THYE NTATIONY:
THE
FOUNDATIONS OF CIVIL ORDER AND POLITICAL
LIFE IN THE UNITED STATES.
BY
E. MULFORD.
NEW YORK:
PUBLISHED BY HURD AND HOUGHTON.
amvJoriltfl: 3Xibe Site  Ires7.
1876.




Entered according to Act of Congress, in the year 1870, by
E. MULFORD,
tn the Clerk's Office of the District Court for the Eastern District of Pennsylvania
RIVERSIDE, CAIM]RIDGE:
5TEREOTYPED AND PRINTED B1
I. O. HOUGHTON AND COMPANY.




To THE
MEMOIRY OF
MY FATHER,
IN THE HOPE THAT HIS FAITH SHALL LIVE IN HIS CILDREN'S
CHILDREN,
I DEDICATE THIS WORK.








s  tis   is    seTHE purpose of this book is to ascertain and define the being of the nation in its unity and continuity. There is moving toward its realization
in national laws and institutions, the necessary
being of the nation itself.  The nation   thus
becomes an object of political knowledge.
It is no abstraction, but in this alone is the
avoidance of abstractions. It avoids, on the one
hand, an empty empiricism, that with the recognition of no consistent principle makes the nation
only a formal organization, and politics only a succession 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 imaginary polity and an abstract design. It is this
conception of the state as involving unity and continuity 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 conceptions in politics. It is a logic which is presumed
in politics, - if politics be an object of knowledge,




vi                 PREFACE.
-but a logic formed in the necessary conception
and manifest in the realization of the nation, not
the barren forms of logic as it is held in the notions of the schools. In this conception that certainly is to be retained which works well, but political 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 represent 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 become 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 institutions 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
ing of the nation, its unity and laws, which form
the condition of science, political history, jurisprudence, political economy, and social statics, are
separate and subordinate departments; political
history is concerned with the rise and growth of
institutions, and the comparative value of political
constitutions; jurisprudence is the science of the
jural law and civil organization; political economy
is the science of wealth, of the relations of labor
and capital, of the laws of production and exchange; social statics is the science of the laws of
health and population; international law may be
regarded also as subordinate, since it presumes
the existence of separate nations, and is formed
mainly in the conception in which the nation is
held.
A larger space has been given in some instances
to subjects of special interest in the immediate
condition of affairs, as the jural and the economic
representation of the nation, the relation of natural and political rights, the distinction of civil
and political rights, the representative principle,
the method and dangers of a representative constitution, and the relation and difference of the
civil and the international state, a particular State,
and the United States.
I have written with an obligation, which I am
glad to acknowledge, to the Rev. Mr. Maurice of
London, and to Hegel and Stahl, to Trendelenburg and Bluntschli; while I have sought by ref



viii              PREFACE.
erence to them to indicate this, it has been larger
than mere notes of reference can trace; and I am
never sure but their words may have mingled unawares 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 Massachusetts or Virginia.
I have sought, however imperfectly, to give expression to the thought of the people in the late
war, and that conception of the nation, which they
who were so worthy, held worth living and dying
for. I know how far it falls short of that conception 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.
PAGE
THE SUBSTANCE OF THE NATION..             e 
The nation
1. Is founded in the nature of man.
2. Is a relationship.
3. Is a continuity.
4. Is an organism.
5. Is a conscious organism.
6. Is A MORAL ORGANISM.
7. Is a moral personality.
Its definition in the history of political science.
CHAPTER II.
~THE NATION AS DEFINED IN THEORIES           e                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: -




