing analogy is the zealously tracing out the same principle in apparently or really different spheres. It is a delightful employment of man's mind. MANIFESTO OF THE DUTCH. 299 desire correct in its origin, namely, to find a harmony and correspondence in all things — strangely induced men to con- found all departments, or, which amounts to the same thing, was in the way of properly separating them. The commission by which Columbus was appointed Ad- miral of the Indies, and which contains the agreement be- tween the monarch of Spain and himself regarding the ex- pected profits, as recorded in the Codice Diplomatico (page 47, et seq.) already mentioned, begins with a purely theological declaration and essay on the Holy Trinity, the Virgin Mary, St. James, etc. It then treats of the order of things, the vicars of God (monarchs), with a discussion on the different species of justice, on three closely-printed pages, without any connec- tion or reference whatever to the main subject. XCVIII. " That mysterie, the prerogative of kings, which is a point so tender as it will hardly bear mention," as the noble Eliot wrote in the Tower (page 134 of the work men- tioned in the last note), when imprisoned as the devoted advocate of a. pure cause, was, nevertheless, frequently eluci- dated by the light of discerning minds, at an early period. Thus, there are some powerful sentences in Bracton. Yet the principle that monarchs are for the benefit of the people, and may be deposed if palpably and perseveringly opposed to their interest, was for the first time distinctly proclaimed and boldly acted out, in modern times, on a broad scale, when the Netherlands declared themselves independent of the crown of Spain. The manifesto of the Utrecht Union, dated Hague, July 26, 1 58 1, against the king of Spain, says that a prince is placed by God over his subjects to protect and watch over them, and that the subjects are not made for the benefit of the prince, to do slave service unto him, but the prince is made for the sake of the subjects, without whom he is no prince, to rule them fairly and paternally. If he neglect this, he must be considered not a ruler, but a tyrant, and in this case the subjects, and their representatives the estates, have the right 300 THE STATE. to place some one else for their protection, especially after they have fruitlessly attempted to turn him from his tyran- nical measures, and if, therefore, they have no other means of protecting their native liberty, for which they shall, according to the laws of nature, pledge their lives and all they possess.' But the development of this just idea into a theory was des- tined to come from a quarter from which it might have least been expected — from the Jesuits, one of the fundamental prin- ciples of whose constitution was absolute obedience to the pope. Thus it was this very absolute obedience to the pope, and the absolute supremacy of the true church, that is, of the Roman Catholic church, over all temporal government, which led them to the theory of the sovereignty of the people. The English monarch had been declared supreme head of the Anglican church. William Allen, a Jesuit, consequently declares in his writing. Ad Persecutores Anglos pro Christianis Responsio (1582), "Si reges deo et dei populo fidem datam fregerint, vicissim populo non solum permittitur, sed etiam ab eo requiritur ut jubente Christi vicario, supremo nimirum populorum omnium pastore, ipse quoque fidem datam tali principi non servet." Persons, or Parsons, another English Jesuit of the time, adheres to the same principle, for instance, in his Andreae Philopatri ad Elizabethae Reginae Edictum Responsio.^ The distinguished Bellarmin adopted these views, and while he maintains, on the one hand, that the pope is supreme to all, to the council of the church and monarchs, whom, if religion require it, he may rightfully de- ' The whole manifesto in Meteren, History of the Netherlands, f. 185, et seq. 2 If a monarch forsakes the Catholic religion, to which he is bound by his baptismal vow and coronation oath, the subjects must drive him away. No. 162: " Non tantum licet, sed summa etiam juris divini necessitate ac prjecepto, imo conscientise vinculo arctissimo et extremo animaram suarum periculo ac dis- crimine christianis omnibus hoc ipsum incnmbit, si pryestare rem possunt." No. 160 : "Incumbit verotum maxima, . . . cum res jam ab ecclesiaac supremo ejus moderatore, pontifice nimirum Romano, judicata est : ad ilium enim ex officio pertinet religionis ac divini cultus incolumitati prospicere et leprosos a mundis ne inficiantur secernere." — See the Biographia Britannica respecting the life of Persons. THE JESUITS. \0\ pose (see, for instance, his De Conciliorum Autoritate, c. 17, and De Romano Pontifice, v. iii.), he distinctly lays down, on the other hand, that " Jus divinum nulli homini particular! dedit hanc potestatem : ergo dedit multitudini : igitur potestas totius est multitudinis." And Mariana, one of the most dis- tinguished Jesuit writers, says, " Neque respublica ita in prin- cipem jura potestatis transtulit, ut non sibi majorem reservarit potestatem." And Mariana was a Spaniard too. So willing are people to acknowledge any theory which is favorable to the objects next in view — at that time the deposition of Eliza- beth, and in France the dethronement of Henry III. The combination is as singular as that the Belgian Catholics, who so long assisted the princes in their attempts to subdue the free Dutch, and were always for monarchy opposite to, the republican Dutch, did lately profess the utmost liberal polit- ical views, in conjunction with the strictest Roman religious professions, far too ultra-rom.an for most other Catholics, merely because opposed to the Protestant Dutch. But the Jesuits went farther: they maintained the lawful- ness of regicide if a tyrant or perverse heretic has possession of the throne. Those Catholics who professed that obedience is due to a lawful prince, though a heretic, were styled by them royalists and most severely attacked. See for instance Roswede, De Fide Haeret. servanda, Antwerp, 16 10. The University of France reproached the Jesuits, in 1626, with having produced thirty authors who had preached disobe- dience to the prince if the pope orders it, and even regicide, because he is no longer king after excommunication. Suarez, Defensio Fidei Catholicse, lib. b. c. 4, Col., 1614, says, " Posse regem privari regno, etiam ilium interficiendo. ... Si papa regem deponat, ab illis poterit expelli vel interfici, quibus ipse id commiserit. . . . Nam rex ipse jam non est rex, etc." Mariana, Heissius (Ad. Aphorismos Doctrinae Jesuitar. De- clarat. Apolog., Ingolstadt, 1609), Vasquez, Cotton, Molina, Keller, Lessius, Ribadeneyra, De las Salas, and numerous others, too many to be mentioned here, are of the same opinion. 202 THE STATE. It is a remarkable fact that when the three French estates were met in diet, in 1614, the third estate proposed a law ac- cording to which the king should be declared to possess his right of God, and that no one has a right to absolve his sub- jects of their allegiance, upon which every officer should take an oath, and that the clergy and after them the nobility opposed this proposition, because, as Cardinal du Perron said, subjects are free of their allegiance if the king becomes a heretic, adopts the religion of Mahomet or the doctrine of Arius. And this was after Henry IV. had been murdered by Ravaillac in 1610. It was precisely the same contest which obliged the English to insert in their declaration of right the oath forswearing " that damnable doctrine and position, that princes excommunicated or deposed by the pope, or any authority of the see of Rome, may be deprived or murdered by their subjects, or any other whatsoever, etc." Luther, born, bred, and living in a monarchy, having to contend with various popular religious excesses, from an early period of the Reformation, and witnessing a sanguinary civil war (the peasant war), discarded all idea of making the extent or duration of obedience to the magistracy dependent in any way upon popular will. It seems in his writings that the idea of magistracy presented itself to his mind solely, and probably unconsciously to him, under the form of unlimited monarchy. He demanded almost unlimited obedience to the monarch in all civil matters, because he strictly severed re- ligion from temporal government. This is his reason. It was different with Calvin. Living in a republic as he did, and in a small community, in which naturally and necessarily the various spheres of public action do not present themselves as strictly separated from one another as they may do in larger empires, he infused in his writings more of a repub- lican spirit, and a desire to have the state influenced by re- ligious fervor. Hence his followers in Holland, England, and Scotland did the same. Calvin relates in the preface to his first catechism — not the well-known little Geneva catechism — that he labored to induce the senate publicly to acknowl- LUTHER AND CALVIN. 303 edge it. He succeeded, and the citizens of Geneva were called upon, ten by ten, to take their oath upon it. " This action," adds Mr. Henry, " may be considered as the founda- tion of the later theocratic government. The citizens took the oath upon this confession as citizens, and he who opposed it, openly or not, was liable to civil and ecclesiastic penalty." ' When Calvin settled at Geneva, the city was already rent by religious parties and disturbed by great commotions, which naturally influenced Calvin's actions. We have seen what the doctrine of the Jesuits was respect- ing heretical princes. The Puritans, regarding episcopacy with passionate aversion, so that it appeared to them one of the worst species of heresies, maintained similar views as to heretical monarchs, though they did not agree with the Jesuits as to the lawfulness of regicide or tyrannicide. One of their writers, supposed to have been Lord Keeper Pucker- ing, says, " that all persons, as well as meaner persons, must willingly be ruled and governed, and must obey those whom God has set over them, that it is the just authority of eccle- siastical magistrates, and must lick the dust off the feet of the church. That her majesty, being a child of the church, is subject to censures of excommunication by their elderships as well as any other people. That no man ought to aid, comfort, salute, or obey an excommunicated person ; and that as long as any person is excommunicated, he cannot exercise the magistracy." (Brodie, vol. i. page 140, etc., where the notes are especially interesting and important.) The Covenanters and Presbyterians held similar views. It was observed at the time that their writers, Knox, Buchanan, Goodman, and others, singularly coincided in some mo- mentous principles with the Jesuits. Collier, ad an. 1638.=' ' Page 175, vol. i. of the Life of John Calvin, the great Refomier, by Taul Henry, Pastor in Berlin, Hamburg, 1 835. In German. Mr. Henry has made use of MSS. and unprinted letters of Calvin's in the libraries of Geneva and Zurich. Altogether the work is the production of great industry. The whole peculiar position of Geneva during the beginning of the Reformation may be seen from page 136 et seq. » See an interesting notice of various Puritan and Presbyterian writers on this 304 THE STATE. The difference between Luther and Calvin, as to the points mentioned, is this: The German reformer, granting the fullest possible temporal power to the state, claimed full liberty in religious matters, and he almost alone in his whole age stands forth, as we have seen, an enemy to religious persecu- tion, acting on principles which but centuries later became acknowledged.^ Calvin, striving to unite religion and politics, makes religion absorb everything, and the church, that is, the ministers with the " saints," nearly supersede the state. Hence every deviation from the strict Calvinistic doctrine appeared to his followers as a state offence; hence the deep-rooted spirit of exclusiveness in his followers, for a long period in history. XCIX. However erroneous and dangerous for the peace of society these views were, they nevertheless aided in arriving at the point that there is a principle above the monarch, that his right is not personally inherent, but only officially vested in him, and that the tie between prince and subjects is not absolute and indissoluble. Bacon, who contributed essen- tially to a restoration of science and threw so much light on various branches of knowledge by his De Augmentis Scien- tiarum, treats of political science, especially in the third chapter ofthe eighth book. (Comp. Hallam, Hist, of Lit, iii. 192.) But treasures are likewise contained in his Historia Regni Henrici subject in Hallam, Constitutional History of England, vol. i., note to pages 254 and 255, and, indeed, the whole of chapter iv. of that volume. » Bancroft justly acknowledges this honorable trait in Luther, the opposite opinion of most English writers to the contrary. See note 3 to page 274, vol. i. of History of the United States, by George Bancroft, 2d ed., Boston, 1837. It is very remarkable that so few English authors, even of the best, have elevated themselves to a sufficiently high historic eminence, so as to view Luther wholly and fully, as one of the architects of history. His unbecoming dispute with Henry VHL has so powerfully directed the attention of the English to the asperities in Luther's character, rather than to his greatness, that to this day they have not freed themselves of the effect. The occasional coarseness of Luther is not so indifferent as many of his admirers seem to believe, for it materially injured the cause of the Reformation : yet it is impossible not to prefer the violence of Luther's words to the sharpness of Calvin's doctrines respecting heretics. BACON, GROTIUS. 305 VII., Sermones fideles de Saplentia Veterum, Dialogus de Bello Sacro, and In felicem memoriam Elizabethae, Angliae reginae. The people now gain greater and greater promi- nence. He says, in the above chapter, " All who have written on laws have either treated their subject as philosophers or jurists. But the philosophers propose many fine-sounding but unpractical (ab usu remota) things. The lawyers, on the other hand, are so entirely possessed by the laws of their country, or the Roman or the canon law, that they do not use candid judgment, but argue as if in fetters. Indeed, this knowledge is properly a matter of statesmen, who know best the wants of human society, the welfare of the people, natural equity, the customs of nations and the various constitutions, and who, therefore, are able to decide concerning the laws according to the principles and precepts both of natural equity and political wisdom." ' Remembering that a lawyer and philosopher wrote this very passage, we shall all agree with it, if not hastily misconstrued. Hugo Grotius became about the same time the founder of international law, especially by his work De Jure Belli ac Pacis.^ In the mean time had begun in England the strug- i"Qui de legibus scripserunt, omnes, vel tanquam philosophi, vel tanquam jurisconsulti, argumentum illud tractaverunt. Atque philosophi proponunt pul- chra, sed ab usu remota. Jurisconsulti, autem, suk quisque patriae legum, vel etiam Romanarum, aut Pontificiarum, placitis obnoxii et addicti, judicio sincere non utuntur, sed tanquam e vinculis sermocinantur. Certe cognitio ista ad viros civiles proprie spectat, qui optime norunt quid ferat societas humana, quid salus populi, quid cequitas naturalis, quid gentium mores, quid rerum publicarum formce diversse ; ideoque possint de legibus, ex principiis et prxceptis, tarn sequi- tatis naturalis, quam politices, decernere." This " e vinculis sermocinari" is an uncommonly fine and true expression. Every professional man, whatever his profession be, ought to remember it. The previous parts of this work, however, will have sufficiently shown howdespicalile the author holds all endeavors to persuade the people that wisdom in politics comes intuitively, without industry, without earnest application, and is, as it were, a species of knowledge belonging particularly to ignorance. « * This great writer, and, what is more, great citizen and great man, has been depreciated by minds infinitely below him in grasp, power, learning, acu- men, and philosophic architecture (for instance Paley, preface to his Moral and Political Philosophy). This is not the place to show how decidedly that great 20 305 THE STATE. gle between prerogative and the authority of law. Ther appeared those great men, Selden, Eliot, Pym, Hampden who fought a good fight for all civilized mankind. Respect- ing this whole period I recommend especially Brodie, Hal- lam, and Mackintosh on the Revolution of 1688, as well as Guizot's History of the English Revolution from Charles I. to James H. An eminent writer who distinguished himself by the liberal views he took of several important political subjects so much disrelished at his time, was Hooker, in his Ecclesiastical Polity, especially in the eighth book. The views of this worthy author on the origin of government are so far correct as he derives it originally from consent, but he deduces from this consent the contract, which, of course, mis- led him, as so many others, to erroneous conclusions. This eighth book is read by fewer still, than the first books of the Ecclesiastical Polity, yet is even now fully worthy of a perusal. Hobbes has been mentioned already. Puffendorf, who does not follow Hobbes's idea of men's warring against one another in their supposed natural state, makes the innate de- sire of man for society the foundation of the family, from which, by three different contracts, the state is formed. Leib- nitz declared himself against natural law as then taught ; he mind affected all successive periods to our own times, and how millions and millions have enjoyed the civilizing fruits of his work even in the fearful periods of war, unconscious to them. It would form a peculiarly fine subject for an essay ; but I cannot conclude this note without mentioning, likewise, that so prominent a writer as Sir James Mackintosh has paid him a befitting tribute in his Discourse on the Study of the Law of Nature and Nations. I wish I had room enough to copy the whole passage. I have not, but I beg to quote at least a few lines of it. Grotius is blamed for having quoted poets, etc. Mackintosh says, " But where are those feelings and that judgment recorded and observed ? In those very writings which Grotius is gravely blamed for having quoted. The usages and laws of nations, the events of history, the opinions of philosophers, the sentiments of orators and poets, as well as the observation of common life, are, in truth, the materials out of which the science of morality is formed ; and those who neglect them are justly chargeable with a vain attempt to philo-^ophize without regard to fact and experience, the sole foundations of all true phi- losophy." MONTESQ UIE U. 307 considered Hobbes's and Puffendorf's theories as but fanciful dreams. Of Filmer we have spoken, and we have seen how Locke followed Puffendorf in the first important points. Al- gernon Sidney and Milton adopted the idea of the contract, and founded upon it the sovereignty of the people. Rousseau, in his Social Contract, adopts likewise the original contract, but the step he made was this, that he declared the sover- eignty of the people inalienable, so that the people in a mon- archy remain still, in the aggregate, the sovereign. Soon after the declaration of independence of the United States, another important era in political history ensued. The sov- ereignty of the people was pronounced, and not long after declared by the first French revolution. Important in the literature of political law is Montesquieu, on account of his works, the Spirit of the Laws, Considera- tions on the Increase and Downfall of the Roman State, and his Persian Letters. Bodin, Machiavelli, and the English authors lent him many ideas, though he has not mentioned them. His works, especially the first, are replete with shrewd and not unfrequently profound remarks ; but sometimes his brilliancy blinds, and the actual truth is not seen. He has given currency to certain views, and even sayings, which are not altogether well founded.' He adheres to the division of the three powers, which Aristotle had adopted. Hume's in- fluence upon politics was not unimportant. The Physiocrats, in France, founded by Quesnay, physician to Louis XV., and among whom we must count so many distinguished French- men, especially Turgot and Malherbes, the well-meaning and pure-hearted first ministers of Louis XVI., acquired no in- considerable importance in politics, as they were led by their ' Certain commonplaces fasten for a lime upon mankind, sometimes because true, sometimes because half-true, at others because they have a captivating sound, are tersely expressed, and borrow the graces of alliteration or pungency of antithesis, and yet are not true after all. Montesquieu has said, " no monarch, no nobility; no nobility, no monarch." Yet there was nobility, and a very noble nobility, in Venice, without a monarch ; there was nobility in the repub- lican Netherlands; while, on the other hand, Norway has a monarchy without nobility. 3o8 THE STATE. political economy to insist upon the abolition of the exemp- tion of some classes from taxation, on free trade, and on abo- lition of bondage and of feudal relations. Mably, already mentioned, wrote a Droit public de I'Europe, Observations sur I'Histoire de France, and several other works, which gave him considerable reputation. Adam Smith, Blackstone, De- lolme, Hallam, Bentham, have all contributed to awaken or settle important political ideas. Filangieri, an Italian, wrote a Science of Legislation. He says, monarchs and people are natural enemies, and nobility is essential to reconcile both. Much respecting public law is to be learned from the works of Paul Sarpi, especially his account of the differences between Pope Paul V. and the republic of Venice. (Storia particolare delle cose passate tra il sommo Pontefice Paolo V e la Serenis. Rep. di Venezia, negli anni 1605-7.) ^^ allowed to venture the opinion, I would say that, if Italy ever be regenerated, it would seem that Sarpi's and Vico's works will be found to have contributed much to so great, so noble, and so desirable an end. In America, no work treating solely and systematically either of natural law or the existing public law has as yet appeared ; but I would mention as works treating of subjects belonging to these departments, or intimately connected with them. The Federalist, the writings of Ames, Hamilton, and Jefferson, Tucker's Blackstone, Kent's Commentaries, Story's Commentaries on the Constitution of the United States, and Wheaton on International Law. (See Political and Legal Hermeneutics.) The Journal of Congress before the adoption of the constitution of the United States, and the Debates in the several state conventions on the adoption of the Federal Con- stitution, 4 vols., published by congress, 1836, are works of much importance. The work of President Madison, on the debates of the first congress, now publishing by congress, will, of course, contain many points of high interest relating to our subject. The great epochs which have had the most decided influ- ence on public law are the struggle of the Netherlands against PROGRESS OF PUBLIC LA IV. 309 the crown of Spain, the two English revolutions (many im- portant principles of the second of which were never more clearly exhibited than when the prince of Wales, afterwards George IV., insisted upon having the regency, at the first alienation of mind of his father ; on which occasion, what is not a little interesting, the more liberal principles were main- tained by the tories, because they had to show that parliament represented the people and had a voice in the settlement of the regency) ; the American revolution or war of independ- ence, the first French revolution, and the epoch of that theory of legitimacy which was peculiar to the writers under Napo- leon. During the time of the restoration of the elder Bour- bons, men like De Bonald and De Maistre brought forth their strange mixtures of mysticism, Catholicism, and abso- lutism. The rights of the people are favors of the monarchs, says Count de Maistre. Since the French revolution of 1830, the theory upon which the government is acknowledged to be built has materially changed in that country. French literature has teemed with political works, but I am not able to give a survey of them so shortly after their appearance. Of the later or recent Germans I will mention only Wolf, Kant, Fichte, Hegel, Politz, Raumer.^ ' A o-eneral view of the progress of public law is given with i=pirit in L. Hoff- man's Inquiries into the most important Affairs of Man as Citizen and Cos- mopolite (German), Deuxponts, 1830, 2 vols.— a work, however, from which I differ in more than one point. CHAPTER X. Various Standards of great Political Periods. — The Government must depend upon given Circumstances and Materials. — Which is the best Government ? — Errors as to an Ideal Government. — Governments cannot be made in the Closet, or decreed. — Characteristics of a good Government. — Civil Liberty. — What it is.— Errors respecting it. — Majority and Minority. — The Majority are not the People. — The Athenians checked their own Power. — Great and true Value of Representative Government.— Whoever has the Power, One, Many, or the Majority, may abuse it, and must be checked. C. Since government is that institution, or organism, by which the state endeavors to obtain and secure the objects of the state, the excellence of government naturally depends upon what these objects are, and upon the people for whom it exists and through whom it operates. People, in this sense, does not only mean the respective individuals, separate and for them- selves, but in the various relations in which, according to place and time, they must move. Generally speaking, the ob- ject of the state is the aiding society in obtaining the highest degree of civilization, or the greatest possible development of man, both by removing obstacles, or assisting directly, in all cases in which the member of society ought not, cannot, or will not act individually and upon his own responsibility. But Rome was not built in one day ; civilization resembles neither a mushroom nor a hot-house plant, but it is like a garden, to be cultivated with wisdom, that is, patiently, perseveringly, and judiciously, keeping steadily in view the main object for which the garden may have been laid out, with constant refer- ence to what plants may best answer our ends, considering the given soil and climate. Mankind was not developed in one day, nor is there one absolute prize in the lists of his- tory to be run for; the moral growth of mankind is gradual, constant, and various, each time and each place affording new conditions and giving new problems. 310 STANDARD OF GREAT PERIODS. 311 Each great period in history, that is, each period in which the activity of man is directed with peculiar intensity to- wards the obtaining of some great end, the realization of some great idea, carries within it its own standard. We become, therefore, in the same degree unjust, and obtain a narrow and distorted view of truth, as we apply the standard of one con- spicuous period, a period which opens the gates of a new era, to another. The legislation of Moses, whose object was to lead bondsmen into liberty, cannot be correctly understood in judging it by the standard of the Spartan constitution. The laws digested and amended by Lycurgus eight hundred years before Christ, and for a small state, do not give us the test to try the excellence or badness of the reign of Charle- magne, eight hundred years after Christ, over a variety of discordant and unruly tribes, whose first essential want was pacification, England under Elizabeth, with a bull of Pius V. hanging over her, and preceded by monarchs so violent as Henry VIII. and Mary, had to strive for different objects than under the administration of an Earl Grey. CI. Does this consideration lead to mere expediency, and is there no stable principle to be ascertained in politics ? By no means. The whole preceding part of this work must show the contrary. We can and must ascertain those principles which, from the nature of men and by ample experience, show themselves to be essential to the obtaining of the high- est ends ; for instance, security of life, limb, and property. Yet these, and especially the last, are at times sacrificed to higher objects, and always subjected to the most various modifications. We must inquire, therefore, whether that great object which is exhibited as forming the problem of the period is a good one or not ; after that, it is for wisdom to judge how it is best to be obtained by the given means; for others than the given ones are not at our disposal. " Neither are laws," says Selden, " thus to be compared" (meaning by an absolute standard). " Those which best fit the state wherein they are, clearly deserve the name of the 312 THE STATE. best laws." (Note to Fortescue, De Laud. Leg. Angl., chap. xviii., note g, edit, of 1741.) This is very different from Pope's verses, — " For forms of government let fools contest; That which is best administered is best," — a saying which, on account of its boldness and convenience, both for the ignorant and indolent as well as for those who find high-handed measures more suitable to their interest than the restraints of the law, has proved as popular as it is radi- cally wrong. For a bad law cannot be administered well : no Alfred could administer well the former Irish Brehon or the ancient French law, according to which the third estate was made and existed only to support the two others, which nevertheless held nearly all the land.' In fact, this fallacious dictum seeks all good government in the personality of the governors, and is nothing less than the Asiatic principle ; while the very object of good fundamental laws and institu- tions is to force, as far as possible, the various personal pecu- liarities which are purely adventitious, that is, uncontrollable by us as to their origin, into co-operation in obtaining what has been recognized as an essential end and object. CII. The objects of the state may be divided into two classes : stable ones and those which change. The stable objects are those which must ever be considered as the indis- pensable requisites of all civilization and all the higher ends, that is, as has been mentioned several times, safety of person and property, uninterrupted administration of justice. No monarch has yet existed, over however uncivilized a horde he may have ruled, who has not considered it a high claim to the gratitude of his people that he has dealt out even- handed justice, if he could claim it at all. If we see such a state of things as that which is designated, by what ought to ^ At the diet of Tours, in 1433, the clergy and nobility insisted that the third estate should pay the expenses of all three estates, incurred by travelling to and living at the diet, because made to support the two other estates. [?] BEST GOVERNMENT. 313 be called historical irony, as the jus manuariinn, but which more broadly and correctly bears in German the name of fist- law (Faustrecht), we must absolutely pronounce it a bad gov- ernment, if government we can call it at all ; because it fails to secure one of the unchangeable objects of all government, just as that architecture which effects the building of no shelter at all would be a bad one, whatever the materials or peculiar object in view might be. The changing objects of the state vary according to the peculiar genius or wants of the people or society, the soil, the degree of civilization, the condition of their neighbors, and whatever else may power- fully influence the state of a certain society. Government, therefore, which has to obtain these ends with these materials, must vary accordingly. If the materials, I repeat, are Jews, strongly affected by the views of the Egyptians, and in a state of barbarity, and the object is to lead them through a desert, or to conquer a country where they may become agricul- turists, or to preserve monotheism amidst surrounding poly- theism, the contrivance, called government, to obtain these objects, must be very different from what it has to be with a society or state, whose chief object is to ward off the inroad of a conquering and devastating tribe, on a small island, as that of the knights of St. John on the island of Rhodes was, or with a society possessing, by way of inheritance, the insti- tutions of England, and one of whose objects is to people, cultivate, and spread civilization over an extensive part of a vast and fertile continent,. as is the case with the people of the United States. If the object is to reform and reorganize the debased and nerveless population of a large country in a burn- ing climate, as that of Egypt at present, the government must essentially differ from that of an industrious people who, how- ever, must unitedly struggle against the inroads of the sea if they mean to do it effectually, such as the Dutch. If, in the course of progressive civilization, one of the most inspiring and impelling elements of society is the beautiful, as was the case with Greece, the government must differ from that of a people who must defend themselves daily against the attacks 314 THE STATE. of the Arabians or Moors, as the Spaniards were obliged to do, or of a people who live where, with all possible indi- vidual exertion, it is difficult to maintain life, as is the case in Iceland. If one of the fundamental objects of all government is t^cy deal out even-handed justice, the organization of the judiciary department must be very different among a people where wit- nesses can be habitually bought, or where part of the popula- tion live in a semi-savage state, as is the case with the lazza roni in Naples,' from what it may be or ought to be among a people who descend from a nation that have been ac- customed for centuries to a high respect of justice and the " majesty of the law," as is the case with the Americans, descending, as they doj from the English. ,The government of a narrow and extended country must differ from that of a compact and well-rounded one ; that of a people who gener- ally feel deeply interested in education and industry, from that which has to be roused from the inertness and indifference of semi-barbarism, as the Russians under Peter the Great; that of a country in which different races live, differing in color, disposition, and degree of civilization, cannot be the same with that of another peopled by one race, the individuals of which stand comparatively on a level of civilization, desires, habits, and wants. One of the most important of the given circumstances which determine the choice of means in gov- erning must always consist of the means of government and laws made use of by the preceding generations. cm. All discussions, therefore, on the excellence of gov- ernments merely on abstract principles and without reference ' The French, having conquered, among other countries, the south of Italy, introduced the trial by juiy, but they soon were obliged to abolish it again, on account of the venality of the people, as well as their general unfitness. One of the wise measures of the government of Joseph Bonaparte in Naples was the attempt at domesticating the lazzaroni. They were employed in various ways, and the wages were partly paid in mattresses or other house-utensils, in order, before all, to accustom them to a civilized domestic life, and to break them of the habit of sleeping in the open air, in gateways, etc. BEST GOVERNMENT. 