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THE NATION
THK
FOUNDATIONS OF CIVIL ORDER AND POLITICAL LIFE IN THE UNITED STATES.
El' MULFORD.
NEW YORK:
PUBLISHED BY HURD AND HOUGHTON.
CamBrilffle: UibcriStlrtr {Brt^^.
1870.
Entered according to Act of Congress, in the year 1870, by
E. MuLFoaD,
In the Clerk's Office of the District Court for the Eastern District of Pennsylyania.
RITERSIBE, CAMBRIDGE :
8IERB0TTPED AND PRINTED BI
n. 0. HOUGHTON AND COMPANY.
To THE
MEMORY OF
MY FATHER.
DJ THE HOPE THAT HIS FAITH SHALL UTE IN HIS CHILDREN'S
CHILDREN,
I DEDICATE THIS WOHK.
PREFACE.
The purpose of this book is to ascertain and de- fine the being of .the nation in its unity and con- tinuity. There is moving toward its reahzation in national laws and institutions, the necessary being of the nation itself. The nation thus becomes an object of political knowledge.
It is no abstraction, but in this alone is the avoidance of abstractions. It avoids, on the one hand, an empty empiricism, that with the recogni- tion of no consistent principle makes the nation only a formal organization, and politics only a suc- cession of random experiments, hits, and ventures ; and on the other hand, avoids an abstract idealism, which, regarding the state also as only a formal organization, would shape all things after an im- aginary polity and an abstract design. It is this conception of the state as involving unity and con- tinuity which is the condition of political science, that is to be set forth alike against the political empiric and the political dogmatist. It is this alone which can avert the danger which there is in the application of formal and abstract concep- tions in politics. It is a logic which is presumed in politics, — if politics be an object of knowledge.
VI PREFACE.
— but a logic formed in the necessary conception and manifest in the reaUzation of the nation, not the barren forms of logic as it is held in the no- tions of the schools. In this conception that cer- tainly is to be retained which works well, but polit- ical science is to apprehend the law and condition of its working.
The apprehension is of the realization of the nation in the United States, its substance, its rights, and its powers, underlying but manifest in its whole form and organization.
This book had its beginning in a purpose to rep- resent the nation in its moral being; to assert this moral being in its true position in politics; but the aim has been throughout as the conception widened, to define in their relative and positive character those principles which are the ground of political science. I do not believe that the teacher of ethics can avoid the subject of politics. I do not believe that there can be a separation of them in the thought of a people, but ethics will be- come abstract and formal, — the dry product of the schools ; and politics be bereft of all its power to become at last even a name of reproach. The book may thus serve to indicate, perhaps, in some measure the sources of the power of American in- stitutions in the formation of character.
I have written in the conception that holds politics itself as a science which is the ground of political education. In its apprehension of the be-
PREFACE. vii
ine of the nation, its unitv and laws. wLicli fonn the condition of science, political historV; juris- prudence, political economy, and social statics, are separate and subordinate departments ; political historv Ls concerned with the rise and srrowth of institutions, and the comparative value of political constitutions ; jurisprudence is the science of the jural law and civil organization ; political economj is the science of wealth, of the relations of labor and capital, of the laws of production and ex- change ; social statics is the science of the laws of health and population ; international law mav be regarded also as subordinate, since it presumes the existence of separate nations, and is formed mainly in the conception in which the nation is held. '
A larger space has been given in some instances to subjects of special interest in the immediate condition of affiiirSj as the jm^til and the economic representation of the nation, the relation of nat- ural and political rights, the distinction of civil and political rights, the representative principle, the method and dangers of a representative con- stitution, and the relation and diflerence of tiie civil and the international state, a particular State, and the United States.
I have written with an obliofation. which I am ?lad to acknowledsre. to the Rev. Mr. Maurice of London, and to Heo:el and Stalil. to Trendelen- burs and Bkmtschli ; while I have souffht bv ret-
VIU PREFACE.
erence to them to indicate this, it has been larger than mere notes of reference can trace; and I am never sure but their words may have mingled un- awares with my thought ; I shall not regret this if it may lead any who may trace them to traverse those rich and ample fields, or if it may be an aid to larger knowledge. This only can be the aim of the worker ; and it is much to contribute to the knowledge of the people in any form and in however slight a measure. The saddest of words are, — the people perish for lack of knowledge.
The slight references to the Alabama question I may say were written before the recent discussion of the subject, but I have seen no reason to change them.
The words "nation" and "state" are used as synonymous, and a particular State in the United States is written " State '' and is described as a commonwealth, as the commonwealth of Massa- chusetts or Virginia.
I have sought, however imperfectly, to give ex- pression to the thought of the people in the late war, and that conception of the nation, whicli they who were so worthy, held worth living and dying for. I know how far it falls short of that concep- tion which went with them to battle and sacrifice ; yet I would most care to connect, if I may, my work with theirs, and trust it may be received by Him, who is the head of all, to whom their service was done.
CONTENTS.
CHAPTER I.
PAQI
The Substance of the Nation ... ... 1
The nation
1. Is founded in the nature of man.
2. Is a relationship.
3. Is a continuity.
4. Is an organism.
5. Is a conscious organism.
6. Is A 3IORAL ORGANISM.
7. Is a moral personality- Its definition in the history of political science.
CHAPTEB II. The Nation as Defined in Theories 24
The nation is represented as
1 . A necessary evil.
2. An historical accident.
3. A jural society.
4. An economic society.
CHAPTER III. The Origin of the Nation as Defined in Theories . 37
It is said that its origin
1 . Is in the development of the family.
2. Is in mere force or might.
3. Is in some instinct or emotion of man.
4. Is in the social contract : historical genesis of this theory.
5. Is in popular sovereignty.
CHAPTER IV. The Origin of the Nation 54
1. The nation is of divine foundation : analogy with the family.
2. The evidence of its origin : —
CONTENTS.
PAGS
a. In its moral being and personality. 6. In its government.
c. In its authority and powers.
d. In the facts which indicate the consciousness of the people.
e. In the facts which indicate the conscience of the people.
CHAPTER V. The People and the Land 61
The interrelation of the people and the land.
1. The unity of the people.
2. The entirety of the people.
3. The political people.
The influence of the land on the people.
The origin of the nation in local contiguity : theory of Mr. Maine — of Mr. Buckle.
CHAPTER VI.
The Nation the Institution of Rights 72
The law of rights.
The distinction of natural and positive rights.
a. Natural rights.
b. Positive rights.
The law of the relation of natural and positive rights.
a. The theory which defines their isolation.
h. The theory which defines their identity. The distinction of civil and political rights.
1. Civil rights, n. Of life. 6. Of liberty, c. Of property ; its repre-
sentation in legal formulas of Savigny, of Blackstone ; its rep- resentation in political speculations of Locke, of Considerant, of Hegel. Criticism of Proudhon. d. Of equality before the law.
2. Political rights. The rights of the political people. The rights
instituted in the nation as a moral organism. The correspondence of rights and duties. Rights as defined in legal and political forms.
a. Original and acquired rights.
h. Absolute and relative rights.
c. Rights of persons and things. The realization of rights in the nation.
CHAPTER VII.
The Nation the Realization of Freedom . . . .108
Freedom, the realization of personality.
The freedom of the people subsists in the nation, in its moral per- sonality. The law and condition of political freedom. The defect in the common definitions of political freedom. The nation the realization of freedom. The political order is to conform to the will of the political people.
CONTENTS. . xi
It IS the assertion of the self-determination of the people in the
nation as a moral organism. The realization of Freedom in Rights.
a. It is construed in Rights.
b. It is formed in institutions.
On the representation of political freedom in different theories. On the assumption of freedom as existent before the organization of society.
CHAPTER VIII. The Sovereignty of the Nation 129
The organic will of the people.
The notes of sovereignty, a. Supremacy, b. Authority, c. In- dependence, d. Unity, e. Majesty.
Its substance, a. It is inalienable, h. It is indivisible, c. It is ir- responsible to any external authority, d. It is the power in the political people to determine the" form and order of its own political life.
The sovereignty in law.
Definition of law : The necessary elements in civil and political law : note on the distinction of public law and private law.
Government.
CHAPTER IX. The Nation and its Constitution 144
The twofold character of the constitution, a. The historical consti- tution. 6. The enacted constitution. The convention.
1. The nation precedes the constitution.
2. The constitution has the form and style of law.
3. The nation may amend the constitution.
4. The nation is to apprehend in the constitution, its conscious
object and aim.
5. The right of revolution.
On the relative and positive character of the political constitution.
CHAPTER X.
The Nation and its Rights of Sovekeigntt . . . .1.59
1 . The right to self-preservation : the habeas corpus.
2. The right to declare war and to conclude peace.
3. The right to form international relations, by treaty, etc.
4. The right to coin money.
5. The right to eminent domain.
CHAPTER XI. The Nation and its Normal Powers 171
The legislative, executive, and judicial powers : note on the historical definition of these powers in political science.
XU CONTENTS.
PAGE
These powers are : a. Organic. b. Coordinate. c. Coexistent.
a. Correlative. The distinction in these powers. The defect in the representation of their division : the argument of
" the Federalist." The relation of these powers to the physical force of the nation : the
military. The declaration of martial law, or the suspension of
the habeas corpus.
a. The legislative department.
b. The executive department.
c. The judicial department.
On the relation of the judiciary to the legislative power : the polit- ical province of the judiciary.
CHAPTER XII. The Nation and :ts Representative Constitution . . 210
The representative government.
The principle of representation as defined in theories : that the gov- ernment is formed : a. In the representation of interests, b. Of families, c. Of numbers, d. Of properties or accidents attaching to men.
The Republic formed in the representation of persons.
The law of representation.
a. Its historical justification.
b. Its realization of the sovereignty of the people : self-government.
c. Its realization of the nation as a moral organism. The Republic formed in the Democratic principle.
On various qualifications, a. A property qualification, b. A lit- erary qualification. On the representation of public opinion. On the representation of minorities.
CHAPTER XIII. The Nation and its Relation to other Nations . . . 251
The external sovereignty of the nation.
The right of recognition.
The authority and province of international law.
CHAPTER XIV.
The Nation and the Individual 258
The ancient and modern representation. The laws of their relation and development. The freedom of the individual.
On the defect in the representation of individualism in some recent theories.
CONTENTS. xill
CHAPTER XV.
PAGB
The Nation and the Family 276
The necessary and moral interrelation of the nation and the family. The obligation of the nation to maintain the moral order of the family. Note on the representation of the relation of the family and the na- tion in Shakespeare.
CHAPTER XVI. The Nation and the Commonwealth 283
The formation of society in, a. The family, b. The commonwealth, c. The nation :
Note on the historical growth of this conception in political science • Aristotle. Hegel.
The commonwealth is a. The civil organization : it is defined in the jural relations of so- ciety. 6. The economic organization : it is defined in the necessary rela- tions of society.
It is constituted in the maintenance of civil rights and civil order. Its procedure is in the common law.
a. The unity of the commonwealth.
b. The scope of the commonwealth.
Its historical growth. Its illustration in the constitution of the Com- monwealth of Pennsylvania.
The institution of courts. The civil court. The constabulary.
The relation of the nation and the commonwealth. a. The nation is immanent in the commonwealth. h. The nation is external to the comnioinvcalth.
The commonwealth is the civil corporation. Its formal rights.
The concurrent powers of the nation and the commonwealth.
The law of their relation.
The commonwealth as defined in theories, a. They are vast corpo- rations having their origin in some charter and continuing with certain vested powers, b. They are separate political so- cieties, each existent in the original sovereignty of an inde- pendent political power, c. They form an organic whole, in whose complex political organism the States exist each as an original integer : theory of Mr. Hurd and Mr. Brownson.
On the distinction of a central government and a local administration.
CHAPTER XVII. The Nation the Antagonist of the Confederacy . ^ . 321
The confederate principle.
Its' definition by Montesquieu ; by Freeman.
Its appearance in the formal constitution in an age of political trans- ition.
The conflict of the confederacy with the nation in its organic and moral unity.
The historical conflict in the United States.
xiv CONTENTS.
CHAPTER XVIII.
PAOB
The Nation the Antagonist of thk Empire .... 342
The imperial principle. The law of agi,rrandizement in the empire.
The subversion of the moral life and development of the people. The subversion of the freedom of the people : its fatalism. Its illustration in Spain ; in Austria.
The conflict of the empire with the nation in its organic and moral unity.
The confederate principle in Greece.
The imperial principle in Rome.
CHAPTER XIX.
The Nation the Integral Element in History . . . 355
The vocation of the nation in history : history a development in the
realization of the rnoral order of the world. The nation formed in the conditions of history. The conflict of the nation with slavery. The conflict of the nation for humanity.
The moral order of the world, the fulfillment of humanity in God. The church and the nation. The Protestant principle. The nation, the Christian nation.
CHAPTER XX. The Nation the Goal of History . . . . . . 382
Conclusion.
THE NATION.
CHAPTER I.
THE SUBSTANCE OF THE NATION.
The premise of political speculation has been the as- sumption of the existence of man apart from the state. It has portrayed an age when the conflict of right and wrong was unknown : there was in the lives of men no care, nor toil, nor endeavor ; there was neither chief nor law, neither soldier nor battle ; there was no judge nor police, no plaintiff or defendant ; there was neither mar- riage nor homes ; property was unrecognized, no bound- aries of land were traced, and the ample gifts of the earth were held by all in common ; the individual existed in the fullness of all his powers, while yet, as in the traditional, and the ancients say derisive, line of Homer,^ —
" No tribe, nor state, nor home hath he." 1 This imaginary state is drawn by the old counselor, in the Tempest : —
" Gon. — I would by contraries Execute all things; for no kind of traffic Would I admit; no name of magistrate; Letters should not be known ; riches, poverty, And use of service, none ; contract, succession, Bourn, bound of land, tilth, vineyard, none; No use of metal, corn, or wine, or oil; No occupation; all men idle, all; And women too, but innocent and pure; No sovereignty.
All things in common nature should produce Without sweat or endeavor: treason, felony, Sword, pike, knife, gun, or need of any engine. Would I not have; but nature should bring forth, 1
2 THE NATION.
But this scene, as it is traced in political speculation, soon closed, its course was interrupted and disturbed ; the impulses of men arousing, brought them in collision ; stronor desires came to clash with each other : there was the necessity for toil, and the lives of men were harassed with care ; there was division, and distrust was provoked ; then some power was required to maintain the imperiled security, to punish fraud and restrain violence ; and thus the state came into being ; its origin was in necessity, and its form was that of a repressive force in the institution of an external order.
The same premise, in the assumption of the contrasted picture, has represented the primitive condition as char- acterized by every evil. It was a constant warfare ; fear and self-interest directed human action ; the grasp of avarice brooked no limit ; hatred was the habitude of men ; tumult and violence alone prevailed. Then it is conceived that the state came into being, as an evil also, but slighter and sooner to be borne than those which ex- isted apart from it, and as before in the form of a repress- ive force.
These imaginary pictures divest man of the actual cir- cumstance and the actual relations of life. They are only abstractions. There is no trace of the natural man, and of the primitive age which they portray. They are assumed as the necessary material out of which to construct the
Of its own kind, all foison, all abundance, To feed my innocent people.
"/Se6. — No marrying 'mong his subjects?
"Ant. — None, man; all idle: whores and knaves."
The Tempest, act ii. sc. 1.
In contrast to this, Shakespeare has represented the actual condition of man apart from society, in the Caliban. This condition is not ascertained from the fragmentary traces of savage life, for in the lowest stage of the actual condition of man, there is the recognition of some relations, some principles of associ- ation, and some authority, in the will of a chief or the sanction of custom. The most exact representation of this condition is thus in some assumed character, as the Caliban.
THE SUBSTANCE OF THE NATION. 3
artificial systems of political schools. They have no foundation in the nature, or in the history of man.
The position of Aristotle is the necessary postulate of political science, — " Man is by nature a political being." The elements of the nation are in his nature, and its prog- ress is in the development of his natui'e. The earliest and the widest records of his existence disclose a condition in which there is the recognition of some common relation, and men appear as dependent upon each other, and as seeking association with each other ; they make sacrifices for it, and accept obligations in it.
The nation has its foundations laid in the nature of man. It is the normal condition of human existence. There is in it, as the oi'ganization of human society, the manifestation of human nature. The nature of man, apart from the nation, is unfulfilled ; and in the individual, in his isolation, the destination of humanity is unrealized ; the old words are verified, unus homo, nullus homo.
The nation, therefore, is not to be regarded as an arti- fice which man has devised, nor as an expedient suggested by circumstance, to secure certain special and temporary ends. It has other ground and other elements. It is often described as a contrivance of human skill, and gov- ernment as the cunning or clumsy device for the accom- plishment of certain objects in certain transient periods. A recent writer, identifying government with the nation, says it is " a machine for applying certain principles," etc. ; but even as an illustration, this conveys a misconception. The machine, when it is made, is apart from the maker, and complete in itself, and separate from the power which impels it ; but the nation never exists as a complete construction, and always is in identity with the people. The nation, moreover, cannot be moved as a machine, but has in itself thought and will and power to do or not to do, and capacity to suffer or rejoice. The nation exists,
4 THE NATION.
only as men are lifted out of a mechanical existence ; in it there is the assertion of their determination, and their free endeavor. And man does not owe the conception of the nation to the genius of an individual, nor is it the in- vention of a separate age. The highest ingenuity could not have compassed it, and it is not to be counted among the achievements of human wisdom. The machine also wears out, with time and use, when another is made in its stead ; but it is not thus with states, and there is no law of physical necessity which thus limits them.
This representation of the nation as a mechanism — the work of human craftsmen — is the root of the confusion which appears in the definition of man's savage or rude condition as the " natural state," and the emergence from it into civiHzation, as the " artificial state." It is the dis- tinction, on the assumption of which so many social schemes and such vast social theories of natural and artificial society have been built. The law of Aristotle has here its appli- cation in political science, — " The nature of that which is, is to be ascertained from its mature condition ; " not in its germ, nor yet in its decay, but in its fullness and its perfectness do we discern the true nature of a thing ; or, what every being is in its perfect condition, that cer- tainly is the nature of that being. ^
1 Aristotle's Politics, bk. i. ch. 2.
R. von Mohl, in one of his later works, represents the state as onlj' one in the successive spheres of human life which he enumerates as the sphere of the individual, of the family, of the race, of society, of the state, and of the association of states in their international relation. The special characteristic of this description is the distinction of society and the state; the former is described as the common, yet the unorganized and the unformed life of man. But this dis- tinction has no justification, and in it society' in itself is undefined, and every trait which is drawn to give to it a positive substance and form is derived from ■what is represented as another sphere — either that of the individual, or of the state. When it is further said that there is a law and rights belonging to society, as apart from the state, which yet have the character of neither national nor common law, and of neither political nor civil rights, the absence of all ground for the distinction becomes still more apparent, for law and rights presume an organic life and an organized society. R. von Mohl, Encyklopadie der Slaatswis- tenschaften, p. 17. See also Bluntschli's Geschiehte, p. 616.