x                          CONTENTS.
PAGB
a. In its moral being and personality.
b. 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 ot 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.
b. The'theory which defines their identity.
The distinction of civil and political rights.
1. Civil rights. a. Of life. b. Of liberty. c. Of property; its representation in legal formulas of Savigny, of Blackstone; its representation 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.
b. 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 personality.
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
PAGn
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.
THi  SOVEREIGNTY OF THE NATION.. 129
The organic will of the people.
The notes of sovereignty.  a. Supremacy.  b. Authority. c. Independence. d. Unity. e. Majesty.
Its substance. a. It is inalienable. b. It is indivisible. c. It is irresponsible 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 constitution. b. The enacted constitution.
The convention.
1. The nation precedes the constitution.
2. The constitution has the form and style of law.
3. The nation may amend the constitution.
4. The nation is to apprehend in the constitution, its conscious
object and aim.
5. The right of revolution.
On the relative and positive character of the political constitution.
CHAPTER X.
THE NATION AND ITS RIGHTS OF SOVEREIGNTY.                    159
1. The right to self-preservation: the habeas corpus.
2. The right to declare war and to conclude peace.
3. The right to form international relations, by treaty, etc.
4. The right to coin money.
5. The right to eminent domain.
CHAPTER XI.
THE NATION AND ITS NORMAL POWERS...           171
The legislative, executive. and judicial powers: note on the historical
definition of these powers in political science.




X11                        CONTENTS.
PAGRB
These powers are: a. Organic.   b. Coordinate.  c. Coexistent.
d. 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 political province of the judiciary.
CHAPTER XII.
THE NATION AND ITS REPRESENTATIVE CONSTITUTION.. 210
The representative government.
The principle of representation as defined in theories: that the government 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 literary 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.                        Xiii
CHAPTER XV.
PAGE
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 nation 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 scienceAristotle. Hegel.
The commonwealth is
a. The civil organization: it is defined in the jural relations of society.
b. The economic organization: it is defined in the necessary relations 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 Commonwealth 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.
b. The nation is external to the commonwealth.
The commonwealth is the civil corporation. Its formal rights.
The concurrent powers of the nation and the commonwealth.
The law of their relation.
The commonwealth as defined in theories. a. They are vast corporations having their origin in some charter and continuing
with certain vested powers. b. They are separate political societies, each existent in the original sovereignty of an independent 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 transition.
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.
PAGE
THE NATION THE ANTAGONIST OF THE EMPIRE.... 342
The imperial principle.
The law of aggrandizement in the empire.
The subversion of the moral life and development of the people.
The subversion of the freedom of the people: its fatalism.
Its illustration in Spain; in Austria.
The conflict of the empire with the nation in its organic and moral
unity.
The confederate principle in Greece.
The imperial principle in Rome.
CHAPTER XIX.
THE NATION THE INTEGRAL tLEMENT IN HISTORY... 355
The vocation of the nation in history: history a development in the
realization of the moral order of the world.
The nation formed in the conditions of history.
The conflict of the nation with slavery.
The conflict of the nation for humanity.
The moral order of the world, the fulfillment of humanity in God.
The church and the nation.
The Protestant principle.
The nation, the Christian nation.
CHAPTER XX.
THE NATION THE GOAL OF HISTORY....    * 382
Conclusion.