315 to the given circumstances, are futile. The science of govern- ment is no more an abstract one than architecture. The architect, without knowledge of pure mechanics and mathe- matics in general, will make but a poor bungler, yet it is of primary importance to him, before he can either draw the plan of a building or take any specific measure, to know what materials he has at his disposal, whether wood, bricks, or marble, the climate which will operate on them, the ground on which he has to build, and the object for which the build- ing is intended. So has the statesman to acquaint himself thoroughly with ethics, natural law, and philosophy in gen- eral, yet he must not forget his materials when he comes to the practical question, nor the object of his society. The political writers who have tried to settle the question of government without reference to the material, the age, and the wants of the people, have fallen into great errors. Some have defended monarchy as the ideal of government ; others have thought the principle that every male adult, without ex- ception, shall have an equal right to vote, the only just and philosophical ground on which a true government can be founded. On its own ground alone, however, in the abstract I mean, the principle of universal suffrage, by which men are valued solely by their number, is no more philosophical than valuing them according to any other principle, that of prop- erty, size, or weight. It might be maintained that the large man consumes more than the small, consequently he con- tributes more to the expense of government, therefore he is entitled to a larger share in government. There are condi- tions of society in which property forms a sound basis of representation, and the soundest that they allow of; but is this so on its own abstract ground ? Does not the labor of an industrious man, or his readiness to defend the state by exposing his life, give an equally well-founded title to the right of being represented, and an active share in this repre- sentation? Whoever has adopted one principle in the ab- stract as the only admissible basis of government has been forced into the strangest incongruities. 3l6 THE STATE. CIV. That there are immutable poh'tical principles in gov- ernments, according to which we can at once pronounce some to be bad, or, at the utmost, to be called for only by- way of rapid transition, is evident. That, on the other hand, there are certain important principles of good government which will steadily show themselves clearer with the advance of civilization, is equally evident; and, finally, that experience and mature reflection upon it entitle us to declare certain forms and features as vastly eligible for a certain period and a certain degree of national development, I hold to be equally true. Such, for instance, I consider to be, for the civilized nations of our times, the exalted principle of representative government, or that of two chambers. If experience shows us that the adoption of certain principles always leads the people towards certain desirable ends, if they have once ar- rived at a certain point of political civilization, we are justly entitled to declare it with regard to a people in such a state of civilization, and inhabiting such or such an extent of country, a salutary one. But who would like to be tried by a jury of Bushmen, or insist upon the introduction of popular representation with two chambers in Turkestan, or annual meetings of parliament in China? Nor do I maintain that it is impossible to settle certain general principles in politics. One of these, for instance, is, I take it to be, that any class of men who have the power to make themselves politically felt and are conscious of it, have thereby a right to influence government proportionally. I do not say that those who have not the power shall on no condition be entitled to this right. This would be a wrong and very dangerous conclusion. The cities had a right to rise into political influence in the middle ages ; the peasants had a right to demand liberty with its consequences. It is the very province of the science of politics proper to discuss and trace out these principles ; and I shall find occasion to touch upon a few in the sequel of this volume, as I have done already in the previous part, when speaking of power. Governments are not made in the closet; you may pro- GOOD GO VERNMENTS. 317 claim a republic, you may write a constitution on parchment, but does it work ? is it a living thing ? Was France ever a republic, in despite of her many constitutions proclaiming her to be such ? She remained a concentrated government, and is now only gradually changing her character. Lord Erskine says of the first English revolution, " Monarchy was only sus- pended, not abolished." Of the French it might be said that absolute monarchy changed the name ; and of the United States we may well say, republicanism was only veiled as long as they were colonies. I do not indeed mean to say that no government can change, but it cannot leap over into some- thing else, nor ever become anything but what is conditioned by the existing materials, CV. Which is the best government ? That government which fulfils best its purpose, by which, however, is not meant a momentarily so-called flourishing state only. For such a state of things may, at times, poison the very life-blood of a state, and undermine instead of leading to a higher degree of liberty, the main object of all governments, because greater liberty is but greater protection — protection of free individual action. To speak of civilized nations, that government ought to be called good which amply protects and in which every man can obtain justice; which for its existence does not require a class by whose privileges others are injured, be this a wrongly privileged aristocracy, or democracy, or party. That govern- ment is the best under which we find the greatest number of laws and institutions, essential to the state, founded, devel- oped, or secured, with which the nation works heart and hand for just and great ends;' which forms one living organism with the people, and with which in times of danger they join with true devotion, considering their sacrifices to it as » Popularity is far from constituting the sole index of good government, not even the universal readiness of the people to share the dangers of war. The wars of the Mongols were essentially national and not cabinet wars ; but was the Mongol government a good one ? 3i8 THE STATE. sacrifices to the common weal only ; that government which has in itself the peculiar expansiveness as well as the organi- zation which not only allows, but necessarily leads to, farther and farther political development, and goes on raising the individual as a political being. When we see the flourishing state of a nation essentially connected with institutions, and when we find the fundamental institutions with an expansive character, not of a cramping obsoleteness, then we may have a right to suppose that the government is good.' Seek not protection or liberty in mere forms. No political form that can be imagined has not at times been oppressive and ruinous. Life, true and high action, is the thing we must look for ; mere form kills. CVI. That government is the best which secures most effectually all the stable objects of the state, and aids most wisely in obtaining all the others ; which procures in the calmest and yet most efficient way all things that must be obtained for society, and does not oblige the people fre- quently to resort to sudden and violent actions in order to obtain what needs must be obtained by united action, and which government, nevertheless, fails to procure ; that gov- ernment which interferes least with my individuality and yet affords to society the best opportunity for the highest indus- trial and mental action ; in fine, that government which con- ' There are certain meteoric periods in the history of some nations, which pass quickly, and leave no life, as the kindling ray of the sun does, though he may vanish for a time from the heavens. There are few more glorious epochs in the annals of any people than that of the Portuguese which begins with the striving, gifted, enlightened, and enlightening prince Heniy the Navigator, and winds up with Louis Camoens, that noble martyr of genius, and includes the invention of the sextant, vast discoveries, heroic deeds, enlargement of knowledge, and the names of Diaz, Gama, Cabral, Andrada, and Albuquerque. Yet the period was not only, historically speaking, brief, but dark night succeeded, and the Portu- guese nation has ever since presented a painful instance of a misruled people. They had no sound institutions. Neither national riches, nor glorious names, nor heroic deeds, nor brilliant literature, nor absence of commotion alone, are capable of saving a nation, or furnish us, of themselves and without reference to something else, with a safe exponent of good government. BAD GOVERNMENTS. 319 tinually remembers that every individual has an undeniable right to the greatest possible individual activity, and, there- fore, protects against all interference with him, and secures to him all that which is necessary to him as a social being. Wherever we see great personal security and high social action, wherever individual and social rights and claims are best secured and promoted, there is the best government. Where personal and social activity is paralyzed, where the mental life of society is deadened, where the individual re- ceives no equivalent for his sacrifices, where one part of so- ciety is sacrificed to another, that is, where no equivalent is received ; where a few control and arrogate government to themselves, like the property which belongs to them ; where, above all, the stable objects of all governments are but par- tially secured, or, if entirely, only for a few, and where no industrial, moral, and mental expansion of society exists ; but, on the contrary, where measures of government have a benumbing effect, where protection depends chiefly upon the personality of those in authority, and not upon well- grounded institutions and laws, which are conceived not with regard to their operation and salutary effect but on account of extraneous and unessential considerations ; where we see numerous laws issued, but without action and soon forgotten, nominal institutions without roots in the history of the nation, — there is a bad government. CVII. Here we have to guard ourselves against two errors. The high intellectual or social activity of a part of society may be, and often has been, obtained by a sacrifice of the most essential interests of by far the greater majority of the people. I speak of those brilliant governments which blind the superficial observer, such as that of Louis XIV. They have an equally dangerous effect upon the hasty observer of after- times, who seizes only on what is striking and does not suspect the sacrifices which were necessary to produce it. A palace of a Louis XIV. is remembered long after the squalid popula- tion which had to pay taxes towards it has been forgotten. 320 THE STATE. CVIII. Yet we must be careful not to take the physical well-being, either by way of physical comfort or personal and physical security — two most important objects of government, indeed, because they are the foundation for higher objects — as its sole end or only index of excellence. It was a true Saying of Plato's, " Not to live, but to live nobly is the object." Personal security against bodily harm, for instance, may be obtained together with personal liberty, and forms part of it, in which case it is excellent; or it may be obtained at the price of personal liberty. An extensive preventive police may, by fettering all free individual action, prevent many offences indeed, but mere physical security is not the object of government. Society stands in need of it, because without it society cannot obtain its highest object — civiliza- tion, which includes free, individual activity. There is peace indeed in a prison. If you put a man in irons he cannot do harm, it is true, but neither can he do good. The so- called happiness principle, if happiness be rightly understood, is correct, but a most mischievous one if we limit it to physical well-being only, as, certainly, it is taken by many of its advocates. Is this happiness indeed the last term to be striven for ? If so, why does every one feel in the course of his life called upon to give it up to higher objects ? Is this happiness always the means through which we reach the highest objects of man ? or is not trouble, sacrifice, and even woe, that means in many cases ? Has a nation not to sacri- fice happiness to liberty? Is it merely the avoiding of higher taxes which shall prompt a people to bold, high, national actions ? CIX. Had not this erroneous position been frequently taken, it would not so often have been asserted that the best government is an absolute monarchy with a truly just and wise king. This is a most radical error. An absolute gov- ernment, which forces to act, and does not animate and fruc- tify the principle of self-action, undermines the state by its very character, and exposes to the greatest danger, both by IV/SE ABSOLUTE MONARCHS. 321 the death of the just and wise ruler, who cannot insure the same qualities in his successor, and by blinding the people, who, content with their physical welfare and perhaps the bril- liant energy of the government, are ready to abandon all law and all institutions, placing implicit confidence in their rulers, until recovery is too late. " Where the security is no more than personal, there may be a good monarch, but can be no good commonwealth." (Harrington's Political Aphorisms.) ex. So unfounded is the error, that the very opposite may be supported with far greater truth ; for history shows that it is the wise government, tending towards absolutism, which is most dangerous to the people, not the galling, openly or cruelly tyrannical one. This rouses, the other lulls to sleep. That a high-handed absolutism may be the best government for the society at large, as a stage of transition only, under peculiar circumstances, cannot be denied. When the ruler is far in advance of a barbarous or semi-barbarous nation, as was the case with Peter the Great, when discordant and heterogeneous elements have to be united and forced into a uniform action, as was the case after the migration of nations, when a society infested with swarming banditti, in open war with all authority, has to be rescued, as central Italy under Pope Gregory XIII., when civil war has torn the country and a restless party foments conspiracies, as under Cromwell, bold, high-handed measures are often indispensable and the only salutary ones ; but they form the exceptions, and cannot lead to the rule, just mentioned, that the best government would be absolutism in the hands of a good ruler. If a ruler, even in cases like the above, neglects to awaken the principle of civil life, if, while with a high hand he pursues the general welfare, he disregards private rights, he still omits as much as he performs. For, instead of inspiring society with tlie breath of life, he deprives it of it, and, consequently, renders future generations unable to obtain those objects for which all absolutism, even the best, can be but a temporary means. If, then, we find it asserted that that government is the best 21 322 THE STATE. which best provides for the substantial interests of the people, we shall know how far to yield assent. Everything depends upon what we understand by substantial interests. If they mean what has been shown to be the true object of society, it is most true, for all forms are but means or necessary effects of that which is essential. If by substantial interest nothing be meant but personal safety, absence of danger, and plenty, even at the price of individuality, of mental free action, it is not true. Rather all the danger of error, than that torpid state where there is neither truth nor error, but mere polit- ical stagnation. " Generally speaking," says Schiller, in his Lecture on the Legislation of Lycurgus and Solon, " we may lay it down as a rule^ in judging of political institutions, that they are good and praiseworthy only in as far as they further the develop- ment of all the faculties with which man has been endowed, in as far as they promote the progress of civilization, or at least do not impede it. This is equally true of religious as of political laws; both are objectionable if they fetter a faculty of the human mind, if they impose upon it, in any sphere, a standing still. A law, for instance, by which a nation was bound unalterably to retain a system of dogmatics which appeared to it at a certain period as the best, would be a criminal attempt against humanity, and no intention, how- ever plausible, could justify this. It would be directly against the highest good, the highest object of society." CXI. One of the great errors into which philosophical politicians have frequently fallen, in consequence of seeking for a government absolutely and abstractedly good, is the idea that, the people being themselves the object of all gov- ernment, as well as the real source of power, the best govern- ment will be there where the people have absolute power. Let us investigate this subject with the attention and sincerity which its magnitude requires. It is asserted that if the people for whom alone the govern- ment exists have the sole power, they cl6arly will not act to CIVIL LIBERTY, 323 their own Injury. This is erroneous. First, it would apply to such people only as are sufficiently enlightened to know what is their true interest. The Caffres, and, indeed, I be- lieve all savage tribes, have essentially what are called popu- lar governments. Yet they do not rise out of their state of barbarity ; no one would consider this government preferable to one which might be less popular but would force them to keep the peace. Secondly, this proposition rests, like so many others, on a deception, owing to the personification of an idea, which means an aggregate, not an abstract. Who are the people ? Is it one individual, or a number of individuals, called, for convenience' sake, by one name, or because we imagine it as a body of individuals who in regard to many and most essential points, but not to all, are impelled by a common interest? Are the people an aggregate of a number of individuals with one mind, one will, one impulse, or do the people consist of a majority and a minority? Giving un- bounded power to the people means, then, nothing less than giving unbounded power to a majority; for, as a matter of course, the majority must possess it, if the people have it at all. We are repeatedly told that the people can do what they like ; but have they the right to deprive the minority of their property, as they have done on various occasions, or to en- slave them, to kill them, as the majority of Corcyra did, during the Peloponnesian war (Thucyd., iii. 70, 85), or the French during the first revolution ; for though the executions during the reign of terror first took place after sham trials, towards its end it was decided that being suspected should suffice to mark the victim, which, in plain English, meant that being in the minority is a capital crime. Have the ma- jority the right to deprive the minority of speech ? in short, to deprive them of any essential attribute of man, or to deny them any of the main rights of the citizen and chief objects of the state ? Have they the right, however frequently it may have been done, to arrogate to themselves the name of the people, and to treat every one of the minority as if not belonging to the people ? 324 THE STATE. CXII. Our definition of liberty must necessarily depend upon the view we take of the state and its objects, so that the ancients sought liberty in something different from what ap- pears to constitute the essence of modern liberty, a subject to which I shall revert on a subsequent page. But whatever liberty may be — and it certainly consists as much in the ab- sence of restraint and interference with actions which indi- viduals may practise, as in protection, that is, protection against individual violators of my rights, against the elements, if they defy individual exertion, and against anything which interferes with my being truly that which I ought to be, as far as I alone cannot remove it — whatever liberty may be, it is of little political value to nations, unless something definite, distinct ideas embodied in palpable institutions, or funda- mental laws, be meant by it; — except by way of rousing de- generate generations. In this case even a vague notion of liberty may be of much service, in order to throw the first spark into torpid hearts. As long as liberty remains a generality, its love a longing and feeling rather than a definite conception, it is a poetic principle, capable of prompting to generous actions, but of little use as to the proper conception of what these actions ought to be. It is in institutions that liberty is embodied ; and for what end are these institutions established ? To pro- mote and to protect. To protect whom ? Him that wants protection. Who wants protection ? Most of all, he who does not agree with those that have the power. One of the truest signs and safest exponents of substantial liberty, there- fore, is the unwavering protection which the individual, op- posed to power, the minority, enjoys — in a word, it is the absence of absolute power. A late writer strangely asserted that liberty exists in the degree that representation and constituency agree — a puerile assertion, which it would be superfluous to mention, had not the same writer issued, of late, various works on subjects con- nected with politics, claiming, probably, the same attention of the public for them which his previous productions of an en- CIVIL LIBERTY. 325 tirely different kind have enjoyed. If that assertion be true, it either exists not at all where there is no representation, and the body of the people act directly, or it exists always in this case. But though an overwhelming majority sentenced Socrates for blasphemy, for him there was in that case no liberty at Athens. Suppose, moreover, the will of the con- stituents is wicked, tyrannical, does liberty still exist because their representatives are perfectly willing to act up to their desire ? A strange sort of liberty, which solely depends upon something external and relative — the agreement of two par- ties; and not upon something essential and positive. This untenable view is another misconception arising out of the primary error of a natural state of man, and a natural liberty, in which man is believed to be absolutely without any re- straint, except his own conscience and understanding, which, however, it would appear, must yet be very weak. Civil lib- erty, therefore, is judged by a negative standard, that is, it is believed the less you are required to give up of that original and perfect natural liberty, the greater the amount of civil liberty. The idea is wrong, radically wrong. Liberty, like everything else of a political character, necessary and natural to man and noble to be striven for, arises out of the develop- ment of society. Man, in that supposed state of natural lib- erty which is nothing but the roving state, is, on the contrary, in a state of great submission : he is the slave and servant of the elements ; matter masters his mind ; he is exposed to the wrongs of every enemy from without, and dependent upon his own unregulated mind. This is not liberty; it is plain barbarism. Liberty is materially of a civic character. Doubt- less I cannot live a day without feeling the restraint of law, that is, the effect of my living with others. Now, inquire whether this restraint is the giving up of something you may be supposed to have once possessed entire, or whether the whole is of social origin. You are not allowed to speak against the reputation of a neighbor. This is a restraint; had man ever the liberty to speak against his neighbor what he liked ? In that state of nature he had no neighbors. He was, 326 THE STATE. questionless, allowed, if ever he lived in that state, to mutter to himself what he chose ; so you may now say against your neighbor what you like, provided no ear but your own hear it. Liberty, I would say, exists in the degree in which my action and activity in all just and right things is untrammelled, in the protection of my individual rights, and in the same degree as I am not sacrificed to others. But, it may be objected, can the majority be supposed to desire anything wrong? CXIII. Let us calmly and with truthfulness consider his- tory and the nature of man, and we shall find the answer. We all acknowledge that man is a frail being, subject to a thousand sinister influences; we all acknowledge that wise men are infinitely rarer than unwise ; yet shall the aggregate of these individuals constitute a wise, just, dispassionate body. Where is i-eason in this argument? Is there more reason in it than to expect wisdom from the accident of birth, in heredi- tary monarchy? The people, the majority, are subject to sudden impulses, to passion, fear, panic,' revenge, love of power, pride, error, fanaticism, as individuals are, for they are individuals; and they are as much obliged to check their united power as that of small bodies and individuals must be checked. Socrates, when in anger, was in the habit of count- ing quietly a large number, to allow time to his excitement to pass over. He was a wise man indeed. A law of Al- phonso II. of Spain decrees that a sentence of death or muti- lation shall not be executed until after twenty days, so that, should it have been pronounced in wrath, there might be time for reconsideration. It was a wise law, at a period when ' When the Asiatic cholera raged in Hungary, the peasants, the vast majority of the population, killed the nobility with excruciating torments, because the deluded people believed that the.wells had been poisoned. Something similar took place in Paris, and quite lately several Englishmen were murdered by the populace of Rome, because suspected of wickedly charming some inoffensive children. POPULAR EXCITEMENT. Z'2-7 the necessary guarantees of caution in the trial itself had not yet been discovered. The people at l^rge stand as much in need of retarding processes as that Grecian sage or those Spanish courts. The Athenians distrusted their own power, and a citizen who proposed anything against the established and fundamental law was punishable. He remained so, even if his proposition had been adopted, for one whole year, and the T.apwjoijM-j rpo-^i] could reach him, which, therefore, was considered by the Athenians as the great protection of the state. Whatever we may think of the means, we cannot but agree in respecting the principle.^ In that same immortal city, to which mankind owe so much more than to any other, no law affecting a single citizen could be passed, if six thou- sand votes could not be collected in favor of the same.^ And we must never forget one fact, of great importance respecting popular excitement, whether it consist in panic or anything else, that if it be true, on the one hand, that large numbers cannot in their nature be so easily influenced, in many cases, as individuals, it is likewise true, on the other hand, that all men are apt to mistake repetition for confirmation. If I leave my house, and twenty persons speak to me successively of the same fact or impression, it has a strong tendency to make me believe what they say; yet all these twenty persons may have derived their first impression directly or indirectly from the same original source, which may or may not have been correct. Hence the incalculable power of rumors, the sur- prising beliefs and many of the actions of great masses, at all times of general excitement, which the historian of after- times is unable to trace back to any satisfactory source, or of which it is difficult for him to conceive even how they were possible. The beginning of the first French revolution fur- nishes several striking instances. (See the Memoirs, also Carlyle, Thiers, etc.) Rumor moves on like an avalanche. » Demosth. ag. Timocrates, 748, 9; .(Esch. ag. Ctesiphon, 367. The orators speak continually of the 'i:a[}avbi<^v jpadfi. ' Aiidocides on the mysteries, p. 42. Comp. Demosthenes ag. Aristoc.rates, p. C49, 4, p. 692, 25, and several other passages. 328 THE STATE. All that Virgil said of the ancient Fama holds likewise of the modern : " Mobilitate viget, viresque adquirit eundo ; Parva motu primo; mox sese attollit in auras Ingrediturque solo et caput inter nubila condit." But to this must be added that in our times she flies incom- parably swifter, because the thousands of newspapers are her wings, and she is, in many cases, infinitely more obstinate, be- cause the word is no longer evanescent breath, but fastened and fixed by types and print. CXIV. Here, then, we find the great principle of a repre- sentative government, even in a democratic republic. It is not because the people are too numerous, and cannot any longer assemble in the market, as in the ancient republics, that representative governments are advisable, or have be- come necessary, merely by way of expediting business, but it is on the very same principle as a monarch, who interferes himself and does not leave matters to their proper authorities, even in absolute monarchies, is considered to act despotically, that the people, if they hold the supreme power, must not act themselves but through agents. He who has power, abso- lute and direct, abuses it; man's frailty is too great; man is not made for absolute power. Everywhere it is now considered tyrannical — it was even so under so absolute a king as Louis XIV. — when a monarch sits in judgment himself; and it is tyranny, likewise, if the people do not judge through their courts. Frederic the Great, who was very anxious to remove a wind-mill close before the centre window of his favorite palace at Potsdam, could not induce the miller to sell it. The king, irritated, threatened the owner to force him to consent. "There is a supreme court in Berlin," answered the miller. The king was silent, and the mill stands to this day, an annoyance to the palace, but one of the best monuments which an absolute monarch ever erected to himself, as an ambassador wrote home from REPRESENTA TIVE PRINCIPLE. 329 Potsdam, It was stated of late that the present owner was very anxious to sell the mill, but the descendant of Frederic considers it too proud a monument of his forefather to allow it to be removed. I do not know that there is anything to which an American can point with greater pride than the decisions of his courts by which even legislative enactments have been declared unconstitutional, and which decisions are still in force. We shall see that the independence of the ju- diciary is one of the most important guarantees of civil liberty. England owes her greatness, in a high degree, to her inde- pendent judiciary, to the independence of the law. It is, therefore, a political error that some states have made the judges eligible for a {q'n years only. It is, in fact, the major- ity — not even the people, the sovereign, which would be bad enough — taking the administration of justice into their own hands, on the ground that they shall administer it according to the sense of the people. There is tyranny, where the holder of power sits in judgment or influences it. CXV. If it be true, as already mentioned, that a multitude, in many cases, are not so subject to sudden impulses as an individual, it is equally true that it is more difficult to dis- abuse a multitude than an individual. There are several other points which we have yet to consider in comparing monarchical and democratic absolutism. It has been fre- quently observed, after Lord Coke, that " corporations are without souls." Why is it so ? Can the individuals forming them be imagined to be peculiarly bad ? If so, it could not be a general remark ; for corporations may consist of very different persons. The answer is simply this : because re- sponsibility does not present itself so distinctly to one person in a multitude as to an insulated individual. Many an indi- vidual, indeed, will break down a house, nay, commit homi- cide, if he join a mob or become the member of a criminal association, who would shudder at taking the responsibility of these actions individually upon himself^ » To what a fearful degree of depravity men sink, what enormous crimes they 330 THE STATE. Another remark of high importance is to be made respect- ing democratic and monarchical absolutism. What is abso- lutism, the -aij.