THE SUBSTANCE OF THE NATION. 5
The nation is a relationship. They who exist in it are not held only by some external force, and are not bound only by some formal law. In the sketches given of ex- istence apart from society, the state was represented as if men entered it from a condition of individual isolation, and as itself the resultant of their individual accession. This isolation is unreal ; it is the atomy of the state, v/hich regards it as the collection of so many units. It is a premise which is devised to sustain political systems and political abstractions. The isolation of men presumes a conception which is inhuman, and it is not in its separation but in its relations that humanity is comprehended. If, moreover, this isolation be allowed, it does not furnish the elements out of Avhich the state can be formed, and it can suo-o-est no law in which the transition to the state may be made.
The origin of the state is not in some speculative theory nor in some formal scheme. The entrance to it is not through a reflective process, nor by an act of individ- ual volition. It has the characteristic of all relationships, in that it has not its beginning in a reflective or a volun- tary act, while in it the individual is conscious of existence as a person.
It is not, in its normal course, out of a condition which is external that men enter the nation, but they are born in it, and it has the natural condition of relationship.
The recognition of its law, and the obedience to its a;i- thority, is not then conditioned upon the arbitrary choice of those who constitute it, but in reference to it the arbi- trary action of the individual is precluded.
It is a common relationship, and there are none exempt fi-om its conditions, and none in the nation can make their lives to be as if it had not been. There are none unaf- fected by it, but each is involved in every moment of its existence.
In the politics of Aristotle, human relationships — the
b ~ THE NATION.
man and woman, the father and mother and child — are ap- prehended as the sign and suggestion of society, by which its existence is suspected, and in which its principle is con- tained. Then the constituents of society are sought in a house, but the family is not therefore the lesser state, nor the state simply a collection of families, since each has its own nature and end, while each as a relationship has therein its elemental principle. It was in the visionary republic of Plato that all relationships Avere swept away as antagonistic to its ideal unity, but as the nation is ap- prehended as itself a relationship, these are apprehended as integral in it and correspondent to it.
There is for the family, apart from the nation, a neces- sary imperfectness, as also they will hold best the relation of citizenship who hold best the relation of brothers and husbands and fathers.
The nation is subject to the conditions of all relation- ships. If the consciousness of them perish, the art of man can devise no substitute. Their strength can be supplied by no artificial bond, however subtly forged. They are deep as life, and in their mysterious power there is the holiest communion, so that their only illustration in the physical world is in the vine and the branches, and the body and the members.
It is thus that citizenship has its significance as a rela- tionship. It is not carelessly that human lips have called their country the father-land ; nor is it with vaeue and idle phrases, but in a spirit of holy and son-like sacrifice and in solemn crises, that men have turned to their country as the mother of all.
The nation is a continuity/. It no more exists complete in a single period of time than does the race ; it is not a momentary existence, as if defined in some circumstance. It is not composed of its present occupants alone, but it em- braces those who are, and have been, and shall be. There
THE SUBSTANCE OF THE NATION. 7
IS in it the continuity of the generations, it reaches back- ward to the fathers and onward to the children, and its relation is manifest in its reverence for the one and its hope for the other.
The evidence of this continuity is in the consciousness of a people. It appears in the apprehension of the nation as an inheritance, received from the fathers, to he trans- mitted unimpaii'ed to the children. This conviction, that has held the nation as an heritage worth living and worth dying for, has inspired the devotion and sacrifice of a people.
The evidence of this continuity is also in the fact that the spirit of a people always contemplates it. The nation has never existed which placed a definite termination to its existence — a period when its order was to expire and the obligation to its law to cease. It cannot anticipate a time when it shall be resolved into its elements, but con- tends, with the intensity of life, against every force which threatens dissolution. Those who have represented the state as a compact, have yet held it to be a perpetual one, in which the children are bound by the acts of their fathers.
This continuity is the condition of the existence of the nation in history. The nation persists through a form of outward circumstance. Judfea was the same under the iudo;es and under the kings ; Rome was the same under the kings and under the consuls. The elements of the be- ing of the nation subsist in this continuity. In it, also, the products of human effort are conserved, and the law of human production conforms to it. The best attainments pass slowly from their germ to their perfectness, as in the growth of the language and tlfe law, the arts and the liter- ature of a people. Chaucer and Spenser, through intervals of slow advance, precede Shakespeare, as Giotto and Peru- gino lead the way to Michael Angelo and Raphael.
The nation is a continuity, as also in itself the product of succeedincr generations. It transcends the achieve- ment of a single individual or a separate age. The life of
8 THE NATION.
the individual is not its measure. In its fruition there is the M'ork of the generations, and even in the moments of its existence the expression of their spirit, the blending of the strength of youth, the resolve of manhood, and the experi- ence of age — the hope and the aspiration of the one, the wisdom and repose of the other. There is the spirit which is always young, and yet always full of years, and even in its physical course the correspondence to an always re- newed life.i
This continuity has found expression in the highest po- litical thought. Shakespeare has it in his historical plays ; the continuity of the nation is represented as existing through the years with the vicissitudes of the people, in the clianges of scene, with the coming and going of men ; and there is as in the nation the unity of the drama in which so many actors move, and whose events revolve from age to age ; and thus these plays hold an attraction apart from the separate scenes and figures which present - some isolated ideal for the poet to shape. Burke has rep- resented this continuity in the nation as moving through generations in a life which no speculative schemes and no legal formulas may compass : " The nation is indeed a partnership, but a partnership not only between those who are living but between ,those who are living, those who are dead, and those who are to be born."
The life of the individual is brief, but in the nation it may become a continuous power. The character of Achilles may have a worth for all in its abstract ideal, but in the history of Greece it was always a living energy. They who have been the leaders of a nation in the strength and nobleness of their lives are alwavs in a vital relation to it. The traditions of valor and sacrifice in the memory of a people become the inspiration of its hope.
The work of the individual is brief also, and in its isola-
1 Nee temporis unius, nee hominis, esse constitutionem Reipublicse. — Cicero, jDa Rejntblica, bk. iii. eh. 21.
THE SUBSTANCE OP THE NATION. 9
tion would be almost vain, but in the continuity of the na- tion it is enwrought in the longer social development. Thus, also, a single generation, in its furthest advance, achieves but little in comparison with the long line of the generations in the nation, and if there is laid on any the necessity of battle, still the holiest triumph is that in which the life of the nation in its continuity is maintained.
The nation is an organism. It has an organic unity, it \ is determined in an organic law, and constitutes an organic whole. There is a political truth whose worth may be measured against the sciolism of many recent theories, in the ancient words, — " As the days of a tree are the days of my people." The nation is shaped by no external force, but by an inner law ; its changes are those of a develop- ment ; its strength appears in its regarding all division as the sundering of life ; and the glory of the people has been not in the uprooting, but in the maintaining and advancing of the work of its ancestors. This imparts to the people an energy which does not wholly perish in the waning of its years, it breaks the external bonds which fetter it, and flourishes amid the vastest historical changes.
The nation, as an organism, has the characteristic of every organism — unity and growth and identity of struc- ture. It has not merely an apparent sequence, nor a con- structive force, but is a development after an organic law. It is not a confused collection of separate atoms, as grains of sand in a heap, and its increase is not through their ac- cumulation. It has the unity of an organism, not the aggregation of a mass ; it is indivisible ; its germ lies beyond analysis, and in it is enfolded its whole future. This unity is the postulate of the existence of the people as a nation, and the condition of its independence. An identity of structure also pervades the whole. Thus the defect of a part injures the whole ; and if a part be sev- ered it ceases to exist, as the limb which is cut from the body, or the branch from the tree. /
10 THE NATION.
The nation, therefore, is not something which can be torn down, and then from the old material built up again in other nations. It is planted, it is not made. It is not constructed out of preexisting parts, but is an whole, and the law of Aristotle holds, — the whole is before the parts ; that is, a whole cannot be made of parts, but the whole is predetermined, to which the parts belong, or it is only in the conception of the whole that the parts appear. A sum or aggregate can be composed of separate units, but it is only their mass, and there can be predicated of it neither unity nor growth, nor identity of structure.
The law of an organism defines the relation of the indi- vidua] to the nation. They who form the organic whole, in their relation to it, and to each other, are its members. Its bond is not formal ; its action is not mechanical. The members are formed in and through it, as they form it, and are not as the wheels in mills, and the shuttles that slide in looms, but the members of a living body. They are affected by it, not as by an external force, acting on component particles, but as by a living spirit working through the whole. The laws of life in the physical body do not act with more unvarying certainty than in the body politic.
The consciousness of this organic relation, is the ground, also, of the normal action of the individual. Hegel says, the mob in a nation is the force which acts without or apart from the organization of the whole. There may thus be an ignorant or a learned mob, a mob of men of fashion or of men of science, but the spirit is the same, and in its severance from the organic people there is the same essential vulgarity. This has an illustration of singular force in one of the political plays of Shakespeare. When Caius Marcius turns to the crowd in Rome and denounces them as the detached and disorganized rabble, in whom there is nothing of the organic unity of the people, the dis- dain of the Roman is in the words, " Go, get you home, you fragments ! " and those who in the conceit of culture
THE SUBSTANCE OF THE NATION. 11
or of wealtli, or of higher interests, or of spiritual endow- ments, withdraw from the normal political action of the na- tion, are obeying the impulse of the mob, and are as the very fragments, for whom the Roman patrician felt such unmeasured scorn. ^
The antithesis to the nation as an organic unity, is in the conception which frames it upon abstractions. It as- sumes a certain scheme of rights, or system of laws, and then proceeds to construct the state out of these rights, or sets it forth as the product of this formal law. These assumptions are destitute of an historical foundation, and arise in the empty notion that men by a reflective act can constitute the nation, and that it exists as the sequence of an abstract conception. The most disastrous of political falsehoods is this, which in any form holds the nation in identity with a legal or dialectical system, and then pro- ceeds to its construction, after the design of the abstract reason. It is destructive, and the Avhole existent order is constantly liable to be razed, in order to substitute an imacrinarv polity in its stead.
The apprehension of the nation as an organism, is the condition of political science. It involves the distinction of an art and a science ; there may be, for instance, an art in building heaps of stones, but there is no science of stone- heaps. The unity and identity of structure in an organ- ism, in which a law of action may be inferred, form the condition of positive science.
This is the source, also, of constructive political power, and of all that is enduring in the work of the statesman. In the recognition of this fact — of the organic being of the state — the most is gained, says Bluntschli, for the practical study of political subjects. And it is significant that political writers of grasp and wide influence, as Spinoza and Hobbes, proceeding from a premise wluch precludes the organic unity or being of the state, have yet
i See Maurice, The Workman dnd the Franchise, p. 9.
12 THE NATION.
been led to represent it as a living body, and have de- scribed it as some colossal man. This conception, when presented by those whose postulate is the contractual ori- gin and definition of the state, indicates the reality of its existence as an organism.
It is also significant that the assertion of the nation as an organic unity, in modern political thought, should have proceeded from the historical political school. Savigny, who may be named as its representative, describes the na- tion as " the organic manifestation of the people." ^ Yet, the necessary conception of the nation as an organism transcends the limits of an historical school, and while the roots are traced in the past, there is necessarily a continu- ous development, and it passes into the future in the un- folding of its own germ. In the forgetfulness of this, the historical school reverts only to the past to dwell among its forms, and, as the sense of a living continuity and en- ergy fades away, it becomes of all schools the most dry and barren.
But although the nation is organic, it is not limited to the definition of a physical organism. Its description in this logical limitation is often repeated ; ^ it is said, for instance, that the nation, as the individual, passes through the necessary periods of youth, manhood, and age ; that it flourishes, and after maturity ceases to exist — its bloom is followed by inevitable decay. The deeper truth is in
1 Savigny's Syst. des Rom. Rechts, vol. i. p. 22.
" In every separate people the universal spirit of man manifests itself in an individual way, and the growth of rights has a common social ground." — Sysi. des Rom. Rechts, vol. i. p. 20. See Bluntschli's Allgcvieinen Statsrecht und der Poliiik, p. 5G8.
2 "As men are born and live for a certain period, and at last die of age or in- firmity, so also states are constituted ; they flourish for some centuries and then at last cease to exist." — Frederick II., Aniunacchiavelll, ch. ix.
Mr. Spencer says, — " We find not only that the analog}' between society and a living creature is home out, but the same definition of life applies to both." — Social Statics, p. 490. It may be doubted if the elaborate analogy which Mr. Spencer draws, carried as it is through the detail of a minute anatomy, has any justification. The description of an exact correspondence to the physical or- ganism often serves as a display of anatomical science. The literature of poll-
THE SUBSTANCE OF THE NATION. 13
the words of the Roman statesman, — " The state is formed for eternity." ^
The nation is a conscious organism. It is the conscious life of the people ; it knows its own object and the purpose which is given it to fulfill. Its action does not proceed from mere impulse, and it is not directed by a merely aim- less energy, but there is in it that conscious spirit which apprehends an object before it, and apprehends it as its own. "The nation," says M. Thiers, "is that being which reflects and determines its own action and purpose."
It has a determinate end, and apprehends in its own conscious purpose its vocation in history. This conscious- ness of a vocation enters into the spirit of every his- torical people, and is the basis of its historical life. The nation has in correspondence to its vocation a de- terminate character : its cliaracter is the manifestation of the purpose it has realized in its vocation. Its character becomes thus as clearly outlined as that of its foremost men. Rome has a character as distinct as that of Caesar, and Greece as that of Pericles.
The conscious life and vocation of the nation appear in the spirit with which it invests its members, and those who are called to the execution of its purpose. There is a quality in its membership which, is distinct from that in a life withdrawn from it, and there is a spirit in the fulfill- ment of its trusts and offices which it alone imparts. When the thought and action of the members and officers of a nation become empty routine, the mere work of functionaries, there is the sign of the loss of a living energy,
tics has many monograms on this correspondence, in which for instance the members of the political society are compared to the cells, and the legislative power to the head, or the economy to the stomach, and so on; but they are mainl3' subject to the criticism of von Mohl, — " These conceptions of the state and its correspondences based upoa physical science appear from time to tnne, partly through an altogether sickly tendency of thought, and partly through a mystical and fanciful conceit." — EncyUopadie der Slaalswissenschaften, p. 84.
1 " Debet enim constituta sic, esse civitas ut aeterna sit." — Cicero, De Repvb- lica, bk. iii. ch. 3.
14 THE NATION.
and tlie decadence of a people. It has been said that there Avas in the office of a Roman consul an inherent majesty, which often gave dignity to a person of ordinary character, and ennobled him with its spirit ; and there is in the office of a representative of the people a power which may lift the possessor above the divisions of partv and the interests of factions, so that he is made to stand in a living relation to the nation, whose work and pur- pose is to be wrought through him. It is thus, also, that one Avho is called to a public trust or office in the nation, is not simply a private person, nor to be so re- garded.
The conscious life of the people appears in its literature and arts, its manners and laws. These are moulded in the type of the individual life of the nation, so that with the universal element in literature and art and law there is the individual element in which the characteristic of the peo- ple is traced. These not only bear tlie impress of its pe- culiar type, but there is in its being the field of their growth. The constructive polity, and the art and litera- ture of a nation, thus terminate with its historical course. Tliere may be great works produced after its close, but their root was in the past, and with its decay they soon cease ; as there were solitary great Grecians and Romans after the loss of the national life of Greece and Rome, but the line soon expires. Their spirit can survive in no other people, and their work can be resumed by none. The Turks gain possession of Greece, and the French of Egypt, but the monuments and arts do not belong to them, they do not recognize their spirit in them, and can- not continue them. All that England can do with the sculptures called the Elgin marbles, is to place them in a museum.
This consciousness of the vocation of the nation, how- ever reluctantly acknowledged or "dimly apprehended, has been stronger than the individual intention of its members.
THE SUBSTANCE OF THE NATION. 15
It has determined the course of the greater in the succes- sion of its leaders and its kings, and has turned them from their individual bent, when they could not warp it to their own use. In England and France the greater rulers, as Henry VIII. and Louis IX., have been those who have held the best apprehension of and given the clearest expres- sion to this vocation ; and kings and ministers who have sought to thwart it, or even failed to be penetrated by it, have been set aside, or, as illustrative of its weakness in some ages, are left to stand as passive figures in its lines.
In the conscious life and vocation of the nation, there is the ground of its identity of purpose, through the suc- ceeding generations. Its purpose is transmitted from the fathers to the childi-en. The consciousness of its destina- tion becomes clearer in the advance, as it fades in the degeneracy of the people, and is obscured in the prece- dence of selfish interests, and at last blotted out in stu- pidity and slavery. Thus, also, the early incident of a peo- ple may contain the premonition, and its historical epochs and crises the revelation, of its vocation. There is through all the same great promise, the same memories, and the same hopes. The longer years alone are its measure. The calling of the nation thus may endure through hu- miliation and defeat, and through evil days, when there is only a remnant left Avho keep its ancient faith and guard its ei'rand from forgetfulness.
This is held slightly by the teachers of the technic of po- litical art, and by those Avho would limit politics to political economy, but the consciousness and the fulfillment of the vocation of the people are the condition of its power ; this vocation is the postulate of national character and national freedom. The people has in it no external limitation which impairs action, but is strong and free only as it works it out. The people that fails to hold its calling carefully and reverently cannot attain a strong national life, and weakness and ine\'itable disaster result when its
\
16 THE NATION.
purpose is but feebly grasped, and servility and degradation when it becomes the imitator or the copyist of another.
The nation is a moral organism. In the necessary ele- ments of its existence in history it transcends the merely physical conditions of a physical organism ; and in free- dom, and law, and order, in the fulfillment of a conscious purpose and vocation, and in the obligation to law, are the very elements of a moral being.
It is a moral organism ; that is, its members are persons who subsist in it, in relations in the realization of person- ality. It is the condition in which a person exists in the fulfillment of the relations of life with those who are per- sons. There is in it the assertion of a justice, which is the affirmation of a person in the recognition and institution of these relations between the moral whole and the moral parts of the whole. Its law is regulative of the moral whole, and of the parts, in these relations.
It is as a moral organism tliat the nation is the field of the action of man, in law and in freedom. There is, therefore, in it the education of the individual, the growth and formation of character. There is in its normal devel- opment the coming into the world of that which is laid in the nature of humanity, in its true and original constitu- tion.
It is as a moral organism that there are in the nation the conditions of the moral life of the individual. In the assumed isolation of man there is the neg-ation of the moral life which is formed in moral relations. Thus all the re- lations of life in its moral order are constituted in the nation, and are to be maintained through its institutions and by its enactments.^
It is as a moral organism that the nation is the sphere
1 " Whosoever laj-s violent hands upon the state, assails the conditions of all moral life, and therefore the crime is regarded as the greatest." — Trendelen- burg, Naturechte aus dem Grunde der Elliik, p. 286.
THE SUBSTANCE OF THE NATION. 17
of the individual person. The fact of a vocation cannot consist with his isolation. It presumes an existence in a conscious relationship, and its fulfillment is in the relations of a moral order. It is thus that there is formed in the nation the consciousness of the relationship of humanity, and the moral life of the individual is apprehended in it as the life which is truly human.