THE NATION.
CHAPTER I.
THE SUBSTANCE OF THE NATION.
THE premise of political speculation has been the assumption 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 marriage nor homes; property was unrecognized, no boundaries of land were traced, and the ample gifts of the earth
were held by all in common; the individual existed in the
fullness of all his powers, while yet, as in the traditional,
and the ancients say derisive, line of Homer,1 —
" No tribe, nor state, nor home hath he."
1 This imaginary state is drawn by the old counselor, in the Tempest:"CGon.- I would by contraries
Execute all tiings; 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;
strong desires came to clash with each other; there was
the necessity for toil, and the lives of men were harassed
with care; there was division, and distrust was provoked;
then some power was required to maintain the imperiled
security, to punish fraud and restrain violence; and thus
the state came into being; its origin was in necessity, and
its form was that of a repressive force in the institution
of an external order.
The same premise, in the assumption of the contrasted
picture, has represented the primitive condition as characterized 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 existed apart from it, and as before in the form of a repressive force.
These imaginary pictures divest man of the actual circumstance and the actual relations of life.    They are only
abstractions.  There is no trace of the natural man, and of
the primitive age which they portray.     They are assumed
as the necessary material out of which to construct the
Of its own kind, all foison, all abundance,
To feed my innocent people.
"Seb. - No marrying'mong his subjects?
"Ant. - None, man; all idle: whores and knaives."
The Tempzest, 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 association, 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 progress is in the development of his nature. The earliest
and the widest records of his existence disclose a condition
in which there is the recognition of some common relation,
and men appear as dependent upon each other, and as
seeking association with each other; they make sacrifices
for it, and accept obligations in it.
The nation has its foundations laid in the nature of
man. It is the normal condition of human existence.
There is in it, as the organization of human society, the
manifestation of human nature. The nature of man, apart
from the nation, is unfulfilled; and in the individual, in his
isolation, the destination of humanity is unrealized; the
old words are verified, unus homo, nullus homo.
The nation, therefore, is not to be regarded as an artifice 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 government as the cunning or clumsy device for the accomplishment 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 invention 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 civilization, as the "artificial state."      It is the distinction, 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 application 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 certainly is the nature of that being.1
1 Aristotle's Politics, bk. i. ch. 2.
R. von Mohl, in one of his later works, represents the state as only one
in the successive spheres of human life which he enumerates as the sphere
of the individual, of the family, of the race, of society, of the state, and of the
association of states in their international relation. The special characteristic of
this description is the distinction of society and the state; the former is described
as the common, yet the unorganized and the unformed life of man. But this distinction 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, Encyiclopadie der Staatswis.
senschaften, p. 17. See also Bluntschli's Geschichte, 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 existence apart from society, the state was represented as
if men entered it from a condition of individual isolation,
and as itself the resultant of their individual accession.
This isolation is unreal; it is the atomy of the state, which
regards it as the collection of so many units. It is a
premise which is devised to sustain political systems and
political abstractions.  The isolation of men presumes a
conception which is inhuman, and it is not in its separation
but in its relations that humanity is comprehended. If,
moreover, this isolation be allowed, it does not furnish the
elements out of which the state can be formed, and it can
suggest no law in which the transition to the state may be
made.
The origin of the state is not in some speculative
theory nor in some formal scheme. The entrance to it is
not through a reflective process, nor by an act of individual volition. It has the characteristic of all relationships,
in that it has not its beginning in a reflective or a voluntary 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 authority, is not then conditioned upon the arbitrary choice
of those who constitute it, but in reference to it the arbitrary action of the individual is precluded.
It is a common relationship, and there are none exempt
from its conditions, and none in the nation can make their
lives to be as if it had not been. There are none unaffected by it, but each is involved in every moment of its
existence.
In the politics of Aristotle, human relationships - the




6                    THE NATION.
man and woman, the father and mother and child - are apprehended as the sign and suggestion of society, by which
its existence is suspected, and in which its principle is contained. Then the constituents of society are sought in a
house, but the family is not' therefore the lesser state, nor
the state simply a collection of families, since each has
its own nature and end, while each as a relationship has
therein its elemental principle. It was in the visionary
republic of Plato that all relationships were swept away
as antagonistic to its ideal unity, but as the nation is apprehended 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 necessary 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 relationships. 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 relationship. It is not carelessly that human lips have called
their country the father-land; nor is it with vague and idle
phrases, but in a spirit of holy and son-like sacrifice and in
solemn crises, that men have turned to their country as the
mother of all.
The nation is a continuity.  It no more exists complete
in a single period of time than does the race; it is not a
momentary existence, as if defined in some circumstance.
It is not composed of its present occupants alone, but it embraces 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 backward to the fathers and onward to the children, and its
relation is manifest in its reverence for the one and its
hope for the other.
The evidence of this continuity is in the consciousness.
of a people. It appears in the apprehension of the nation
as an inheritance, received from the fathers, to be transmitted unimpaired to the children.  This conviction, that
has held the nation as an heritage worth living and worth
dying for, has inspired the devotion and sacrifice of a people..
The evidence of this continuity is also in the fact that
the spirit of a people always contemplates it. The nation
has never existed which placed a definite termination to
its existence - a period when its order was to expire and
the obligation to its law to cease. It cannot anticipate a
time When it shall be resolved into its elements, but contends, 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.  Judsea was the same under the
judges and under the kings; Rome was the same under
the kings and under the consuls. The elements of the being of the nation subsist in this continuity. In it, also, the
products of human effort are conserved, and the law of
human production conforms to it. The best attainments
pass slowly from their germ to their perfectness, as in the
growth of the language and the law, the arts and the literature of a people. Chaucer and Spenser, through intervals
of slow advance, precede Shakespeare, as Giotto and Perugino lead the way to Michael Angelo and Raphael.
The nation is a continuity, as also in itself the product
of succeeding generations. It transcends the achievement of a single individual or a separate age. The life of