^aailzia of Anstotle ? The striking appear- ance, the form rather than the essential principle, have in this case, as so frequently, misled. Authors and politicians treat of absolutism as if there existed none but monarchic abso- lutism. It is not so in reality. A late writer, Mr. Dahlmann, defines absolute government thus : " When government has not only power, but all power, not only superioritas, but absolutum imperium, it is absolute government." This seems to be a circle; absolute government is absolutum imperium. No doubt it is, because it is the same expressed in two lan- guages. I would say, wherever all power that can be ob- tained is undivided, unmodified, and un-mcdiatised, some- where, whether apparently in an individual, or a body of men, or the whole people, which means in this case of course the majority, there is absolutism. The Athenian democracy sank into absolutism. I shall recur to this subject. Comparing democratic and monarchical absolutism, we shall find that the latter must needs rest its power somewhere without the mon- arch himself; for, as has been several times observed, the monarch has personally no more power than the meanest of the crowd. He must be supported by opinion without him ; but democratic absolutism is power itself — it is a reality — fearfully sweeping power. It is real power, a torrent which nothing can stem. If an individual opposes monarchical ab- solutism, there is something heroic in it in the eyes of the people ; if a man opposes democratic absolutism, he is at once considered a heretic, a traitor to the common weal. On the other hand, there is, indeed, a difference in democratic abso- lutism, namely, that at its height it necessarily leads to anar- chy, and hence to a change ; for anarchy is against the nature may be ready to commit as members of a society, under a common pledge, was lately exhibited in the trial of the Glasgow cotton-spinners, in Edinburgh, Jan- uary, 1838. A society had been formed for the purpose of keeping up high wages, not disdaining atrocities and murder as a means to effect their object. If a murder was to be committed, the lot decided who should commit it. POLITICAL FLATTERY. 331 of man, and nothing remains long which contends against its own nature; while monarchical absolutism may lasl: centuries, as in Asia. Democratic absolutism may, if not at its height, yet in an obnoxious degree, exist for a long time, in lesser communities. CXVI. The untenable ground on which absolutism, of whatever kind, rests, can be shown also in this way. Ab- solute power in the state necessarily demands absolute obe- dience, for without obedience to government there is no government. What other meaning has authority than that in some way or other it can direct our actions ? We cannot say, then, " here is absolute power, but the citizen need not obey if he choose not to do it." It would be a contradiction in itself; it would not be absolutism. Are the minority not bound to absolute obedience, though the majority have abso- lute power ? These are contradictory terms. But, as I have had repeated occasion to observe, and as we shall farther see in the chapter on Obedience of the Laws, absolute obedience is not only immoral but impossible. Absolutism, therefore, in whatever shape, falls to the ground. CXVII. Where power lodges, thither flattery flows. The prince — I here use this word not only for monarchs, but as the Venetians were in the habit of using it of their large body of nobles, who jointly had the supreme power, of the power- holders in general, whoever they may be — the prince loves flattery. Let us always beware of it. Every one loves flattery — we too, if we have power. Power, it will be remembered, . has an inherent tendency to absorb, increase, extend ; and interested men will always be found in abundance to help along this tendency, because it is pleasing to power to in- crease. Every prince, used in the above sense, finds his courtier. Republics are not freer from base courtiers than monarchs. The power-holder finds always ready instruments ; and we ought early to learn how to guard against the flatter- ing insinuations of those who live in the wake of power. 332 • THE STATE. Power loves to be flattered, the same flatteries are ever re- peated. The Turkish conquerors, the Solymans, Mustaphas, Mahmouds, loved to hear their fury compared to the ire of God and the lightnings of the heavens; and we have seen already how the revenge of the French people in the first revolution was complacently or cunningly compared to vast natural phenomena. Demagogues are but courtiers, though the court dress of the one may consist in the soiled handker- chief of a Marat, that of the other in silk and hair-powder. The king of France was told in 1827, "The royal absolute power exists by natural right. Every engagement against this right is void. Thus the prince is not obliged to keep his oath;"' and in America the people of a large state were lately urgently advised to break a solemn engagement, be- cause they, the majority, had sovereign power. When Napo- leon was at the summit of his power, the archbishop of Paris wrote to his bishops in a pastoral letter, " Servants of the altars, let us sanctify our words ; let us hasten to surpass them by one word, in saying he [Napoleon] is the man of the right hand of God ;" ^ and one of the presidents of the * A. R. Dedilon, Coup-d'oeil sur les Constitutions et les Parties en France^ Lyons, 1827. * Goldsmith, Histoire secrete, page 130. Can the author have invented it? I only know it from that work. The bishop of Amiens says in his viandetneni, " The Almighty, having created Napoleon, rested from his labors." Fabre de I'Aude, president of the tribunal, said to Napoleon's mother, " The conception you have had, in carrying in your bosom the great Napoleon, was certainly no- thing else than a divine inspiration." It is well for us fearlessly to see how far man is ever ready to err, as soon as opportunity ofiers. Shall we wonder that the Romans deified their emperors and worshipped their images? If power had such effect, so shortly after one of the bloodiest revolutions in the name of lib- erty, after the Christian religion had been professed for centuries, a religion which teaches that the mightiest emperor is but a sinful servant in the presence of God, should we be surprised that the Roman emperor was considered godlike by the subject, whose gods had abandoned him ? (See chapters xii. and xiii. of Book II.) It is not good, between individuals, to rake up past follies; it is noble not only to forgive but truly to forget. What is true of individuals holds likewise of nations. Not, therefore, to offend, I wish that some one would publish the most remarkable addresses made to Napoleon in and out of France : I wish it, that POLITICAL FLATTERY. 333 United States (General Jackson) was told in a pamphlet that he was the actual representation and embodiment of the spirit of the American people, the personification of American de- mocracy, that is, of the American nation. we may have them as a mirror of ourselves ; for is it not our o^vn time which committed these guilty follies ? No man can improve unless he reflect at times seriously on his past life; so it is with nations, with mankind. CHAPTER XI. rolitical Atony one of the greatest Evils. — The Ancient Tyrannies. — Variety of ]\Ieans to Check the Abuse of Power. — Can Power be controlled ?— ^Vho con- trols the controlling Power? — Constitutions. — Are Written Constitutions of any Value? — Constitutions are Indispensable. — Various Reasons why and Circumstances when Written Constitutions are desirable or necessaiy. — Division of Power; Legislative, Executive, and Judiciary. — Great Danger resulting from Confusion of these Branches, in Republics as much as in Monarchies. — Importance of the Separation of the Executive from the Legis- lature. — Vast Importance of an Independent Judiciary. — What does Inde- pendent Judiciary mean? — The farther political Civilization advances, the more independent does the Judiciary become. CXVIII. The state requires power; without public power government cannot act, it cannot obtain its object, is unable to protect, and to enforce obedience to the laws ; yet, on the other hand, all power has a tendency to increase. Without power, government, the laws themselves become despicable, political immorality and along with it all other immorality increases like a very cancer of society. This state of things may be called, borrowing a term from the healing art, atony, the necessary forerunner of a change of governinent either directly or by the intermediate state of anarchy, which I distinguish from the former by this, that atony is a state of general disregard of law from weakness, want of energy, a depression of the vital spirits of society ; while by anarchy I would denote rather a chaotic stirring of the elements of society, open, forcible, avowed disregard of the laws, and of the principles of political society. Atony existed under the Merovingians, anarchy frequently in the feudal times. Atony exists in some parts of Turkey, anarchy in some parts of Spain. If, on the other hand, power is permitted to go on increas- inn- it leads to despotism, by which is meant that state of the 334 THE ANCIENT TYRANNIES. 33^ political society in which power alone d i Ics, because it is power. Despotism may consist in \\\: ; l)use of supreme power for purposes entirely at varianc:; willi or hostile to the objects of the state, in which case wc call it, in modern times, tyranny. The ancient word tyrannis meant something dif- ferent : it was usurpation of supreme power, not necessarily connected with cruelty or oppression. Pisistratus was called a wise tyrant. Or he that has the supreme power may use more than has been granted him ; in other v/ords, the legiti- mate limits of public power may be transgressed. In the latter case, though despotism exist, it may still use the public power for purposes of general utility. A nation on its guard never suffers it; but too frequently does tyranny creep in as popular despotism. (See Hermeneutics.) A process perhaps still more remarkable, and yet frequently exhibited in history, is that by which despotism steals into power by opposition to power. It is a very common mistake of the unwary to con- sider opposition to power at once as an indication of love of liberty; yet that the contrary can take place has, among many instances, sufficiently been proved by the attacks of the Jesuits or their adherents, with the ablest pens and the sharpest daggers, upon many Protestant governments.' What- ever our opinion of that remarkable society maybe, I suppose ,we all agree that it was not civil liberty they strove for. Some of the most vehement speeches in favor of popular liberty on the floor of the French chamber of deputies are made, at present, by the adherents of elder Bourbons. CXIX. A variety of expedients to retard the increase and ' Mariana, de Rege et Regis Institutione.— Balthazar Gerard, the assassin of William of Orange surnamed the Silent. When the estates of France were assembled for the last time, in 1614, at the diet already mentioned, the bishops maintained that " the church is authorized to depose kings," and the nobility added, " the abuse of power is a legitimate ground for deposition." The third estate alone denounced these principles. And what was called abuse of power ? There existed no greater in the eyes of the clergy and nobility than interference with their immunity from taxes. It was this and the possible leaning to Protestantism which was meant in this case. 33^ THE STATE. regulate the use of power have been resorted to, some of which shall be considered here. The only way of avoiding effectually the evil is to prevent the generation of too much power, which, however, is not easy, for the simple reason that public power must exist, and if it exists, no matter where, it not only tends to increase by itself, but always finds both assistance and general respect. (See previous chapter on Power.) Much has been said of the control of power. Who can control power? Of course, only he who has greater power. But the very object of all inquiry connected with this subject is to find out how that greatest, strongest power, no matter who wields it, who is, in fact, the prince, can be prevented from growing stronger than the interests of society require. Con- trol of power would mean, therefore, self-control, which in this case would have no meaning. There may be one authority controlling another, for instance, a council may control a gov- ernor ; there may likewise be a check on the supreme power in various ways, for instance, by public opinion ; but, strictly speaking, the supreme power cannot be controlled as far as it exists, if there be any disposition to abuse it, which is espe- cially the case in all periods of intense political interest. The question then is, how to prevent the existence of too great an amount of power. CXX. One of the most common means resorted to are constitutions. Constitutions are the assemblage of those publicly acknowledged principles which are deemed funda- mental to the government of a people. They refer either tb the relation in which the citizen stands to the state at large, and, consequently, to government, or to the proper delineation of the various spheres of authority. They may be collected, written, and may have been pronounced at a certain date, such as the constitution of the United States ; or the fundamental principles may be scattered in acknowledged usages and pre- cedents, in various charters, privileges, bills of rights, laws, decisions of courts, agreements between contending or other- WRITTEN CONSTITUTIONS. 337 wise different parties, etc., such as the constitution of Great Britain is. We hear, therefore, frequently of the constitutions, not constitution, of a realm or principality. Thus, the ancient fundamental laws of some of the Belgian states before the war of independence of the Netherlands against Spain were exceedingly complicated, consisting as they did of a great variety of special grants and charters as well as their partial nullifications.' Considering how much more beneficial it is if an institution has grown out of the healthy action of a people and devel- oped itself along with the state of society, in other words, if an institution has its deep roots in the history of a nation, and, on the other hand, how lifeless the best-sounding written constitution remains if merely recorded in the archives, de- prived of the necessary fibres through which it draws aliment from the actual life of the people, many persons have thought fit to deride the idea of written constitutions, and have de- clared them to be useless.^ The great power of a precedent in England, and the hollowness of many declarations in the constitutions of some newly-emancipated nations, afforded them a strong contrast. There are writers on politics, indeed, who have condemned the whole idea of settled constitutions, asking whether a family father would believe that he could establish peace and harmony in his house by placarding at the door a series of regulations. This question rests on the unfortunate mistake of making no difference between the family and the state, treated of in a previous chapter. If the family grows very large, occupying several houses, and yet ' For a classification of constitutions according to the various principles on which they are founded, as the subject has appeared to me, see the article " Con- stitution" in the Encyclopedia Americana, or the same, copied in the London Cyclopedia. * * The English are constantly cited by the deriders of enacted constitutions; but it is forgotten that they, like any other people, enact " written" constitutions when necessary. They give real "written" constitutions to their colonies, Canada, New Zealand, etc. And they must do so. How else can they trace the frame of a new government ? 22 338 THE STATE. frequently assembles, it has even then in the family been found serviceable to settle certain regulations, and to adjust the dif- ficulties that may occur, by a family council of the elder members. Rights not only may be, but ought to be, clearly pronounced. CXXI. Those who dream of patriarchal, paternal, or what- ever other relations of the kind, between the government and the governed, in a nation at all advanced, claiming absolute power on the ground of natural love, which ought to exist between the prince and the subject, as a matter of course ob- ject to constitutions. Ferdinand VII. of Spain was told that God had made him father of his country (his mother lived in continued adultery), and that it was rising against God to attempt to deprive him of unlimited power to do good. The abject flattery of many courtiers, judges, and most officers in high authority under Elizabeth and James was equally, some- times still more, blasphemous. It will appear from the whole view of the state, and the relations of the individual to it, which has been taken in this work, that constitutions are indispensable. They will invari- ably be established, or naturally grow up with the progress of political civilization. For they are nothing more than the distinct acknowledgment and clear expression of certain prin- ciples deemed fundamentally and essentially important to the well-being of society and the due protection of the citizen : the higher the degree of civilization, the greater their clear- ness. Civilization invariably tends towards the clearer de- velopment of principles, in politics, as well as in any other branch. Written constitutions are desirable for the following reasons : I. Where the political life of a people has been unpropitious for the foundation and growth of civil institutions, they are frequently the only possible starting-point, and, however slow, superficial, or deficient their action may be for a long time, still they form often the first available means to give civic WRITTEN CONSTITUTIONS. 339 dignity and political consciousness to a people, as well as the beginning of distinct delineation of power. The French, in- deed, have had many constitutions within the last fifty years ; but similar phenomena will appear in other spheres. Talley- rand has sworn allegiance to a great many governments ; Cranmer recanted about six times. Not, indeed, that I con- sider the latter as natural or excusable as the former. What had Talleyrand, or any Frenchman, to do, if the government of the "country were changed ? 2. Constitutions form, in times of political apathy, if not too great, a passage, a bridge, to pass over to better times. When civic consciousness is too weak, and patriotism too low, to repel encroachments by their own action, they are still some- times sufficient to do so with the aid of a well-settled and clearly pronounced constitution. 3. It gives a strong feeling of right, and a powerful impulse of action, to have the written law clearly on one's side, and though power, if it comes to the last, will disregard the written law as well as the customary, yet it must come to the last before it dares to pass the Rubicon and to declare revo- lution. Many a time has power been checked by the appall- ing consciousness, Thou art going to break the fundamental law, the established law of thy land : into thy hands it was confided, and art thou becoming its assassin? ' 4. It is our duty to define things as clearly as we possibly can in matters of a jural character. Confusion is the very opposite to right. « The Frenclr revolution of 1830 affords a remarkable instance. For years the government was afraid to take certain steps, because it knevv^ it was against the written contract; and when it finally did propose a gross violation of the charter, or rather its abolition, the consciousness of the people that it was Prince Polignac and the whole court party and ministry, not themselves, who were breaking the great pact, gave them an energy and buoyant vigor without which the revolution could not have been effected, or, if it could, certainly not so rapidly. There was a great degree of civil alacrity in that event. Nor would this powerful change otherwise have been immediately acknowledged by nearly all Europe. The so- called legitimate governments knew very well who had been the aggressor. 340 THE STATE. CXXII. Constitutions, however, are valueless without pub- lic spirit; it is a serious error to believe that liberty can be made — can be decreed on parchment. This has been fre- quently used by absolutists as an argument against constitu- tions altogether. It is, however, no stronger an argument against them than against anything written in this world, whether it relate to religion, science, or law. There is not a written law which may not at times, and if the judges have the mind so to do, be stretched and distorted. When the spirit is gone, the letter is vapid. But it cannot be denied that the mere fact of distinctly pronouncing a certain principle in writ- ing can do much. Nor do we forestall by written constitu- tions the necessary development of institutions ; for as society is never stationary, so its political organization cannot be. I have dwelt on this latter, important subject in the Her- meneutics. Inasmuch, then, as right and law depend in a great measure upon distinctness (this maybe traced in the history of politics or law, in any tribe whatsoever), and as constitutions con- tribute to give this distinctness, as well as to lead the people gradually to greater clearness, and inasmuch as all confusion in politics has a necessary tendency to abuse and tyranny, and written constitutions define the spheres of action of the various branches of government, written constitutions are beneficial ; and for those nations with whom the historical development has not been such as to lead them to a gradual and clearly acknowledged growth of fundamental political principles, for instance, the nations of Spanish origin in America, they are necessary. But they remain means, and we must beware of what has been called, in another part of the work, idolatry of the constitution ; for it is the living nation, the life of society, which is the object of the state, and therefore of the constitution likewise. CXXIII. A most effective means to prevent the natural expansion of power has been sought for in the division of power, which is, perhaps, not a very happy expression. The DIVISION OF POWER. 241 general, and certainly the most important, division is, as is well known, into the legislative, executive, and judiciary, though this is not the only one. In Brazil there are four branches. The first French constitutions speak of the adminis- trative branch, as distinguished from the executive and legis- lative, and meaning the administration of the communes, etc. It is not unfrequently believed that this idea of the division of power is due to Locke; more generally, Montesquieu is considered as the author who first settled it well. Aristotle, however (Pol., iv. 14-16), already makes this division, though I grant that only in modern times has this great principle fairly gone into operation. That a clear division of these authorities must necessarily at least retard the increase of power, is evident. It is for the science of politics proper to show the natural foundation of this division, as well as the vast advantage flowing from it, and that it is a most powerful guarantee of civil liberty, especially if united with certain others ; whatever opinion to the contrary may have become fashionable of late with a cer- tain mystic school who ridicule the division of power, asking where we find it in nature, and whether the small states, in which no proper division exists, are not some of the happiest. If the state is a jural institution, nothing can be more evi- dent than that a clear division of the government functions must aid in protecting the members of the state. It is objected that the branches were divided in the first French revolution, and yet what tyranny! But the true answer is, they were not divided : on the contrary, the French so-called republic was always materially a concentrated government. Absolute power had passed from the crown to the assembly, the com- mittee of public welfare, etc. Besides, there existed in other respects the greatest political confusion, which is always tyr- anny or soon leads to it. The people, that is, some of them, in Paris, resolved, demanded, dictated, besieged the legislative hall, or appeared in a threatening attitude at the bar of the assembly. That citizens have the right to petition is clear; that they may recommend certain citizens for certain places 342 THE STATE. is equally clear, though it would be certainly a safe principle that only private recommendations ought to be given ; but organized party meetings, recommending not one citizen but the entire personnel within a certain district at the change of an administration, certainly border very closely on political confusion, for it is not the people that make this selection. Even if the people of the whole district were unanimous, they would be but a very limited part of the whole. In reality, however, it is only the portion of the party in power within the district that assume this appointment. I call it appoint- ment, for we well know that recommendations of such an or- ganized sort go in their character much farther than simple petitions. Once more, confusion of branches, powers, and spheres of action is certain to lead to despotism. From the long accounts, contained in the papers, of a meeting held on March 7, 1837, in Philadelphia, in consequence of which a long list of candidates for various offices was recommended to the new President, it seems that it was of the kind mentioned. (See Niles's Weekly Register, Baltimore, March 18, 1837.) We farther hear that, in despite of all so-called division of power, the executive will, if strong enough, seizes upon the others, and how can they resist, since the executive has the actual power — the army and navy, the money and the distri- bution of honor ? In this objection, started very frequently by a writer who in his wishes belongs to the liberal portion of mankind, there are two mistakes : 1. Power does not only consist in the army, navy, and money; public opinion, which is gained by nothing so firmly as by a continued, even, and just administration of justice, and which has been frequently obtained by this alone, despite of the glaring corruption of the other branches, is power in- deed. The army and navy must first be gained. Though the executive may have the supreme command over them, it does not rule them like machines. 2. It is wrong to argue that because, in times of extremity, one power may not be able to withstand another, therefore il is of no use. The division of power may prevent, and often INDEPENDENCE OF THE JUDICIARY. 343 has prevented, this very extremity. It is the same here as with constitutions : are they never worth anything because, in times of extremity, he who has the army will tear the charter and dictate a new one if he thinks proper — that is, if the current of events and of ideas of his party make it advisable ? CXXIV. The separation of the executive from the legis- lative is highly important for the simple reasons that, if united, power will' decree laws to increase power, and specific laws or decrees will be made in specific cases, according to convenience. Few things, however, are more necessary in a well-regulated community than that laws be general rules, and not fickle, not vulgar, as Bacon calls them in his History of Henry VH. Even unsuitable laws lose very frequently part of their evil tendency by being acknowledged and not changeable according to single cases. Nothing, however, is of so vital importance, of so momentous influence, as the in- dependence of the judiciary, which has already been briefly touched upon. It is at once the noblest and most conciliatory principle in the state. It forms the choicest subject for the lover of civil history. By the independence of the judiciary is not meant separation from the rest of the state. The Turk- ish hakim or cadi is simply judge according to the written law, and always separate from the sabit, the executive officer, throughout the Turkish empire.' The hakim, however, is an arbitrary judge, as long as the interest of the pasha or sultan is not involved ; and, on the other hand, the Turk is not pro- tected against being put out of the pale of the law and dealt wi h according to entirely different interests or principles. Vagueness in the use of terms has done its mischief in the discussions on this subject. If independence is claimed for the judiciary by some, others, not unfrequently, understand it as if arbitrary power in the judges were meant, while, on the » Von Hammer, Political Constitution and Administration of the Osmanic Empire, vol. ii. page 388, in the German. 344 THE STATE. contrary, we, the advocates of an independent judiciary, desire the individuals who may happen to be judges to be the very serfs of the law, but of the law alone — its organs, its proclaimers. And why ? Because the law is the only rule given for the regulation of the actions of the citizens, or ought to be the only rule ; because the law is the principle, and where this has not superior sway the accidental individuality of the person in authority must take its place, and there is an end of justice, of a strict government of law, of right — an abandonment of that principle on which we have ascertained the state to be truly and verily founded. The law, as I said, is a general rule, a principle ; it remains something abstract, until brought home to practical life, to the cases of reality, and when brought home, those who do so, those who fix and link the generality of the law to the individual case, ought to be placed in the best possible manner which human wisdom can devise for the unbiassed application of the abstract rule to the practical instance. It is not only that true justice be done according to the merits of each case, which makes this bring- ing home of the law to every one so important ; liberty in its deepest meaning, individual and national, depends greatly upon it. Lord Strafford, the lofty absolutist and penetrating statesman, mentions in one of his first despatches after his arrival in Ireland, to Cooke, that one of the greatest restraints on his predecessor, Lord Falkland, had been that he could not meddle in causes betwixt party and party, " which cer- tainly did lessen his power extremely." Strafford adds, " yet how well this suits with monarchy, when they (the lawyers) monopolize all to be governed by their year-books, you in England have a costly experience ; and I am sure his maj- esty's absolute power is not weaker in this kingdom, where hitherto the deputy and council-board have had a stroke with them." Strafford saw right. Destroy the bulwark of the law (and you do destroy it as soon as you destroy the inde- pendence of the judiciary), and the mighty sea of power will soon break in upon the people. By the independence of the judiciary is meant a judiciary INDEPENDENCE OF THE JUDICIARY. 345 that in the administration of justice cannot be influenced or overawed by any one, or anything, either by monarch, presi- dent, people, or populace, but which is strictly dependent upon the law and the spirit which made it, so that no citizen who ought to be judged by it can be rent from it, or be judged or punished without judgment by the same, or otherwise be injured in any way, by the protection of the laws being withheld from him.' The more deeply and earnestly we study history, the more sacred will appear this wonderful institution of an independent judiciary. The English or American judge is not severed from, but closely united to, the state. He stands under the law, he moves within the law, his authority, yielded to him by the people, is only given to him as the minister and applier of the abstract law, the principle; he does not make the principle; he is a member of a vast church, the church of the law ; he is not the arbitrary hakim, but a priest of justice, according to the rules of the people. (As to the necessity of interpreta- tion in applying the law in many cases, see Hermeneutics.) He stands under the public press and public opinion, he does not settle the question of fact, and finally he owes his position as a judge to the gradual constitutional development of the whole nation. CXXV. By means of an independent judiciary the citizen stands in each individual case, when the law comes home to him, under the constitutional protection of the court ; by the independence of the judiciary alone, the American judge can assume that elevated function of declaring a law, when it finally strikes an individual, to be unconstitutional, a principle of which the ancients knew very little, we may say nothing, if compared as to its practical use with modern times. By the ' * And so, in democracies, if the judiciary becomes dependent, the popular power will break in upon the minority. This is not because the power-holders are peculiarly wicked : it arises from a tendency of human nature as natural and sure as the laws observed by the chemist. 346 THE STATE. independence of the judiciary alone, an independent develop- ment of the law, according to the genius of the people and the essential wants of the times, becomes possible. Without it, the best intended and most liberally conceived institutions and political organisms will always become what a distin- guished French jurist said in i8i8 of the administration of justice and the constitution of his countiy: "We have con- tented ourselves to place a magnificent frontispiece before the ruins of despotism ; a deceiving monument, whose aspect seduces, but which makes one freeze with horror when en- tered ! Under liberal appearances, with pompous words of juries, public debates, judicial independence, individual lib- erty, we are slowly led to the abuse of all these things and the disregard of all rights : an iron rod is used with us instead of the staff of justice."