The process of the nation is only as a moral organism. It is not constituted in the necessary process of the phys- ical world, but it is constituted in the order of a moral world. Its course is defined in law, and in law as pre- scribing the actions and relations of men as moral agents. Its attainment is in freedom. Its goal is peace, and that not in the barren conception in which there is the nega- tion of purpose and energy, but peace as the conquest of man, in which there is the satisfaction of his spirit and the achievement of his aim.
The conditions of history presume the being of the na- tion as a moral organism. History is not a succession of separate events and actions, but a development in a moral order, and in the unity and continuity of a life which moves on unceasingly, as some river in its unbroken current. But it is only as the nation is an organism that this unity and continuity is manifest in it, and as a moral organism that this moral order is confii'med in it.
The nation thus cannot be comprehended in the defini- tion in its logical limitations of a physical organism. The distinction of a physical and a moral organism is necessary, and becomes the illustration of the being of the nation, in its necessary conception. It is as follows : —
The physical organism is determined in itself by a law of necessity, as the tree which cannot be other than it is : the ethical oro;anism is determined in a law of freedom, which is the condition of moral action. In the physical organism, each member exists only in its relation to the whole, as, for instance, the hand is nothing without the
2
18 THE NATION.
body, and has no separate significance : in the ethical or- ganism, each member has in itself a necessary significance, and each member, furthermore, has the destination in itself, for which the whole exists, and which the whole has in itself. The whole subsists in the same relation and has the same destination as the individual, and neither the whole nor the individual has a secondary existence, nor can be made only a means to the end of another. In the physical organism, the elements which are atomic, under a law of combination, are taken up and separated again, and as they pass back into unformed nature, it is only to reappear in other and manifold forms : in the ethical or- ganism, the members are individuals existing each in his own identity, and each is so related to the whole that instead of a construction after the exclusive type of the whole, it is indifferent to say that the individual has his type in the whole, or the whole its type in the individual. In the physical organism, the changes are through neces- sary periods, as youth and age, or spring and autumn, and the elements which are chemical, and so on, are formed after the law of these periods ; but in the ethical organ- ism the process is not through the periods of a necessary sequence, and its members exist in each moment of its ex- istence in uninterrupted relations of youth and age. Its life consists in the constantly unfolding life of humanity.^
^ The logical fallacj' of defining an ethical by a physical organism, and limit- ing the one to the conception of the other, appears in Draper's Civil Polity. The description of the growth and maturity and decay of nations is repeated with a solemn monotony, as if history was an unbroken succession of funereal pag- eants. But the nations do not exist in history in this limitation in a physical sequence; they appear under the conditions of amoral life, and their growth or decay is traced not in necessari', but in moral causes.
There is in the same school the utter denial of the real freedom of the individ- ual and the nation, when it aims to define freedom only in the limitations of a physical necessity, and the mind of man is regarded only as involved in the physical process of nature. Yet not infrequentlj- exhortations are made in the same school on the beauty, or the dut}', or the excellence of political morality, and these may be often the expression of an emotive fervor or of prudent counsel ; but they can avail little when they are connected with a merely economic con- ception of the nation, and are separated from their only consistent postulate in its organic and moral being.
THE SUBSTANCE OF THE NATION. 19
The nation is a moral personality. This is the condi- tion of its vocation, as in the fulfilhnent of its vocation there is the formation of its character. The moral personahty of the nation is determined in its consciousness ; in its conscious purpose subsists its independence of other na- tions, that it is not to be necessarily what they are nor as they are. Its object is before it, which it knows as its own ; its freedom is in the working out of its vocation, and in its coal tliere is the satisfaction of its desire.
The condition of the realization of personality is the same in the nation as in the individual. This condition in each is the clearness and fullness in which it comprehends its purpose and is centred in it. The source of strength is, as with the individual, in working faithfully after the type of its own individuality, and bringing this to its free and clear development. The being of the nation is, therefore, not merely in an apparent sequence, but in conformance with the law which is laid in its being.
The scope of the nation thus is not exhausted by, and its powers are not derivative from a sphere of outward cir- cumstance ; it is not comprehended in a summary of enact- ments nor defined in an abstract system. The only limit- ation is its self-limitation in its being, as a moral person. In this is the postulate of its law and the line of its progress. There are no bars or barriers before the course of the free spirit of the people, and the nation moves in its advance towards the higher personality which is realized in its vocation, which is of God, in history.^
The nation is a moral person, since it is called as a power in the coming of that kingdom in which there is the moral government of the world, and in whose comple- tion there is the goal of history. It is a power in the moral conflict and conquest which is borne through history, to the final triumph of the good. It is a power manifest in
1 "National character ist der gottliche Beruf, einer nation." — Stahl, Fhilu- sopkie des Rechts, vol. i. p. 365.
20 THE NATION.
the judgment of history. But in the formal and artificial conception of the nation this power becomes a fiction, and in the mechanical conception it has no moral ground.
The nation is a moral person, since its development is in an integral moral life. Its character is its own, it is not derivative from any powers on earth ; it does not proceed through them, and its responsibility cannot be transferred, nor its obligation rendered to them. It is not the vehicle in which another and a separate power is carried to its end, nor the frame-work in which another life is to be built, nor the shadow which in a disturbed economy falls from some other order or organization that alone is lifted into the clear light, and alone knows the triumph of the good. It is not the instrument for the pursuance of the vocations of separate individuals, which are to be held before it as separate and special ends, nor in the formation of the char- acter of certain individuals, does it alone have its end ; but as its vocation is its own, and it is judged in it, it has its own end. Its ground is not in the individual, but in the historical life of humanity. It has for its end not the special but the universal ; its assertion is not of the indi- vidual will, but of law which is the universal will ; its in- stitution is not in the right of one, nor of a few, but in the rights of man.
The nation is a moral person, since it is formed in a moral confhct. It is not merely phenomenal in its moral being. It is not the perfect image, nor yet the passive reflection of righteousness, as of something external to it, but its being and the condition of its being is in righteous- ness. Yet it is not therefore a self-righteous power, but exists in the institution of righteousness in the moral order of the world. It is formed in a real conflict. The nation, in the attainment of its being, is to strive. There is always in its freedom the possibility of evil, but in evil there is also the negation of its being.
The being of the nation as a moral person has its witness
THE SUBSTANCE OF THE NATION. 21
m the consciousness of men. It has awakened the higher moral emotion, and its response has been from the higher moral spirit. It has called forth the willing sacrifice of those who were worthy. The life of the individual has been given for the life of the nation. The offering has been laid upon that, which in the holiest spirit has been held as an altar, and life has been given in that sacrifice in which life is found. If the nation had only a formal existence, this moral spirit could have no justification, and if its origin was in self-interest, to call for self-sacrifice would be the negation of it; and if its end was only in the protection of the life and property of the individual, this surrender of them would be the immediate defeat of its end. '\ ^
The nation Is a moral person, since it is the organized \ . . life of society, and society is formed in the spirit and in 1 ' ' ' the power of a personal life. It is to be governed in the conscious determination of the will, and to act as one who looks before and after. The strength which is to be wrought in it, exists only in rectitude of thought and of will ; wisdom and courage, steadfastness and reverence, faith and hope are attributes of it ; the highest personal elements become its elements and are moulded In its spirit.
The relation of the individual to the nation presumes, as its necessary condition, the existence of the nation as a moral person. The individual becomes a person in the nation, and this involves the existence of the nation as also a person ; for personality, as it is fonned in relations, can subsist only in an organic and moral relationship — a life which has a universal end. The nation is thus the sphere of a realized freedom, in which alone the life of man fulfills itself, and it is to give expression to all that Is compassed in life. It moves toward the development of a perfect humanity. Its symbol is the city of an hundred gates, through which there passes not only the course of industry and trade, but the forms of poets and prophets
22 THE NATION.
, and soldiers and sailors and scholars — man and woman j and child, in the unbroken procession of the people. Its "warrior bears the shield of Achilles, on which there are not only the figures of the mart and sea and field, the loom and ship and plough, but the houses and the temples and the shrines and the altars of men, the types of the thought and endeavor and conflict and hope of humanity.
The condition of the being of the nation, as the power and the minister of God in history, is in its moral person- ality ; in this it is constituted in history as the moral order of the world, and for the fulfillment of that order.
The assertion of the moral being; of the nation has been the foundation of that which is enduring in politics, and has been embodied in the political thought and will which alone have been constructive in the state. Aristotle, who gave the furthest attainment of the ancient world, says, " The end of the state is not merely to live, but to live nobly." -^ Hegel, who has given a yet wider expression to modern thouo-ht than did Aristotle to the ages before him, — and there is no other name with which the parallel may be drawn, — represents the state as the realization of the moral, and in the moral alone it has its substance and be- ing. He says, " The state is the realization of the moral idea," ^ and " The state is the realization of freedom, and it is the absolute end of reason that freedom be real," ^ and " Tiie state is no mechanism, but the rational life of self- conscious freedom, the order of the moral world ; " * and again he says, " There is one conception in religion and the state, and that is the hio-hest of man." ^
Tliere is no other conception which has such power in the thoughts of men, and in this age it has the greater significance when it is drawn, not from a school of puritan
1 Aristotle's Politics, bk. i. ch. 2.
2 Hegel's Philosophic des Reehts, p. 312. 8 Ibid. p. 317.
4 Ibid. p. 340.
5 Hegel's Philosophit der Religion, vol. i. p. 170.
THE SUBSTANCE OF THE NATION. 23
politics, but from those most widely separated from histor- ical puritanism, and finds its expi*ession in the literature of a people which is rising to great political might. ^ But those who have been the masters of political science, and it has perhaps fewer great names than any other science, all repeat this conception. Milton says, " A nation ought to be but as one huge Christian personage, one mighty growth or stature of an honest man, as big and compact in virtue as in body, for look, what the ground and causes are of single happiness to one man, the same ye shall find them to a whole state." ^ Burke says, " The state ought not to be considered as a partnership agreement to be taken up for a little temporary interest and dissolved at the fancy of the parties. It is to be looked on with other rev- erence, because it is not a partnership in things subservi- ent to the gross animal existence of a temporary and perishable nature. It is a partnership in all science ; a partnership in all art ; a partnership in eveiy virtue and in all perfection." ^ Shakespeare says, —
" There is a mystery — with whom relation Durst never meddle — in the soul of state; Which hath an operation more divine Than breath or pen can give expressure to." *
1 See Rothe's Tlieologische Ethik, vol. iii. sec. ii. p. 900. Stahl's Philosophie des Rechts, vol. ii. sec. 2, p. 181. Bluntschli's AUgem Stats Bechts, vol. i. p. 140.
2 Milton's Reformation in England, Preface to bk. ii,
3 Reflections on the French Revolution, p. 368. * Troilus and Cressida, act iii. sc. 3.
CHAPTER 11.
THE SUBSTANCE OF THE NATION AS DEFINED IN THEORIES.
The conduct of affairs in the nation is shaped after the conception which men may have of its origin and end, and yet it does not subsist in the individual and arbitrary conception, and cannot be made the exponent of that. It exists in its necessary conception, and every divergence from that is the building of some abstraction, or, as the French phrase is, " in the air," and through vagueness will result in feeble action, or, through defect, in negative action. The error in thought can involve only disaster in fact.
The representations of the nation, which most frequently recur in politics, and especially in its later phases, are mainly as follows : —
The nation is represented as a necessary evil. It is a sequence of the evil which is in the world, and is incident to that. It is imposed on man to control the desires and lusts, and to curb the tendency with which it is said the inclination of his nature is toward evil. It is made neces- sary by the disorder and violence, the fraud and enmity of men, and the antagonism of self-interest, and is itself to be endured as only a less evil than these, and to lose its power as they abate, and to cease with their termination. It is simply repressive, and is the restraint which is neces- sary to check the evil drift of the world. This defines the state as the resultant of the existence of wrong, and neces- sitated by that ; it is to be apprehended only as involved
THE SUBSTANCE OF THE NATION.
25
in the sequence of evil, a manifestation of an estate of sin and misery.
This makes a destructive force the constructive cause of society. But evil in its necessary character is not forma- tive. It creates nothing and produces nothing, it only consumes and destroys. It has in itself no elements of order, and can bring forth none. It holds no type after which things are to be fashioned, but only changes and dis- turbs them. Therefore the nation, its unity and order and progress, cannot be derivative from evil and an evil condition.
Government, which is the central org-anization of the nation, is not an evil. Its substance is in itself good, and is implicit in the conception of the good. Law, which is the ground and expression of its authority, is in its ulti- mate apprehension the manifestation of the divine will, as has been said of it in imperishable words, " Its home is the bosom of God, and its voice is the harmony of the world." ^ And freedom, which in the nation is constituted in law, is the sphere of the normal development of man. And the nation is not a mere negation, only a restriction of evil ten- dencies and an impediment to evil courses, as this theoiy assumes. It has a positive character and content. It is the manifestation of the life of the organic people, after a moral order, and in the institution of justice and of rights. It is a constructive power in history. It is not a local and temporary expedient, and its elements are not those which the scientific culture of another and a later age may set aside. It is not a fetter and a burden imposed upon the race, in an evil necessity, which it may gradually come in
1 Mr. Brfrwnson says of government, " It would have been necessary, if man had not sinned, and for the good as well as for the bad. The law was pro- mulged in the Garden, while man retained his innocence. It exists in heaven as well as on earth, and in heaven in its perfectness." — The American Republic, p. 18.
" The nation is not only revealed as the power in conflict with evil, but even the beginning (Paradise) looked toward a development into a perfect kingdom." — Stahl, Fhilosophie des Rechts, vol. ii. sec. ii. p. 81.
t
l-A's^
26 THE NATION.
its progress to discard, and from which it may be ultimately wholly emancipated. It is itself the condition of progress, and in its course there is the striking off of fetters, and the deliverance from burdens, and a constantly increasing freedom.
The representation of the nation as a necessary evil, ap- pears through many periods, and in many forms. It was the prevalent notion of the mediaeval age. It arises often from a want of satisfaction in the merely jural and eco- nomic representation of the state. The spirit of man de- mands something more and better than that, his hope and purpose look to something ampler and worthier, and that offers no sphere in which he can fulfill his vocation or unfold his energies, and when thus conceived it comes to be set aside as a necessary evil in the evil of this world, and also as transient in its nature.^
1 Mr. Calhoun makes this conception the base of his political structure. He defines the end of government, " to repress violence and preserve order." He says, " The powers must be administered by men in whom, like others, the individual are stronger than the social feelings," and therefore, " since the}' may be used as instruments of oppression, that by which this is prevented is called constitution." While this is the postulate of the argument of Mr. Calhoun's essay, it is significant that he should write, in one of its first sentences, "To man the Creator has assigned the social and the political state as best adapted to develop the great capacities and faculties, intellectual and moral, with which he has endowed him," but the thought lies upon the page, and has no further consideration, nor does it enter into his construction of the state. Calhoun's \Vo7-ks, vol. i. pp. 7, 15, 52. Mr. Spencer is the most recent advocate of this theory, and presents it in its extremest shape. He says, " Nay, indeed, have we not seen that government is essentially immoral ? Is it not the offspring of evil, bearing about it all the marks of its parentage? Does it not exist because crime exists? Is it not strong, or, as we say, despotic where crime is great? Is there not more liberty, that is, less government, as crime diminishes? and must not government cease, when crime ceases, for very lack of objects on which to perform its functions? Morality cannot recognize it. " — Social Statics, p. 230. He says again, " Government is a necessary evil " (Social Statics, Tp. 25), to terminate with the evil which is assumed as the ground of its exist- ence; " it is a mistake to assume that government must last forever. The insti- tution marks a certain stage of civilization, is natural to a particular phase of human development. It is not essential, but incidental. As amongst the Bush- men we find a state antecedent to government, so may there be one in which it shall have become extinct." — Social Statics, p. 24. It would scarcely be neces- sary to notice these statements of this theory, but if they be received in the
THE SUBSTANCE OF THE NATION. 27
The nation is represented as an historical accident. It is the outward circumstance of the life of man upon the earth ; it is a phenomenal phase of society, the form which society in its manifold nature, in some places and some ages may assume.
But the nation has not been in history an indifferent phase of action in certain places, and a transient inci- dent of certain ages, which this implies. As there is in the nature of man the evidence that he is constituted for the nation, so also his normal development has been in it, in the historical life of humanity.
It is not the characteristic of a single epoch, as would follow if it were only an incident in the life of the race, but it is a power in the continuous development of history. It is no ephemeral mode of existence, and instead of being the incident, it is the substance of history.
It is not the circumstance of the existence of man upon the earth, but in it there is the determinate power in which man controls circumstance, and maintains through events the persistent expression of his aim. It is formed in the assertion of a dominion over the external world. Its prog- ress is as it lifts man above the force of circumstance and the subjection to circumstance. Man is weak and de- pendent as he is isolated or withdrawn from it. It is not the occurrence of some fortuitous scene, to come and go, in the unlimited play of events, some single strand which is cauo;ht and woven in the loom of the vears, with
thought of a people, they must work inevitable disaster, alike to the individual and the nation, and their repetition of the medifeval conception of the state, which in that age was alwaj-s given with a certain sadness and regretful sense of loss, involves in this age wider consequences. The characteristics of •' the state among the Bushmen antecedent to government," are not further described, and there is no positive presentation of facts on which to rest these " other stages of civilization," which also were rid of government, whose existence the writer assumes, except as the " state among the Bushmen," may be also illustrative of them. When these assumptions are presented, with the pretension of a school that it alwaj'S keeps a foothold of facts and is characterized by a scientific exact- ness, they may justify some surprise.
28 THE NATION.
their ceaseless changes, and then not to appear again, but it is the fabric in which events are wrought.
This representation of the nation apprehends it as only an apparent order ; not an end in itself, but incidental to the attainment of some other and separate ends ; only a scaffolding for some interior structure, which it is to sup- port, or an association for the advancement of the private ends of the individual. But in its vocation and the moral obligation which it cannot transfer nor evade, there is the condition of an immediate moral being. It has not the indi- vidual in himself and his advancement as its separate and special end, but in its aim as the universal, it constantly elevates the individual above a separate and special end. It has a life which may call for the sacrifice of the life of the individual in the higher, the universal aim. There is a false egoism, which has its root in selfishness, in this representation of the subordination of the state to private ends, whatever their disguise and whether they be of a so-called spiritual, or of a temporal character, and the necessary sequence of the principle it asserts is the dis- solution of society.
In this representation it is common to regard the organ- ization of government as identical with the nation, and to limit it to that conception. Thus the dynasty or the mu- nicipality, the tribal, or patrimonial, or imperial power, may be regarded as substantially the nation. But it is not comprehended in the simple fact of government. There is government in the family, and yet the family is not the state. There may be the recognition of and the subordination to authority, in an association which is or- ganized for plunder, as in the brigand's band or on the pirate's ship.^ When the nation is apprehended as only an external order, the recognition of a certain authority, in a certain locality, and by a certain association of men,
1" Quae est enimcivitas? Omnisne etiam ferorurn et immanium? Omnisne fugitivorum ac latronum congregata unum in locum multitudo? Certe nega- bis." — Cicero, De Eepitblica, blc. ii. ch. 2.