8                    THE NATION.
the individual is not its measure. In its fruition there is
the work of the generations, and even in the moments of its
existence the expression of their spirit, the blending of the
strength of youth, the resolve of manhood, and the experience 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 renewed life.1
This continuity has found expression in the highest political thought. Shakespeare has it in his historical plays;
the continuity of the nation is represented as existing
through the years with the vicissitudes of the people, in
the changes of scene, with the coming and going of men;
and there is as in the nation the unity of the drama in
which so many actors move, and whose events revolve
from age to age; and thus these plays hold an attraction
apart from the separate scenes and figures which present
some isolated ideal for the poet to shape. Burke has represented this continuity in the nation as moving through
generations in a life which no speculative schemes and
no legal formulas may compass: " The nation is indeed a
partnership, but a partnership not only between those who
are living but between those who are living, those who are
dead, and those who are to be born."
The life of the individual is brief, but in the nation it
may become a continuous power.     The character of
Achilles may have a worth for all in its abstract ideal,
but in the history of Greece it was always a living energy.
They who have been the leaders of a nation in the strength
and nobleness of their lives are always in a vital relation
to it. The traditions of valor and sacrifice in the memory
of a people become the inspiration of its hope.
The work of the individual is brief also, and in its isola1 Nec temporis unius, nec hominis, esse constitutionem Reipublice. - Cicero,
De Republica, bk. iii. ch. 21.




THE SUBSTANCE OF THE NATION.           9
tion would be almost vain, but in the continuity of the nation 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 development; 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 structure. It has not merely an apparent sequence, nor a constructive 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 accumulation.  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 severed 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 fromr 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 b1ol(ls, - the wlole is before the parts;
that is, a whole cannot be made of parts, but the whole
is predetermined, to wliclh tlle parts belong, or it is only
in the conception of tlhe wlole tliat tlhe 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 individual to the nation.  They rwlo form the organic whole,
in tleir 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 tlhrouglh it, as they form it, and
are not as the wheels in mills, and tlhe 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 tlrough 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 tlhe force which acts without or
apart from  the organization of the wliole. 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 disdain of the Roman is in the words, "Go, get you home,
you fragments " and those who in the conceit of culture




THE SUBSTANCE OF THE NATION.            11
or of wealth, or of higher interests, or of spiritual endowments, withdraw from the normal political action of the nation, are obeying the impulse of the mob, and are as the
very fragments, for whom the Roman patrician felt such
unmeasured scorn.1
The antithesis to the nation as an organic unity, is in
the conception which frames it upon abstractions.  It assumes a certain seleme 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 proceeds to its construction, after the design of the abstract
reason. It is destructive, and the whole existent order is
constantly liable to be razed, in order to substitute an
imaginary polity in its stead,
The apprehension of the nation as an organism, is the
condition of political science.  It involves the distinction
of an art and a science; there may be, for instance, an art
in building heaps of stones, but there is no science of stoneheaps.  The unity and identity of structure in an organism, in which a law of action may be inferred, form the
condition of positive science.
This is the source, also, of constructive political power,
and of all that is enduring in the work of the statesman.
In the recognition of this fact -of the organic being of
the state —the most is gained, says Bluntschli, for the
practical study of political subjects. And it is significant
that political writers of grasp and wide influence, as
Spinoza and Hobbes, proceeding from a premise which
precludes the organic unity or being of the state, have yet
1 See Maurice, The Workman and the Franchise, p. 9.