* The necessary independence does not only mean independ- ence of judges upon executive influence, it likewise means and demands the division of functions, already spoken of. For if the courts ought to be independent, and they are not strictly separate from legislative or administrative functions, they form bodies such as the ancient French parliaments were, which frequently, indeed, were of service to the people, considering the whole confused state of government, but ■\\4iich cannot be tolerated in a well-regulated state in which the various spheres of political action have been carefully de- fined. The courts in other states were frequently charged with the collection of taxes and other administrative business. This likewise is opposed to the idea of judicial independence, which, I repeat, is nothing but another term for the independ- ence of the law, a means to insure the truth of the law, that is, that the law be law. No human wisdom can devise any plan which has not its inconveniences. The independence of the judiciary requires that the impeachment of judges should not be made a trifling ' Berenger, De la Justice criminelle de France, Paris, 1818, p. 2 — a work de serving: decided attention. INDEPENDENCE OF THE JUDICIARY. 347 affair, dependent upon momentary impulses. This, question- less, leads in some cases to considerable inconveniences. But all the evils resulting from the independence of the judiciary- are trifling indeed compared to the one great advantage — the government by law, and expulsion of the government by human individuality, which alone can be insured when the judiciary is independent. Means may be found to insure the one with- out compromising other interests. We all know that the infirmities of old age, in the natural course of things, impair the energies of the mind. There may then be good reason why a certain age should be fixed beyond which no judge should sit on the bench ; though the age of sixty years, as it is adopted by the constitution of New York, as the maximum — the age when the Spartans considered their citizens only ma- tured for their high council, the gerusia — appears certainly too limited. A statistical table of all the most eminent judges in England and America, with their ages, would in- controvertibly prove it. From a calculation I have made, though, I own, it has not been made on a scale so extensive as to be entirely satisfactory to myself, I should be inclined to say that seventy years would be a safer maximum age for the continuance of the judge in office. Still, no maximum age is infinitely better than appointments for a brief term, and, upon the whole, I believe that the fixing of a minimum age for a judge would be more important than that of a maximum. Bold action belongs to the younger age, from twenty-five to forty; wise counsel and unbiased calmness to the riper years. The papal hierarchy, it strikes me, has never had occasion to regret the advanced age of most popes, so far as the wisdom of their counsel is concerned. An independent judiciary is likewise an institution which will' regularly develop itself with the progress of political civilization. The patriarch is father, judge, priest, ruler — everything that implies authority. The king in early times holds his courts in person, nay, it is his highest attribute, and justly so for those early periods, because the monarch is mis- taken for the state, and justice is its essential. David sat in 348 THE STATE. the gate and dealt out justice, and St. Louis and Louis XIL administered justice under an oak-tree. The German em- perors travelled from place to place to hold courts : " prin- cipes, qui jura per pagos reddunt." Now it is considered daring and high-handed interposition if the monarch inter- feres with the administration of justice in single cases, even in theoretically absolute monarchies. The history of the admin- istration of justice in England shows the same progress. The king's personal administration became rarer and rarer, and George III. consummated one period in the history of this important subject by declaring, in the beginning of his reign, " that he looked upon the independence and uprightness of the judges as essential to the imperial administration of jus- tice ; as one of the best securities of the rights and liberties of his subjects ; and as most conducive to the honor of the crown." As to the power of the British judge to declare a law unconstitutional, it is held by many that he does not possess it. (See Dwarris on Statutes, beginning of vol. ii.) Lord Holt, however, did it; and what is the judge to do if one law contends with another, and this other be, for instance, the Declaration of Rights ? Can he possibly do anything else but declare the minor law to be second to the other, the fundamental one ? (See Hermeneutics.) CXXVI. The more precise division of the functions of government on the one hand, and its increasing wants on the other, have raised, in modern times, a peculiar check on pub- lic power to the highest practical importance, and made of it, at the same time, the reconciling principle in cases of conflict between the legislature and the monarchical executive. In former times, when the monarch was a rich nobleman, with vast domains appertaining to his house, he, frequently, could carry on the government, such as it was, without much pe- cuniary assistance from the people. If they gave it, however, it was always by way of grant. Powerful changes took place in the course of time ; the wants of governments became greater in the same degree as they changed from feudal gov- CONSTITUTIONAL SUPPLIES. 349 ernments into national ones ; domains were alienated, wars became vaster; in fine, monarchs could not carry on the government with their private or crown revenues ; they were obliged to ask for supplies at the hands of those who had them. Some manly nations, most especially, however, the Dutch and the British, gradually did not only allow of no taxation without the consent of the tax-payer or his real or imagined representative, but they made frequently the grant of money, on their part, dependent upon grants of privileges, charters, or political freedom on the part of the receiver. At length the principle became distinctly acknowledged and solemnly settled with the English, that no taxation is lawful except it be granted by act of parliament. Other nations have neglected this. " The Castilian commons, by neglecting to make their money grants depend on correspondent conces- sions from the crown, relinquished that powerful check on its operations, so beneficially exerted in the British parliament, but in vain contended for even there, till a much later period than that now under consideration."' As the British executive can, of course, do nothing without money, and as the money may be refused by the commons, the latter have obtained an effectual check upon the former. The same is the case in France, and all truly liberal states in Europe. Hence the immense importance which the word " supplies" has acquired within the last century. The com- mons have no right to change ministers whom the monarch appoints, but if the commons refuse supplies the monarch must change the ministry; otherwise government must stop, and a revolution would follow. And thus it ought to be : if there be disagreement, who else but the people shall decide virtually and effectually? Who else can finally decide? For a history of this check, one of the most interesting features of modern civil history, I must refer to the best English and French his- tories, and the history of the various European states in the ' Prescott, History of Ferdinand and Isabella, 2d ed., Boston, 1838, p. xlix.. Introduction. 350 THE STATE. middle ages. The second part of this work will offer an opportunity of discussing the subject when a citizen ought conscientiously to vote against supplies, with the intention of enribarrassing the existing administration, so that a change may be produced. CHAPTER XII. Classification of Greek Constitutions by Aristotle, — Classification of Governments according to the Number of those who hold the Supreme Power. — Polity. Meaning in which it is used in the present Work. — Autarchic and Hamacratic Polities. — Autarchy, Hamarchy. — Absolutism. — Democratic Absolutism. — Different Operation in the Autarchy and Hamarchy. — Hamarchy materially republican in its Character. — The Polity of England is a Hamarchy. — The Polity of the United States likewise. — Hamacratic Character of the City of Rome. — Hamarchy rises with the Teutonic Race. — Anglican Hamarchy. CXXVII, Aristotle says that the poHtical constitutions »n Greece had followed in this order : monarchy, aristocracy, oligarchy, tyrannis, democracy. The same great philosopher gives other divisions upon different principles, and we find mentioned in ancient times, among others, plutocracies, or states in which riches form the foundation of supreme power. Aristotle was the first, I believe, who made a distinction be- tween the state constitution and the government. It is an important distinction, not even always properly kept in view by modern political writers, when they speak of the different " forms of government." Important as these forms are, ac- cording to the number of those who hold the supreme power, and although they constitute a prominent department of the science of politics, the office of which it is to inquire into their advantages and disadvantages under certain given circum- stances, still the essence or principle is more important than the form, A republic, as to form, maybe cruelly oppressive; a hereditary monarchy may protect the individual and leave a healthful action in most directions to the community. Aris- tocracies may be nothing more than a combination of despots far more oppressive than absolute monarchs, or the people may love the aristocracy they live under, as was the case with the subjects of Venice, when those of their number who lived on the continent, voluntarily, and at the peril of losing their 35» 352 THE STATE. all, defended and saved the republic in 1509, against the pope, the German emperor, and the kings of Spain and France, united by the league of Cambray. The noble Bayard, who fought against them, said that the subjects of Venice are faithful to their government to an unsurpassed degree, " for never have masters on earth been more beloved by their in- feriors for the great justice which they always show them." There was a variety of governments around them, yet they seem to have had occasion to be satisfied even with an aris- tocracy, and a high-handed one too. It is often asserted, with what precise degree of truth I cannot say, that the aris- tocratic government of the canton of Bern is very popular. CXXVIII. For our purpose it is necessary to direct, then, our attention to a different subject from that of the individual or body of individuals in whose hands the supreme power may rest. I shall 'consider chiefly of what character the power is, and in what mode government operates. Let us call the latter the polity of»a state. I do not believe that I do violence to the English language if I use the term polity in this more definite meaning, nor do I deviate too much from the sense of the original word ; for -ohzda signifies, first, the relation of the free citizen to his state ; and that this is de- pendent upon, and closely connected, in fact, in certain re- spects the same, with the organic operation of the state, will appear immediately. I divide, then, for our purpose, all states, according to their polity, into autarchies and hamarchies (from aim, at the same time, jointly, co-operatingly, and apx^v^, to rule). I call autarchy that state in which public power, whole and entire, unmitigated and unmodified, rests somewhere, be this in the hands of a monarch, or the people, or an aristocracy, it matters not for our division. Provided there be absolute power, or absolutism, a power which dictates and executes, which is direct and positive, we call the polity an autarchy. As the word autocracy has already its distinct meaning, namely, that of absolute monarchy, I was obliged to resort to AUTARtHY AND HAMARCHY. 353 another, which would comprehend the absolute monarchy as well as absolute democracy or aristocracy. The democratic autarchy stands, therefore, in the same relation to a democ- racy in general, as the absolute monarchy or autocracy stands to monarchy in general. Hamarchy, on the other hand, is that polity which has an organism, an organic life, if I may say so, in which a thousand distinct parts have their independent action, yet are by the general organism united into one whole, into one living sys- tem. Autarchy acts by power and force ; hamarchy acts and produces as organized life does : in the autarchy laws are made by the power ; in the hamarchy they are rather gen- erated : in the autarchy the law is absolute, after it has been made; in the hamarchy the law modifies itself in its applica- tion and operation. The political organism may prevent its action entirely, not by force, but simply because it cannot operate. In the autarchy the law is the positive will of power; in the hamarchy it is much more the expression of the whole after a thousand modifications. Hamacratic poli- ties rest materially on mutuality ; autarchy, on direct power. The principle of autarchy is sacrifice ; the principle of ham- archy is compromise. Blackstone had in mind what I call hamarchy when he said, " every branch of our civil polity supports and is supported, regulates and is regulated, by the rest." It is not the "balance of power" which makes the hamarchy, but the generation of power. A hamarchy cannot be compared to a pyramid, or to concentric circles, or to a clock-work, but only to the living animal body, in which numerous systems act and produce independently in their way, and yet all functions unite in effecting that which is called life. If ever there was a republic of action, it is the animal body, and it is therefore the true picture of hamarchy; for from what has been stated it will be evident that hamarchy is materially republican, and though the form of government may be a monarchy, that is, though one individual may have nominally the supreme power, though the supreme power may be called the crown, though an individual may be desig- 23 354 THE STATE. nated by birth to fill the place on the throne that is to be filled, yet that which makes the polity of that state a hamarchy is republican in its character, as I believe it cannot be denied to be the case in England, nor do jealous royalists consider it in any other light. On the other hand, that government mechanism which is calleJ significantly, if not classically, bureaucracy, is decidedly autarchic in its character. It has been a great mistake to consider the law-making process only — which in fact means the law-pronouncing — of importance; for the process in which laws are generated, and, when pronounced, their mode of operation, are equally important. Autarchies oppress, if persevered in and applied to extensive territories, for the same reason that so-called universal monarchies have a ruinous effect.' The dead weight of power oppresses, takes away from each minor activity its peculiar and characteristic function, and, though it may produce some specific astonishing effect, it saps the life ; it may raise pyramids, but it cannot produce healthy, happy cottages. CXXIX. Hamarchy, then, signifies something entirely dif- ferent from the ancient synarchy, which merely denoted a government in which the people had a share together with » Ancillon, Tableau des Revolutions du SystSme politique de I'Europe, part. i. tome i. p. 68 : "A universal monarchy would be without doubt a great evil for the world, and the more an empire approaches to it, the more must the friend of mankind wish that it may stop in its progress. A universal monarchy would necessarily cause the oppression of the various nations, and the most ciying abuse of power would be inseparable from the exercise of power; the force of circum- stances would establish an Oriental despotism without limit, without measure, without refuge ; it would prevent the development of nations, for emulation, rivalry, jealousy, and mutual fears are the means of perfection and the springs of activity for nations as well as individuals. At length it would bring down everything to the same measure ; under the level of uniformity would disappear this happy variety of thoughts and sentiments, of talents and tastes, of habits and actions, which is at the same time effect and cause of the progress of life, and together with the national existence would vanish the physiognomy and the indi- viduality of all nations." Mr. Ancillon was, at a later period, minister of foreign affairs to the king of Prussia. AUTARCHY AND HAMARCHY. 355 the rulers proper.' Disjointedness, and absolute independence of the parts, in some respects, as the pashalics in Turkey, by no means constitute, as it will have appeaj-ed, hamarchy. A united organism is requisite. The polity of England, with her independent judiciary, independent courts, corporations, commons, lords, king, etc., is a hamarchy. The various United States, with their counties, judiciary, state legislatures, and congress, and their thousand semi-official meetings, form a hamarchy. Some of the states, without the American union, would have little of a hamacratic character ; the federal gov- ernment, without the state legislatures and sovereignties, would probably soon lose its hamacratic character. CXXX. The independence of the parts can be carried much too far, as the activity of certain organs or systems in the body can be too intense, and disease must ensue. It is not the severance from the common system of life that constitutes the independence requisite to hamarchy. The Turks were before the gates of Vienna, diet after diet was held in Ger- many, but no united effort was made against the fearful enemy. Germans have fought against Germans, until their country has been drenched with the blood of her sons ; yet not on account of her hamacratic character, but only on account of its being a loosely united confederacy. France, on the other hand, has for centuries systematically concentrated all power, and is now only in the process of passing from autarchy to hamar- chy, restoring, as she does, political life to the various spheres out of Paris. That there are between the two extremes a multitude of shades, is clear. A part of a certain political system may be autarchic, and another have assumed more of a hamacratic character. It depends upon the mode of operation. One of the most striking proofs of the hamacratic charac- » [This word, so far as I can see, ought to denote colkgiality, or joint rule of several administrative officers. Hamarchy is a compound unknown to the Greeks, wlo form almost no compounds with "|Ua.] 356 THE STATE. ter of the English polity is this, that her gigantic capital, much vaster and richer than Paris, though of a country much smaller and less populous than France, has at no period so entirely absorbed the energy of the country, or so absolutely influenced the distant parts, be it in fashion, social intercourse, language, literature, taste, politics, or whatever else, as Paris has influenced and in fact guided France, even though the idea of fashion is so powerful in England. The word province, in France an expression which savors of disdain, has never acquired this meaning in England. A book is not disregarded in England because published in the " province," as it would be in France. Gaining or losing Paris has been gaining or losing France. It will not be always so in future. CXXXI. The Greeks had no clear perception of hamarchy. Government, with them, strongly inclined towards autarchy, democratic, aristocratic, oligarchic, or monarchic, as we shall see in the next chapter. Yet if we view ancient Greece as a whole, we shall find that, as such, she had a hamacratic char- acter, and many of the unrivalled traits in her glorious civili- zation are owing to this very fact. The Roman polity had more of a hamacratic character, yet only in the city itself, and co^ld never reach a decided character of this sort in the higher political spheres, on account of the whole view the ancients took of the state ; though the Romans left a large sphere of free political action to the cities and provinces. The true germs of hamacratic polity must be sought for in the conquests of the Teutonic races, and the consequent feu- dal system, which indeed fluctuated long between barbarous anarchy or revolting lawlessness, and an auspicious hamarchy. When the cities with their charters, the provinces with their privileges, etc., etc., were added, the idea of independent action became clearer. In England, again, a sufficient union of the estates took place, not to permit anarchy ; yet by happily uniting into two houses, and not one, or not remaining divided into three parts, one of the great foundations of her hama- cratic polity was laid. The counties, etc., retained their pro- AUTARCHY AND HAMARCHY. 357 portionate independence, so the colonies, so almost everything connected with England, and thus she has produced what we may well call the peculiar Anglican hamarchy, which has transplanted political life into many distant regions, and from which the seeds of constitutional liberty have been carried over the continent of Europe. It is mainly the substantial principles of Anglican hamarchy for which continental Europe is now striving and struggling. CHAPTER XIII. Political Spirit of the Ancients. — The Ancients had not what we call Law of Nature. — Essential Difference between the View of the State taken by the Ancients and the Moderns. — Greek Meaning of Liberty: absolute Equality, even disavowing the Inequality of Talent and Virtue. — Protection of the In- dividual, first object of the Moderns; the Existence of the State, of the An- cients : hence high Importance of Judicial Forms with the Moderns. — He who has Supreme Power, be it One, Many, or All, must not sit in Judgment. — Greek Laws often very oppressive to the Individual. — The most private Affairs frequently interfered with. — Socrates' View of the State — Lavalette, Hugo Grotius, and Lord John Russell, on the other hand. — Ostracism. — Causes of the powerful Change in the View of the State. — Christianity. — Conquest of the Roman Empire by Teutonic Tribes. — Feudalism. — Increased Extent of States. — Printing. — Increased Wants of Government. — Taxation. — Rise of the Third Estate. — Increased Industry.— Discoveiy of America. CXXXII. The civilization of the ancient Greeks and Ro- mans was in many respects higher than that of the moderns; in others, the latter would have the advantage in the com- parison ; and among those things in which the most civilized modern nations excel the two gifted and noble ones of antiquity, or perhaps that subject in which we most signally and characteristically surpass them, is public law, or that branch of law which defines the relation of the individual to the state. With the ancients, all that an individual was, he was as a member of the state. The moderns, on the other hand, acknowledge the humanity in the individual, besides his civility or citizenship. We speak of individual, of primordial, rights ; we consider the protection of the individual as one of the chief subjects of the whole science of politics. The TzoXcTur^ ^-iffTTJ/jLTj, ot poHtlcal scicncc, of the ancients, does not occupy itself with the rights of the individual ; the ancient science of politics is what we would term the art of govern- ment, that is, " the art of regulating the state, and the means 358 POLITICS OF THE ANCIENTS. 359 of preserving and directing it."^ The ancients start with the state, and deduce every relation of the individual to it from this first position ; the moderns acknowledge that the state, however important and indispensable to mankind, however natural, and though of absolute necessity, still is but a means to obtain certain objects both for the individual, and society collectively, in which the individual is, by his nature, bound to live. The ancients have not that which the moderns un- derstand by jus naturale, that is, the law which flows from the individual rights of man as man, and decides what the objects are which justice demands for every one and which the state is bound to promote and protect. On what supreme power rests, what the extent and limitation of supreme power ought to be, according to the fundamental idea of the state, — these questions have never occupied the ancient votaries of political science. Aristotle,^ Plato, Cicero, do not begin with this question. Their works are mainly occupied with the discussion of the question, Who shall govern ? The safety of the state is their principal problem ; the safety of the individual is one of our greatest. No ancient, therefore, doubted the extent of supreme power. If the people had it, no one ever hesitated in allowing absolute power over every one and everything. If it passed from the people to a few, or was usurped by one, they con- sidered, in many cases, the acquisition of power unlawful, but » Heeren, Sketch of the Political History of Greece, translated, Oxford, 1834, p. 140. 2 But even here we find that the gigantic mind of Aristotle had a glimmering of the truth far in advance of his times, when in his Politics, iii. 7, and Ethics, viii. 12, he finds the essential difference of states not in the number of rulers, but in the object of government, whether this be the welfare of the whole, in which monarchy, aristocracy, and polity are to be classed, or the interest of a few, in which he classes tyrannis, oligarchy, and democracy. Democracy he distinguishes from polity by this, that in the latter the most numerous class of citizens, the indigent, vote according to their separate interest, while in the abso- lute democracy, as we would call it now, the great number must always outvote the smaller number, and are led by a few. The moderns know a third — the represer tative principle. 360 THE STATE. never doubted its unlimited extent Hence in Greece and Rome the apparently inconsistent, yet in reality perfectly natural, sudden transitions from entirely or partially popular governments to absolute monarchies, while with the modern European states, even in the most absolute monarchy, there exists a certain acknowledgment of a public law, of individual rights, of the idea that the state, after all, is for the protection of the individual, however ill conceived the means to obtain this object may be. The idea that the Roman people gave to themselves, or had a right to give to themselves, their emperors, was never aban- doned entirely, though the soldiery arrogated their election. "We may safely infer from this that the emperors themselves recognized that the Roman people had not deprived them- selves of the right to give themselves their masters." (Bar- beyrac, note on Grot, p. 441.) Or if the reader does not agree with me on this point, which cannot be discussed here, it is manifest, at least that no legitimacy either by descent or divine right, or founded on a constitution, was acknowledged. Yet the moment that the emperor was established, no one doubted his right to absolute supreme power, with whatever violence it was used. CXXXIII. Liberty, with the ancients, consisted materially in the degree of participation in government, " where all are in turn the ruled and the rulers." Liberty, with the moderns, consists less in the forms of authority, which are with them but means to obtain the protection of the individual and the undisturbed action of society in its minor and larger circles. 'EXeu6spia, indeed, signifies, with the Greek political writers, equality, that is, absolute equality, and Icozriq, equality, as well as IXeuOspia, is a term actually used for democracy, (Plato, Gorg., 39.) It is, therefore, perfectly consistent that the an- cients (see Arist, Pol.) aim at perfect liberty in perfect equality, not even allowing for the difference in talent and virtue ; so that they give the TtdXoq, the lot, as the true characteristic of democracy. This is striking, and has a deep meaning. LIBERTY OF THE ANCIENTS. 361 They were naturally and consistently led to the lot ; in seek- ing liberty, that is, the highest enjoyment and manifestation of human reason and will, they were led to their annihilation, to the lot, that is, chance. Many magistrates, the senate of five hundred, and others were chosen at Athens by lot' Hence again the phenomenon, that many ancient philosophers dis- cussing the question of the best government make the state absorb the individual (Plato, in his Republic), and take the Lacedaemonian constitution of Lycurgus as a model. The moderns, on the other hand, unite the two objects of discus- sion, liberty and the safety of the state, and can do so. The great problem with them is, how the utmost possible protec- tion of the individual, as an entire man, can be best united with the demands which society makes as such. The diffi- culty of politics and ruling, therefore, has infinitely increased, and is daily increasing ; because the individual makes greater claims with each advance in civilization. Hermodorus in Ephesus was banished because he was the best. The decree of the people was, r^jxiiov /irjde elc o^rjcffTo^ k'ffroj, it di tj? toiuuto^, aXXrj T£ y.ai /xsr' aXXujv.^ The ancients do not discuss tlie rights of the individual : as opposed to the state, he has none. Hence the immense im- portance which the judiciary has acquired in modern times, » I must refer here to Aristotle's Politics in general. Herodotus, 3, 80, gives the essential character of ancient democracy. It is isonomy and lot. See also Herodotus, 5, 78, where democracy is commended. On isonomy, or equal right to power and liberty of speech free to all, see W. Wachsmuth, Hellenic Archte- ology (in German), vol. i. part ii. page 22; on democracy in general, ibid., p. 18 et se.]