THE SUBSTANCE OF THE NATION. 29
then it may indeed be assumed as the transient circum- stance in a continually changing condition, but there can be for -human society no real stability.
Tlie nation is represented as a jural society. Its sole object is the maintenance of private interests and the pro- tection of private rights. Its end is effected in the keep- ing of the peace among a certain number of men in a cer- tain locality. Its process is a system of police. It is a vast constabulary force, which is to prevent disorder within certain limits of the earth. The nation is only a judge and warden, and that government is best which governs least. Thus one's country is a larger bailiwick, Avhose boundaries some convenience of administration has de- termined ; the father-land is the circuit of the judge and the sheriff. The exponent of national power is the tip- stave. To be a citizen, to be the member of a nation, has no other significance than a certain I'elation, in which each is held and bound over for the keeping of the peace. The only association recognized in the state is a jural re- lation, and the nation is only a jural society.
This conception is obviously imperfect, and while, as R. von Mohl says, it is so narrow as scarcely to need crit- icism, it is yet constantly recurrent. The state certainly has to secure the civil order of society, to repress violence and to punish crime ; but this is not its sole nor its whole end. Every state, simply to maintain its existence, em- braces a wider sphere and exercises larger powers. The aim of society, in its most meagre form, could not be ac- complished in so contracted a principle.
This also regards the maintenance of the necessary rela- tions of the individual, and private rights and interests, as the end of the state. Its law is in necessity, and in the relations which conform to this law, but it subsists no longer in a real freedom. It is no longer the growth of national character and spirit. There is no organic and
' ■' so THE NATION.
moral continuity, and its citizenship is no longer a living relation. There is no principle in which it can animate the spirit of man, and it can awaken no reverence for the past nor hope for the future. It cannot inspire the gen- erous sacrifice of the present to the future, hy which alone the life of nations is conserved. There is no place for the self-devotion which is the source of public spirit, and in its whole scope there is no ground for public rights and public duties.
This also confounds civil and political rights, or rather the whole province of political rights is denied, and the nation is limited to the definition of the civil organization. It is constituted only of persons in private relations, and only for their protection in these relations. But this is inconsistent with the essential constitution of the political people, and there is no principle in which it can apprehend the people as organic, and therefore as invested with po- litical power, in the will of the political whole.
This conception is also destitute of an historical foun da- tion, and does not serve to describe any historical nation. It is a low and imperfect representation which fails to de- fine the life of the people in its organic unity and organized relations, and makes no history possible in its own limita- tion. There is no ground for an historical unity and continuity. The historical coiarse of every nation has elements which transcend it. It fails to represent, for instance, the life of Greece or Rome, of England or France, and eliminates from their history all their spirit and all that gives dignity and grandeur to their action.
This proposition has for its postulate necessarily a false conception, both of the origin of society as only an associa- tion of men, and of the nature of men as impelled only by selfish interests and toward selfish ends ; and when it reaches its conclusion, as it merges the nation into the civil corporation, it indicates the beginning of a false civilization.
The highest organization of the civil corporation, and
THE SUBSTANCE OF THE NATION. 31
\
the most perfect jural system, would still not satisfy the spirit of a people. It could not attain toward the destina- tion of those powers which are immanent in humanity. There is in it the apprehension of no moral relationship, and in its last analysis it could apprehend its members only as plaintiff and defendant. The long result of human so- ciety it would represent in the institution of a civil court, and the close of history in twelve men sitting in a jury- box. Its final achievement it Avould reduce to a codifica- tion of the laws. The better conception of society and of the individual perishes, and the largeness in the fore- thought of the statesman, and the heroism in the devotion of the soldier have no place in it, but its representative is only the civil lawyer.
The civil corporation presumes the existence of the po- litical people, that is, the nation in which it subsists ; and it has in itself no element of continuity, nor even of con- tinuous action. There is no fact more significant than that the life of the Roman citizen had lost all its strength and nobleness, when it came to be apprehended under rela- tions and distinctions defined only by the civil system. There was no longer in Roman citizenship a vital and a moral spirit, and the individual discipline which had been the secret of her conquest, and her vast organization, per- ished. It was in the decadence of Rome, and in the later days of the empire, that the thoughts of the greatest of her sons turned only to the civil law, to its system and its cod- ification.
It allows no sphere for the maintenance in it of the relationships of life. They cannot in their normal concep- tion subsist in it, and when the nation is apprehended as only a civil corporation, an administration of the police, then the family, which is organic and is in itself sacred, is elevated above it, only at last, in its necessary relation to it, to be reduced to the same low conception. The nation, merely as a society of jural relations, cannot com-
32 THE NATION.
prehend the family thus as organic and as sacred, and whenever the one has been represented as a civil corpo- ration, the other has come to be held as onlv a civil con- tract.
This proposition has been assumed in the assertion of a necessary separation of the moral and the legal, and the identity of the nation with the latter. It is correct in the assertion of a distinction of the moral and the legal, and the former has never in the latter its perfect expres- sion nor its comprehension ; but the proposition assumes their isolation, so that in the state the conception of the one excludes the other. This has its illustration, and has obtained in some respects its more recent influence, through the aphorism of Kant.^ Kant represented the state as deriving its content and its powers from a formal law, and defined it as, "the association of men under a svsteni of laws." He asserted that the moral cannot be external, since it requires that duty sliall spring from the conscience which is within man, and proceed through an inner motive, while the order of the state regards only the conformance of the external act to the law, and to it there is attached also compulsion, the physical force, which be- longs to the authority of the state. This was the argument for the definition of the state as formal, not organic and moral, and for its representation as only an external order. It is correct in the assertion that the conscience is within man, and that the inner life is beyond the invasion of physical force, and over it the state has not, nor has any save only God control, but with this it does not follow for one moment that the external act must be separated from the conscience, nor that the external order has no moral substance, nor that the formal law has no moral content and no moral end. The physical force, also, which this asserts as existent in the state, must, as a right, have a higher sanction than this allows, since there is no ground
1 Kant, Rechtslehre, sec. 45.
THE SUBSTANCE OF THE NATIOJ^. , 33
on which a number of men are justified in the act itself, in compelling one man. The state also acknowledges as legally binding withovit express enactment, a moral rela- tion and obligation, and the primary obligations, for in- stance, of patriotism, which in no state have been defined in its system of laws, and cannot be so defined, are neces- sarily assumed and asserted by every state. In this argu- ment, also, the laws have necessarily no other content than that which is derived from the external relations of life, but if the state is apprehended only in these relations, it becomes merely an external and formal order, and in the institution of these relations as external and formal it would fail of their end, since they presume a moral unity and obligation. And the legal becomes something poor and empty, when it is separated from the moral ; and the law, when its invisible sanctions in the conscience are withdrawn, becomes only the contrivance of legislators, and society only the scheme of politicians. The very conception of law as the affirmation of justice, and its uni- versal aim, is lost sight of when it is apprehended as existent only for the individual, and to subserve his private end. It has, indeed, for the individual, no such egoistic place.
This, also, necessarily excludes all consciousness of a divine obligation in the nation to execute justice and to punish crime, to repress violence and to maintain order. The state is merged again into the civil corporation, and in the assumption of the isolation of the legal and the moral, and the subsequent foundation of the nation in the merely legal, society becomes only the form of legists, and its action the precedent of a political pharisaism.
The nation is represented as an economic society. It is a temporary organization for the promotion of the physical well-being of man ; it exists only for the satisfaction of certain physical wants ; it has its ground in the necessities which arise in the coexistence of men.
34 THE NATION.
This is the merely economic state ; its law is in neces- sity ; its relation has a material basis ; its existence is con- tingent upon the securance of certain temporary ends. The bond by which it is attached, is in production and exchange, and its permanence is to provide security for material accumulations. The nation is apprehended only as a joint stock concern, a board of trade, an insurance shop, or a produce exchange. The continuity in which it unites the generations, is the inheritance of their accumu- lated capital — contracts and wills. The record of its achievement is in tables of commercial profit and loss, and the relation of its members is defined by regulations in bargain and sale. It exists for the protection of persons and property, and is, at the most, only the external and temporary form in which some interior and spiritual struc- ture is built, but it has in itself no corresponding character, and no apprehension of the purpose and spirit of that, and no enduring principle nor universal aim.
It is true that the nation has in its scope the organi- zation of the civil order, in the protection of persons and property, but this is not comprehensive of it. There is to this the same objection which applies to the representation of the state as simply the jural society : it is obviously de- ficient. It fails to define any historical nation, and there is none in its limitation which could find a place in history. There is no people which has attained an historical exist- ence, but it has necessarily held a moral purpose and aim, beyond any material interest, and in the crisis of its history, it has been called to sacrifice material interests that the nation might live, and has maintained its calling in the re- jection of apparent material advantages.
This proposition fails, also, since it necessarily involves the formation of society after a selfish principle, or in self- interest. There is not in this a formative social energy. There can be no unity, since the principle it assumes is the very root of division. It can issue only in disintegra-
THE SUBSTANCE OF THE NATION. 35
tion through self-antagonisms, and tlie result in fact, as it is the necessary sequence of the principle, is the dissolu- tion of society.
There is not in this assumption the condition of per- manence ; and when the security of material interests has become the supreme end, it indicates the decay of the state. If it has failed to recognize a principle of righteous- ness, that still has not swerved to allow a way for it, nor fallen to be passed over in its streets.
This conception does not correspond to the apprehension of the nation, in the consciousness of men. It divests its life of all sacredness, and its authority of all obligation. There is no ground left to the people of reverence for its ancestors or of hope for its children. There is for justice no solemnity. It cannot call forth that devotion from its sons, whose measure is the pledge of life and fortune, and their sacrifice would be the subversion of the end ascribed to it. It has no place for the courage of the soldier, nor the wisdom of the statesman, nor even for the love of its children, but exists for the promotion of trade, and is the copartnership of men in a secular concern.
But the defect in the limitation of this conception is apparent. The nation has elements which are not deter- mined in its economy. It is not exhausted in the sched- ules of its produce and exchange ; its unity is not in material interests ; its history is written in other books than the tables of its census ; its capital is other than the centre of its trade.
This proposition has had a various support, and has de- termined the position of the most opposite parties, and has united — each holding the state in moral indifference — the secularist and the ecclesiast. The latter has assumed for himself alone the work of righteousness on the earth, to result often in indifference to actual righteousness, and the former has denied the presence and the power of righteous- ness in history. The inference of each has been the being
36 THE NATION.
of the nation, as only an association of individuals in an external order, for certain temporary ends ; an existence subsisting only in the secular, and each, therefore, has re- garded its course as profane, and the crises of its existence too often have seen their latent or avowed alliance.
The principles of economy have a common ground and application ; the laws of commerce and exchange are as wide as the seas on which their ships sail. They are laws which are applied by every nation, but they are not immanent in the organism of the nation, nor determined in its individual existence. Thus the nation may form a treaty of reciprocity in trade, but it can form none of reciprocity in political rights ; for the nation, as an organic and moral power, is subsistent in these. There is nothing in the principles of political economy which can become the ground of the separate life of the nation. ^
This conception, in its premise and conclusion, corre- sponds to the preceding; and the characteristic of all is the identity of the nation with the civil corporation, and the rejection of its organic and moral being. These theories become the source not of the constructive energy, but involve the elements of the dismemberment of society. They can apprehend the nation only as the field of indi- vidual ambition, and selfish interests, and private ends.
1 " Die burgerliche gesellschaft rein als solche, ist eine Kosmopolitin." — Rothe, TTieologische Ethik, vol. ii. p. 123.
CHAPTER III.
THE ORIGIN OF THE NATION AS DEFINED IN THEORIES.
The conception of the origin of the nation is necessarily presumed in the conception of its unity and its substance. They ahke shape the action of men in the conduct of affairs, and there has been in modern history no more manifest illustration of the relation between the thought and the work of a people. The response has been given in various theories, to the inquiry. Whence does the nation, that is, the organization of society, derive its being, and its unity, and the authority in its government, and its rights, and its powers.^
It is not the bemnning of the nation, in its historical cir- cumstance, which is the object of this inquiry ; and this has been the same, in no separate nations. Their inception, in their external phases, has been as varied as the infinite life of history. The historical beginning may be, for in- stance, in the growth of a family, and the accession of other families, or in the planting of a colony, or in the migration of a race, and so on. But there is in this only the incident of their historical inauguration, and we do not attain to the origin of the nation, nor of its unitv, nor the authority in its government, nor its rights and powers. The characteristic of these various propositions in review is their lack of consistence with the necessary conception of the nation ; they are mei'e abstractions, and their worth is only in their illustration of the necessary conception.
It is said that the nation has its origin in the development of the family : the family is the unit of human society,
38 THE NATION.
and of its organic process in the nation ; and in the expli- cation of the family the nation is formed. The right in "which the government of the nation subsists, is then also the right of the father, and the people who form the nation are related to the government as its childi'en.
It is true that tiie family is the unitary form of soci- ety, but it is not therefore the only form, nor determin- ative of the whole. The nation is not the continuation of the family, nor is it the result simply of its extension, nor is it in its form necessarily correspondent to it. The organism in its perfectness cannot transcend its germ or spore, and the family in its widest development is still only the family. The nation is not necessarily implanted in the family, but it is itself an organism ; it has its seed in itself, and the condition of its development is in its own organic unity and the conformance to its organic law.
The rights and powers which belong to the nation also transcend those of the family. The authority in each is different from the other, and while the latter in its form is absolute, and obedience is rendered to it as to an im- perative, the former is the determination of the oi-ganic will as law, and obedience to it is in the conscious obliga- tion to law. The rights of the former, also, are private rights, and its power is private power as an estate, as it is also indeed when power is held as the property and entail, of a patrimonial prince or an hereditary aristocracy ; but in the nation there are public rights, and its power is vested as a public trust. The duties of the family are also in implicit obedience to one, who is the father of the house, but in the nation there are public duties.
The right which is the ground of the government of the family, cannot become that of the government of the nation. The government of the family rests in the right of the father to govern his child, but this is necessarily limited to those who are his children, and cannot justify the extension of his authority over those who are not his
THE ORIGIN OF THE NATION. 39
cliildren. When it is thus extended over the children of another, it conflicts with the unity of the family and its authority in its natural head, and wherever, in the organi- zation of society, it has been transposed beyond its natural limits, it has sought its justification in a civil conception, and in some legal fiction, as that of adoption.
The nation is over the family, and the latter in its rela- tion to it is subordinate. The father is responsible to the nation for the manner in which he may exercise his authority in the family, and the relations of the latter,- and the obedience of the child, are to be sustained and enforced by its law. It prescribes the age when the child may be withdrawn from the formal authority of the father, and even in earlier years it may take the child from him when it deems necessary, and institute a guardianship over it.^ The right of the nation, therefore, instead of residing in the right of the father, holds the latter in subjection.
This proposition is often stated thus, that the nation has its origin in the association of certain separate families. It is derived from the existence of a certain number of fami- lies, separated from all others, and connected by marriage among themselves. But this does not necessarily trans- cend the limits of a tribal relation, and does not attain to the nation. It does not correspond to its historical institu- tion and course. It is, for instance, descriptive of the ple- beian or the patrician organization in Rome ; but neither of these was Rome.
The evidence of history is, that where society has not passed beyond the development of the family, there has been no national existence. With the long dynasties and vast populations in Asia, where society has adhered to the patriarchal type, there has been no nation, no citizenshi]),
1 " Society must suffer if the child is allowed to grow up a worthless vae;a- bond or a criminal, and lias a right to intervene both in behalf of itself and of the child, in case his parents neglect to train him up in the nurture and admo- nition of the Lord, or are training him up to be a thief, a drunkard, a murderer, a pest to communit}'." — Brownson, The American Republic, p. 41.
40 THE NATION.
and no political freedom. Their life has been character- ized by the absence of political spirit.
There is yet a truth which underlies this conception of the orio;in of the nation ; and while the latter does not exist in identity with the family, and is not formed simply in its continuance, there is still a necessary connection ; their origin and end is not diverse. They exist in an organic and moral interi'elation, and the nation has its fruition in the life of humanity, in the universal family. It rests in the unity of humanity in the divine fatherhood ; and therefore not with vague and unmeaning phrases, but as its end, it looks to the brotherhood of men and the fra- ternity of the nations, in the order of the world.
It is said that the nation has its origin in mere might : it is founded upon force ; it is the right of the stronger, as superior, to control the weaker, as inferior.
But this involves the immediate contradiction to the beino; of the nation. The nation is constructive of an order in law and freedom. There is the subjection of barren force to right, and authority in it is wrested from the rude hand of power and placed in the hand of justice, and the con- quest of civilization is in the manifestation of power no longer, as mere force, but in the recognition of a law of righteousness. The conception is subversive of rights, for these necessarily presume another postulate than mere force.
There is in mere force no element from which progress can be evolved, but in the prospect of its prevalence there is the awakening of dread, and by it man is not ennobled but subdued. There is the i-ejection of a principle of hu- manity. The law of justice is unrecognized, and the pro- cedure of justice is leveled beneath its iron tread, and in a condition in which no asylum is sacred from its invasion, the place of equity is usurped by its authority.
It is so immediate a contradiction to the being of the
THE ORIGIN OF THE NATION. 41
nation, that the element of law disappears, and there is only the mandate of power, and the relation of a common citizenship is lost, and it is transformed into that of the master and the slave.
The conception, if it were to become actual, would re- sult, not in the institution of the order, but in the constant disturbance of society. The right of the stouter, the claim of the champion, would claim a trial, and as in the lead of a herd of buffaloes, it would involve an incessant struggle. If then the nation, as also an individual or family or race, in any moment be stronger than another, it is at once the justification of the conquest and the subjugation of the weaker. It is the justification of absolutism, but also of anarchy, when that is strong enough to get uppermost.
This proposition has sought an historical justification, but in the empty and superficial notion of history which it as- sumes, there has not been in mere physical force the insti- tution of the nation. The external circumstance of the nation at its beginning, has not infrequently been in war, and it has had to pass through a struggle for existence ; but it has not therefore been the product of violence, and war has been the incident of its beginning, only as war was in the assertion of the right. The right, then, has not been born of force, but has been asserted and maintained by force. If force has been severed from right it has been not the inception of the order of society, but its devasta- tion, and the progress of civilization has been in the in- creasing direction of physical force to a moral end. It has not been strong enough to regard the weakest and the lowliest with indifference, and in its course the things which are not have brought to naught the tliincrs which are.
Yet there is also a truth in this conception. It is a pro- test against the notion which apprehends justice as abstract, and denies the power of righteousness. It is the rejection of a spectral idealism, and the recognition of the fact that
42 THE NATION.
the right is manifest, and is not the dream of the spirit, but moves to the conquest of the world. The right is no faint apparition, and no flimsy conceit, but a power.