12                        THE NATION.
been led to represent it as a living body, and have described it as some colossal man.        This conception, when
presented by those whose postulate is the contractual origin 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 nation as " the organic manifestation of the people." 1       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 continuous development, and it passes into the future in the unfolding 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 energy fades away, it becomes of all schools the most dry and
barren.
But although the nation is organic, it is not limited to
the definition of a physical organism.       Its description in
this logical limitation   is often repeated;2 it is said, for
instance, that the nation, as the individual, passes through
the necessary periods of youth, manhood, and age; that
it flourishes, and after maturity ceases to exist -its bloom
is followed by inevitable decay.       The deeper truth is in
1 Savigny's Syst. des Rom. Rechts, vol. i. p. 22.
"In every separate people the universal spirit of man manifests itself in an
individual way, and the growth of rights has a common social ground." -Syst.
des Rom. Rechts, vol. i. p. 20. See Bluntschli's Allgemeinen Statsrecht und der
Politik, p. 568.
2 As men are born and live for a certain period, and at last die of age or infirmity, so also states are constituted; they flourish for some centuries and then
at last cease to exist." -Frederick II., Antimacchiavelli, ch. ix.
Mr. Spencer says, -" We find not only that the analogy between society and
a living creature is borne out, but the same definition of life applies to both."
- Social Statics, p. 490. It may be doubted if the elaborate analogy which Mr.
Spencer draws, carried as it is through the detail of a minute anatomy, has any
justification. The description of an exact correspondence to the physical organism often serves as a display of anatomical science. The literature of poli



THE SUBSTANCE OF THE NATION.                  13
the  words of the Roman         statesman, —    The   state is
formed for eternity." 1
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 aimless 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 consciousness of a vocation enters into the spirit of every historical people, and is the     basis of   its  historical life.
The nation has in correspondence to its vocation a determinate character: its character is the manifestation of
the purpose it has realized in its vocation.    Its character
becomes thus as clearly outlined as that of its foremost men.
Rome has a character as distinct as that of Caesar, and
Greece as that of Pericles.
The conscious life and vocation of the nation appear in
the spilit 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 fulfillment 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,
tiEs has many monograms on this correspondence, in which for instance the
members of the political society are compared to the cells, and the legislative
power to the head, or the economy to the stomach, and so on; but they are
mainly subject to the criticism of von Mohl, - " These conceptions of the state
and its correspondences based upon physical science appear from time to time,
partly through an altogether sickly tendency of thought, and partly through a
mystical and fanciful conceit." - Encyklopadie der Staatswissenschcften, p. 84.
1 "Debet enim constituta sic, esse civitas ut seterna sit." - Cicero, De Republica, bk. iii. ch. 3.




14                   THE NATION.
and the decadence of a people.   It has been said that
there was in the office of a Roman consul an inherent
majesty, wllich 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 tle possessor above the divisions of party
and the interests of factions, so that he is made to stand
in a living relation to the nation, whose work and purpose is to be wrought through him.    It is thus, also,
that one who is called to a public trust or office in the
nation, is not simply a private person, nor to be so regarded.
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 lifJ cf the nation, so that with the
universal element in literature aiid art and law there is the
individual element in lwhich the characteristic of the people is traced.  These not only bear the impress of its peculiar type, but there is in its being the field of their
growth. The constructive polity, and the art and' literature of a nation, thus terminate with its historical course.
Tllere maybe great works produced after its close, but
their root was in tlle 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 cannot continue them. All that England can do with the
sculptures called the Elgin marbles, is to place them in a
nmusellm.
Tlhis consciousness of the vocation of the nation, how
ever reluctantly acknowledged or dinmly 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 succession 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 expression 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 succeeding generations. Its purpose is transmitted from the
fathers to the children. The consciousness of its destination becomes clearer in the advance, as it fades in the
degeneracy of the people, and is obscured in the precedence of selfish interests, and at last blotted out in stupidity and slavery. Thus, also, the early incident of a people 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 humiliation and defeat, and through evil days, when there
is only a remnant left who keep its ancient faith and
guard its errand from forgetfulness.
This is held slightly by the teachers of the technic of political art, and by those who would limit politics to political
economy, but the consciousness and the fulfillment of the
vocation of the people are the condition of its power; this
vocation is the postulate of national character and national
freedom. The people has in it no external limitation
which impairs action, but is strong and free only as it
works it out. The people that fails to hold its calling
carefully and reverently cannot attain a strong national
life, and weakness and inevitable disaster result when its