. Of great importance is likewise Boeckh, Economy of Athens, translated frcm the German — a standard book. [A few years before Dionysius the Elder became tyrant of Syracuse, the lot came in with the new laws and constitution of Diodes. Diod., viii. 23t 34- Dionysius, according to Plut. Apophth. reg. p. 175 E, drew the lot to address the people, and then was chosen general, which paved the way for his tyranny.] = [This saying — not decree — is recorded in Diog. Laert., ix. 2, and is thus translated by Cicero, Tusc. Disp., v. 36, 105 : "Nemo de nobis unus excellat ; sin quis extiterit, alio loco, et apud alios sit." The philosopher Heraclitus, the friend of this best citizen, said that the grown-up citizens ought all to be killed for banishirvg him.] 362 THE STATE. the certainty of the law as a general rule, and the minute attention paid to the fixed forms of its administration, so that it is considered of the highest consequence that no one shall be judged but by that tribunal before which he be- longs by law, or his natural judges, a principle held so impor- tant that it is inserted in the modern constitutions. The court of cassation (or quashing), the highest court of France, has nothing to do but to try whether in a trial any illegality of judicial form or error of law has taken place; and in the French charter, as amended in 1830, we read, "No one can be deprived of his natural judges." . . . "There cannot, in consequence, be extraordinary committees and tribunals cre- ated, under whatever title or denomination this might be." French Charter, 53, 54.' Indeed, what are all modern constitutions but fundamental laws, by which the supreme power is to be restricted to proper limits, and the individual rights of the citizen to be secured ? The judicial formalities of the Greeks, however, were uncertain. The people stepped in, according to their pleasure, as in monarchical despotisms the despot does. When the Athenians proceeded against the commanders after the battle at Arginusse, the whole legal procedure was changed for this special case. According to the law of Canonus, the case of every commander should have been voted upon separately ; but in this trial the people voted on all commanders jointly. Some citizens remarked this dis- crepancy, but the crowd exclaimed, " It would be monstrous if the people could not do what they like," ^ — precisely what Louis XIV. would have exclaimed, had he chosen to judge a ' The charter of 1814, promulgated by Louis XVIII. when he ascended the throne, read thus : " In consequence, there cannot be created extraordinary com- mittees and tribunals. The jurisdictions prevotales (extraordinary courts with military officers among the judges: see articles Prevot, Cotirs Prevotales, in vol. X. of the Encyclopaedia Americana), if their re-establishment should be found necessary, are not comprised under this denomination." =» Xenophon, Grec. Hist., i. 7, 12. In the speech against Nesera, ascribed to Demosthenes, is a like remark, that the people may decree against the law. ANCIENT AND MOD ERA LIBERTY. t^^t, case in his palace, and the parHament of Paris should have attempted to interfere. It was impossible, according to the course of political civilization, that antiquity should have ele- vated itself to the great idea of an independent judiciary ; nor have the moderns discovered the truth by abstract reasoning or natural law. We have been led to it by the peculiar political development of the European race through the lawless times of feudalism, and the elevated views of the moral character of man, raised by Christianity and the progress of civilization, closely connected with increased population. Having, how- ever, arrived at the idea, we cannot sufficiently value it ; and every flatterer of the crowd, when he wishes to persuade them that the people, being the masters, can do what they like, ought fearfully to pause and well weigh this mighty subject. And after having reached the idea it took a long time to make it a reality by defenses of it against the means which royal power had of controlling the judges. None on earth, neither people nor monarch, neither all, many, few, or one, have a right to do what they like. None, not even unani- mous millions, have a right to do what is unjust. Absolute power is not for frail mortal man : it ruins those subjected to it, and blasts the hand that wields it. CXXXIV. The idea that the state is everything and the individual has its value only inasmuch as he is a member of the state, had of course a very powerful influence upon the security of private property and upon taxation. Everything could be demanded for the state, and special taxation, like that peculiar regulation in Athens, called in Greek ht-oupyia, by which single citizens were burdened with certain services or expenses, were but a natural consequence. It was not re- pulsive to the feeling of justice in an Athenian to see a rich individual charged according to law with the expensive bur- den of defraying all the expenses of the choruses in the dra- matic performances called choregia, or the getting up of a public dinner of a tribe. (Boeckh, iii. 21, vol. i.) We may be somewhat reconciled to these special taxations 364 ^-^^ STATE. when we consider that nearly all festivals and amusements of the Greeks had a religious character ; that, according to their views, the tutelary deity would have been offended at the omission of these festivals, and, consequently, their due cele- bration was of public importance.' Still, the special charges must be explained on the ground I have mentioned. The ancient political philosophers do not omit to treat of education; on the contrary, they pay much attention to it, but never in any other light than that of the use to be derived for the state — its preservation. They know of no other ob- ject of education than the political one, to bring up indi- viduals fit to perpetuate the state ; it is their sole object. The highest object of education with the moderns is, as all sound works of education state, the development of man, the culti- vation of all his powers, and suppression of evil in him, the development of all that in each individual which he was cre- ated capable of being ; in short, the very highest object of education is the fullest and purest possible development of the individuality imprinted by the Maker upon each separate human being ; to bring forth the genuine individual man in his shape and character, removing all foreign, accidental, ob- noxious adhesion, and thus, by raising true men, to raise true citizens for the state and prepare man for his final destiny. There was no subject with which the state could not inter- fere in ancient times ; for the principle was, where the people are the rulers and the ruled, they cannot harm themselves^a principle not so wrong in ancient times as it is, as has been previously shown, in modern. The ancient politician saw chiefly but the state; the people, therefore, necessarily ap- peared to him as one mass. In modern times, when indi- vidual liberty is so important, we care little about the question whether the people can harm themselves, while we know » " We need not therefore be astonished when we hear that a city could be very seriously embarrassed by the want of sufficient means to celebrate its fes- tivals with due solemnity." Heeren, Sketch of Political History of Ancient Greece, p. 172. RESTRAINT IN ANCIENT STA TES. 365 that the majority may harm the minority ; the number, the individual. In Crete all the youths who were annually dismissed out of an Agele (division of youth) were required to be married at the same time (Strabo, x. 4, 20); to remain unmarried was punished in many Greek states. (Pollux, iii. 48 ; viii. 40.) Marriages with women not of sufficient size were punished in Sparta. Thus, king Archidamus is said to have been fined for having taken too small a wife. (Plutarch, in Agesilaus, c. 2.) What subject was not restricted by law in Sparta ? We read that one who preferred a rich to an honest but poor lover, and one who did not love at all, were punished, (^lian, iii.. Van Hist, 10.) A youth in Sparta is said to have been punished for rapaciousness because he bought land for too low a price. (yElian, u. s., xiv. 44.) Common trades were not per- mitted to the Lacedaemonian citizen (Xenophon, Laced. State, vii. 2), which was the case in many other states. A story (Plut., Inst. Lacon., No. 17) makes Terpander in the seventh century B.C. to have had his lyre snatched from* him by an ephorus at Sparta, who cut one of the eight strings off, and long after, another ephorus (about 400 years B.C.) cut off four of the eleven strings from the lyre of the great musician Timotheus, as tending to corrupt music and morals. Pausa- nias saw the lyre hanging in the Skias at Sparta. The same story is told of Phrynis. (See Plut., Agis., loi ; Pausanias, iii. 12, 8 ; with many other instances.') I do not assert that laws equally interfering with private concerns have not been passed in modern times ; we have only to look at some enacted during the French revolution. Catharine of Russia did not hesitate to interfere with private rights. There are certain laws in Prussia and Austria founded entirely on the idea that the state must direct all things, that nothing of importance can take care of itself According to » I refer to F. W. Tittmann, Exhibition of the Political Constitutions of Greece, in German, Leipsic, 1822, especially to the first book. The reader will find there a careful and judicious compilation of the most important passages. 366 THE STATE. the newspapers, a late Prussian decree prohibits the quoting of the price of foreign stocks, to prevent individuals being seduced into ruinous stock-jobbing. But we do not lay it down as a rule that the state is everything, and therefore has a natural right to guide and claim everything; at any rate, this is not done by those modern nations who are politically farthest advanced, and where this interference takes place it is done under the pretence of, or really for the benefit of, the individual. Compare the freest modern states with the freest ancient. It was, therefore, consistent with the ancient views of the state, that Socrates declined availing himself of the oppor- tunity of escape offered by his faithful disciples. He answered, that the state had ordered his death, and, though wrongly, he had no right to withdraw himself from the law. It would be different had he put it on the ground that, in order to prepare his flight, his friends had been obliged to bribe the jailer, and that he would not participate in an act wrong in itself He does not seem to have put it on this ground of ethical deli- cacy, but simply on a politico-ethical ground. According to our views, all mutuality ceases as soon as the law demands my innocent life, which it is one of its main objects to protect. I cannot be held voluntarily to obey that law which seeks my innocent life and ceases to perform the first of all objects of the state, without which the others cannot be imagined. A martyr may prefer to die, in order to awaken a slumbering people, or for some extra-political reason; but no one will pretend to say that a Socrates, in our times, would do wrong to escape. On the contrary, without any other consideration, he would do wrong, in my opinion, not to escape, however deeply touching to every true heart the calm refusal of the spotless and noble Socrates must ever be. Can General Lavalette, according to the strictest code of morals, be reproached for having accepted his deliverance at the hands of his devoted, intrepid, and ingenious wife ? (See his Memoirs.) Did Hugo Grotius fail in the strictest duty of a citizen because he allowed himself to be carried in an old SLA VISHNESS NOT LOYAL TV. 367 box, by his wife and maid-servant, out of the prison where Maurice unjustly kept him ? For whatever reasons Lord Wil- h"am Russell declined to exchange clothes with Lord Caven- dish and to flee from prison, does not every one see at once how entirely out of place, with him, a tender regard to supple or perjured menials, and a king without faith or honor, would have been ? Or, when Catholics and Protestants burnt one another, should not an imprisoned man, destined for the rack and the stake, have seized upon an opportunity of escape? Declining it merely on the ground of its unlawfulness would cither be absurd, or a seeking of martyrdom very doubtful in its moral character;^ for the destined victim himself ought to prevent, as much as in him lies, the committing of such crimes in others, because the more crimes of the sort have been com- mitted^ the more difficult it becomes to return to a state of peace. There are many cases, even in common, even domes- tic life, in which there is greater love shown in avoiding than even in meekly suffering, which not unfrequently is allied with lurking vanity. Suppose false witnesses have brought a sentence of death upon me ; ought I not, in mercy to my judges, to escape if I can ? Would they not thank me for it, if, at a later period, I could prove my innocence ? And what else is persecuting fanaticism but a false witness ? Let me not be misunderstood. I am not obliged at all events to escape. If death is offered me thus, I may say, " So be it; I am ready to seal my cause with my blood." I simply speak of the jural point in the matter, and I would add that abject slavishness is a hideous counterfeit of manly loyalty. When Stubbe, a Puritan law- yer, for having written a pamphlet against the intended mar- riage of Queen Elizabeth, had his right hand cut off, he waved his hat with his left, and exclaimed, " Long live the queen Elizabeth !" and with it wrote, afterwards, against the Catho- lics for Lord Burleigh. He was either a man of most un- common elevation of mind, or the very meanest of slaves. [' Comp. Matt. x. 23.] 368 THE STATE. CXXXV. Connected with the ancient view of the state and of liberty were 'the institutions of ostracism at Athens, Argos, Megara, and Miletus, and of petalism at Syracuse. It has been seen that liberty and equality, equality and equal participation in government, were, with the ancients, but dif- ferent terms for nearly or entirely the same things. They soon felt that not only ambition and actual political power were dangerous to this equality, which, according to them, was the essence of liberty, but also distinction on other ac- counts, for instance, suavity, virtue, services performed for the state. Have we not instances in modern times of men be- coming highly dangerous on account of their popularity, however well deserving they may have been originally? Yet, with our representative system and more extensive states, the danger is not quite so great, though great it always will re- main in republics. " It was not considered unjust to take from any one, by a temporary banishment from the city, if it was feared that he might become dangerous to this freedom, the power of doing injury." (Heeren, Pol. Hist, of Greece, p. 155.) Niebuhr, in his History of Rome, vol. ii. p. 454, Amer. edit., speaking of Manlius, says, " Thus, whether guilty or innocent, he became an extremely dangerous person, through a misfortune for which there was no cure; and matters could not fail to grow worse and worse. This knot might have been solved by ostracism." Ostracism was materially a political, and not a judicial, in- stitution. The exostracized citizen was not punished, his for- tune not confiscated, as was the effect of actual sentences of banishment for crimes ; no dishonor was attached to it. On the contrary, when it became dishonorable, because a despi- cable man of the name of Hyperbolus had been banished by this process, the institution fell into disrepute and was con- sidered as disgraced. Bani.shment by ostracism was no sen- tence, because there was no accusation ; and, what is more remarkable, at stated periods, it is said at the sixth prytany of the year, the people were called to vote whether there was occasion to resort to ostracism. (Comp. K. F. Hermann, Gr. PUNISHMENTS OF THE GREEKS. 369 Staatsalterth., § 130.) There was no necessary ill feeling to- wards the banished, connected with ostracism. " Nothing," says Heeren (ut supra, p. 155), " can be more jealous than the love of liberty ; and, unfortunately for mankind, experience shows too clearly that it has reason to be so." ' The excessive punishments of the Greeks ought likewise to be mentioned here. It is a principle in modern political law that each punishment ought to have its justification in its proportion to the offence. The absolute despot sees nothing in the crime so punishable as the offence, or the daring against his law. So did the Greeks know little of any gradation of punishment to be applied to an offender against the state. Their fines were excessive : confiscation of all property was frequent, and in many cases connected with death, (Boeckh, Economy of Athens, Book iii. 14, and iii, 12.) He who should propose to execute the claims upon Salamis against Megara, at the time of Solon (Plutarch, in Solon, c. 8 ; Justin, ii. 7, and others), or should use the money destined for the poor with regard to the theatre {0ewpua) for any other purpose (Libanius, arg. to Demosthenes, Olynth. i.), or who should accept of a public office while he owed money to the people (Demosth. adv. Leptines, § 156; adv. Midias, § 182), or, if an archon, was intoxicated (according to the laws of Solon, in Diog. Laert., i. 57) — for all these offences, and many more, the punishment was death. Draco punished even indolence with death. I am not" disposed to ascribe this severity simply to the fact that democracy was absolute according to the ancients; for all early punishments are severe, because imprisonment is little known, and it lasts a long time before men find out that the severity of punishment does not constitute its efficaciousness. Still, no one will deny that these excessive punishments show likewise the absence of a proper acknowledgment of rights in the individual. CXXXVI. So powerful and thorough, so overwhelming and essential a change in some of the most elementary views « Tittmann, ut supra, p. 341, et seq., gives a proper representation of this pecu- liar institution. 24 370 THE STATE. of the civilized nations has been produced by various causes of vast extent, of which I shall be able to touch briefly on a few only. Among the most active causes which wrought this great change in European civilization, I conceive to be these : Christianity. The conquest of the Roman empire by fresh tribes, which came from the north, and, being rude, with a keen feeling of individual independence and endowed with high capabilities, caused the system of feudalism to spring up. The increased extent of states and denseness of population, not only of cities, but of the countries at large. Printing. The increased wants of governments, the consequent in- creased value of money for them, the consequent increased importance of the tax-payer, the consequent increased im- portance of industry. Union of science and industry. Discovery of America. CXXXVII. I. Christianity. It may sound surprising that that religion, the founder of which did not only declare that his kingdom was not of this world, but who, it seems, care- fully avoided any discussion which might lead to political subjects,' should nevertheless have had so powerful an effect » Christ answered the Pharisees, who had asked, " Is it lawful to give tribute unto Cresar, or not ?" perceiving "their wickedness," in seeking to involve him in political discussions on so delicate a subject in the then state of Palestine, " Show me the tribute-money," and when the Pharisees said, being asked by him, that the image and superscription were Csesar's, he replied, " Render there- fore unto Csesar the things which are Csesar's, and unto God the things that are God's." (Matthew xxii. 18-21.) It seems to me evident that Christ cannot have meant to give in this case a rule in politics ; for the image on the coin cannot be brought into any connection with the question whether it be lawful to CHRISTIANITY. 37 1 on politics as I ascribe to it. It is, however, the very action of Christ's declaration that his kingdom is not of this world, upon so peculiar a state of things as that which existed when his religion began to be preached over Europe, that produced this political change. Around the Mediterranean we find in antiquity numberless small states, which have each a peculiar character, not only in a political point of view, but also in regard to religion. " The ideas of God and divine things had, we might say, local- ized themselves." ^ The religions of all these separate states or autonomies are intimately interwoven with their political law. Relationship of tribes formed the only and yet a loose tie between some of them. Rome rose, and steadily con- quered state after state. Their political law was concentrated in Rome, and the various religions necessarily followed thither. But what were these religions when rent from their native soil ? The worship of Isis had a meaning in Egypt ; powers of nature, as they manifested themselves in that coun- try, were revered and worshipped in her ; in Rome it became an idolatry without any other sense than that it was a sign and evidence of the victorious eagle of the city. All the vari- ous mythologies brought together into one place could not pay taxes, except in this way, that the image proves that the person represented has the supreme power, and that therefore it will be wise to pay taxes, unless there is sufficient hope for successful resistance. Otherwise Christ would at once have established by his answer that all conquest is right, all resistance of a noble people to a conqueror wrong; for surely there was no other connection between the Roman Caesar and Palestine than that of mere conquest. The Roman gov- ernment disagreed with the theocratic fundamental law of Moses. The Jews, under Titus, showed that they had not calculated their resources, by which they brought infinite misery upon themselves; yet no one will be bold enough to say that, waiving the question of expediency, of sufficiency of means, the Jews had no right to attempt throwing off the Roman yoke. ' Book I of vol. ii. of Ranke's Princes and People of Southern Europe in the Sixteenth and Seventeenth Centuries, chiefly from unprinted Reports of Legations, Berlin, 1834. This second and a third volume have also the separate title, " The Roman Popes, their Church and State in the Sixteenth and Seventeenth Centu- ries." The French translation has the title " La Papaut^." Neander, History of the Christian Church, Amer. trans, by Torrey. 372 THE STATE. but contend with and neutralize one another. Rome destroyed the various nationah'ties, and men began to suspect a commu- nion with each other, that there is something in all men which might be a bond, beyond the mere relation of the citi- zen to his state. It was the first dawn of a most glorious truth. At this moment appeared Jesus ; a religion was preached which gave to monotheism, until then a national worship of the Hebrews, a cosmopolitic character. All men can become Christians, all are called upon to become such. The founder of the Christian faith had abstained not only from touching upon politics in general, but from any question which does not directly belong to religion and morality or is not most closely connected with either. Neither science, nor industry, nor law, whether civil or penal, nor the principles which govern the physical well-being of nations, the exchange of their labor, in a word, what we treat of in political economy, nor nature, lit- erature, poetry, nor metaphysics proper, except in as far as it is connected with questions of religion, for instance the im- mortality of the soul, are ever touched by him. Not even the soothing and elevating admiration of God's creation is made a subject of his instruction, perhaps as too much de- pending upon climate, national development, and degree of civilization. Nothing in what he has taught or ordained can be an obstacle in the way of his religion being received at once by all nations and all classes of society ; the lowliest slave may embrace it as well as the mightiest magistrate. And what does this religion teach ? Aniong other things, that a benignant deity, ready to forgive the sincere penitent, is not to be propitiated by any outward or inward things, except by purity of soul, and that there is a life beyond this present one, an infinite life beyond this finite one, the peculiar character of which will greatly depend upon the purity or impurity of the life this side the grave ; and not upon birth, not upon fortune, not upon caste or color. A spiritual God, not attached to any nationality, is preached to all men, whatever language they may speak, whatever country they inhabit — a father to all men. The moral value of the individual became thus immeasur- CHRISTIANITY. 3-, ably raised. Every one is declared to have a moral being of his own, with high responsibilities, to answer for hereafter; no one will find favor before the high judge on the ground that he was born in a certain country or descended of a cer- tain class. A God has been proclaimed to be the God of all men, high or low, distant or near ; a God before whom all are equal. The state could no longer remain all and everything; a territory had been discovered beyond the state; man is something, and something important, besides his being a citi- zen ; he is a man for himself, a moral agent, called upon by the Almighty himself, not any longer imagined as having any national attribute, to fulfil his duties and to receive his reward according to his deeds. The farther this religion extends, the more its preachers insist that no language, no political limits are boundaries for Christians, as members of their one great church. Tertullian says, "At enim nobis ab omni glorise et dignitatis ardore frigentibus nulla est necessitas coetus, nee ulla magis res aliena, quam publica. Unam omnium rempub- licam agnoscimus, mundum." (Apol., cap. xxxviii.) "No- thing is farther from us than the state. We acknowledge but one state — the world." The power of all states had concentrated in Rome ; the many national religions had neutralized each other. There was but one power which seemed real and independent — the emperor. Temples were erected in honor of him ; sacrifices were brought to him ; oaths were taken by his name ; his statues offered an asylum. The worship of the emperor was often the most zealous and fervent. (Tertull., Apol., cap. xxviii.) Here then was no national or state religion, but power and religion were actually one. It is a transitory state of things which fills with the deepest awe. In sacrificing to the imperator, man lowered himself to the deepest slavery. The national religious fervor was extinguished, the inspiring poetry of religion was destroyed; it was deification of power, indeed ; the apotheosis of might. But now Christianity rose j it called upon men as moral beings, to the lowest of whom its founder lowered himself; it appeared "like a morning of a 374 THE STATE. new day." The apsis of the basilica contained an Augusteum ; the statues of the Csesars were divinely worshipped ; but now they were exchanged for pictures of Christ and his apostles.^ It is not my task to depict here how that religion, which had fled to the catacombs, stepped finally forth victorious into the open day, until we see the monogram of Christ in the labarum of Constantine. Wherever it spread, and however soon the peaceful message of Christ was turned into a blood-stained law of persecution, yet the individual moral value of man was acknowledged, and something beyond the state, higher than its supreme power, was preached, so that the state became the means to obtain something still higher. What a difference, when we find the greatest philosopher of antiquity proving, as he thinks he does, that the barbarians (foreigners) are made to obey, to be the slaves of, the gifted Greek race, and, on the other hand, Pope Gregory the Great, in the sixth century, re- ferring to the natural law of original liberty, ordering the manumission of bondsmen, and a priest recommending to Louis the Pious the giving of alms and manumission of bondsmen as works of equal merit.^ CXXXVIII. 2. Conquest of the Roman empire. When Chris- tianity had begun somewhat to reform the old or Latin world, if not to any great extent the deep degeneracy of morals, yet the views of man, it soon extended to those tribes who were destined to uproot decaying Rome. They came fresh from the north, with the ardor of youthful tribes, a fulness of glow- ing souls, with no settled civilization among them, hence free and ready to embrace Christianity with the energy of young nations and a religious fervor peculiar to the northern tribes. They were of Teutonic origin, and had that national single- ness of heart by which most Teutonic tribes have ever dis- tin^^uished themselves from the Latin population of Europe, ' E. Q. Visconti, Museo Pio-Clementino VII., p. loo, edii. of 1807. I take this quotation from Mr. Ranke's work mentioned above in note I, p. 371. (His- tory of the Popes, i. 28, Amer, edit.) • Sraaragdi Abbatis Epist. ad Ludov. Plum apud d'Achery, Spicileg., t. v. p. 51. ENLARGEMENT OF STATES. 375 however rude we know them to have been at their first appearance, when yet in a state of great barbarity. The northern nations are less excitable than the southern race, hence they cannot so easily be moved in masses. With the Greeks, so excitable by nature, everything became an im- petus to the mass ; the northern man, calmer, more phleg- matic, duller, weighs things more individually, learns to con- sider the state in relation to himself, and is led more easily to reflect on individual interests — on rights. The conquest and consequent distribution of the Roman provinces among the conquerors produced feudalism, out of which lawlessness, but also the insisting upon individual independence, and, later, in- dividual right, the feeling of individual honor and importance, grew up, a direction of the mind which was by no means changed when the cities and other communities entered into that chequered and curious system. CXXXIX. 3. Ejilargcment of states ; densencss of popidation. It has been stated already that the politics of the ancients were essentially city politics. As the word is derived from TzoXiq, so actually did city and state mean with them the same, (Respecting the meaning of r.uhq, and the difference between it and I0\>oq, state and nation, see Aristot., Polit., p. 235, ed. Casaub. See likewise this work, book ii. sect, xxix.) The same is true in regard to civitas. They did not know other states of freemen. Persia was nothing but a number of countries con- quered and held together by the victorious tribe of the Per- sians. They formed a ruling nobility. Where, however, the people can conveniently meet, where the ruling community can assemble at any moment, it is much more natural that the majority should enjoy unlimited power, than in states where the people cannot be seen at once, where questions must be treated more abstractedly, and where representing agents, speaking for large numbers, must be heard. Besides, no proper debating is possible where the people themselves meet ; the questions must be prepared beforehand by some authority, so that the vote can be ay or no. It was so in a 3/6 THE STATE. considerable degree in Greece; it is so in the democratic can- tons of Switzerland, for instance, Uri, Glarus, Schwyz.^ Yet debating, however abused by many, is one of the chief means to obtain an acknowledgment of individual rights, and to pre- vent measures injurious to them. Such measures have ever been passed in haste by the suspension of rules, if they have been passed in deliberative assemblies. So long as all citizens knew each other personally, the ab- stract development of the just, separate from the good, was as difficult as in the family. Increased population has likewise contributed much, both by the necessity of imagining the people in the abstract, and by bringing individuals, personally unknown to one another, into contact. Increased population alone had a most decided effect upon the administration of justice; for it necessarily developed the institution of the advocate, without which jus- tice has flourished nowhere. See Feuerbach's interesting remarks on the subject in his Considerations on Public and Oral Administration of Justice, Giessen, 1821. The advocate has to defend the rights of the citizen in the abstract, and to defend them to the utmost — a remark which in part applies to representatives. Representatives are much more apt to insist upon the rights of their constituents than they them- selves in many cases would be. Who will tell a citizen in the market, voting on a law for himself, not to give up a right if he chooses ? I am well aware that the members of many estates in the middle ages were less jealous of their rights — except as far as pecuniary interests were involved — than the Greeks in the agora ; but were they representatives ? Had they to give an account ? The more the member of the estate assumed the character of a representative, the more he was obliged to defend the rights of his constituents. ' The description of a Landtag, or annual general meeting of the people, in one of these cantons, is very curious and instructive for the politician. The great deficiencies of direct democracy, unmediated by representation, are mani- fest. Personality must prevail; it cannot be helped, according to human nature. The state, the citizen's rights, etc., are never taken, in the abstract, on their own absolute ground. INDUSTRIAL CLASS. 377 CXL. 4. Printing. The art of printing, in becoming the great moving agent of European mankind, an agent which increased action in intensity and extent, naturally propelled men also in the sphere of the presentation and acknowledg- ment of individual rights. Printing is light : on whatever subject it falls it shows it clearer. 5. Increased importance of money, industry ; increased con- sideration of the industrial class. Ancient governments had originally no pecuniary wants. The army consisted of citi- zens, unpaid for the service; the vessels were fitted out by way of special taxation, as before mentioned, under the name of htroupyia. (See Heeren's work, quoted several times.) Rome was a conquering state, and obtained her treasures from subjected provinces. In the times of feudalism, govern- ments wanted likewise comparatively but little money. Few concerted national actions of a peaceful character took place, the feudal monarch supported himself by the income of his lands, and for war every vassal armed himself and his men. In more modern times, however, when governments had become cabinet governments, the expenses of cabinet armies, cabinet wars, and a thousand other undertakings, caused great expenses, far exceeding the revenues derived from crown domains. Whence can the money come ? Conquest cannot last forever. Labor is the only permanent source of money; it must come, therefore, out of the pockets of the people, who consequently attracted more attention. Nobility and clergy, paying no taxes, or very limited ones, were of no use as to furnishing money. The industrial classes rose in importance, their situation and rights began to be discussed ; bondage was more and more contracted and removed, free industry became to be considered as the true source of public wealth, and the industrial class, formerly consisting of slaves or serfs, was acknowledged as honorable. In the early times of Thebes, no one was admitted to a share in government who had carried on any trade for the last ten years (Arist, Pol., iii. 5) ; in our times, polytechnic 378 THE STATE. schools are established in many countries^ which give a thor- ough and enlarged education and corresponding standing in society, to the industrial class. By the continued pecuniary wants of governments, those who have to pay the' money have obtained, as has been shown, a most peculiar, salutary, and continued control over government in those states in which the primitive and ancient principle, that he who has to pay money must be asked for it, and therefore may refuse it — common throughout in the mid- dle ages — has been retained or re-established. Even in states where this has not taken place, the governments are obliged to treat the people with far different regard from what they would do did they not stand in need of money. The want of money and the alienation of crown domains have given the commons an effectual check upon government, for which we cannot imagine any other possible political contrivance equally efficient, safe, and easy in operation. The history of the industrial class from the times when slaves only carried on the different trades, to the period when, though practised by free men, they nevertheless were de- grading in a degree, and again to our own times, when their alliance with the sciences becomes daily closer and closer — a part of history in which that of the rise and importance of cities largely enters — is of the highest interest in the history of civilization in general. The large body of the people have entirely changed their position, and their rights are acknowledged accordingly. As late as at the French diet of 1614, the speaker of the third estate was obliged to address the king on his knees, while those of the clergy and nobility addressed him standing. When president De Mesnes, deputy of the third estate, ven- tured to say that "France is the common mother of all, and has nursed all at the same breasts," and that the third estate are the younger brothers, and that if treated as part of the » I have enlarged upon this subject in my " Constitution and Plan of Educa- tion for Girard College for Orphans," printed by OrSer of the Board of Trustees, Philadelphia, 1834. DISCOVERY OF AMERICA. 