It is said that the nation has its origin in some instinct or emotion in man : there is some element in his nature in the action of which he is impelled toward the nation, and it exists as the product of this impulse. It is the result of a faculty in man, and is constructed as the bee builds his cell and the beaver his dam. This capacity has been variously described as a special faculty, or as sympathy or self-interest or fear, or as their common ac- tion. It is the psychological notion of the origin of the nation.
But there is in this no cause from which the beina; of the nation can be derived. The nation has an integral life, a positive and substantial content, and can have its or- igin and foundation in no subjective phase. It is as far from the attainment of the instinctive and emotional, as it is from the reflective and volitional act of the individual.
The nation, moreover, cannot have its origin in an impulse or emotion, whose action is necessary, since it has a moral being, and it exists not in necessity but in free- dom.
There is, furthermore, in the nation, in its unity, its rights and its powers, that which cannot be derived from the action of an impulse or emotion. There is no power in the nature of man which could result in tlie rio;ht to ffov- ernment which is in a political order and is over men, nor in the organization of law and freedom.
As the self-government of the individual is in the sub- jection of impulse to the determination of the will, in con- formance to a law of right, the principle also obtains in the government of the people. The individual, in so far as he makes a natural impulse his master and obeys that, is not free, and in the yielding to mere impulse there is the deg-
THE ORIGIN OF THE NATION. 43
radation of man. It is an animal existence, and the action for man is ignoble and unfree. Civilization which is formed in the development of the state, is the subjection of the impulses and passions of man in a moral order, and is the elevation above the rude condition of untamed and unrestrained impulse and passion which hold the elements of barbarism, and can issue only in violence and anarchy.
Yet there is in this proposition also a truth, and while there is no identity in the spirit in which man is related to the state of which he is a citizen, and the instinct with which the bee or the bird builds his cell or nest, there is yet in the physical order of nature the correspondence to the order of the state. It is also a protest against the merely artificial conception in politics, and illustrates the truth that the foundations of the nation are laid in the na- ture of man, and it is formed in the realization of his true constitution.
It is said that the nation has its origin in a convention : it is founded in a contractual law, — in the social contract.
The historical genesis of this theory has a separate con- sequence, and affords the significant illustration of the strength of a legal fiction, of its use, and then also of its risk. It has been the premise for the most opposite schemes and speculations upon society, and has mustered in its sup- port in succeeding periods the most extreme men and parties, serving now as the defense of the established order, and again as the summons to revolution. It has prevailed in countries the most diverse in their political spirit and constitution. It fills the political literature of the last two centuries, and the association of nearly all their great names with it indicates alike the character of the ase, the source of the strength and the weakness of its great thinkers and workers. In Germany it claims tne names of Grotius, of Puffendorf, of Kant ; in England it was with Hobbes the staff of authority, and with Locke
44 THE NATION.
the shield of Hberty ; but its clearest assertion was in France, and its highest influence was obtained through the Contrat Social of Rousseau. It became the scholastic tra- dition of American legal and political theorists. The phase which it took in the French school corresponds more nearly with the thought of Jefferson, while the influence of the form given to the theory by Locke, is apparent in the po- litical writinffs of Adams.
The inception of the theory has been traced by Mr. Maine, to an imperfect apprehension of the Roman form of contracts, denominated Contracts juris gentium. " It was not until the language of the Roman lawyers became the language of an age which had lost the key to their mode of thought, that a contract of the law of nations came to be distinctly looked upon as a contract known to man in. a state of nature." ^ But this is its scholastic and legal der- ivation, and it could not have obtained its great historical place, had there not been involved Avith all its error a great truth as to the being of society and the foundations of the state, which Avas struggling for expression, and which con- fronting precedents in the confusion of the age, took the form of a legal fiction. The discussion is mainly of inter- est as an historical study. It has a certain dryness as " a theory which though nursed into importance by political pas- sions, derived all its sap from the speculations of lawyers." ^
The theory assumes the existence of man in a pre-social condition, which is described as the state of nature. The imagination lays the boundaries of this province, and then peoples it with its unlimited conceits, as the island of the Counselor, in " The Tempest." From its occupancy by a joint contract, men emerge into the social or political state ; the latter is thus constituted as the voluntary association of certain individuals who enter it and hold it as the contract- ing parties. The proposition presumes a universal appli- cation ; the origin, and in a certain form the continuance
1 Maine's Ancient Law, p. 299. 2 Hjjd,
THE ORIGIN OF THE NATION. 45
of all states that have been in all ages, are referred to a social contract.
The proposition in its assumption is arbitrary, and pro- ceeding from a condition which is unreal, in its induction it carries the state necessarily into an abstract and formal sphere, — and because it has its inception in an assumption, it results necessarily in a political system, and not in the nation in its oro;anic being. It is this which has limited its recent advocacy to the most barren of political schools, although of itself not the most dangerous, — a technical school of lawyers. It has assumed the existence of the precedent condition, which is called the state of nature. There is of this pre-social state no report, but it appears upon the chart of lawyers, who hold authentic tidings of it, and within it find stable footing. It advances, then, through a continuous series of assumptions, each of which is introduced to prop the preceding. After the assump- tion of this state of nature, there is assumed to exist in it one who personates the natural man, a fictitious character, costumed with the conceits of the theory. It is assumed that there is, antecedent to the existence of society, the rec- ognition of some law of society, or of some authority in society, and on this exit is made and the passage is bridged over from the state of nature to the social, that is, the civil and the political state. The principle or the authority here consistently assumed is that of a contract or a contract- ual law. The validity of a constructive consent for the parties who in succession are to be bound by it, and by whom it is to be continued, is then also assumed. The resultant in the social, that is, the civil or political state, is represented as the artificial state whose precedent was the natural state, which man has left. The necessary in- ference in this antithesis is allowed, and the social state is represented as the unnatural, or more strictly, the abnor- mal condition of life.
The theory, in its exposition of the nature of man, contra-
46 THE NATION.
diets at its outset the fact wliich is the postulate of Aris- totle, that " man is by nature a political being." He is con- stituted for society, and his natux'e has its development in it. There is in his being, the rudiments of the state. The " fact in the existence of man, which it also contradicts, is that he has no existence apart from society. The archaic condition is everywhere one of dependence, and there is, however dimly apprehended, the recognition of some rela- tionships, and obligations are acknowledged and sacrifices are made for society. The postulate of the proposition is a historical fiction.
There is moreover no illustration of the origin of a nation in the voluntary agreement of individuals who enter it from a condition of previous isolation. There is the con- stant record of contracts or alliances, where two or more communities or nations are the parties, but these exist already as civil or political powers, and enter into obliga- tions for a certain object ; but there is no record of a nation itself established by the voluntary pact of separate indi- viduals. The conception of a contract, or of a contractual origin of law, itself appears only at a later stage of civil society, and in its more definite form, is the attainment of a long and elaborate legal culture.
The nation being the natural and normal condition of existence, the individual, instead of entering it with the stipulations of a contract, is born and educated in it. His spirit and purpose are shaped in it, and its influence in his determination may be traced before he is capable of the voluntary choice or agreement which is the condition of a contract.
The theory fails to substantiate its assumptions, which are necessary to it, and leaves them involved in inextri- cable contradiction. It assumes that the people form a contract, but they are not yet a people, nor even an asso- ciation of men ; it is to ascertain the ground for obedience to law, and yet the contract it assumes is the most definite
THE OEIGIN OF THE NATION. 47
of laws ; its object is to establish the foundations of the state, and yet, in its conclusion, it falls short of the con- ception of the state. The individuals enter the associa- tion, as contracting parties, but the resultant, by the condi- tions of a contract, is private property. That, for instance, which one obtains by exchange, or holds subject to contract, he owns ; it is his property, and as he acquired it, he also may alienate it for a certain equivalent, but the state can- not be found in this conception. The theory fails alike as it carries into the state the notion of a private contract, and as it derives the state from a private contract. The asso- ciation of individuals, however numerous, is not the state ; and the stipulations of the contract, however wide, have not the majesty of law ; the concession of private rights, however extended, is not the institution of public rights. The parties to the contract, at the most, are private persons, and it is not possible to arrive therein at the conception of public rights and public duties.
The necessary being and end of the -nation, moreover, cannot be brought within the scope of a contract. A con- tract proceeds from and through a voluntary act, and there- fore is in the alternative of the parties, — something which may or may not be. But the process of justice, and the institution of rights, and the conformance to a moral order in which the state is constituted, cannot be thus optional ; they must be, and therefore the state is existent as a power, and is invested with authority. The contract furthermore cannot comprehend the spirit, the allegiance, the obedi- ence to law, the apprehension of and the devotion to pub- lic ends, which are integral in the state. There is not in it even the moral spirit in which the civil ends can be construed. Beccaria denied the right of capital punish- ment, on the ground that, as society is formed in a contract between the state and its members, the consent of the party to his possible extinction becomes then one of the terms of the contract, and it is not to be presumed that it
48 THE NATION.
would be accorded. The position is good, says Hegel, in the conception of a state founded on a contract, for the conception has no place for punishment in the divine or in the moral sense.
The contract cannot become the ground of the unity or the continuity of the nation ; — not of the unity, for it is the agreement of parties in the exchange of equivalents, and each remains a possessor, or as the phrase is, " it takes tw^o to make a bargain," and in the residt the parties remain the several proprietors; — not of the continuity, for a contract presumes the positive consent of the parties, but the constructive consent of succeeding generations evades this, while yet the continuance of the formal con- tract is conditioned upon this contingency.
But finally, the conception does not make valid its own claim, and limited to its own definition, it has no founda- tion ; the contract is good for nothing as a contract. It does not substantiate the agreement of the parties, which is the condition of a contract. The contract which is not clear as to the identity of the parties, and then also as to its extent and character, is a nullity. It could only bring contradiction into the ordinary affairs of life. It could not be recognized or enforced in any court of law.
The principle is not the foundation, but the dissolution of the organization of society. The contract, if it were allowed, would be obligatory only upon those who deliber- ately and voluntarily entered as parties into it, and unless renewed it would expire with them. It could form only a temporary obligation which could be suspended, and only a joint concern which could be closed up to go into the hands of a receiver. Then any number of individuals could sep- arate or withdraw, and there would be no power inherent in society to justify its prevention. There is then in gov- ernment no authority, but only an agency limited to the securance of the private interests of the contractors, and in society no permanence beyond their formal bond, and no nation which lives on although the individual dies.
THE ORIGIN OF THE NATION. 49
The falsehood in this proposition becomes apparent when it is confronted by the peril of the state. The permanence of the whole, and the supremacy of laAv, is conditional upon the option of the individual. It is subject to the unlimited play of individual caprice. The state maybe rent asunder in the willfulness and whim of one, and beyond this it has no defense in internal disorder or external assault. The proposition is the postulate, not of the unity and order, but of the dissolution of society. It has been truly said, that the social contract should be called rather a theory of an- archy than the doctrine of the state.^
The truth which the proposition subverts, as it sweeps to its perilous close is, that the nation proceeds in the divine guidance of the people in history. " And yet there is," says Bluntschli, " in this conception, involved in the most deceptive and perilous error, a certain truth. In opposi- tion to the notion which sees in the state only the neces- sary product of nature, it asserts the truth that in its nor- mal process the human will can and must act positively and determinately upon the form of the state, and in con- trast with an empty empiricism it vindicates the reason of the state and the right in human freedom." ^
1 Bluntschli's Allgemeinen Statsrecht, vol. i. p. 260.
2 Ibid. 26.3. See on some of these theories, Ibid. vol. i. pp. 250, 270.
Hooker has a statement of the social contract, and the institution of govern- ment in it: "Men knew that strifes and troubles would be endless, except they gave their common consent, all to be ordered b}' some whom they should agree upon," — "for the manifestation of the right to govern, the assent of them who are to be governed seemeth necessary." — Hooker's Works, vol. i. p. 187. But this proposition lies upon the page of Hooker in a fragmentary shape, and is the contradiction of the profound conception of law as organic and not formal, which is the fundamental thought of his great work, and places him among the great politicians of his own and of every age. His work is a treatise of laws, as rest- ing in the eternal and divine reason. — Dr. Tulloch has justly said, the expression of laws " valid in authority both in their substance and direct origin, in their conformity to reason and the national will and position. He not only opposed a special church theory which then sought to dominate in Protestantism, but he showed how every such theory must break against the great laws of historical induction and national liberty. It was the rights of reason and of free and or- derly national development in the face of all preconception of whatever kind, that he really vindicated." — Tulloch's Puntanism, p. 29. There is an impassa-
4
60 THE NATION.
It is said that the nation has its origin in a sovereignty inherent in the people ; the people in its own native might is supreme ; its power is of itself, and its responsibility is to itself; its right has no limitation, and it recognizes no authority over it and allows none separate from it.
This proposition postulates the very object to be ascer- tained. It presumes the existence of the people, but obvi- ously it is not of the sovereignty of the people to will its own existence. In its failure to define the political people, whose political action it avers, it is destitute of a founda- tion, and there is nothing, in the phrase of Locke, " to bottom it on."
The description of the people, which is commonly as- sumed in this theory, presents the immediate contradiction to the political people. It represents the people as a col- lection of individuals in a certain locality, but there is nothino; in this to disting-uish it from the mob. It is des- titute of the consciousness of the unity, and of the order in which the political people is formed.
It is also devoid of the elements of political sovereignty, since there is wanting the will of the organic people whose affirmation is law, and whose freedom consists in an or- ganism determined in law. In its conception any collec- tion of men possessing a certain collective force, may assert their intention, and their action is to be regarded as law, and is obligatory upon all, and may rightly be imposed on the whole. Then also any collection of men may sever themselves from the existent political organization, and interrupt its relations, and rend its whole order in the demonstration of their power.
The proposition allows no conception of a country, since in describing power as existent indefinitely in any locality it avoids the necessary relation in its physical condition of the people to the land.
ble way from the position of Hooker to the inferences of Laud, or to the corre- sponding inferences, in another form, of the ecclesiasts of a recent puritanism.
THE ORIGIN OF THE NATION. 51
The state moreover is not derived from the sovereignty of a mere collection of men, since its orio-in is not in a re- flective act. It is not the result simply of choice and de- sign. It would be consistent with this to refer the exist- ence of justice on the earth to the formal deliberation and conclusion of men. And historically, man does not exist apart from the organization of society, that is, the nation, and from that antecedent condition determine its being. The will of man is certainly a necessary element in it, but as it has not its inception in thought, it has not its origin in the individual nor in the collective will.
This proposition merges the nation into the conception of a bare sovereignty. It is the institution of a power which allows no limitation, and acknowledges no responsi- bility beyond itself. Its sole mandate is law, and in this alone the whole political order subsists. The merest ca- price of the multitude is the only authority. In another form it is the foundation of society upon mere might. There is in it no recognition of the stale as the institu- tion of justice. It cannot comprehend the rights of the individual. As in the contractual theory, the assumption of the absolute sovereignty of the individual, by whose private act society was determined, could not arrive at the conception of public rights and public duties, so also the absolute sovereignty of the mass cannot consist with pri- vate rights, or the freedom of the individual. It is the assertion of unlimited power, the grasp from which it has been the effort of civilization to wrest the supremacy, and to substitute in its stead a moral force. It is not the tyr- anny of the one, but the tyranny of the multitude ; and yet the latter passes indifferently into the former, and in the degradation of the individual through the subversion of individual freedom the way is open to imperialism ; the domination over men in one form succeeds to another.
The sequence to the assumption of political power which this proposition involves, has been always the same in
52 THE NATION.
every form. The inevitable result of political atheism has been a political absolutism. But the consciousness of the divine principle in political power cannot be wholly effaced, and there follows the apotheosis of the dominant authority. The Roman emperors are worshipped as divine. In the rejection of the moral obligation in political power, with the overthrow of all freedom, and the degradation of the individual, there invariably will come the apotheosis of the emperor or the apotheosis of the people. The sovereignty, as the freedom of man, neither in the individual nor in the people is absolute. It can consist only v/ith the recog- nition of a divine relation and the consequent obligation to a divine law. The freedom of the people has its postu- late only in the organic and moral being of the people, and this is the precedent of sovereignty. As the sequence to political atheism has been political absolutism, so also it is only as it has a divine origin, and is formed in a divine relation, that freedom exists. This has had the clearest expression in the crises of humanity. The voice of free- dom, the mighty voice of nations, has not been " The ruler is absolute," " The people is absolute," but it has been " God and the people," and it has confessed its deliverer in Him. It has not been the shout in the host, but in the name of the Lord of hosts.
The truth which this proposition controverts is, that the origin of the nation is not in the will of the individual, nor in the will of the whole, but in the higher will without which the whole can have no being, and its continuity is not in the changino; interest of men, but in the vocation which in a widening purpose from the fathers to the chil- dren joins the generations of men, and its unity is not in the concurrent choice of a certain number of men, but in the divine purpose in history which brings to one end the unnumbered deeds of unnumbered men.
And yet the truth which underlies this proposition also comes into clearer light in the higher development of the
.n
THE ORIGIN OF THE NATION. 53
nation. The sovereignty of the nation is from God, and of the people. The representative of its sovereignty is therefore responsible to God and accountable to the peo- ple. The power is transmitted through no intermediate hands, the people is invested with it, in all its majesty, in the nation founded in the law of a moral person and derivative from God alone. ^
1 The people holding their authority from God, hold it not as an inherent right but as a trust from Him, and are accountable to Him for it. It is not their own. — Brownson, The American Republic, p. 127.
CHAPTER IV.
THE ORIGIN OF THE NATION.
The nation has a divine foundation, and has for its end the fulfillment of the divine end in history. It has its is- sue in the divine prevision, that is, in the moral nature of man. It is not the continuance of the family, nor the product of force, nor the working of instinct, nor the re- sult of the social compact, nor the creation of the sove- reignty of the people ; while the truths which underlie these otherwise false assumptions, in the course of prov- idence, illustrate in a greater or less degree the rise and srowth and conservation of the nation.^
The origin and foundation of the nation has, in certain aspects, its illustration in its analogy with the family. The family is a divine institution, and so also is the nation ; the family is the natural condition, and so also is the nation, and as natural it is not of human construction although a human development, its constituent elements are implanted in the nature of man, and as that nature is unfolded in the realization of the divine idea, there is the development of the state. The family also is rude and imperfect in its form in the early period of the race, and it slowly de- velops into the true and the normal, that is, the mono- gamic form ; thus also the nation slowly develops into the niox'e perfect type.
1 I assume in this argument, from the outset, the being of God and His con- nection with the world, and the origin and derivation of the personality of man from Him, that "in Him we live and move and have our being," — subjects which belong immediately to another province of thought; the statement how- ever mav be scarcely necessar}', since the work would not perhaps have detained so long any reader who may deny these propositions.
THE ORIGIN OF THE NATION. 65
The nation exists as an organic and moral being ; its existence is a fact, and the apprehension of its existence in its beginning, is in the conscious life of man. There is therefore, outside of this consciousness, evidence which is only indicative of its origin, as of the origin of the individ- ual and of the moral life of the individual.^
The evidence of the origin of the nation is in its neces- sary nature. — The nation is an organic unity ; it is not an artificial fabric nor an abstract svstem, but it has a life which is definite and disparate, and has a development ; therefore it has not its origin in the individual nor the collective will of man, but must proceed from a power which can determine the origin of organic being. — The nation is an organic whole ; but the whole, in which there is the conception of the parts, cannot be determined by the parts, since there must be the predetermination of the whole to which the parts belong ; but the whole cannot de- termine itself, and must therefore proceed from a power beyond itself.
The evidence of the origin of the nation is also in its being as a moral person. There is and can be for person- ality, as it transcends physical nature, only a divine origin, and its realization is in a divine relation. The subsistence of the human personality is in the divine personality, and its realization is in its divine relations, and as with the individual personality, so also with the moral personality of the nation, — its origin and its consistence can be only in God.
The origin of the nation has its illustration in the various aspects in which the nation in its necessary conception may
1 Plutarch says, in a citation by Haller, "In my judgement, a city could be more easily built without ground, than a state could be founded or exist without faith in God."
Cicero says, with a singular and reverent beauty of language, " Nihil est illi principi Deo, qui omnem mundum regit, quod quidem in terris fiat, acceptius quam, concilia coetusque hominum jure sociati quaB civitates appellantur." Somn. Scipionis, ch. iii.
56 THE NATION.
be reojarded. Thus the personality of the nation is in- dicative of its divine origin. The necessary elements of personality are freedom and justice, and wisdom and cour- age, and the like, but these are not physical powers, and as moral, they are in their origin above the sequence of phys- ical nature. Thus the freedom, which is the substance of the nation, is not the mere creation of law, and it is no more in the power of preachers and assemblies than of priestly and imperial hands to bestow it ; it is of no man or collec- tion of men to confer it as a boon, it is a gift which is not in the power of earth. Thus also the justice which is incor- porated in the state is higher than the enactment of the law, and more than the impulses of the people ; it is pre- sumed to be the content of the law, and controls the im- pulses of the people. It is not the device of legislators, and as it exists in the nation, there is manifest its divine origin. The illustration may be traced further in all the necessary moral elements of the nation, as wisdom and courao;e.
The powers with which the nation is invested, are also indicative of its origin. It is clothed with an authority, and has a majesty which no power of earth may assume. The affirmation of its will is law, but apart from it, the will of no man and no collection of men, is law for another. The right of government is its right, but apart from it no man and no collection of men have the right to govern another, and it belongs to the nation only as it is of di- vine right. There is no human ground on which it can rest. They who are intrusted with it hold it as the representatives of the nation, and as the ministers of the divine purpose in the nation. The President and the Congress, as the Crown and the Parliament, rule by the grace of God.
The elements which are manifest in the o-overnment of the nation, in its moral being, can have only a divine ground. The power, which is in the people forming the
THE ORIGIN OF THE NATION, 57
nation, is over the people, and while the individual acts in the government of the nation, it is over the individual and he is subject to it, and this is a power which is and can be in the nation only as it is a moral person, and is deriva- tive from God. This alone in government, is the condi- tion also of the reconciliation of law and freedom. ^ The character of the authority of the nation also indicates its origin. It has authority, and is invested with power in the maintenance of a moral order on the earth. But the right tlms to maintain authority over men, belongs in itself to no man and no collection of men, and is existent in the nation only as it has a divine genesis.
There is evidence, also, of the divine origin of the nation, in the historical facts which bring out the consciousness of the people. Its expression may be traced in the greater historical nations, and in their greater ages, the crowning centuries of their civilization. It appears in the symbols of all their power, and is reflected in their laws and litera- ture and art. In Judiea it was the central principle of national existence, and was held through all the changes of its institutions as a law of life, which through the vi- cissitudes of its course exaltation could not bring into for- getfulness, nor humiliation into denial. In Gi'eece it was shaped in the beginning of its history in all its traditions, and is the last word of its philosophy ; it was joined with the sacredness of the family ; it imited in one aim its he- roes and its poets ; it was wrought in its architecture, and in the faultless lines of the sculpture of its temples ; it gave the type of victory to its art. In Rome the very religion was the witness to the sacredness of the family and the state, and the divine obligations in the relations of a father and a citizen. This moulded all her institutions. The recocrnition in these nations of a divine origin was also
1 " Government like man himself participates of the divine being, and de- rived from God through the people, it at the same time participates of human reason and will, thus reconciling authority with freedom, stability with prog- ress." — Brownson. The American Republic, p. 126.
58 THE NATION.
clearest in the ages of their strength. It was not in pe- riods characterized by superstition, by prostration and ab- ject feai% when the powers of man were dwarfed by the impending vastness of nature, before he had discovered the harmony in the wide sweep of her courses, and the uniformity in her cycles, and the imagination was bewil- dered by an apparent discord, but it was in the manhood of the people, when there was the highest self-respect and self-assertion, in periods whose colossal monuments attest the triumph over physical nature, whose noble monuments attest the higher triumph over foes in the spiritual nature. It was not in what are called the pre-historic ages ; in these nations there is the constructive course of historv. It was held in no individual conception, but the very names Roma and Athene were the names of divinities as well as nations. There was for each in its name a twofold significance, and it denoted not only a political organiza- tion, but was the sign of a divinity in whom it was con- ceived that the people stood.
This spirit in the most varying forms may be traced in every historical nation. In the unity and continuity of the nation, there has been the consciousness of the divine guidance in history. It has united the generations, and the nation in its battles has drawn its inspiration from no lower faith. The great events in its history become the witness to the divine presence, and in the crisis through which it passes there is manifest a divine judgment, con- suming the evil which was destroying it, and gaining for it a divine deliverance from the evil. Therefore in Judaea all the great testimonies in its national history, through the procession of its centuries, were repeated, of Him that en- dureth forever.
The conscience of man also gives the evidence of the origin of the nation. The moral spirit of the people recog- nizes the life of the nation as sacred. It is apprehended as a life which cannot be trifled with, nor weighed lightly,
THE ORIGIN OF THE NATION. 59
«
nor judged indifferently. Its inviolability is affirmed, and the obliiiation of its members to it. And as there is in the conscience the witness to a divine relationship, if the na- tion had merely an external or a physical being, there would be no ground in which the conscience could ac- knowledtfe a relation and oblio;ation to it ; there would be only the individual obligation which one may hold to an- other. The conscience testifies also to a judgment as coming upon the nation, because formed in a relation in- volving an immediate and a divine obligation. ^ There is no thought which has had a more intense expression as reflected in literature and art. In Rome and Greece as they recognized in the disaster of the individual a moral judgment, it was still more apparent that the wider disaster that came upon the nation could not be divested of a moral condition.
If the divine origin and foundation of the nation is de- nied, the authority of its government is resolved into mere force. The power in the nation, as self-subsistent, is neces- sarily absolute. It may take the form of the absolutism of the individual or of the people, but its principle and result are the same. In a popular absolutism there may be a more utter degradation of humanity and destruction of personality, until all that gives a moral elevation to the life of men and of nations shall expire, and there remains only a level sweep as in bleak and desolated fields. There is, it is said, in the reign of the despot, still one that is free, but here there is freedom neither for the ruler nor for the peo- ple. The ruler who recognizes and follows only the popular voice and the popular opinion, becomes himself a slave. And he only is truly a ruler and truly free, who recognizes
1 Mr. Brownson says of a recent political school, " it has rejected the divine origin and ground of government, and excluded God from the state. They have not only separated the state from the church as an external corporation, but from God as its internal Lawgiver, and by so doing have deprived the state of her sa- credness, inviolability, and hold upon the conscience." — The American Republic, p. 122.
60 THE NATION.
in the sovereignty of the nation tlie divine source of its unity and power, and whose action in it is therefore in im- mediate responsibility to God. If there is for the nation no divine origin and ground, and the ruler is to listen only to the voice of a people in itself supreme, and sepa- rate from God, then in that awful absolutism his strength is broken, and his power is resolved in those living atoms. Tiie ruler is silent in the popular clamor, as he is swayed by the agitation of the crowd, and is blind as he is hurried by the popular impulse and passion. But the nation, when it is conceived as separate from God, can have no realiza- tion, for in that separation the ground of all unity and con- tinuity is lost, and there is no more a people.^
1 Bluntschli cites the language of President "Washington — the first inaugu- ral of the first President — as among the strongest assertions of this principle in modern political literature. — Allgemeinen Statsrecht, vol. i. p. 253.
While it is denied bj- popular schools, and avoided by ecclesiasts and pro- nounced enigmatic by newspapers, there has been no age in which it has been more clearly recognized in the thought of statesmen. Napoleon III. said at Rouen, June, 1868, " We cannot separate our love of countrv from our love of God."
" The human authority in the state can never again be confounded with the divine authoritj' (the theocracy), but it must necessarily be founded on the divine authority." — Stahl's Philosophie des Eechts, vol. ii. sec. ii. p. 184.
Ji:
CHAPTER V.
THE PEOPLE AND THE LAND.
The people and the land form the natural elements of the nation, in its physical unity and circumstance ; they exist in a necessary inter-relation.
The people in its organic unity, constitutes the nation. It is not a sum or an ago-resate of men, a chance collec- tion accumulated as an heap of fragmentary atoms ; it is not a mob, but a people ; not a vulgus but a populus. It is not a party nor a sect, nor a mere association of parties and sects, nor a combination of separate corporate interests, nor of individuals in the partnership of their private inter- ests, and there is in none of these the consciousness of the unity and of the order which belong to a nation. With the mob, a detached and unformed mass of isolated indi- viduals, it has nothing to do, and they can have nothing to do with it.i
The people is not determinate in any enumeration of individuals. It is the people, not the population, which forms the nation. It is not ascertained in any arithmetical notation, and the political order has not this nominal basis. It is a mechanical conception which assumes a certain nor- mal number as its true condition. Rousseau estimated the normal number for the people at ten thousand, and at peri-
1 French and German publicists, — the former constantlj'and the latter mainly, — use these terms, the people and the nation, in this significance. The organic people in its physical condition, as the natural element of the state is called the people (Peuple, naturvolk), in its political condition it is called the nation (Na- tion, statsvolk). But the terms in German political literature are wide away from any other. Bluntschli adopted the above distinction in his earlier writings, while in his later, against the coniraon use, he has followed the strict derivation of the words.
62 THE NATION.
odic intervals it was to be changed to conform to this cen- sus, but it has no more an arbitrary ground in the num- bers of statistics than in the formulas of lawyers. It may change with successive generations, and in the prosperity and the adversity of its years. It may exist in " numbers as the stars for multitude," or in only a remnant who keep its calling and guard its ancient faith, and endure through captivities, and at last triu.mph over every conquest. The national type is not obliterated in the vicissitudes of events, nor overborne by the migrations of races, and does not perish, although the individual die.
The people in its wholeness constitutes the nation, and it is to comprehend in its political aim the purpose, and in its end to realize the destination of the people as an whole. It is not of the one, nor of the many, but of the people. There is no individual, as Louis XIV., who can assume to be the state, and no hereditary class, and no party or sec- tion can say, it is in us alone. There is no sect and no faction that can claim it as an exclusive possession. The spirit of a party, or a class or a sect in its isolation, subor- dinates the state to a special or a private end. Thus when he who comprehends only a party or a class or a sect, — a mere fragment, comes to work upon the whole, not com- prehending in his purpose the people as an whole, but only the parts and nothing beyond, his work is that of inevitable weakness and corruption.
The people in its normal and moral relations constitutes the nation. There is no arbitrary principle in which the people can define its existence, as if society had an indi- vidual or artificial basis. And it is not simply the physical condition which conforms to a tribal law. It cannot make - t
a physical condition the principle of its being. ^ There is *'
1 " America, though the best representative of the social and political gains of !^
the eighteenth centur^v, was not the parent of the idea, in modern civilization, that man is a constituent member of the state of his birth irrespective of his ancestry. It was become the public law of Christendom. Had America done less, she would have beea not the leader but the laggard of nations." — Ban- j
THE PEOPLE AND THE LAND. 63
not among its powers any by which it may elect those who shall be in it, but as the normal and moi'al condition men are born and live and act in it. It is not to restrict itself to those who may be rich or learned. There is no human imperfectness that can be made the ground of exclusion from it, and no human greatness that can justify an exalta- tion over it. The isolation from it can result only through crime, and this is in the law that crime is in its nature the severance of the relations of a moral order.
The people in its conscious unity, embodies its aim in the nation. Then it apprehends its object in it, and it is set before it in its moral order as the aim of all. It is then reflected in the political spirit of the people, and moulds its character. There is in a mere mass or aggregate, a frag- mentary collection of individuals or parties, no ground in which the unity, apparent in political spirit and political character, can subsist.
The people is to work out its own political conception in the nation, after the type of its own individuality. The external circumstance, the limitations and conditions in which it is to act, are as varied as in the development of the individual type in nature, while its life which runs through human cycles, has a wider range than in the sequence of physical nature. The forms through which its spirit is to work, are more manifold than those written in nature's book of infinite secrecy. The life of history is the more opulent in its types ; and the forms of the bud and the tree in limitless forests^ are not so individual or so diverse as those wrought in the spirit of the people in history. It is to work out its own purpose in a moral world, and in it alone it has the satisfaction of the spirit. It can no more conceive the desire to be another people, than the individual can conceive the desire to be another
croft's Eistory, vol ix. p. 449. " Der zustand der Barberei besteht darin dass eine menge ein Volk ist ohne zagleich ein Staat zu sein." — Hegel, in Eo$er- Tcranz Leben, p. 244.
64 THE NATION.
than himself, — that is, to lose his own identity. The spirit of the people is thus reflected in, as it is formed in and through, the individual and the generation, while its perfect type is in no single individual and no separate generation, but in the work of the people in its continuity.
The people alone in the nation, constitutes in its inte- gral and moral life the political order. It belongs to none separate fi'om it to prescribe its political course. The peo- ple can acknowledge no control beyond its own organic law save only that of God, and the law of its being as a moral person presumes that, as its freedom subsists in that. The power belongs of itself to no irtdividual and no family and no class, separate from the nation, as there is also no indi- vidual and no family and no class belonging to the nation that is exempt from its authority.^
The people, in the nation in its moral being, alone has the right of government. It is in the nation only, of di- vine right. Its power is from God and of the people. Its authority is therefore in the name of God and the peo- ple, and the responsibility of those who bear its authority is to God and the people. The government therefore can claim identity with no special and divine majesty, and can assume no special and divine appointment. It is only as representative of the nation that it is clothed with author- ity.
The right of government is in the will of the people, while it is only in its being in the nation, as a moral per- son, that the will of the people subsists. Its authority apart from this, has no foundation, and can refer for its postulate only to a fiction ; it can be held then only in an arbitrary assumption, and defined only in an abstract and vacant conception. The being of the nation as a moral
1 " This authority is not ' the governed,' from whose ' consent ' it is so often in a false sense declared 'every government derives its just powers,' but a po- litical people, having the power as sovereign to govern every natural person within a certain territory without reference to his consent." — Mr. Hurd's article on " Reconstruction," American Law Review, January, 1867.
THE PEOPLE AND THE LAND. 65
person, Is alone the positive and substantial ground, apart from which the will of the people is only formal, and its freedom only the empty sphere of outward circumstance. The will of the people in the nation thus is not compre- hended simply in its collective act, nor in its momentary act, and these may not always embody the moral aim, nor represent the continuous purpose of the people. It obtains a clearer expression in the exclusion of the caprice, the whim and willfulness of men, and in the latter there is confusion and not order, the creation of chaos and not the state. The assumption of the caprice of men as the con- dition of power subverts government, and resolves the state into its atomy.
The will of the people in the being of the nation as a moral person, is the organic political power. It is the only unbroken succession. The ruler who is over and separate from the people, is he whose right is disputed, whose au- thority is transient, whose succession is subject to accident. The will of the people in its succession in the nation, is not limited to the individual or to the generation, but it is transmitted through the individual and the generations of men.
The people forming the nation exists in its physical unity and circumstance, in a necessary relation to the land. The land is the outward sphere of the organization of the political people. The people and the land thus, in common language, become a synonym. Greece is a name which represents a certain definite geographical limit, and again the complex political life of a people.
The possession of the land by the people is the condition of its historical life. The land is the field of its work in history. Nomads may form a horde, but not a state. The historical work of the people has an immediate relation to the land in which its fortunes are unfolded.
The right to the land is in the people, and the land is
66 THE NATION.
given to the people in the fulfillment of a moral order on the earth. It is the possession of the political people. Thus it can regard it only as a robbery, when it is de- prived of any part of the domain given to it and associated with it in its history. The crime is the same when it is undertaken by the treachery of a faction from within, or by marauders from without, but in the complicity of evil in the former, the guilt is enhanced and it becomes the greater crime of history.
The people has in its development, the definite deter- mination of the national domain. The description of its boundaries is to indicate its political organization and to conform to its historical destination.
The exact designation of its boundaries is also neces- sary in its prolitical administration, for the maintenance of its authority and the enforcement of its laws, and the insti- tution of its order, and M'ithout it there would be a source of constant confusion.
The boundaries of the nation are laid in nature and in the historical course of the people. This law is universal, and the nations which have violated it, again have been compelled to acknowledge it. Italy has never passed her boundaries so clearly defined in nature and in history, but she has been driven back again with loss ; and Ger- many in its aggressions has overstepped these limits, only after disaster to withdraw again. The law has its illus- tration with every people. Its boundaries are not as the artificial lines which trace within the nation the occupation and possession of private property.
There is in nature and in history the evidence, that God has appointed the boundaries of nations. They are to be held in the faith that the land is appointed for the people, and the right to it is in its moral order and its his- torical vocation. In this faith the people will assert them reverently and carefully, will guard them steadily and well. The integral unity of the land will be maintained against
THE PEOPLE AND THE LAND. 67
all alienation and division. The bounds of the nation 'which are written in the courses of the mountains and the lines of the oceans, are written also upon the hearts of its children. In their natural distinction these boundaries may be mountains or oceans and seas, and sometimes also rivers and valleys; but rivers and valleys, which are the wide highways of a nation, may become bonds of union rather than of separation, and in the associations of the people, may aid to forge it together. In the words of President Lincoln, it was after the victories of General Grant and Admiral Farragut, that the Mississippi ran " un- vexed to the sea." The boundaries in nature become, also, lines of defense, and in the strength with which they are held, form a guaranty for the peace of the people.
It may be only gradually that the people enter and oc- cupy the land which is open before it, and is necessary to its manifest historical vocation. The boundaries thus may be modified in its history, but it can allow no change to weaken it in the centre of its power, or to impair the inte- gral unity of its territory, and no change which will en- croach upon the historical domain, or subvert the integral unity of another nation. The change which would have this result would imperil the whole, and would necessarily fail of permanence.