370 same family they would honor and love the others, he gave great offence to the nobility, and their president complained on the spot that " the third estate intended to establish frater- nity with them, as if they were of the same blood and equal virtue." Now the king of the French is called the king of the large class of citizens (commons) by way of excellence, and Mr. Dupin, the procurator-general of the court of cassation, and president of the chamber of deputies (speaker of the com- mons), in his late famous argument on duelling in that court, said, "As to the villanous serfs from whom we of the present day have the honor of descending," etc. (French papers of June, 1838.) Science is daily adding to the importance of all industrial activity and giving rapid increase to the vivid intercommuni- cation of near and distant communities, and with it elevating the great body of the people. Events such as the arrival of the first steam-packet of a regular line, in the month of April, 1838, at New York from England, reducing time and space, are exponents of most powerful changes. More, infinitely more, can be done in the same time, with the same capital ; while the rapid exchange of knowledge increases greatly the intensity of action. CXLI. ^. Discovery of America. Of the many consequences of the discovery of America, deeply affecting the whole of modern European history, I will mention here only the expan- sion of commerce and its increased importance — another branch of industry, with the growth of moneyed capitals and their increased importance ; while until then wealth had con- sisted almost solely in real estate, and the land was owned by the nobility or the church. Nobility depended upon birth, but money could be acquired by every one. Money must be acknowledged in history as a very powerful popular agent. END OF PART FIRST. PART II. POLITICAL ETHICS PROPER. 381 BOOK III. POLITICAL ETHICS PROPER. CHAPTER I. Reciprocal Relation of Right and Obligation. — The more Liberty, the more Rights, hence the more Obligations. — Danger of Absolutism in Republics, without due Attention to Political Ethics. — Additional Reason of their Im- portance derived from our Race. — Another Reason, from the Period in which we live and the Direction which the Study of Political Sciences of late has taken. — Private Morality necessary for Public Success, especially in Free States, yet not sufficient. — Justice and Fortitude or Perseverance chief Virtues in Political Life. — Justice the Basis of the other Virtues. — Reputation for Character of Individuals and States chiefly founded upon it. — Power and Passion equally apt to blind against Justice. — Justice affords Power. — Coteries are unjust because they see distortedly. — May we do what the Law either positively, or by not prohibiting, permits ? I. It has been my endeavor to show, in the first part of this work, the original connection between right and morahty, inasmuch as right is a relation necessarily proceeding from the moral character of men, and which can possibly exist only between moral beings. This connection, however, ex- tends farther: it is a lasting one. Where men, of whatsoever condition — rulers or ruled, those that toil or those that enjoy, individually, by entire classes, or as nations — claim, maintain, or establish rights, without acknowledging corresponding and parallel obligations, there is oppression, lawlessness, and dis- order; and the very ground on which the idea of all right must forever rest — the ground of mutuality or reciprocity, whether considered in the light of ethics or of natural law — must sink from under it. It is natural, therefore, that wherever there exists a greater knowledge of right, or a more intense attention to it, than to concurrent and proportionate obliga- 383 384 POLITICAL ETHICS. tion, evil ensues. What may thus be found a priori is pointed out by history as one of its gravest and greatest morals. The very condition of right is obligation ; the only reasonableness of obligations consists in rights. Since, therefore, a greater degree of civil liberty implies the enjoyment of more extended acknowledged rights, man's obligations increase with man's liberty. Let us, then, call that freedom of action which is determined and limited by the acknowledgment of obligation. Liberty ; freedom of action without limitation by obligation, Licentiousness. The greater the liberty, the more the duty. For, the less bound or circumscribed we are in our actions from without, the more indispensable it becomes that we bind ourselves from within, that is, by reason and conscience. This is the fundamental law of all political ethics, applicable to all periods and all political relations. Yet there are weighty reasons, which demand of us, in par- ticular, that we should earnestly and conscientiously consider this fundamental law in its many applications and binding consequences.' IL Towards the end of the preceding book, the different character and yet equally injurious effect of monarchical and democratic absolutism have been spoken of; for our present purpose it is necessary to say a few more words on this subject. Monarchical absolutism, it was shown, is not real, in so far as the monarch, individually, can have no power; it must be lent him, he must be supported; and, again, it is substantial, in so far as individual responsibility goes. In his name the acts are done; of him the people, once risen, demand justice, and to him the wrongs of his menials are ultimately laid. However great his power, however many thousands he may find ready to do as he bids, still, what is done is at his peril. There is a visible despot, and therefore a visible malefactor when the ' Reciprocity, as a necessary characteristic of right, and absolutism (which at once ensues where this reciprocity is denied), as well as the inalienable moral character of man, and the primary foundation which this character forms for all jural relations, have been, the author hopes, sufficiently treated of in the first part. POLITICAL ETHICS. 385 time of reckoning comes ; while the consciousness that he must lend his name to all acts, and that " the water, when calm, supports the boat, but, if roused, will overwhelm it,"' may keep even the Chinese emperor from too oppressive measures.^ Democratic absolutism, on the other hand, is real, inasmuch as it demands no support; it is an over-flood- ing power itself; and it is not substantial in so far as it is nowhere visibly embodied ; it acts, it strikes, with fear- ful certainty ; but the moment after, where can the author of the deed be grasped? Responsibility vanishes ; the injured party cannot seize it, and the absolute actors neither fear the rising of those over whom they sway, nor do they themselves feel so distinctly their responsibility, because it appears di- vided. Their conscience feels appeased ; although, as we have seen, there is, in fact, no divisibility of anything which belongs to morals.^ But liberty, or untrammelled action, with- » A Chinese empeior — so say the ancient books of the Chinese — said to his heir, " You see that the boat in which we sit is supported by the water, which at the same time is able, if roused, to overwhelm it: remember that the water represents the people, and the emperor only the boat." T. F. Davis, The Chinese, vol. i. p. 212. « The same author makes the following remark (vol. ii. p. 428) : " The emperor — the theoretical father of his people— does not find it so easy openly to impose new taxes as his necessities may require them ; and his power, though absolute in name, is limited in reality by the endurance of the people, and by the laws of necessity." See likewise Book ii. chap. 6, \ 65 et seq. 3 Many years ago, on my way through Geneva, I became acquainted with a member of the former French Constituent Assembly, who had always acted with Robespierre, so long as the latter was at the head of his party. The manner in which this exile spoke of the " poor Robespierre," " the virtuous man to whom sufficient time had not been allowed to develop his plans," greatly attracted my interest. For the first time in my life I saw, face to face, one who had acted in those scenes, to me already seeming like a distant and fearful history. I could not help putting a number of questions as to the massacres and those enormous sacrifices of life, when he spoke of liberty. When I suggested that surely for the priests who were slaughtered there was no liberty, he answered that it was believed they conspired with the foreign armies. When I repeatedly urged the question whether they really did conspire, whether there was any proof, he would only shrug his shoulders and say, "On le croyait, mon cher." This On made a very deep impression upon me, which time has not eftaced ; and has repeatedly recurred to my mind in meditating upon politics and history. 25 386 POLITICAL ETHICS. out conscientiousness of action, which we have called licen- tiousness — rights, I repeat, without acknowledged obligations — necessarily lead to absolutism, first to democratic, and, through it, generally to monarchic. A sincere reverence, therefore, for liberty demands imperatively that we should well know our political obligations, both that liberty may not degenerate into absolutism, and that, on the other hand, we should feel our duty in prizing, cherishing, and supporting, keeping, watching, and jealously defending this last and highest of earthly goods, lest the forms of freedom with the spirit of bondsmen become only the fitter means of thraldom. For a government which rules with the traditional forms of past liberty over a servile people shifts its responsibility of all odious acts upon the people themselves. " Parliaments with- out parliamentary power are but a fair and plausible way into bondage," was the ruling maxim of Pym. And this " parlia- mentary power," of course, presupposes parliamentary spirit, that is, true love and esteem of liberty. Tyranny and mere tranquillity are things for which men may be trained, into which they maybe forced. There is no more quiet and peace- able people on earth than the Chinese. But liberty is too noble in its nature to be forced ; to support, enjoy, and per- petuate it, man must cultivate his best and noblest parts.' An ' Quiet has frequently been mistaken for civilization. The Chinese have a saying, " Better a dog in peace than a man in anarchy." Mr. Laplace, a French circumnavigator, says, " I repeat that the Chinese are very much our superiors in true civilization — in that w^hich frees the majority of men from the brutality and ignorance which, among many European nations, place the lowest classes of society on a level with the most savage beasts," and Mr. Davis, tit supra, vol. ii. p. 29, adds, " Monsieur Laplace is quite right : the lower classes of the Chinese people are better educated, or at least better trained, than in most countries." I fear that the words " or at least better trained" contain the essence of the remarks of both these gentlemen. If we peruse the Chinese novels which have been given to the Western public and are represented by the best Chinese scholars, among others by Mr. Davis himself, as faithful pictures of their life, and which, indeed, bear great internal evidence of truth, we shall not feel tempted to desire to exchange our civilization for theirs, however willingly we may acknowledge all those points in which they are really our superiors. Rather all the disturbance of the West, so that it be a fermentation which promises a better, purer state, than Chinese peace and stagnation. POLITICAL ETHICS. 387 active and preventive police may do much towards making fit subjects ; but the essentials of a freeman are within ; they cannot be forced upon him from without; they must grow out of his moral nature. They require character, love of justice, love of truth, self-respect, devotion to our neighbors, esteem of our kind, and ardor of cultivation. III. As men, therefore, and especially as freemen, we are bound to acquaint ourselves thoroughly with our ethic rela- tions in politics. We shall find that we are not the less so if we contemplate to what race we belong and in what period we live. From the vast continent of Asia it appears that all civiliza- tion originally flowed, and to it we are invariably led, as to the fountain-head of history. It is there that all those reli- gions originated which count the largest number of votaries;' there that the ancient Sanscrit was spoken, the grandest idiom uttered by human tongue, and the earliest sister of so many Western languages ; = there that traffic commenced, and larger empires first were founded; and thence that we received most of the first inventions in all the simpler and therefore most important mechanical arts. But the Europeans and their descendants in other parts of the globe have perfected and developed all these. Christianity rose in Asia, indeed, but what effect has it exercised on the Asiatic nations? In Europe it penetrated to the inmost elements of society. Empires were first formed in the East, governments were first » Buddhism, Brahminism, the doctrine of Confucius, and that of Zoroaster, to- gether with the tliree monotheistic religions, Judaism, Christianity, and Moham- medanism, are all of Asiatic origin. ^ Ccmp. Franz Bopp, Comparative Grammar of Sanscrit, Zend, Greek, Latin, Lithuanian, Ancient Sclavonic, Gothic, and German, Berlin, 1st ed., 1S33-1852 (in German); T. C. Prichard, Eastern Origin of the Celtic Nations proved by a Comparison of their Dialects with the Sanskrit, Greek, Latin, and Teutonic Languages, London, 1831 ; and Etymological Enquiries in the Province of the Indo-Germanic Languages, with particular reference to the Mutation of Sound in the Sanscrit, GreeV, Latin, Lithuanian, and Gothic (in German), by F. A. Pott, Professor in the University at Halle, Lemgo, 2d ed., 1859 and onw. 388 POLITICAL ETHICS. there established on a larger scale, but, with few exceptions, those tribes over which they hold sway live on from thou- sands to thousands of years in the torpor or the anarchy of des- potism. The arts and commerce started into existence in- deed, but they have been slowly perfected, in the East ; many branches of industry are in the same condition in which they were a thousand years ago. There indeed many languages of surprising perfection and wonderful depth of thought were developed, when Europe spoke yet the uncouth accents of barbarism ; and yet, great and noble as many of the Eastern works are, Oriental literature is very confined if compared with the vast and multifarious treasures of the West. Devas- tating conquerors have appeared one after the other in the extensive regions of that continent, but they appear low, with hardly any exception, if compared with the powerful genius and mental greatness of European generals, from some of the first Greek commanders to the Napoleons and Wellingtons of our own times. Architecture and sculpture originated in the East, and gratefully we ought to acknowledge it, yet Europe perfected, purified, and refined also here. Compare the Hin- doo idol or Egyptian statue with the works of Phidias or Thor- waldsen, the mighty piles of Asiatic temples with Grecian or Gothic architecture, in taste and the expression of thought.' * Some readers may not be willing to allow the justice of my remark if applied to Gothic architecture and that of Egypt, the whole civilization of which forms a connecting link between Asia and Europe, and may undoubtedly be included, in several points of view, in Asiatic civilization. The many and magnificent recent works on Egypt have revealed to us, among other treasures, a grand, thoughtful, and beautiful architecture. Which of the two might be considered as bearing witness to a more developed state of the art, as closely connected with the inner man, is not to be decided in this place. In favor of whichever side the decision would be, it does not change our position. It is perhaps one of the most striking proofs of the refined intellect of the Greeks, and one closely con- nected with their national being, that they were the first who elevated themselves so high as to separate the ideas of perfection and purity of taste from those of mighty masses. A single column of Grecian taste is still a whole, a separate work of art in itself, independent and relying on its own harmony and correct- ness. As to Chinese art, striking and not without taste in many instances, it nevertheless appears to me, if I may express it thus, as refined and tasteful child- POLITICAL ETHICS. 389 Three times did Asia send her swarming hordes to conquer the West, but the Persians, Mongols, and Arabians were re- pelled, although in the first case but a small country had to fight against the armies of a gigantic empire, and in the latter two the invading hosts were flushed with recent victories, while Europe was prostrated by disorganizing eruptions. Whatever view of the superiority of European civilization we may take, and however ready we may be to acknowledge those imperfections and vices which unfortunately belong more peculiarly to our own race, that is, the white Cau- casian race as developed in Europe and the Western hemi- sphere, it cannot be in fairness denied that mental action, both in variety and intensity, is infinitely greater in the pro- gressing European race than in any other on the globe, and that among those things which most characterize our race, political superiority stands among the first. Political power, political organism, state, right, law, are terms which have received an import, and the subjects which they designate have received a development, in this pre-eminent race, far greater in extent and superior in kind to that which any Asiatic, African, or aboriginal American tribe has given them. Heeren, who has shown, probably more clearly than any one before him, how much we owe to the early East, in commerce and so many other branches of civilization, dwells on this European superiority,' and ascribes it in a great measure to the institution of monogamy, peculiarly European, and to political wisdom. But what is this wisdom ? Certainly not shrewdness, cunning, mere prudence and sagacity ; for Asia has produced innumerable characters who excelled in these ishness. Everything which excites the admiration of the child — contrast (in form and color and conception), peculiarity (and monstrosity), and gaudincss — seems to form the foundation of Chinese art and taste. How totally different is the spiritualized art of the Greeks, which delights the more the more refined the mind is, and is the chaster and the nobler the more purely it follows out its own principles ! ' Comp. his Historical Researches into the Politics, Intercourse, and Trade of the Principal Nations of Antiquity, translation, Oxford, 1833, 3 vols.; and Intro- duction to his Sketch of the Political History of Greece, translation, Oxford, 1834. 390 POLITICAL ETHICS. qualities. Indeed, if we peruse the many Asiatic works with which British literature has teemqd for the last twenty years, we are struck with the fact that nearly all those men who most distinguished themselves in Asia by powerful actions were consummate masters of craft and cunning, while every one who has visited those parts of the East where large numbers of Europeans have become known is aware that the natives speak of the greater love of truth and mutual depend- ence of the Western people as a matter of course. The true cause seems to be that Europe first broke the un- happy chains with which the patriarchal principle, if applied to larger communities, that is, if family relations are made the fundamental principle of the state, fetters the people in stationary despotism, — a species of government to which, it seems to me, polygamy must almost irresistibly lead, and which I cannot imagine to exist long in connection with monogamy ; that it was in Europe that Right was first dis- tinctly grounded upon man's ethical character; that there, consequently, State and Government first became subjects of deep inquiry, because they were not any longer considered either as mere effects of force or the unalterable family rela- tion ; and that there man first maintained liberty as a civil institution and became ready to bear great sacrifices for it. The peculiar geographical situation of Europe aided, it is probable, greatly in this rapid and unceasing development ; for although neither climate nor soil determines alone the character of a nation, they, and especially the means or ease of intercommunication afforded by the geographical con- figuration of extensive districts, still exercise a powerful influ- ence upon it, which is peculiarly strong in the earlier stages of civilization. But this very consideration leads us again to perceive the superiority of the European race. For China enjoys almost the same advantages with Europe and the United States in respect to climate, soil, and rivers ; it has remained severed by its geographical position from many of those disturbances which have influenced and afiflicted other Asiatic nations, — circumstances which close observers have POLITICAL ETHICS. 391 pointed out as prominent causes of the superiority of Chinese civih'zation over that of all the rest of Asia, Persia not ex- cepted.' Yet if we compare that most eastern Asiatic nation * The following is an interesting extract from the work of Mr. Davis on China, already quoted. In the introduction, pp. 7 and 8, he says, — " The eaj-ly advancement of China, in the general history of the globe, may likewise be accounted for, in some measure, by natural and physical causes, and by the position of the whole of that vast country (with a very trivial exception) within the temperate zone. On this point the author will repeat some observa- tions which he long since made in another place : that ' an attentive survey of the tropical regions of the earth, where food is produced in the greatest abun- dance, will seem to justify the conclusion that extreme fertility, or power of pro- duction, has been rather unfavorable to the progress of the human race ; or, at least, that the industry and advancement of nations have appeared in some measure to depend on a certain proportion between their necessities and their natural resources. Man is by nature an indolent animal, and without the stimu- lant of necessity will, in the first instance, get on as well as he can with the pro- vision that nature has made for him. In the warm and fertile regions of the tropics, or rather the equinoctial, where lodging and clothing, the two necessary things after food, are rendered almost superfluous liy the climate, and where food itself is produced with very little exertion,* we find how small a progress has in most instances been made ; while, on the other hand, the whole of Europe, and by far the greater part of China, are situated beyond the northern tropic. If, again, we go farther north, to those arctic regions where man exists in a very miserable state, we shall find that there he has no materials to work upon. Nature is such a niggard in the returns which she makes to labor, that industry is discouraged 7Vi\(}i frozen, as it were, in the outset. In other words, the prop07-tion is destroyed ; the equinoctial regions are too spontaneously genial and fertile; the arctic too unfriendly barren; and on this account it would seem that industry, wealth, and civilization have been principally confined to the tem- perate zone, where there is at once necessity to excite labor and production to recompense it ! There are, no doubt, other important circumstances, besides geographical situation, which influence the advancement of nations ; but this at least is too considerable an ingredient to be left out of the calculation.' " It will be recollected that, on various occasions in the first part of this work, much importance has been attributed to two principles of man's social develop- ment, namely, that everything which characterizes man as such must first be developed, except his physical nature, and that the first starting-point of every- thing indispensably necessary to man's social development has been indissolubly connected by the Creator with the material world. We observed it with regard * "See the observations of Humboldt on the use of the banana in New Spain." Every one who has been in the West Indies can testify to the justness of these remarks. 392 POLITICAL ETHICS. with the western European race, in intellectual and political civilization, it will not be difficult to form a just decision. to the family and other necessary institutions. In the present case the principle is manifest. Man ought to labor; yet would he have labored from the begin- ning? The most genial regions are the earliest in the advance of civilization, especially Hindostan. Its luxuriance encouraged the first starting; but the lux- uriance is too abundant; man relaxed under it; only the first effort was excited; energy showed itself farther north, in Egypt, Greece, Rome. At later periods man found assistance in a thousand discoveries, which enabled him to carry civilization through a long winter, both in a physical and mental point of view. Civilization extended farther and farther north, and a country like Canada, which would never have induced man to start in the path of industry, may still become a flourishing one. The general remarks of Mr. Davis are undoubtedly true. If the negroes of Hayti could not contrive to live by paying a trifling attention to a few banana-trees, they would not have allowed all the sugar-fields to go to ruin. Hence likewise the evil consequences which the introduction of the potato into some countries has produced, although its good effects, upon the whole, in ward- ing oft' famine, formerly so frequent, will be denied by no one. But it is cer- tainly true that the potato has frequently operated in the northern regions as the banana has in the tropical. It made the bare subsistence of a rapidly-increasing population possible, and thereby lowered the standard of comfort, industry, and, consequently, of energy and civilization in general. A geographical consideration of importance respecting European civilization is the much greater extent of sea-coast in proportion to the area of Europe, com- pared with any other of the four large divisions of the globe. Europe, as Alexan- der Plumboldt justly expresses it, is the most articulated of all parts of the world. The sea-coast, however, is favorable to civilization, and, in general, to the spirit of liberty, were it even for no other reason than that the sea, erroneously called by the ancient poet Dissociabilis Oceanus, is the great means of communication, and that seafaring is favorable to manliness and boldness. Prescott, in speaking of the republican spirit of the Aragonese, makes some pertinent remarks on this subject in his History of Ferdinand and Isabella, vol. i. p. 59, et seq. ; and the observations, somewhere in Heeren's works, on the indented shores of Greece, apply more or less to Europe in general. Mr. Julius, in his late work, " The Moral Condition of North America," in German, 2 vols., Hamburg, 1839, has the following passage (vol. i. p. 426) : " If we take the area of Europe as the unit, we find that in the almost unbroken triangle of Africa, three times as large as Europe, the width is to the length as one to one, so that the triangle becomes equilateral. The area of Asia is more than four times that of Europe, and her width to the length of the circumference is as dne to four : in America, almost four times as large as Europe, the proportion of the width to the length of its circumference is as one to five, and in Europe as one to six. Africa has a sea- coast of about 3800 German miles; Europe, one-third as large, 5400 ; Asia, more than four times as large, 7000 German miles; and America, nearly four POLITICAL ETHICS. 393 This Western race, which is distinguished by an onward movement from the times of its first dawn of civilization, is at present in one of those periods which are pecuHarly stirring, similar, perhaps, in its character of universal and thrilling activity, to that of the Reformation, preceded as it was by the exciting period of maritime discoveries. We are, indeed, ever apt to consider objects near us of peculiar magnitude ; but the calmest mind, the most comprehensive intellect familiar with all the most activ^e periods of history, will prob- ably not deny that our period is a peculiarly active one, and one of those epochs in which man seems to employ all his energy in realizing some important idea. A time when in the East the Turkish empire is busily engaged in severing itself from Asiatic civilization and joining European, and in the West a railroad is building to effect that for which Colum- bus sought so long and ardently in vain, and when the two poles of this conductor from the East to the West, from the Atlantic into the Pacific, will be brought in contact with other hemispheres by the busy steamboat, braving wind and cur rent, — such a period seems not to be a common one. Future ages, perhaps, will look upon our period as a pre- eminently political one ; as that period in which governments from cabinet governments became national and popular gov- ernments, superseding the period of court politics, when, as an eminent continental writer expressed it, " the court law came to be made the common law;"' as the period in which broad ideas of substantial civil liberty were more clearly de- fined and more widely secured for a large number of nations; in which the primary relation of the citizen to the state be- came a distinct subject of intense political action ; as the age of constitutions. If so, it behoves every one to perform conscientiously his task in this animated time. But, whether it be so or not, certain it is that many entirely new agents of times as large as Europe, has a sea-coast in length between Europe and Asia. Or, if we consider for a moment the area of all equal, the lengths of sea coast of Africa, America, Asia, and Europe are in the proportion of 2i^, 48, 51, and 162." » Justus Moeser, Osnabriick. Gesch., i. part i. 23. 394 POLITICAL ETHICS. human society have come into play and act with an intensity which gives a far greater importance to everything connected with politics, for weal if we do our duty, for woe if we neglect it, than at any previous period, except that of antiquity. IV. A last and, in my opinion, an important reason may be urged, why we should take the ethical elements of politics into serious consideration just at the present period. Among the most prominent characteristics of our times seem to be a general exertion to diffuse knowledge, a successful tendency to popularize governments, a most extensive industrial act- ivity, arising in fact out of the diffusion of knowledge, or, as it has previously been called, the union of science and indus- try, and the peculiar attention which for the last seventy or eighty years has been paid by many gifted minds to the pro- ductive energies of nations and all the laws which regulate the exchange of labor and ^produce. Since Locke wrote his treatises^ on government, i^w distinguished men in England or America have written exclusively on the principles of poli- tics or the first elements of the state ; and ever since Adam Smith, the attention of political writers has been directed almost wholly to the investigation of those subjects which are more or less closely connected with production, exchange, and consumption, commerce, industry, population, and pau- perism, — in short, to subjects of political economy. These inquiries into the material interests of human society are of the greatest importance, and it would show great ignorance indeed should any one attempt to deny that they have exer- cised a powerful influence upon the whole European race and the peaceful intercourse among the states into which it is divided. But it will always happen, when some new ideas of vast importance break through previous darkness, and men strive to realize them in practical life on a large scale, after ' In Heeren's Historical Treatises, trans'ation, Oxfc.rd, 1836, there is an in- teresting article on the Rise, Progress, and Practical Influence of Political Theo- ries, of which I would recommend the first part, which is historical, to the perusal of my reader. The latter (political) part seems to me indifferent. POLITICAL ETHICS. 305 having been conceived and cultivated by gifted individuals in the necessary historical progress of civilization, that for a time they absorb the human mind and general mental activity, to the exclusion of others of equal or greater importance. We thus find that zealous inquiries into the material interests of the masses have colored investigations which belong to other provinces, and that self-interest, not indeed unfrequently qualified as " enlightened self-interest," has been assumed as the sole principle of all questions relating to man's political existence; that his activity, ingenuity, and industry in the material world have been assumed as the sole points in ques- tion with reference to our social state. Were we to study the causes of this phenomenon, we should be obliged to go as far back as to the period when governments and in fact the various tribes became gradually nationalized, to the discovery of America and the Reformation, which, by the secularization of ecclesiastic property and the new turn which it gave to the European mind in general, imparted to industry also a pecu- liar impulse.' This cannot be done here ; but it will appear evident that unless we again direct our attention, manfully and steadily, to the ethical elements of the state, we shall expose society to the greatest dangers in many of its most sacred interests. To contribute my humble share to this noble object I have undertaken this work. I am not writing a book of political casuistry. The casuist may settle a thou- sand cases of conflict, and the next complex one offered by practical life may be as perplexing as the first. Nor have, in all probability, any works of casuistry, however ingenious and dialectic they may be, essentially contributed to guide con- sciences in the path of duty, while, as we all know, not a few have, by their very ingenuity, blunted the moral edge, instead of sharpening it. If I succeed in disseminating a few salutary principles, in pointing out some dangers, in aiding to give moral vigor to political existence, and, above all, in inspiring ' Political Consequences of the Reformation, by Ileeren, u. s. The work of Adolphe Blanqui, Histoire de I'Economie Politique en Europe, Paris, 1838, contains many valuable facts. 396 POLITICAL ETHICS. some hearts with a due appreciation of the task we have to perform as citizens and as members of our race, with a genuine love of liberty and a conscientious desire to maintain it; in convincing any that the prize for which we ought to strive, according to our political nature, is a most noble one ; in arousing a few from political apathy, so dangerous to every society, and in moderating others, who forget in their ardor that duties are the necessary concomitants of rights ; if, in short, I succeed in impressing some with the sacredness of their political relations, or indeed only in inciting renewed attention to these grave subjects and in warming some hearts with true patriotism, I shall consider my object fully attained, and believe that my life has not been spent entirely in vain, in promoting the great objects of that period in which my lot has been cast. V. Politics, in the course of this work, has been compared to architecture, with reference to the necessary attention which we must pay to the materials at our disposal, as well as to the object which we have in view. But here the comparison stops, for the component parts of the state are living beings, indi- vidual men; and whatever well-intentioned laws or institutions we may establish, they will either be wholly inoperative or be perverted to a contrary action from that for which they were intended, if they do not find a corresponding moral sense in the greater number of the people. Laws may do much to repress evil, vice, or crime : indeed, the mere fact that these are repressed or punished, as soon as known, is not only an effect of the moral state of society, but confirms and diffuses it. Yet the operation of the laws themselves must always first depend upon a corresponding sense of duty and virtue in the people. Dishonesty may be rendered punishable, and will be punished so long as a sense of honesty is diffused in the community; but this honesty itself cannot be enacted. We find, therefore, in many periods of general degeneracy the greatest number of those laws which strive to enforce the primary virtues, upon which men have at all times acknowl- POLITICAL ETHICS. 397 edged the state essentially to rest ; but those laws alone have never been able to arrest the downward course of depravity when once it had really become general. The decline of Greece and Rome exemplifies both these positions. No individual in China can hold a magistracy in his native province, and the residence of officers is periodically changed, to prevent the growing up of connections between them and the people, of bribery and insecurity of government ; and, for a similar reason, the Spanish judge in the colonies — I do not know what law exists respecting this point in Spain itself — is prohibited from marrying in the place of his appoint- ment ; yet the government is perhaps nowhere less powerful and more insecure, nor are bribes more the order of the day, than in the first country, nor is the administration of justice more corrupt in any country than in several colonies of the latter. If jury, judge, and witness falter in their duty, no Russell can be saved. This is a truth so simple that we should hardly expect it ever to have escaped the mind of legislators ; yet all codes of former times are filled with laws which proclaim what cannot be ordained, or extend over so purely private matters as to resist all demands or ordinances from without. There are laws in those codes which ordain that the subject shall love the king; and the Spanish laws prohibit "crying and other immoderate grief for the defunct,"' while they decree dreadful punishments for " erring, and not believing what the holy church holds and teaches." VI. Nothing would be farther from me than the intention of conveying an idea that wise laws are unimportant. They are all-important : they support, aid, check, elevate, cultivate, and perpetuate. Good laws are the best legacy which one generation can leave to another; the greatest blessing of a community is a long-continued series of wise and sound laws. We have but to look at such a law as enacts a general school ' " Ninguno haga llantos, ni otros duelos inmoderados por los defuntos, cs- pecialmente desfiguiando y rasgando la cara," etc. Extracto de la Novlsima Recopilacion de las Leyes de Espana, vol. vii., Madrid, 1815, lib. i. titulo i, 9. 398 POLITICAL ETHICS. system : still, the first fulcrum on which they lean, so that they can operate, is the sound state of the community — a fact which the ancients well knew and repeatedly mentioned. Without general morality, that is, good customs, there can be no sound commonwealth; nor can there be general with- out private morality ; but private morality is best preserved where it has grown into good custom. " Custom," says Bacon, " is the chief magistrate of man's life; men should, therefore, endeavor by all means to obtain good customs." It is evident, therefore, that in this point of view every virtuous disposition, morality in all its manifestations, is of elementary importance for the well-being of the state. But there are certain virtues, as well as vices, which are of pecu- liar importance to the state, because they either prompt more frequently to public acts, or come more often than others into play in political life. Of these I propose to say a few words before I discuss some of the most important situations in which the citizen is called upon conscientiously to act, although not guided by any law. Before I close this section I would refer once more to the remarks which were made in the first part' on the fact that private virtues may exist without a sufficient attention to public ones. Indeed, it has not been maintained, in the above remarks, that private morality alone, be it ever so extensive, insures public welfare. The government of a people may for a long time have so effectually acted upon the principle of interference, and may have smothered so entirely all public spirit, public interest, and public activity in the people, that the State may sink despite all morality, and when a time of danger arrives the state may break down like an under- mined fabric. I do not believe that any one will charge the Prussian people, as they were before the battle at Jena, with general depravity. Yet the state crumbled rapidly into pieces after that battle had been lost — more easily than any state ever could have done in which the people at large acted vigor- ' Chapter v. POLITICAL ETHICS. 399 ously with the gov^ernment, whatever the final issue of the war might be. This same epoch, however, furnishes us hke- wise with an example how vigorous a support politics derives from the good morals of a people, and how rapid may be the growth of public spirit, if sown upon them. Had the Prus- sians been a degenerate race, soiled with vice, meanness, and crime, would they have gathered national strength even under the iron dominion of a conqueror, which weighed most heavily upon them, and would they have risen, small and shorn as their country and means were, so successfully against so power- ful a foe? The rise of Prussia in 1813, with the measures which prepared it, and the most strenuous national exertion to expel the conquerors, shortly after that country had been dismembered, forms an instance of great interest in the sphere of political ethics. Private morality in free countries, however, will go very far to insure public success : yet even here we must not forget that moral rectitude alone cannot cause any state to flourish; good counsel is likewise necessary. Laws must not only be made by well-meaning people, but they must be wise laws; and while the moral tone of society is of primary importance in free countries, prudence and sound counsel in the statesman or law-maker are not less so. For wise laws must be made with reference to the citizens themselves, the period they live in, and the neighbors who surround them. On the other hand, there have been distinguished writers on subjects of politics, who seem to have considered good laws and wise institutions as the first foundation of political success, and as those agents by which general good conduct is first engendered, or which have secured success to many states, although private virtue existed only in a very limited extent. When power was mistaken for government, and gov- ernment for state, it was but natural that increase of power, brilliant external success, conquest, or other aggrandizement should at times have been taken as a sufficient index of po- litical success ; yet even then it was frequently not considered whether degradation and ruin followed this very success. Or, 400 POLITICAL ETHICS. the standard of judgment has been a certain preconceived index of good government, for instance a certain division of power. Nor has sufficient attention been paid to the fact that frequently the good effect of former better periods is felt in later worse ones, yet only for a time, because the degenerate state of the latter is unable to perpetuate them. Hume seems to me to have fallen into this latter error when he says, " The ages of the greatest public spirit are not always most eminent for private virtue. Good laws may beget order and moderation in the government, where the manners and customs have instilled little humanity or justice into the tem- pers of men. The most illustrious period of the Roman history, considered in a political view, is that between the beginning of the first and end of the last Punic war; the due balance between the nobility and people being then fixed by the con- tests of the tribunes, and not being yet lost by the extent of conquests. Yet at this very time the horrid practice of poi- soning was so common that during part of the season a praetor punished capitally for this crime above three thousand persons in a part of Italy." ' I think that if the history of any state teaches in bold examples the political value of virtue and the political misery following upon depravity, in short, the almost constant reciprocal action of private and public virtue in free states, it is the history of Rome. Take those virtues which form the common stock of man's morality — justice, honesty, and a pure family life — and say whether a state can lastingly succeed without them ; whether they form not the very sap which gives soundness to the whole body politic. One who knew well the operation and effect of many political elements, both by his station in life and because he lived in a period which followed a time of depravity in the upper classes equalled only by the vices of a veiy itw other corrupt periods, — Napoleon, — said, " Public morals are the ' Hume's Essay, that Politics may be reduced to a Science — Essay iii. vol. iii. of his Philosophical Works, Edinburgh, 1826. [Two thousand is the num- ber given by Livy, xxxiv. 41, on the authority of Valerius Antias, whom he him- self distrusts : comp. iii. 8.] POLITICAL ETHICS. 401 natural complement of all laws ; they of themselves form an entire code." ' VII. Of all the virtues peculiarly important in politics, the chief place must be assigned to justice and fortitude or per- severance ; for honesty and moderation, without which no state indeed can last or flourish, maybe comprised within the first, if we take it in its widest sense; yet they deserve par- ticular mention. Justice and Fortitude may well be called the two elementary virtues of every citizen, no less than of the statesman in particular. Justice — if we designate by this sacred word that virtue which is the constant will, desire, and readiness faithfully to give every one his due, and if we understand by due not merely that to which every one has a right by the positive and enacted laws of the state, but that which is his as man, as individual, as moral being, and as our neighbor — is that virtue which is embodied in the great practical moral law that we should do even so to others as we would that they should do to us. Justice was early acknowledged to be the supreme virtue, and often called by the ancients the only virtue, including all others ; ^ it is that virtue or ethic disposition which prompts man to acknowledge others as his equals, and thus becomes, as we have seen, the very foundation of the state, and remains at once its cement and » Las Cases, Memorial de Sainte-Heldne, vol. vii. p. 123, Paris, 1824. 2 'Ev (5e Ji«a«)aw7? avlXTi36-nv Tzua' upe-f) 'an. — "Justice comprises all virtue." (Theognis of Megara, one of the Gnomic poets.) " Justitia, cui sunt adjunctae pietas, bonitas, liberalitas, benignitas, comitas, quasque sunt generis ejusdem." (Cic, de Fin.,v. 23, 65.) Thus diKaioq, "just," is used in the New Testament to denote the highest degree of virtue and purity, and the word righteous (from Right), by which the original S'lKawg is rendered in English, with its comprehen- sive meaning, according to which " it includes all we call justice, honesty, and virtue, with holy affections, in short is true religion," points to the same connec- tion of ideas, and in the German Bible the simple word gerecht, that is, just, is used where in English righteous stands. The Hindoo Ordinances of Menu say, " The only friend who follows men even after death is justice: all others are extinct with the body." Translation by Sir William Jones, London, 1799, vol. iii. p. 276. 26 402 FOLITICAL ETHICS. energy; that virtue which above all others establishes confi- dence, peace, and righteousness among men, individually and collectively, as states or nations, and comprehends fairness, equity, and even clemency. For if in matters of law we dis- tinguish the latter from justice, if we establish courts of equity in contradistinction to courts of law, or give to the chief magistrate the privilege of tempering justice with mercy, we mean in this case by justice the awarding of every man's due according to the established laws of the land, which the jural character of the state requires to be the rules by which the actions of its members should be judged. But as we are con- scious that laws cannot be so perfectly framed as to meet every possible complex case, and that, framed in human lan- guage as they must be, their exact application must some- times defeat their own ultimate end, namely, true justice, we vest somewhere the power to determine causes " in which reason and justice require that the rigorous application of the rules of common law should be mitigated," or to release the offender from punishment in cases in which the law, accord- ing to all the circumstances, operates harshly. Upon this ground alone can the privilege of pardoning be maintained with any reasonableness, for it cannot have been bestowed for the purpose of screening real guilt, according to caprice, weakness, or partiality. It is therefore essential justice only which in these cases is made to supersede apparoit justice. There may be cases indeed, by way of exception, in which par 'on is granted wholly from generosity or on prudential grounds ; for instance, when an offence against the chief magistrate personally is remitted. VIII. That justice, if it means the unswerving and incor- ruptible meting out of every man's due, the protection of right, is the most indispensable virtue with regard to the state as the strictly jural society, and is in fact its very essence, has been sufficiently dwelt upon in former chapters, where in fact one of my chief endeavors has been to present it in as strong a light as possible. " There is but one means to POLITICAL ETHICS. 403 render a government firm ; this is Justice," said Carnot, when the question was debated whether the imperial crown should be offered to Bonaparte in order to render the government stable. And Timur, the mighty Tartar, even he said, when asked for advice by a fellow-emperor, " Sovereignty (the prin- cipate) is like a tent, the poles of which should be justice, the ropes equity, and the pins philanthropy ; in order that it may stand firm against the blasts of adversity." ' A great truth in the peculiar Tartar dress of the roving nomad. But justice is not only, thus applied to positive laws, the main stay of the state, it is of like importance in all possible relations in which the citizens can be placed, individually and collectively. Nothing, as every reader well knows, gives to a man so stanch and solid a character as the conviction of the community that " he wishes to do nothing but what is right ;" nor does anything give so moral a tone and conse- quently so vigorous a support to international transactions as the knowledge that one of the parties " demands nothing but what is right, ahd will submit to nothing that is wrong." " Reputation is great power," as Bolingbroke said,' perhaps the best authority, because he found the truth by experiencing the reverse from contrary causes : yet one of the chief ingre- dients of a well-established reputation, both for individuals and for states, is habitual, plain, thorough justice. Civil and social transactions and intercourse must, in a great many in- stances, ultimately depend upon good faith ; that is, essential justice, in its most comprehensive sense. Laws may be wrested, contracts evaded, the most solemn terms may be broken, if we abandon justice and have a mind to interpret our enrrasrements or the ethic demands of duty themselves in bad faith. That community in which injustice and bad faith are habitual cannot possibly support civil liberty. This is so true and evident that we may well dispense with any farther ' Stewart's Translation of the Memoirs of Timur, publislied by the Oriental Translation Fund, p. 56. » Bolingbroke to Windham, Oct. 13, 1737,— Correspondence, vol. iii. p. 494- 404 POLITICAL ETHICS. discussion of the subject ; but it will be necessary to inquire into some cases in which we have to guard ourselves especially against injustice and an abandonment of the primary principle of right and equity. I believe the most important of these cases are those in which we enjoy superior power, or where no authority above us can make us responsible for our acts, and those in which passion or eagerness to obtain an advantage or defend rights blinds us. I have spoken already of the love of power and the universal feeling of offence at opposition, however loyal. Men, therefore, who enjoy power, of whatever sort, ought never to forget that they are magistrates, which means agents, servants of the state ; this superior power which they enjoy over their equals has the sense and meaning only that they shall use it to serve the state. For what other reason should they be singled out from the mass ? The object as well as foundation of the state, however, is justice. But when we have power for which we are not, strictly speaking, respon- sible, or not at all so, we are the more bound to adhere to the only law that remains, the moral obligation which demands justice. It is well known that it is never an easy matter to obtam the satisfaction of large claims, however just, from those who have the power to refuse it or not, as they please ; from legis- lative bodies not more easy than from princes. Ferdinand the Catholic declined paying -what was due to Columbus, according to solemn agreement, because the portion of the revenue due to the navigator was large, since the revenues themselves had become large ; and some extensive claims upon the United States, due since the Revolution, received but late and tardy justice. How unjust Rome showed herself to her dependents ! A prince, knowing that a brilliant act of justice and disinterestedness will redound to his personal honor, finds, not unfrequently, a motive to do right in this adventitious circumstance; while for the single member of an assembly no such personal motive exists. He is therefore still more bound on ethic grounds to obey the law of justice, POLITICAL ETHICS. 405 and his doing right is the more disinterested. Let, however, all citizens rest assured that, whatever the momentary disad- vantage may appear to be, there is happily nothing which is even on the ground of mere prudence so advisable as steady justice and fairness in all matters. Nothing creates such con- fidence and imparts such vigor to all parts of the state as doing right. " Oh qu'il est dangereux de mal faire pour en esperer du bien," wrote Elizabeth to Henry IV. of France.' By nothing, it is well known, has the Prussian government succeeded sooner in attaching the new or reconquered prov- inces to herself than by her scrupulous fulfilment of even very onerous engagements made by the preceding and hostile gov- ernments. Credit, that great agent of governments as well as private transactions in modern times, and which, however frequently and greatly abused, must nevertheless be considered as one of the most striking effects of civilization in the Eu- ropean race, on what is it founded, if not on the two elements of capability and of justice? Pecuniary capability alone can never create it without corresponding confidence in the justice of the borrower. Yet, though none of these considerations existed, justice has its own independent worth, and the most fundamental maxim of all politics as well as of civil liberty is the well-known adage, " Fiat justitia et pereat mundus." Aristides left a great national legacy to his fellow-citizens by his name of the Just, and by his opinion, repeated from mouth to mouth, when Themistocles, by their order, had communicated to him his secret plan of burning the confederate fleet, " that the enter- prise which Themistocles proposed was indeed the most ad- vantageous in the world, but at the same time very unjust ;" ' whereupon the Athenians commanded him to lay aside all thoughts of it. As justice is the great support of the state, so is injustice its ruin; not only corrupt administration of justice, » Raumer, History of the Sixteenth and Seventeenth Centuries, illustrated by Original Documents, translated from the German, London, 1835, vol. i. p. 383. Not to be confounded with Raumer's History of Europe, likewise quoted in this work. " Plutarch, Themistocles. 4o6 POLITICAL ETHICS. but every act of undeserved partiality or favoritism, of honors bestowed unworthily or merits requited with evil, spreads in the state like a poisonous weed and extends its mischief incalculably farther than merely to the individual or his family. Justice, thus vitally important in all domestic political affairs, is not less so in international. Treaties rest essentially on good faith ; for there is no superior power to adjudge be- tween the parties and to coerce into obedience. As inter- national treaties generally cover a large sphere, it is natural that human words should, in most cases, be found not suffi- ciently minute to exclude all faithless interpretation. There is then no authority which can direct us to do right, except Justice herself in our hearts ; while we may confidently rely upon the fact that nothing gives so much dignity to a nation, and consequently so much facilitates all her national inter- course, secures so great national advantages, and extends benefit to all her citizens abroad, for whatever purpose they may travel, in pursuit of wealth, knowledge, or pleasure, as habitual and traditional justice in international affairs. The international transactions of Louis XIV. and the deplorable effects to which the spirit led with which they were carried on, afford an impressive instance of bad faith and injustice; the history of Isabella the Catholic furnishes a striking instance of the becalming and resuscitating power of habitual justice and consequent confidence of the people; and that of England, the most instructive illustration of the immense power which results from a faithful discharge of the engagements made by government, and a universal belief in the justice of the courts of law. IX. Justice, which demands that we should see and judge matters not only from our point of view, but also from that of others, perhaps of our adversaries or enemies, is on this ground also the most difficult virtue, as it is the highest. No phenomenon in the moral world, or indeed in the political^ is more common than the adoption of the standard of that POLITICAL ETHICS. 407 circle in which we move, a specific standard of feeling, taste, delicacy, tenderness, even of fairness, justice, or candor, honor, and right, and a disregard of that of others. But justice on general grounds, as well as in political spheres in particular, demands that we should divest ourselves as much as possible of these distorting views, which must prevent us from free and correct action. There is nothing so dangerous in politics as coteries, on account of this standard of their own, and their consequent injustice to others. The history of most revolu- tions proves their danger. There is hardly ever a body of men within a nation who know so little of it as a court, unless the monarch be of a peculiarly sagacious and penetrating or free and elevated mind, gifted with the rare power of a grasp- ing combination and the genius of divination, animated as this must be by original sympathy with the people. Parties, and especially party coteries, have frequently the same effect. X. Nothing, however, is so apt to prevent justice in us as passion, which is proverbially blind. As to party passion, I shall recur to the subject when I shall treat of Parties. Here may be mentioned only that there are many persons " who have no action except they are animated by some passion, which makes them like incense, giving its perfume only when on fire," a " constitution dangerous to all persons, but especi- ally to kings, who, as well as every one else, must act by reason," as Richelieu adds in his testament. These persons are highly dangerous in free countries, because they act not only blindly, and " if correctly but by chance" and by mere impulses, which rapidly vanish; but they communicate their excitement to others, and prevent truth and justice in a larger circle. Yet these unbridled and unmanly characters are not the only ones who suffer from passion ; nobler men have to shun it likewise. A large number of those men who have performed the greatest works have done so partly in conse- quence of having been endowed with a peculiarly sensitive and excitable organization. Without it, men are frequently incapable of that impulse and enthusiasm which must rouse 408 POLITICAL ETHICS. the mind and inspire it for great and morally bold tasks ; without it they will not dare or undertake those things which promise neither reward nor profit, and to which strict duty does not bind them. But this very sensitiveness likewise exposes such characters to excited feelings more than the duller part of the community, and consequently, when excited, to unjust and dangerous actions. Let them therefore learn in season to bridle themselves and submit to calm judgment, without extinguishing the ardor of their nature ; for they are necessary ingredients in a good community. In whatever light, then, we may view justice, privately^ publicly, or internationally, it is all-important. It is the foun- dation of character, the basis of power, the aegis of liberty, the sole support of self-respect ; and a great secret of the art of ruling, which many indeed believed to consist in a continued series of coups ifetat, is contained, for republics as well as for monarchies, at home and abroad, in the two brief words, Be Just. XI. That we should be just in its truest and widest sense, in all our dealings, opinions, and judgments, strictly political or not, leads us at once to the consideration of an important question : Is a citizen in conscience allowed to do all that his laws permit ? Not a it^ think so, although in many cases the theory of the persons is worse than their actions really prove them to be. That we have not to inquire whether a citizen may or may not take all the advantage which, in overreaching the laws by using their letter contrary to their evident spirit, he may derive from cunning or fraud, is too evident. The fair and simple question is. May you do all the laws positively allow you to do, and all that they do not pro- hibit? What has been called by some abiding by the laws of their country is nothing but a pretext for actions of whose depravity they are conscious. From the whole view which has been taken of the state in previous chapters, it appears clearly that those who pretend to consider themselves justified in everything which the law does not prohibit are in a great POLITICAL ETHICS. 409 error.' The state does not supersede morality or my own conscience, which it evidently would if its laws were my whole code. We must never forget that laws are always addressed to men whose common sense and moral character are presupposed : otherwise it would be impossible to draw up any laws, and useless to enact them. The more legitimate the action of the state, the more it confines itself to those sub- jects which necessarily require general interference or action, and the more it leaves individual action to itself. There are thousands of relations of the highest importance which the state nevertheless cannot or will not touch, in which we must act for ourselves. The state remains, as has so frequently been stated, a jural society; but there are even jural relations which it is impossible for the state, acting as it does by laws, that is, general rules, to treat with that minuteness or delicacy which nevertheless their essential character requires. We have seen that the individual is by no means absorbed by the state; it does not pretend to act, feel, think for us; but this would undoubtedly be the case if we attached a moral meaning to our actions only according to the positive laws of the state. If I am absolutely allowed to do all that the laws of my country allow, and I thus make the state my con- science, a necessary corollary is that I am also absolutely bound to do all that they demand. How then with nefarious laws ? Walter Scott tells us that an earl Patrick on the Zet- land Islands made laws against anybody's helping vessels I * The error, then, is : 1. That we do not acknowledge that there may be bad and even wicked laws. 2. Til at we reason as if the state with its laws were made to be a substitute for conscience and morality, while in truth it is but one of the edifices built upon them. Now let a man adopt the rule that he is permitted to do all that the laws do not prohibit, and then add Blackstone's theory that the punishment is an equivalent for the offence, which therefore we may commit provided we are willing to abide the consequences, and it is seen at once that we arrive at this conclusion : You can do anything you choose, provided you can prevent it from being dis- covered, or, if it be discovered, take the consequences— a diabolical rule, fit for a set of pirates, but not for honest men. 410 POLITICAL ETHICS. likely to be wrecked on the breakers, for no other reason than that iniquitous desire which we find to a very late period in most inhabitants of remote and dangerous coasts.' The Aus- trian government permitted to a recent date the reprint of any German work although unauthorized by the author or owner. Thus piratical cheap editions were imported from the imperial dominions into the other parts of Germany, to the injury, and sometimes the ruin, of the lawful owners of the respective works. Was it right to make use of this law of Austria ? Charles Gustavus of Sweden, when he was in a highly critical situation in Poland, in the year 1656, ordered that every Polish nobleman of his party who should kill one on the Polish side should have half of his fortune ; every peasant who should do the same should be emancipated and have the use of the slain nobleman's estate for six years. Was an individual, even though he sided conscientiously with the monarch, therefore at liberty to commit murder ? There is no father who would assert that he feels at liberty to do in his family all that the laws allow or cannot reach ; and why is the moral obligation in the family greater than that towards fellow-citizens ? Most assuredly God will not judge men by the civil code, orthe common law of England, or the code of France, but by that code from which all codes originally flow, and which is " the law written in their hearts," their conscience. If this first of all codes is disregarded, its emanations, the positive laws, must in every society soon lose * The Pirate. — Until within recent times '•' a blessed stranding" was prayed for in some churches on tlie island of Riigen in the Baltic. The people compared it to the innocent prayer for " daily bread" of a physician, and interpreted their own prayer as a request that, if there was any wreck according to the will of God, much of it might be saved and come into their hands. Nothing, I believe, proves moi^e strikingly how society alone humanizes man than the fact that in all countries, among inhabitants of the sea-coast, remote from society and near rocks and breakers, are found exceedingly dangerous people, who decoy vessels or destroy the crew, etc., and the remark which Thucydides makes respecting them applies to many countries in our own times. The discovery of the so-called " land-pirates" on the New Jersey shore, a few years ago, and their crime of enticing vessels by false lights, are in the remembrance of every one. POLITICAL ETHICS. 