As the land is the possession of the people it cannot be held as the patrimony of a prince, or the monopoly of a class. The land belongs to the people constituted as a na- tion, and the right to it is in its moral order. The exclu- sive possession and entail of the whole domain by a few may prevent this object and subvert the moral order, as it destroys, for instance, the life of the family. In England there are those which are called great families, but as its homes are swept away the family life of the people is destroyed. One half of the land is owned by one hun- dred and fifty proprietors, and the whole number of pro- prietors is reduced, to thirty thousand, while the majority
68 THE NATION.
of the people subsist on wages. " The yeomanry," says Mr. Disraeh*, " has vanished from the face of the land, while the tendency of business has been to introduce a condition to consist only of wealth and toil."
There is a common conception in which the land is so re- garded, as to make simply a geographical position the origin and condition of the existence of the nation. Mr. Maine attempts to establish the state upon the fact of local conti- guity.^ But in an existence in a local contiguity there is not the origin nor the foundation of the political life of men. While the fact of residence and coexistence is necessary in the historical course of the nation, it does not bear in itself its germ, nor is it the source of its integral unity. It is not the circumstance of neighborhood, but the consciousness of relations to one's neighbor that is indicative of the oi'igin of the nation. The unity of the nation is not in the existence of man in a certain contigu- ity, but in a conscious purpose and a relation which is necessary to the destination of each and of the whole ; its condition is not a merely physical relation, but a moral relation ; and it has not merely the existence of the in- dividual for an end, but the whole for an end. There are thus, for instance, vast contiguous populations which have existed for centuries on the plains of Asia and Africa, and in the most diverse geographical positions, and yet they have not formed a state. There are populations by the Rhine strictly more contiguous to the French, in their bulk, than to the Germans, but they would go to battle rather than be wrested from the unity of the German nation. This definition of the origin of the nation in local contiguity, has also no historical justification. There wau a people dwelling by the banks of the Tiber before the beginning of that national development which was to de- termine so widely the world's history, but they were not Rome. There is a population in Judaea, but the stones 1 Maine's Ancient Law, p. 128. ,
THE PEOPLE AND THE LAND. 69
of its temple are broken, and it is not there that we seek the continuity of Israel.
The relation of the people and the land is consistent only with the existence of the nation in its necessary con- ception. The proposition which represents the people as a mere collection, an aggregate of men, and the proposition which defines the origin of the nation in a contract, cannot embrace this conception of a country, and when the nation is regarded as only the creation of a formal law, it no longer comprehends the necessary relation of the people and the land.
The influence, in this interrelation, which the land has upon the people is apparent, but there is a tendency in a certain school to ascribe to the land a determinative influ- ence, and to refer the constructive and formative power of the people to external circumstance and physical condition — the climate, soil, geology, minerals, fishes, etc. This had a fair consideration in Montesquieu, but there is a school which comprehends nothing beyond. The denial of the reality of human freedom, the assertion of a bare necessitarianism, has its consistent sequence, in the refer- ence to physical influences of a controlling power, in what it yet calls history. With the denial of human freedom it passes immediately to the study and computation of cli- matic conditions, the soil, the climate, the agricultural pi'od- ucts, and the like. The writings of Mr. Buckle illustrate this. But in the existence of the nation, which is the sub- stance of civilization, there is a power higher than the necessary process of the physical world. It exists in the order of the moral world. This cannot be determined by physical elements. The history of the world cannot be deduced from its geography. In the political course of the nation the land is a necessary element, but it is not the creative nor the controllino; element. The future of the nation Avill not be concluded by its relative nearness to the equator. The nation exists historically in the reahzation of
70 THE NATION.
the freedom of man, and his consequent dommion over nature. Mr. Buckle, when he stood in Judaea, avowed that his only interest was in the agricuhure of the country ; hut the soil is the same upon which a people lived who stood in the continuity of a nation, which long captivity in strange lands and under strange skies did not destroy, whose unity was lost in the grandeur of no imperialism, and whose lines of kings and prophets looked to the coming of One in whom was the hope of humanity ; but the physical process of na- ture does not renew that life. The mountains of Attica are the same upon which the Parthenon was built, and their quarries the same which furnished the marble for the sculpture of Athene, and the windy plains are the same upon which an army was mustered at Marathon, and the sea is the same whose waves were parted by their ships at Salamis, but the conflict which in its moral interest made these names immortal, has closed.^
Since the land is necessary to the historical development of the people in the continuity of the nation, the nation has supreme authority over it. It is in its integral character the domain of the people. Within its limits, therefore, the people can allow no possession exempt from its control, and no individual beyond its law.
The people and the land exist, in their interrelation, in the historical realization of the nation as a moral order. The land becomes associated with the spirit and the des- tination of the people. Since it is the external sphere and condition of the life of the people in its moral order, it is holy ; and since it belongs to the people in its continuity, it is inalienable. There is thus attached to the land a sa- credness which is derivative from the moral being of the nation, and it is held as inviolate.
The land in its integral unity is thus a divine gift, a
1 Cotnte has a more exact statement of the influence of the physical world upon man: " The world," he says, "furnishes the materials, and man deter- mines the form." . . . . " Man is not a result of the world, and j'et he de- pends upon it." — Catechisme Posiliviste, pp. 37, 42.
THE PEOPLE AND THE LAND. ' 71
habitation of the people for all generations. It shares in the sacredness of the life of the nation, historical associa- tions grow up around it, and blended with their traditions it passes sacredly from the fathers to the children, and constitutes in its M'ide domain the hei'itage and the home- stead of the people.^
1 " The land is the essential condition of the normal and moral development of the state, and therefore it is absolutely hoh' and inalienable. It is here that the real moral spirit of the love of the father-land rests : originally it is a love of one's native land, and always retains this natural element, but in its complete- ness it is wholly interpenetrated with this consciousness of a moral relation. Therefore the true love of the father-land exists only when a people has already attainted to the life of the nation. The merely economic society has nothing of this." — Rothe's Theologische Ethik, vol. ii. p. 123.
CHAPTER VI.
THE NATION THE INSTITUTION OF RIGHTS.
The nation is a moral person. This prescribes the province of rights and the province of freedom. The ground of these is in no formal system of laws, and no abstract system of thought. On this ground alone, their provinces are removed from the arbitrary limitations of for- mulas and abstractions.
Personality has its condition and its realization in free- dom. Personality is constituted in self-determination ; one whose action is self-determined is a person.^
The human personality subsists in the divine personality ; as it is realized in the moral life, it is derivative from God, and has its fulfillment in God. It comes not in entire for- getfulness ; whether it looks within or without, it gazes into no abysmal depths. It is not attained throuo-h negations ; Its necessary being is not ascertained in a law of thought, as in the formula of Spinoza, nor by a rule of subtraction, as in the resultant of Comte. It does not recede into nothingness, it does not pass into vacancy. In its begin- ning it is formed in relationships, and in its development it is not severed from them, but there is the fuller expres- sion of them. These relations are not the result of the reflection, nor of the volition of man, and man is not their centre. In the realization of these relations man is always brought nearer to Him in whom they have their consistence, and in whom is the perfect unity.
The central attribute of personality is the will. The will in its freedom is defined in no formal or empty notion ; it
1 " A being endowed with aelf-consciousness, reason, and freedom, is called a person, or has personality." — Ahren's Naturrecht, p, 83.
THE NATION THE INSTITUTION OF RIGHTS. 73
is the self-determination of a person, and that alone is free. The determination, in the realization of personality, acting in freedom, is in the fulfillment of law, but the law thus is necessarily not abstract nor formal ; it is not external, it is a law implied in the being and the realiza- tion of pei'sonality, and the fulfillment of which is the end of its being ; it is in its highest conception the will of God.
The mere formal notion of the will and of its freedom, which separates it from its substance in personality and empties it of all content, could not form the principle of rights. It could produce a scheme concerning rights, but not the realization of rights ; it could result in a system, but not in the nation.
Rights belong to man, since in his nature he is consti- tuted as a person. Personality, since it has its origin in God, has an infinite sacredness. This is the m'ound of the sacredness of the rights of man. The individual personal- ity can therefore be apprehended rightly only in this con- ception, — the life of each must be held sacred, his worth must be allowed, his dignity must be regarded, his freedom must have in the nation its maintenance and its sphere.
It is only in his personality, in his moral being and freedom, that man has rights beyond the other animals. In the necessary sequence of physical nature there is no ground for nghts. It is because man exists also in a moral world, which is in freedom, that he has rights.
The realization of personality is manifested in the am- pler institution of rights. For rights in the nation are the asserting and the. positing of personality, in the external sphere, through its self-determination which is its freedom. They are the process in which personality affirms itself and attains recognition in the nation. Thus also, reverse- ly, the decay and loss or abandonment of rights is con- nected with a low and a • false conception of man, and presumes always the degradation of personality.
Rights belong to man, as man is made in the image of God ; they are his by nature ; they belong to him in
74 THE NATION.
liis onVinal constitution. Thus the condition of their ex- istence, as of their sacredness, is in the nature of man, as it is in the divine image.
Rights have their foundation in the nature of man.
Personality manifests itself in the realization of rights ; all rights are of a person.
Rights express and define the relation of a person in the nation, to the nation, and to other persons.
The fundamental law of rights is, — Be a person, and respect others as persons.^ /
The nation is the institution of rights. The primary- distinction of rights is of Natural and of Positive Rights. Rights are natural, as laid in the nature of man ; rights are positive as defined in the nation. Rights are natural as immanent in • the nature of man ; rights are positive as emanent in the nation.
nights are natural, as founded in human nature. They are inherent ; they are written in the law and the consti- tution of the being of man. These rights are variously denominated in the various representations of their con- tent and form.
Blackstone calls them absolute rights. But this is inex- act and indefinite ; the freedom of man is not absolute, and no rights are absolute. The rights which Blackstone enumerates are all subject to modification. There are none which may not be abridged or yielded or interrupted, and none which have a perfect realization.
1 Hegel's Philosophie des Rechts, p. 72. Stahl's PhilosopMe. des Rechts, vol. ii. sec. i. p. 331. Michelet's Naturrecht, vol. i. p. 143.
" The ultimate ground of the rights of a person is therein that man is made in the image of God." — Stahl, vol. ii. sec. i. p. 331.
This law is the ground of social laws, the unwritten laws of manners and the substance of the character of the gentleman. It is the assertion of a person- ality, and a deference for it in others. This has had, perhaps, its finest illustra- tion in the character of the Quaker. It has no ground in a formal distinction of classes, and the very quality of vulgarity is a respect for the accidents of life and a deference to them.
THE NATION THE INSTITUTION OF RIGHTS. 75
They have been called inalienable rights, but there is no riglit which has its institution in the external sphere, that is, the sphere defined by law, that is inalienable. The right of the nation is necessarily precedent to the rights of the individual, and they are all limited by it in its su- preme necessity. They must yield also to its force, as, for instance, life is subject to the call of the state in war and its calamities, property is subject to its claim in taxation, liberty may be interrupted in the peril of the Avhole, and is forfeited by crime or the suspicion of crime, and in its simplest phase is restricted, as when one is compelled by the police, in a stoppage in the street, to retrace his steps, or take another route. The phrase inalienable, as applied to rights, had its source in the theory of the social com- pact, in which certain rights are regarded as alienated for a certain consideration to society, in order to secure the balance. It had a certain advantage against governments which were denying all natural rights, and encroaching arbitrarily on positive rights, but its consistence is only in the legal fiction which it presumes.
Mr. Hurd describes these rights, while limiting them to the civil sphere, as individual rights, and Dr. Lieber, as primordial rights. But neither phrase is comprehensive of them, and neither has passed into common use. They have no historical justification, and the assertion of these rights in history has not been from academies or courts, but from the common people. The term natural rights is the more simple and the more exact. It is the less likely to allow injury to rights through arbitrary notions. It in- dicates the oricrin and the content of rights. It has a better place in the common thought of men, and may be trusted to hold its own, in the long run, against a more scholastic term.^
1 Kurd's Law of Freedom, etc., vol. i. p. 36. Lieber's Polilical Ethics, vol. i. p. 281.
The declaration of principles at the close of the War of the Revolution was,
76 THE NATION.
These rio-hts cannot be referred to the assumed existence of man in an imaginary state of nature, which is repre- sented as the presocial state. Blackstone refers them to an antecedent state of nature, and describes them as rights which every man is entitled to enjoy, whether out of society or in it.^ But this assumed state is unreal, and if man be represented as out of society, there is no limit to his action which can be defined in rights, and no power by which the title to rights can be conferred. Tiie title to these rights is affirmed and acknowledged only in the organization of society. This definition has its consistency also only in the fiction of the social compact.
These rights cannot be referred to the assumed exist- ence of man in an atomic state. Thus Kent describes them as I'ights which belong to individuals in a single un- connected state.^ But this atomic state is also unreal. Man does not exist in this isolation and cannot be rightly conceived apart from relations, and as these relations had not their origin in the volition or reflection of the indi- vidual, he cannot make them as though they had not been. The conception rests also upon a fiction.
There is no necessity of assuming an imaginary state of nature in order to ascertain the foundation of natural rights. The consistent result of its assumption has been
in the words of the Continental Congress to the people, — " Let it be remem- bered, that it has been Ihe pride and the boast of America, that the rights for which she has contended were the rights of human nature." — April, 1783. Journal of the Continental Congress, vol. viii. p. 201.
1 "The rights of persons are of two sorts, absolute and relative: absolute which are such as appertain and belong to particular men, merely as individu- als, or single persons; relative, which are incident to them as members of so- ciety, or standing in various relations to each other.
'' By the absolute rights of individuals we mean those which are so in their pri- marj' and strictest sense; such as would belong to their persons merely in a state of nature, and which everj' man is entitled to enjoy whether out of so- ciety or in it." — 1 Bl. Comm., 123.
2 " The rights of persons in private life are either absolute, being such as be- long to individuals in a single unconnected state ; or relative, being those which arise from the civil and domestic relations." — 2 Kent's Comm. 1.
THE NATION THE INSTITUTION OF EIGHTS. 77
always the construction of an abstract system. These rights in their origin and their content can be referred only to the nature of man. Their foundation is in no sphere of external circumstance, and in no estate or con- dition of life, but in the constitution of man. They are the rights of human nature, and their derivation is signi- fied in the image in which that nature is made. They are the primal prerogatives of humanity. They have not their origin in human enactments, but determine the just con- tent of those enactments. They are imprescriptible ; the image in which they are giveh is effaced by no priestly illusions, and is extinguished in no imperial obscurantism ; they are not wholly buried beneath the most artificial of policies, and are worn out by no continuance of customs, although lying " heavy as frost and deep almost as life."
Rights are positive, as enacted in the law and em- bodied in the institutions of the nation. Positive rights are the determinate expression of natural rights, in the formal Civil and Political process. They are rights as they receive the recognition of the state and are affirmed by it and in it. Positive rights are therefore the institutes in which the progress of the people is actualized, and they define the extent of its advancement.
Rights are positive, since their necessary definition and institution is in law. It is only as they are affirmed in law, that rights obtain their necessary obligation and their common recognition. Their permanence is secured and they become binding upon all. It is because there is in law this authorization of rights, that the law itself in the course of the organic people is never stationary ; it does not reach a final enactment ; it is not closed in an imperial code. Yet in law there is only the formal recognition, the deposition of rights, it is not creative of them.
Rights are positive, since their attainment is in the his- torical progress of the people. They are apprehended and
78 THE NATION.
then actualized In its development. They are affirmed in the growth of its self-assertion and self-respect. There is in the nation a continuous advance, and in no single mo- ment of its existence can it be conceived as the ultimate and perfect state. The spirit of the people perishes in that oriental immobility. The rights which are asserted in the nation become thus the signs of its progress. They are the landmarks of the march of the people ; and since its rights are the realization of an organic and moral beincr, there is no definite terminus to its advance.
Rights are positive, since every nation has its own voca- tion in history, and in each, rights are formed in its course, and become the reflex of its aim. They are wrought out in its vocation, and bear the clear imprint of its character. They have in every people the same universal ground and end, as this in each is the fulfillment in a moral order of the life of humanity ; but in the purpose and the free- dom of the people their manifestation has a definite type, and they are moulded in conformance to it.
Rights are positive, since they are instituted in the na- tion, in a certain sphere of external circumstance. They are thus affected by the external relations of the people. The laws in which they are established are modified by the age, the race, the association with other peoples, and then also by the physical condition, the soil, the climate, the products ; by agriculture, and commerce, and trade ; by all those elements which, in the necessary relation of man in physical nature, so clearly afi'ect, while they do not de- termine, national and individual development. But it is only a recent school which has held this in so narrow and exclusive a notion as to make all human freedom a fic- tion, and to leave to man only the poor pretense but not the reality of rights.
Positive rights, therefore, are natural rights, as they are ascertained and affirmed in the normal Civil and Political process. It is only in law, in which this process consists,
THE NATION THE INSTITUTION OF EIGHTS. 79
that natural rights obtain their necessary form. They have apart from this neither the requisite precision, nor the ob- ligation which secui'es their authority and validity. They are the principle to determine the action of the whole people, but in law alone they become the necessary form for the action of the whole people. In certain rights there is always a vagueness, since that which in itself, for in- stance, is determined in the development of the individual and the nation, is to obtain a formal determination in law. Thus the time when the majority of the individual begins, and the qualifications by which an elector is ascertained, are illustrations of this. But the principle to be regarded in these instances is, that the state shall not determine them arbitrarily but in the reason of the state.
The relation of Natural and Positive rights has been represented in two opposite conceptions, each of which involves an error.^
The one proposition isolates the sphere of natural from the sphere of positive rights ; they are defined as existent in an external and formal separation. The ultimate ground of natural rights is assumed in the nature of per- sons, or the nature of things, and from it they proceed ; the ultimate ground of positive rights in the determination of the state, and from it they proceed, but there is no nec- essary relation between them, nor do positive riglits, in the normal process of the nation, exist in the recognition and institution of natural riglits.
This conception has its source in the antithesis of natu- ral and political society, in which a definite existence is assumed for the former, and the latter is held in its sepa- ration as an artificial existence ; the foundation of society
1 Aristotle distinguishes between a natural right which is everywhere alike valid, </it)o-i«roi' ; and a positive right which is right only as being established, vo^iKov; but as Stahl says, so far as Aristotle defines them, they are placed in external and separate spheres. — Aristotle's Ethics, bk. v. ch. vii.
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is laid in contractual law, and its structure is formed of conventional rights. This distinction was prominent in the thought of the last century. It was the formalism which held the same separation in natural and revealed religion, and then in natural and political rights, in natural and artificial society. It appears in two men who wrought with the deepest influence upon their age, each working steadily and faithfully in it, becoming thereby the teachers of an- other age, and while wide apart, yet aiding towai'd the discovery of a deeper unity, — it appears in those in whom was the strength and weakness of the age, — Burke and Rousseau. Burke opposed the notion which founds so- ciety upon the dogmas and theories of an abstract specula- tion, and fabricates it after an arbitrary scheme and an empty metaphysic ; instead of this, he maintained its exist- ence as a structure of acquired rights, and held the nation in its life to be identical with these, so that the form itself became sacred, and rights whose origin was in accident or in custom, shared in the permanence and the sacredness of the life of the nation : Rousseau opposed the notion which founds society upon conventional rights, and regards the state as an accumulation of rio;hts, which, orio-inatino; in an accident, are to be perpetuated inviolate with the in- violateness of the state itself; instead of this, sweeping away the existent organization and the whole existent polity, he maintained the inauguration of a new order, constructed in accordance with the abstract reason. The one merged the nation into the formalism of history, the other into the formalism of thought.
The proposition which thus isolates the province of natural and positive rights, and locates each in a formal and external sphere, has its refutation in that the nation itself is the natural and the normal process of human so- ciety. It is the postulate in political science, of Aristotle, whose solid vantage is the defense from so many errors, " man is by nature a political being." The nation is the
if
THE NATION THE INSTITUTION OF RIGHTS. 81
manifestation of that which is immanent in the nature of man. It is the legal fiction of the social contract which severs the state from the natural life of man.
The proposition, moreover, in the detachment of positive from natural rights, allows to the former no ground but an accidental succession, or a customarv law, or a contractual form, or an arbitrary power. It can only be justified in the origin of the nation in force, or in the accident of his- tory, or in the " use which custom bends." But this is the unreason of the state, and it can then no lono-er be com- prehended in the moral order which is history, nor as the constituent of that order. And rights can allow no arbi- trary basis, for this presumes a contradiction, and it is not in its own inclination or in its indifferent choice, that the nation may determine their existence and whether they shall or shall not be. If, however, rights do not consist in the being of the nation as a moral person, and if a merely formal limitation be allowed, then in their restric- tion to a part, they may be always confined to an indi- vidual, or a family, or a class, for their only basis is arbi- trary.
But this isolation of natural and positive rights is the sequence of a formalism which identifies the nation with its external organization. Positive rights have in nat- ural rights their content, and their immutable ground, and therein alone the nation is constituted in the realization, in a moral order, of that which is immanent in society. ^
The opposite proposition identifies the sphere of natural and positive rights ; it assumes for natural rights, in them- selves, a valid existence, and makes them then the neces- sary and supreme law. In the conception of natural rights it finds the boundary and description of positive rights, and the scope of the latter is held as coterminal
1 The entire severance of natural and political rights, where Burke in no way appears clear from the confusions of his age, has been maintained in a distinc- tion in which natural rights are regarded as essential, and positive as accidental ;
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witli the apprehension of the former. The distinction of rights in their conception and in their formal institution is obhterated. That which is deemed a natural right is as- sumed to be already the law, and to possess an immediate validity.
This mercies the whole order of the state into the sub- jective conception of the individual ; the organic action of the whole ceases, and its conduct is left to the determina- tion of the private judgment. Its course is no longer de- fined in the formula of law and in institutions. It is no more the expression of an authority, which is over every individual, and to which each alike is subject ; its language is no longer esto but only videtur. This is the elevation of the private opinion of the individual into the place of the government of the whole. Its only issue is the set- ting up of a popular absolutist, the dissolution of the state into its atomy, and the inauguration of a conflict of each against all.
As natural rights are held in the subjective conception of the indi\adual, they have not the clearness which is requisite to a law which shall be the form of action for the whole. They are vague, and the condition of rights is that they shall be defined in a form which shall enable them to be held with decision. They are to be sustained against injury, and are to be obligatory \apon all, and there- fore it is necessary that they should have so clear an ex- pression that they may be enforced over all, but they obtain this only as they are asserted in a positive form in the civil and political organization.
natural rights as universal, and positive rights as limited to a part. But if positive rights are accidental, then the state, as the process of rights, can be re- garded only as the accident of history; and personality, moreover, is not deter- mined in accidents, but in its own determination is the realization of order. The definition, also, while limiting positive rights to a part, fails to define this part and the ground in which it is ascertained, and in its separation also of nat- ural from positive rights, it leaves the former a mere abstraction, since rights are valid only in their positive institution.
THE NATION THE INSTITUTION OF RIGHTS. 83
The proposition is also inconsistent with the existence of the nation in its historical development. There is in its advance a constant outcome of rights. It is not the application of a perfect system of natural rights, for which there is to be assumed the authority of positive law. The whole body of rights can no more come forth complete in a single moment than can the nation itself. And tlie indi- vidual subjective conception can in no moment assume to be the law or the measure of this advance. It is mani- fested always in the development of the spirit of the or- ganic people, and no single age can apprehend or attain a final and perfect embodiment of rights. While there is in the definition of natural rights in an abstract system, the weak attraction of a certain intellectual proportion, it is yet an empty notion which regards rights thus as complete in a system, which, when received from the schools, is to be analyzed and applied by the people.
There is a tendency, which this proposition illustrates, to forget that rights are and can be real, only as they are established in the civil and political organization. They are slowly, and only with toil and endeavor, enacted in laws, and moulded in institutions. It is only with care and steadiness and tenacity of purpose that those guaran- ties are forged which are the securance of freedom, and they are to be clinched and riveted to be strong for de- fense and against assault. The rhetoric which holds the loftier abstract conception, avails nothing, until in the constructive grasp and tentative skill of those who appre- hend the conditions of positive rights, it is shaped and formed in the process of the state. The former is often the quality of some individual thinker, whose ideal is cold also in its distant elevation, and who, regarding in events only the conflict of ideas, is indiflPerent to the real life of men and nations, and this indifference may become, when his own ideal is unrecognized, the ground only of the scorn of an unsympathizing imagination — not the noble-
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ness but the weakness of disdain : the latter is the work of the statesman who alone knows how patient and vigil- ant is the toil which is the condition of the institution of rights, and how wary and bitter is the antagonism of the forces, from whose selfish grasp the ampler field of rights is wrested, and who forgets in no immediate end the long result to be attained, nor in the exultation of momentary success, or the discouragement of momentary failure, how firmly and how broadly rights, to be secure, must be en- acted in the laws, and moulded in the institutions of the state.
There is a tendency, which this proposition also illus- trates, to represent natural rights as construed in some system, and to regard the nation as an external structure to be erected in conformance to it. The nation is to be shaped by these political architects after certain specu- lative abstractions. The whole existent organization is to be destroyed to effect some end of the individual thinker, and again to be built anew in the individual desio-n. Then all institutions that have not the exact proportions of the momentary schedule are to be leveled to the ground, and all that has been achieved in the work and sacrifice of gen- erations must make room for a structure designed in the individual conceit. It is this spirit, which is the evil of fanaticism, that appears as a vain and destructive force. When there follows the wreck of the whole existent organi- zation, it can find in the abstract reason the ground onl|' of a formal order, and its work, out of a prior system of independent rights, can result only in a formal unity. But the nation is not such that it may be constantly taken down and rebuilt again ; the city walls, when they are torn away, may be piled up from the quarries of the hills, as gath- ered stones, but it is not thus in the political life of the people. And Avhen this destructive course is begun there is no limit to it, but, as the nation is reconstructed after some abstract conception, it comes to be regarded as only
THE NATION THE INSTITUTION OF RIGHTS. 85
an external order, and there is tlie justification for some further change in some new theory. But stabihty is the condition of growth, and the furthest advance of a single generation is slight in comparison with that which is em- bodied in the nation, in the long result of time ; and the largest design of a single individual is contracted before that which is attained in the vocation of the nation in his- tory. This conception can only appear in an unhistorical age, and in the extremes, — the provincial and cosmopoli- tan theories which coincide in their denial of the oro-anic and moral being of the nation. Its source is in the false and deceptive exaltation of the individual, and it be- comes in its assumption of the individual phase of the conception of natural rights, as the law of the action of the state, the precedent of a mere egoism.
The proposition in defining the relation of Natural and Positive rights, which isolates the province of each, and locates each in a separate and external sphere, and the proposition which identifies them, so that the individual conception or system of natural rights is apprehended as the immediate formula of action in the nation, are alike without justification.
In their necessary relation, natural rights have their de- termination in positive law, — the formula of positive rights. Natural rights are the content of which positive rights are the form ; natural rights are the ground of action, posi- tive rights the law of action. The relation is not one of identity nor of difference, but of development through content into form.^
Natural rights in their positive determination, are fur- ther defined as they are determined in the Civil or the Po-
1 Melancthon has a passage, cited by Hegel, — " Verum quia jus positivuni determinatio est juris naturalis, facile intelligi potest, jus positum tamen ha- bere aliquam regulam videlicet, ne pugnet cum jure naturali."
" Alle rechtsbildung hat danach ein doppeltes moment, ein Gottlich-nothwen- diges (naturrechtliches) und ein menschlich-freie (positives) und beide durch- dringen sich ohne abgranzung, bestehen in untrennbarer einheit." — Stahl, Philosophie des Rechts, vol. ii. sec. i. p. 220.
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litical process in tlie nation. Civil rights belong to the jural ; political rights to the moral organization of the nation : civil rights are those in which the individual ob- tains protection ; political rights are those in which the person obtains a realized freedom : civil rights belong to every one who is subject to the authority of the state ; political rights belong to every person who is a member of the state : civil rights define private relations ; political rights define public relations : civil rights are asserted in the jurisprudential order ; political rights in the constitu- tional organization of the political people : civil rights at- tach to the province of private law ; political rights to the province of public law : civil rights are resident in the commonwealth ; political rights in the nation.
Civil rights are commonly designated as the right of personal security, of personal liberty, and of property ; or the right of life, of liberty, of property ; to these is to be added the right of access to the course of law, in which the preceding are sustained, or the right to the protection of the law — the equality before the law.
The riglit of personal security or of life, is simply the right to existence, the same right, as has been said, which one has to be where he is, that Kearsarge or Cape Cod has to be where it is ; it embraces the right to the body, to health, to the limbs, to the senses and their use. There is often connected Avith this the right to reputation, and this as a right is also indicative of the worth and dignity of a person. From real honor, which is in man, it is true that none can detract, and real integrity is beyond earthly moil, but there is the right to the consideration in the ex- ternal order of the worth of personality, and this right consists in the defense and maintenance in the external sphere of the integrity of the individual. ^
1 Mr. Spencer places the right to reputation on the basis of property, — " Rep- utation, as a thing which men strive to acquire and preserve, may be regarded
THE NATION THE INSTITUTION OF EIGHTS. 87
The right of personal hberty is the right of external freedom ; it embraces the right to locomotion ; the right to labor, — to earn one's bread in the sweat of one's brow ; the risht to unrestricted action in the choice of the voca- tion and occupation of the individual. There must be freedom to come and go, and freedom of action, and space in the state for the individuality of each to work outward ; and none can be hindered or restrained from his vocation, and every occupation is to be opened upon the same con- ditions to all.
The right of property is a personal right in its strictest form, and is especially illustrative in certain phases, of the relation of the individual and the nation. Its definition in formulas and theories may be traced through the widest range of legal and political thought, and it bears the im- press of the spirit of all their schools. It is more com- plex than the preceding, and appears in more opposite representations ; and in historical and in recent theories it has met with strenuous denial.
" Thou shalt not steal," were the words' of the ancient Hebrew commandment, but " la propriete c'est le vol," said M. Proudhon, and the inference was reached through the rejection of all ground on which the right to property has been asserted in the schools of economy. The Hebrew commandment presumed the existence of the nation ; it presumed a will whose determination was in righteousness, and in which the nation had its foundation ; and the exis- tence of property, then, was recognized as an institute of the nation, not its first nor its main institute, but subse- quent to many others, as the order of the family, the rest from labor in the succession of the week, and yet it is presumed Avith them and as sacred as they.
The legal definition wdiich has most widely prevailed, as
as property." — Social Statics, p. 162. But the conception is lost when placed on any other ground than the worth of personalitj'. Ah old writer has said, — " A good name is belter than great riches."
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to tlie ground of property and of a right to property, has been stated in the aphorism of Savigny, — that property is founded on adverse possession matured by prescription. This is simply the formula of the course of Roman law. It refers the origin of property and of the right to property to mere force, the grasp of the " strong man armed who keeps his goods in peace ; " but force is not the source of a right, nor is the right evoked in holding fast what one has gotten, nor is its claim so matured by the lapse of time, as to win that measure of respect from the advei'se that shall overawe their desire, and prevent possession from yield- ing to the assault of those who at length in turn may prove the stronger ; nor can the mere continuance of pos- session justify the deference of men for the institution of property. The same legal conception is repeated in a more narrow form in the pln-ase of Blackstone, that in occupancy is the origin of property and of the right to property. But occupancy is only the incident of property, and not the ground of it, nor of its right, and the phrase, instead of characterizing the archaic condition, — the prim- itive estate of man, from which Blackstone with his specu- lations journeys forth, — belongs to a later form of society and to a complex system of jurisprudence, and presumes for its recognition an established order.^
These formulas indicate the line of legal thouo-ht, but there is a wider scope and grasp in the theories which ap- pear in the later periods of political speculation, and there is an advance in the history of political theories beyond the history of legal formularies. The illustration of this is in the theories of Locke, of Considerant, of Hegel.
The proposition of Locke retains only an historical in- terest. Locke repi-esented the land as originally of no value, and then he made the acquisition of property to consist in the application of labor, by which the land becomes of value to man ; the land is valueless, and prop-
1 See Maine's Ancient Law, pp. 244 - 248.
THE NATION THE INSTITUTION OF RIGHTS. 89
erty originates in work upon the land, and in the growth of population. But this defines only a certain mode of acquisition and not the origin of property, or of the right to property. It evades the origin of property, for the right to work upon a thing presumes the possession of or prop- erty in the thing, and then the work put upon it creates a higher value, but not the thing itself. And if the in- creased value which is the result of labor be allowed to the individual possessor, the increased value in the greater degree may be the result of the growth of population or of the good order and government of the whole ; but the individual possessor has no immediate or exclusive right to the latter increase of value. The value may also in many instances have been increased by omitting to put labor upon the land, as in the wooded lands or the mineral deposits of a country which becomes populated. There is certainly in labor an element of property, but not the origin of property nor of the right to property, and in labor as a physical force man effects no result in comparison with nature in her constant change of physi- cal forms, in her ceaseless laboratories.
The proposition of Considerant is connected with this, and starting from another premise holds the same posi- tion. It represents the physical world as the common good and the gift of nature, and as belonging to man, but as yet undivided, and open to all to come in and take their estate. Then no individual or generation can claim pos- session before another, while that which each lays out upon the land by his labor is his own possession, since it is his own creation and thus not of nature. Those, then, wlio come afterward, not being in actual possession, have also a right to the land, but only to the land, not to the improve- ment laid out upon it, which has created its higher value. But the defect in this proposition at once becomes appar- ent when the application is made. If the actual pos- sessors should hold on to their exclusive possession, that
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would be unjust to the new comers, who are thereby ex- cluded from possession, and have the common gift and good of nature withheld from them ; therefore the actual pos- sessors must divide the possession of the land with them, but that would be unjust to the actual possessors, since the result of their labor, and it may be of their fathers' labor, would be taken from them. There is, there- fore, a compensation to be provided for them, and this is represented as the security and the equivalent of labor. Then since the land cannot be usefully further divided in this parcelling among all comers, the actual possessors must provide for the later comers employment and means of labor upon the land, and this is rated as the compensation in turn to them for their claim upon the land, as the com- mon good and gift of natui'e, and is held as the equivalent to them for their deprivation from it. It is represented as more than an equivalent, since it returns more than could be obtained from the original good and gift of nature in fruits, hunting, fishing, etc.
This proposition assumes a law of compensation, and an exchange of equivalents, in order to its justification ; but the principle which it assumes is not substantiated. The compensation allowed does not meet the claim of those who are deprived of possession and are kept fi'om their share in the land, and instead of the common gift obtain a forced contract. That which is the postulate of the whole proposition is also immediately evaded, for what is the value of the original land as part of the common gift and good, and what is the value of the improvement laid out upon it by labor, and what is the actual possessor to allow for that which he may have consumed out of the common gift and good, in the depreciation of its original value, as wood or minerals, or the exhaustion of the soil by crops ? Then in the providing of an employment, the sphere and means of labor on the land, the claim of tliose who are kept from possession of the land is not satisfied, for this which gains
THE NATION THE INSTITUTION OF RIGHTS. 91
them subsistence from the land and a return for service, is not the equivalent for their deprivation also from the land itself. The proposition furthermore is inconsistent, since as M. Proudhon in availing himself of its premise has said, if nature be the common gift and good open before all, it does not belong to the actual possessors nor to their fa- thers to work on it exclusively, nor to hold exclusively its values. It is furthermore defective in its assumption of the common good of nature as alone a gift, and its separa- tion thus from the return of labor, since labor has the gift of nature for its ground or its reward. " The advocates of this theory," says Stahl, " look upon nature as only a treas- ury of goods, which has not God for its Lord but only men, and so they can divide them up." ^
The proposition of Hegel has a higher worth than any preceding it in recent politics. According to Hegel,^ the beginning of property is in the fact of occupancy ; but he says occupancy is only the incident, and property ex- ists in the occupancy by a person, and the ground of the existence of property is in the right of a person to a thing. The possession of a thing is in the will, that is, in a person ; and the possession of a thing is mine as I assert my will over it, and thus as I withdraw the assertion of my will from over it, I may alienate the thing which was in possession. The first comer is the possessor, not because he is the first, but as he asserts a will over the thing, and he is first only in relation to some second or third person who may come afterwards. The right is in the will, that is, in the person, and the actual possession is in the assertion of the will ; and in property there is only the ac- tualization of the right of a person to a thing. This prop- osition is true in its recognition of the fact that the raate-
1 See Stahl, Philosophie des Rechts, vol. ii. sec. 1, p. 370, whose criticism of this proposition I have mainly followed, and whose whole statement of property has the highest value.
2 Hegel's Philosophie des Rechts, pp. 78-94.
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rial world exists for man and man is placed over it : it is true also in its definition of occupancy as only the circum- stance, for it cannot be the ground, of the institution of property, nor of the right in property ; it is true also in representing possession as in the will, for property belongs to me only as I assert my will over it, and I may alienate or transfer it by an act of will. But this proposition can only be justified, not as the existence of property is left to be determined simply by the circumstance of occupancy, in a precedence in time, but as property is regarded as the gift of God to man in the material world. It is man's only as his personal being ; that is, his life in its moral realization is from God, and it is his in and for the ful- fillment of his vocation in a moral order in the world, and apart from this there is nothing which is his own. The right to property and the possession is therefore in person- ality, and the existence of property is of the gift of God. It exists in the sphere of the vocation of man, and it is instituted and maintained in tlie nation as the nation is formed in the moral order of God in the world.
The common theories of the schools in which it had been the aim to establish the ground of the right to prop- erty, were subjected by M. Proudhon, in the approach to his famous inference, to a thorouo;h and vigorous criticism. The right, he said, is not derivative from the fact of occu- pancy, for the arbitrary seizure of a thing cannot become the ground of a right to it; the momentary possession of a thing still less can become the ground of a continuous right ; and occupancy can at the most claim respect only in so far as the individual actually and immediately exercises it ; and then, also, possession can be respected only in so long, and so far as actual occupancy appears. It is not de- rivative from labor, for the right and the freedom to labor upon a thing already presumes possession of it, and the labor may create a higher value in it, but not the thing itself; the value may also be