4H their efficacy. If we are allowed to do all the positive law permits, one or the other thing must necessarily follow : either the laws continue to touch comparatively few relations and things, in which case lawlessness must be the conse- quence ; or the positive laws embrace all relations, interfere with everything, and abject servility must be the conse- quence. In countries in which the law is habitually and tradition- ally considered as the supreme ruler, without which, as we have seen, no civil liberty can exist, the citizens are not un- frequently exposed by their very reverence for the law to extend this positive rule too far, which nevertheless accord- ing to the very essence of the state applies to outward actions only, and to forget that there remain many actions even of political importance which cannot be judged of by laws. Thus it is found sometimes that the mere verdict of not guilty influences persons who judge of the individual in question, as if a verdict in court were meant to be an absolute or moral one. We all know that there is a difference between an honorable acquittal and one produced only by rules of law, which are nevertheless necessary and protective and which may leave an indelible stamp of guilt upon the acquitted person. Burr was acquitted, but few believed him innocent. That justice in its true sense, on the other hand, forbids us to judge by mere suspicion and appearance, is evident. Pre- tending to regulate all our actions by the law only shows a supposition of perfection in the laws, — which they never can acquire, partly because they are the work of man, partly because they are gradually and not in all parts evenly de- veloped — and a resolution to exclude from our actions all those noble principles which cannot be demanded, and from which nevertheless the purest actions proceed. CHAPTER II. Perseverance. — Justus et tenax. — Necessity and great Effects of Perseverance. — To persevere, our Purpose ought to be good, the Means adapted to the Pur- pose and the Purpose to the Means; the Means concentrated. — Repeated Action may supply Power; undaunted Perseverance may finally decide by a Trifle. — Fortitude. — Alarmists. — Excitement and Injustice. — Rabies civica. — Calmness of Soul. — Political Fretfulness. — Great Souls are calm. — Peevish- ness. — Political Grumblers (Frondeurs). — Chief Points respecting Firmness. — Consistency. — Inconsistency. — Obstinacy. XII. The graceful spirit of the Greeks attributed even to the serious historian the dedication of each part of his work to one of the muses. If I could have graced the divisions of this book with the names of great and good men, in whose contemplation the mind gathers strength and reassurance, I should have inscribed this division, in which I purpose to treat of Perseverance, with the name of Columbus. Ponder his life, weigh his motives, examine his strength of mind and tenacity of purpose, unsubdued by sneer, haughtines-s or clamor, disappointment or difficulty, unshaken by storm, rebellion, treachery, or ingratitude ; strong from his first obscure setting out in his great career, in the hours of peril, in command or chains, in wealth and in poverty, to the last moment of his illustrious life : and you will have a better commentary, and a real and more inspiring example, than any abstract words can give, of those impressive lines in which the ancient poet has embodied the two substantial virtues of every citizen and of every man who means to do what is right and not to leave this life without bequeathing some good performed upon his fellow-men : " Justum et tenacem propositi virum Non civium ardor prava jubentium, Non vultus instantis tyranni Mente quatit solida, neque Auster 412 POLITICAL ETHICS. 413 " Dux inquieti turbidus Adrire, Nee fulminantis magna Jovis manus : Sic fractus illabatur orbis, Impavidum ferient ruinse;" ' — words which have been hallowed since the brave Corne- lius de Witt breathed them on the rack, and expressed his firmness against an impassioned prince and an infuriated populace, who would not be appeased but by the pure blood of the patriotic hearts of him and his great brother John de Witt.^ XIII. Perseverance, firmness, fortitude, constancy, courage and calmness, manfulness, dignity of mind, self-esteem, and consistency, are each the same in principle, and only different terms applied to a different degree of intensity or different relations and circumstances, or they stand to each other in the relation of principle and application, or, lastly, they are very nearly akin to one another, and one can hardly be imagined to exist without the other. If we have made up our mind to be just, that is, to do what is right (" ex aequo et bono jus constat, quod ad veritatem et ad utilitatem communem videtur pertinere"),^ we cannot ad- here to our purpose without perseverance. Every purpose and object in life, through all spheres of action, require their proportionate degree of perseverance : the tillage of the ground requires its degree of perseverance, in the same ' Horace, Carm., lib. iii. 3. * This stern page of histoiy contains one of those periods in the annals of mankind which deserve the manly and serious consideration of every true lover of his kind. Nowhere, perhaps, are the fearful power of ill-founded and sense- less rumor, the exasperation of the multitude even against the wisest and most unsullied patriots, and the fortitude of the just patriot, exemplified in a bolder instance than in this case. History has done ample justice to the characters and great statesmanship of the brothers John and Cornelius de Witt, and the verdict of not guilty has long been pronounced by posterity, despite the nefarious at- tempts of some writers. The best sources respecting the murder of these patriots are to be found in Van Campen, History of the Netherlands, Hamburg, 1833 (in Heeren and Uckert's series in German), vol. ii. p. 247. 3 Ad Herenn. 414 POLITICAL ETHICS. manner as the study of a science, the diffusion of a great truth or other benefit to mankind, the carrying of a great measure or the delivery of a country from foes, foreign or domestic, do in their respective spheres ; and the greater the object is which we feel in conscience bound to obtain, the greater is likewise the effort necessary for its attainment. To break a road over the high Alps, or pave it through mo- rasses, requires greater labor than the laying out of a path over even ground ; and to shed the light of truth in ages of darkness calls for stronger minds and firmer souls than the application of well-established truths to some single case. This no one ever denied ; yet in practice we are apt to forget it. Difficulties, derision, clamor, defeats, or the despair of receiving due acknowledgment, are apt to dishearten some- times the best and wisest. Yet had not Lady Montagu or Jenner persevered, the one in introducing inoculation, the other in proving the benefit of vaccination, despite all lam- poons, derision, and the outcry of fanaticism against them, men would to this day, perhaps, be subject to one of the most malignant diseases. Had not Frederic the Great of Prussia persevered in promoting the cultivation of the potato against a riotous opposition in several parts of his dominions, many individuals would have suffered famine in later times. They trusted to the truth or justice of their cause, and that, as Napoleon expressed it, "public opinion would come round again." But let us ask here, at once, is this return of public opinion, this acknowledgment of truth, a comfort to which man may look forward as an unfailing reward, which in the end cannot escape him ? It is undoubtedly and happily true that respect- ing public measures, in far the greater number of cases, the gradual acknowledgment of truth and justice will supersede passionate excitement and infatuation, and, still more, a man or a measure will gather additional strength from such a re- turn of public opinion, after having been deprived of it for a period. A citizen never wields greater power than when he has firmly stood the trial, unmoved and calm, and when POLITICAL ETHICS. 415 public opinion returns to him, not he to it. Yet it is equally- true that your life may pass in darkness, the best intentions may be misunderstood or reviled, and what is not true may by repetition acquire the appearance of substantiated fact. A man may tell the truth like Marco Polo, and yet, like him, be decried as a liar to his grave ; century after century may hold him up as an impostor, until after the lapse of ages his strict veracity may at length be firmly established.' We ought not to deceive ourselves : appearances may in some cases be so strong against us, and by accident or whatever other cause evidence to the contrary may be so totally destroyed, that the truth can never be known. A bitter fate indeed. And what then ? Then, indeed, nothing is left except what is still the last and highest support, that derived from Him who is the inspiring motive of all noble and heroic actions. Your conscience remains ; and even a heathen said, " Justice and honesty are truly commendable in their own nature." XIV. That the citizen be honestly and firmly persevering, requires that his purpose be good and his cause just; that he adapt his means to his purpose, and his purpose to his means; that he concentrate his means for the one great object in view; that he be ever mindful that repeated and uninterrupted action may compensate for the absence of great power; and that in cases of the greatest trial, when the struggle comes at the last between nearly balanced powers, a trifle must decide. The first of these positions is clear; for perseverance is power, and may be and has frequently been employed in the service of wicked ends. The second is, perhaps, equally clear; yet a forgetfulness of this rule has disheartened many well- intentioned men, while in other cases presumptuous men h ive » Marco Polo, when on returning from the East he gave an account of his father's and his own travels, was totally disbelieved, proverbially called a liar, an I mentioned by his fellow-citizens by nicknames only, which expressed their contempt. The various late embassies to China, however, and the accounts of those who have personal knowledge of it, confirm in a surprising manner Polo's veracity. See, among other wor' s, Davis, The Chinese. 4i6 POLITICAL ETHICS. frittered away their talents and gifts, which otherwise might have been employed to excellent purposes, and they them- selves have ended with a disappointed temper which is ever apt to betray men into acts of injustice, or entangle them even in nefarious designs projected by men more prudent and less principled. We have seen in several previous passages that without a degree of enthusiasm, and inspired love of the Good, men are in want of a principal inducement to be good ; utility alone is insufficient to guide or support us. This en- thusiasm, however, must be balanced by modesty, which will teach us that we should not assume our opinion as the sole guide, and that we must temper our desires and endeavors according to the different spheres of action in which it has pleased a higher hand to place us. Not a few have injured the best causes because their ambition went beyond their talent and they would not suffer the first place to be occupied by an abler man ; or because they strove for objects wholly unattainable. The canvas which a vessel carries must be in proportion to the hull and cargo. A distinguished man, who was more variously endowed than most men, and most active throughout his life,"one of the master-men of his age, Leo- nardo da Vinci, took the sentence of Terence, " If that cannot be which thou wilt, will that which can be," ' for the motto of his life. He went farther, and says, " Wise is he that guides his will by that which he cannot perform." =* The third principle — to concentrate our strength upon one great object — is equally important ; for a man cannot fight two battles at one time, and it is true in the moral world, as in the physical, that a force effects most in a straight line, and loses the more obliquely it is applied. Singleness of purpose lends great strength. The clear perception of what we want, • " Quando non potest id fieri quod vis, id velis quod possit," Andria, ii. I, 5. » A sonnet of Leonardo's begins, — " Chi non pu6 quel che vuol quel che pu6 voglia, Che quel che non si puo folle e volere : Adunque saggio e I'huomo da tenere Che da quel che non pub suo voler toglia." POLITICAL ETHICS. 417 and in what way we ought to direct our endeavors, increases with it. And, again, in order to obtain singleness of purpose it is important that we should clearly present to ourselves what it is we essentially strive for. No man takes good aim at an object enveloped in dimness. Timur, who will be al- lowed to have effected mighty things, enumerates among the twelve maxims, which he had laid down for himself and advises his successors to follow, this as the eighth : " I acted with resolution ; and on whatever undertaking I resolved, I made that undertaking the only object of my attention ; and I withdrew not my hand from that enterprise until I had brought it to a conclusion."' " Quidquid vult valde vult," said Julius Csesar of Brutus.^ ' The Institutes of Timour, translated by Major Davy, Oxon., 1789, p. 157. In Fraser's Persia, vol. xv. of the Edinburgh Cabinet Library, p. 229, the fol- lowing anecdote is related of Timur, but I am unable to find ic in the above translation of the Institutes, or the previously-quoted translation of his own Memoirs. "I once," says Timur himself, in his Institutes, "was forced to take shelter from my enemies in a ruined building, where I sat alone for many hours. To divert my mind from my hopeless condition, I fixed my observation upon an ant, that was carrying a grain of corn larger than itself up a high wall. I numbered the efforts it made to accomplish this object: the grain fell sixty-nine times to the ground, but the insect persevered, and the seventieth time it reached the top of the wall. The sight gave me courage at the moment, and I never forgot the lesson it conveyed." A similar incident inspired Robert Bruce, the restorer of the Scottish monarchy, with courage to persevere in his undertaking, mentioned, for instance, in Scott's Tales of a Grandfather. These accounts, true or not (and there is no reason why they should not be true, though there is none, either, why they may not be rather the expression of the views entertained of these per- sonages in after-times), show, nevertheless, a sound moral in an impressive style, and in the whole sphere of practical morals it is salutary if we can compress a great truth into the narrow compass of one impressive image or fact, which in times of extremity, depression, or excitement, when the state of our mind is unfit to reason, presents itself to our soul like a symbol of this truth, and is apt to re- mind us suddenly of the result of our reflections in calmer hours. Anecdotes of this sort, therefore, are well worth remembering ; but whether we endeavor to impress our mind with a summing up of this great virtue in the moral of plain yet pointed fable, or an anecdote, or the name of a man who has practised it ■well — a Fulton, Isaac Newton, or Coligny — it is all-important to stamp this v-rtue deeply on the mind in earliest years. » As Cicero mentions, ad Att., xiv. i, 2. 27 41 8 POLITICAL ETHICS. Fourthly, repeated and uninterrupted action may compen- sate for the absence of power. The ancients said proverbially, " Gutta cavat lapidem non vi sed ssepe cadendo." And, like- wise, firm perseverance may effect much with small means. They were but crazy vessels in which Columbus discovered the New World and Ross sought to reach the north pole. It is the natural course of things that few great objects are brought about at once ; radical changes never. The ideas, of which the ultimate changes are but the manifestations, must make their way from within outward, from below upward ; and for this it is necessary both that a beginning, however insignificant, be made, and, if once made, that it be followed up by steady action. As Demosthenes was laughed at when he first spoke, but by perseverance became the greatest orator, so there are few great ideas which have wrought extensive changes that were not at first disregarded, perhaps derided or persecuted. This first beginning requires courage; but it is one of the noblest kinds of courage. It was necessary that Beccaria or some one, whoever he might have been, should make a beginning in showing the inexpediency and cruelty of most penal systems, before ultimately the great reform of punishments could take place which we happily see realized in our times ; Salmasius or Filmer must first boldly write against witch trials, before the truth could be widely acknowl- edged, and positive legislation finally set its seal upon it under the dictates of public opinion. The habeas corpus act passed in 1679, after having been passed by the commons in 1669-70, 73-74, 75-76, and rejected by the lords. How long was it that Soto,' the confessor of Charles V., wrote against the trade in Africans, before Virginia prohibited it in 1778, the United State? provided for its abolition in the constitution of 1787, and England followed the movement in 1807,^ after ' Soto de Justitia et Jure. — See Mackintosh, General View of the Progress of Ethical Philosophy, section iii. = The American laws of March 22, 1794, April 7, 1798, February 28, 1803, March 2, 1807, March 3, 1819, and some others, have reference to this subject. POLITICAL ETHICS. 419 a parliamentary struggle of twenty years? Of whatever party the reader may be, he will agree that the emancipation of the Catholics is greatly owing to Mr. O'Connell's perseverance, not to the power or influence which he originally possessed, either by riches or rank, but which he acquired by near thirty years' unabated exertion. This he himself calls in one of his speeches the great secret of his power. Whether he wields this power at present for the weal or woe of Ireland, this is not the place to inquire ; all we have to consider is his im- mense influence, and that he acquired it by singleness of purpose and unremitted perseverance, which must frequently have been seconded by circumstances, — in which case it proves indeed the value of perseverance, — but must also frequently have found obstacles in them. Those who ascribe O'Connell's power to the mere lawless spirit of a demagogue and servile followers, take an erroneous view of history. It is his perseverance, in union with his talent, applied to the peculiar circumstances offered by his country, which gives him this uncommon power of " a shape and magnitude such as history never yet beheld."' Sir Samuel Romilly, after having repeatedly reflected upon the melancholy state of the British penal law, and having regretted that he allowed him- self to be dissuaded from proposing his bill, because it would have made a beginning by drawing attention to the subject and causing discussion, brought in his bill against the statute of Elizabeth, making privately stealing over five shillings cap- ital, June 15, 1808; and Sir Robert Peel's law taking away death for so many offences only passed in the year 1827. Nor has to this day the state of jails been thoroughly reformed: the years i860, 1870, 1880, nay 1900, may very easily arrive before that be effected ; and yet if within one hundred years this be effected, it will be after all but a short time, con- and make negro-trading from Africa piracy. There exists a very complete work on the histoi7 of the negro trade and the long struggle to abolish it, by Albert Hune: Complete History of all the Changes of the Trade in Negroes from its Origin to its Entire Abolition, Gottingen, 1820, 2 vols. ' Raumer, England in 1835, translated from the Germ-in,— Letter VI. 420 POLITICAL ETHICS. sidering the many centuries during which the bad laws and erroneous principles had time to grow like reeds in the rank soil of passion. Fifthly and lastly, a trifle decides in struggles between nearly even powers, and therefore in the hardest struggles ; but to reduce the struggle to this ultimate apparent trifle requires the utmost perseverance and fortitude. An adage says a feather may break a camel's back, but it requires all the previous heavy load to enable a feather to exercise such a power. The holding out of a fortress but one day longer may change the aspect of a whole war, may rescue a country, decide a victory ; but that this one day, this one last effort, can be so decisive, it is necessary that the besieged should have been proof against all misery and sufferance. However gloomy the horizon in politics or war may be, however op- pressed a good citizen may feel, this one fact is certain, hope- less despair makes it still worse. It is in times of calamity that perseverance rises to fortitude and shows man's moral power in the noblest light. If the best cause is oppressed, fret not, but wait for the due season, and prepare thyself patiently and perseveringly for it. Fabius and Washington despaired not, however dark and lowering the clouds were often around them. It is in times of war that frequently all depends upon this fortitude. A defeat, without this quality in the commander or the men, may be irreparable ; but un- broken fortitude may turn a defeat even to a greater loss to the enemy than to ourselves, if we fight for our country and he for a cause which does not furnish him with this inexhaust- ible moral source. Had Londonderry not held out so perse- veringly in 1689, William's conquest of Ireland could by no means have been so rapid ; nor could his great ancestor, William the Silent, have wrested the Netherlands from Spanish tyranny and fanaticism, with all his own fortitude and eleva- tion of mind, had not the citizens shown almost superhuman perseverance, when many months besieged in Leyden, reduced to the utmost misery, so that when at length the hour of de- livery arrived they appeared " rather like barely breathing POLITICAL ETHICS. 421 skeletons than living beings." Palafox, and the memorable defence of Saragossa, ought not to be forgotten here.^ XV. Single instances of fortitude have indeed produced great effects, upon those who were witnesses as well as upon after-generations. In a war between the Dutch and English, the factory of Jacatra, on the island of Java, was besieged by the natives by land and by the English by sea. The com- mander's name was Broek. After some parleys, the besieg- ing sultan induced the Dutch commander to come into his camp, in order to settle further some points. Broek went, but was put in chains. He was ill treated and led with a rope round his neck to the walls, that he might call upon his countrymen to surrender if they would save him from execu- tion. Broek, thus placed before his countrymen, entreated them not to betray their duty, and to hold out, whatever should become of him. It is easy to imagine what the effect of his heroism was. Yet it is necessary that all be firm, if there is anything great to be attained, for without firmness there is no unity, and without unity no effect can be produced, neither in peace nor in war. For " of men who feel their honor at stake in battle more survive than die." ^ There are in all communities people of a naturally gloomy and desponding disposition :3 if they are roused by alarm, or ' Napier, History of the Peninsular War, book v. ; also Southey, History of the Peninsular War. = Iliad, 15, 563. 3 It is in peculiar situations that men show their character in native simplicity. I have met with no instance which exhibits the eager and the desponding charac- ters so strikingly as in Captain Ross's Polar Voyage in 1829-1833; yet they are no more strongly distinguished than we should find in every society, could we but penetrate it. When he and his crew were frozen up, yet hoped still for some breeze which might liberate them, the navigator says, " Every hand was held up to feel if a wind was coming, every cloud or fog-bank watched, and all prophe- sied according to their hopes or fears, till they were fairly driven off the deck by the necessity of turning in to sleep. Had we been less anxious ourselves, we might have been more amused by observing how the characters of the men in- 422 POLITICAL ETHICS. if originally they unite to a want of firmness of nerve and mind a fretful forwardness, a combination of character which constitutes the alarmist, they become very dangerous ; for on the one hand their excitement does not cillow them to seize upon those means which are left, but which calmness only can discern ; on the other hand they destroy order and con- cert, magnify the evil by mutual repetition, and intimidate the wavering ; while it is they likewise who see a ground for sus- picion in every accidental occurrence. Most people who have been shipwrecked are well acquainted with the true and dangerous character of alarmists, and their helplessness at those moments which require the greatest effort. As citizens they are not less mischievous in creating and spreading panics. These unfortunate men see in every public misfor- tune a crime, and commit in their excitement those acts of injustice or cruelty on suspicion of bribery or treason, of which history relates so many melancholy instances. No man ought to allow himself to be frightened out of his wits by disasters and to wreak them on the head of the unfor- tunate, as the Athenians visited the loss of victory on their generals. The repetition of the same thing gives it to the senses of every one the appearance of probability; yet many of the most exciting rumors are founded upon nothing more than that every one repeats it to every one. It does not become either truer or less true by this process : all depends upon the first source. It cannot be too early inculcated as a rule for all periods of life, for man or woman. Ask invariably, but most especially in cases of universal rumor, for the first source. Who said it ? Who saw it ? Who brought the fluenced their conduct on this occasion. Those of an eager disposition were continually watching the eastern sky, to discover, in the changes of the clouds or whatever else might occur, the first promise of a fair wind ; while the despond- ing characters occupied the bow, looking in gloomy silence at the dark sea and the sky before them, and marking even without a word their despair of our ultimate success, and their fears that our voyage was about to come to an end at even this early day." lOLITICAL ETHICS. 423 news ? Whence does he know it ? And this alone will be found to be an antidote against many rumors, which lead from surmise to suspicion, from suspicion to charge and accusation, and may end with a sentence against an absent citizen, as in the case of Alcibiades when he had sailed for Sicily, and was suspected, upon increasing rumor, to have defaced the statues of Hermes shortly before he had set sail. Rumors may destroy credit, involve hundreds in ruin, seriously injure their reputation, and, as has but too fre- quently happened in several countries, in our own as in past times, may end in murder. Few pages of history furnish so striking an illustration of the evil and often awful effects which alarmists may produce, and which are engendered by suspicion, alarm, and irritation at misfortune, of cruelty in consequence of want of manful calmness, and a total mis- understanding of one another, as those relating to the first French revolution. The first emigrants were alarmists ; after- wards suspicion rose to such a height that the various parties, the Jacobins and Girondists for instance, charged each other with being sold to the foreign monarchs, after the head of Louis XVI. had fallen, and in some cases at least it seems that those who made the charge believed in it." Therefore, be calm, and learn early to be so, by training your mind to analyze and dissect rumor, suspicion, imputation, and clamor, and you will save yourself many bitter reproaches, which otherwise you must heap upon yourself for acts of injustice, unfounded alarm, and folly, and will contribute to spare your community those excesses which have been most truly and ' We find these charges not only in the heat of debate, but in works written after the period of the greatest excitement had passed. In the M^moires de Louvet de Couvray, Paris, 1823, i vol., Louvet, a zealous Girondist, charges Marat with having been in the pay of the allies, and Robespierre with having surrendered Toulon to the English, because he worked for the allies. All his violence was the consequence of a plan to make matters as soon as possible so bad that the extreme must lead again to royalty, a charge which we might under- stand if brought by one who could not find in the human soul another key to his enormities, but here is a Girondist who, it would seem, in good faith proffers this absurd charge. 424 POLITICAL ETHICS. pertinently called, by one who knew them by experience, Rabies civica and Furor civilis ' — excesses the most injurious effects of which are not even the direct injury or cruelty which they may produce, but the lowering and degradation of the community at large, and the promotion of unfitness for civil liberty — the destruction of its sole basis, of justice. Since masses or large numbers are peculiarly subject to panics, on account of repetition assuming the appearance of confirmation of truth, and the want of necessary means in most men to ascertain the precise truth, even if they are not inclined to yield to sudden rumor, it is a rule, though simple yet of the greatest practical importance, that, so soon as there exists a general rumor seriously affecting the community, or so soon as a panic has seized it, committees ought to be ap- pointed, and, if general meetings cannot be held, that men of public spirit should appoint themselves as a committee to in- vestigate the causes and correctness of the rumor and report to their fellow-citizens on the result of their inquiries. Those nations who are not well versed in the practical part of civil liberty have frequently felt the serious evils which ensue from a neglect of this simple rule ; nor do those communities which have been longest accustomed to the practical operations and machinery of civil liberty always resort to it when it is most needed. Yet a committee is to masses what calm reflection is to every individual if he receives important news. We may mention another reason which requires calmness. He who does not tutor his mind will fret under misfortune, and as individuals so at times whole communities are irri- tated, and consequently unfitted to act correctly, when a gen- eral misfortune befalls them. It is manful, and gives self- respect, to submit with resignation to evils which cannot be avoided, while calmness alone puts us in that frame of mind in which we may hope soonest to discover a remedy, should it offer itself in the course of events. The same principles which determine many great national ' Hor., Carm., iii. 24; iv. 15, 17. POLITICAL ETHICS. 425 actions impel the mind on a smaller scale in limited spheres; and education, be it that by others or self-education, must early be directed to the cultivation of calmness. I once found a stage-coachman whipping his horses far more than seemed to be warranted by a fair desire of getting on rapidly. When I expressed my opinion against this cruelty, the coachman answered, " Ah, sir, if you knew how my teeth ache !" The same principle of action, and the glaring injustice of making some one smart, no matter whom or why, because we smart, may be found on many pages of history, in actions of vas»- extent and of calamitous consequences. Every true citizen ought to do his utmost, in times of danger, suffering, ot political crime justly calling for public indignation, to calm all around him. In this consists true patriotism, not in pouring fresh oil into the already fearful conflagration. XVI. In speaking thus of the low-spirited or desponding, it was not my intention to convey the idea that the light- hearted are the most courageous or the firmest when the hour of trial arrives, and the grave and more sombre natures those which soonest despair. On the contrary, those who have but little hope and are generally not sanguine in their expecta- tions, yet withal are not of a desponding nature, will be found the bravest in times of peril and calamity, while those who form the most sanguine and extravagant expectations at the beginning are also those who soonest relax and perhaps de- spond. Aristotle goes so far as to maintain that great men are almost always of a nature originally melancholy. It is not necessary here to inquire what precise meaning we should give to the word melancholy, in order fully to agree with the first of philosophers : all we have to observe is that in politics, as in any other relation in which man may be placed, calm- ness of mind is all-important; without it we cannot be just, wise, manly, or effect great good ; we cannot expect support from, or be the support of, others, and we make success a matter of chance rather than the reward of wisdom and rec- titude. A ruffled temper, acrimony, passionate excitement, 426 POLITICAL ETHICS. which leads to extravagant expectation or depression of spirits, are no more injurious in the private sphere than in poh'tics ; whether we consider the citizen in the primary rela- tions of the state, or as representative, officer, or statesman proper. But calmness of mind is a quality which can, and therefore must, be cultivated, although it is true that some individuals are originally endowed with tempers which make it tasier or more difficult to attain to this exalted virtue. Sorne of the greatest men, and those who have distinguished themselves most signally in this very particular, have, accord- ing to their own confession, not possessed it by nature. Wash- ington — and can a greater example of calmness be cited ? — is said to have naturally possessed an excitable temper. Socrates we know had often to struggle against passion, but he did it successfully. Reflect, on the other hand, on men so bounti- fully endowed as Alcibiades or Byron, and yet so wayward in their livee, brilliant like a meteor indeed, but not blessing by a regular course like the sun. This cultivation of calmness, hov\ ever, as has been mentioned already, ought to begin early, so that by degrees and perseverance it become another and our truest nature. XVII. I purpose to consider the absence of the calmness of soul in four effects chiefly, namely, fretfulness, discontent, inconsistency, and obstinacy, the counterfeit of perseverance. The first, that is, fretfulness, has been briefly touched upon in a previous passage. It is a sure sign either of littleness of mind or distrust in the soundness and truth of our own endeavor and object, if an over-anxious desire is manifest of seeing everything we hold to be good realized at once, or if we stigmatize those who disagree with us. Cases of imminent danger, and measures which are to avert it or threaten to bring it on, are of course here excepted. A conflagration requires immediate help. Great souls, the iJ.zyaX6(l