16                    THE NATION.
purpose is but feebly grasped, and servility and degradation
when it becomes the imitator or the copyist of another.
The nation is a moral organism.   In the necessary elements of its existence in history it transcends the merely
physical conditions of a physical organism; and in freedom, 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 personality. It is the condition in which a person exists in the
fulfillment of the relations of life with those who are persons.  There is in it the assertion of a justice, which is the
affirmation of a person in the recognition and institution of
these relations between the moral whole and the moral
parts of the whole. Its law is regulative of the moral
whole, and of the parts, in these relations.
It is as a moral organism that the nation is the field
of the action of man, in law and in freedom. There is,
therefore, in it the education of the individual, the growth
and formation of character. There is in its normal development the coming into the world of that which is laid in
the nature of humanity, in its true and original constitution.
It is as a moral organism that there are in the nation
the conditions of the moral life of the individual.  In the
assumed isolation of man there is the negation of the moral
life which is formed in moral relations.  Thus all the relations of life in its moral order are constituted in the
nation, and are to be maintained through its institutions
and by its enactments.1
It is as a moral organism that the nation is the sphere
1 " Whosoever lays violent hands upon the state, assails the conditions of all
moral life, and therefore the crime is regarded as the greatest." -Trendelenburg, Naturechte aus dem Grunde der Ethik, p. 286.




THE SUBSTANCE OF THE NATION.           17
of the individual person. The fact of a vocation cannot
consist with his isolation. It presumes an existence in a
conscious relationship, and its fulfillment is in the relations
of a moral order. It is thus that there is formed in the
nation the consciousness of the relationship of humanity,
and the moral life of the individual is apprehended in it as
the life which is truly human.
The process of the nation is only as a moral organism.
It is not constituted in the necessary process of the physical world, but it is constituted in the order of a moral
world. Its course is defined in law, and in law as prescribing 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 negation 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 nation as a moral organism. History is not a succession of
separate events and actions, but a development in a moral
order, and in the unity and continuity of a life which moves
on unceasingly, as some river in its unbroken current.
But it is only as the nation is an organism that this unity
and continuity is manifest in it, and as a moral organism
that this moral order is confirmed in it.
The nation thus cannot be comprehended in the definition in its logical limitations of a physical organism. The
distinction of a physical and a moral organism is necessary,
and becomes the illustration of the being of the nation, in
its necessary conception. It is as follows: -
The physical organism is determined in itself by a law
of necessity, as the tree which cannot be other than it is:
the ethical organism is determined in a law of freedom,
which is the condition of moral action. In the physical
organism, each member exists only in its relation to the
whole, as, for instance, the hand is nothing without the
2




18                        THE NATION.
body, and has no separate significance: in the ethical organism, 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 organism, 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 necessary 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 organism the process is not through the periods of a necessary
sequence, and its niembers exist in each moment of its existence in uninterrupted relations of youth and age. Its
life consists in the constantly unfolding life of humanity.1
1 The logical fallacy of defining an ethical by a physical organism, and limiting 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 pageants. But the nations do not exist in history in this limitation in a physical
sequence; they appear under the conditions of a moral life, and their growth or
decay is traced not in necessary, but in moral causes.
There is in the same school the utter denial of the real freedom of the individual and the nation, when it aims to define freedom only in the limitations of a
physical necessity, and the mind of man is regarded only as involved in the
physical process of nature. Yet not-infrequently exhortations are made in the
same school on the beauty, or the duty, or the excellence of political morality,
and these may be often the expression of an emotive fervor or of prudent counsel;
but they can avail little when they are connected with a merely economic conception 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 condition of its vocation, as in the fulfillment of its vocation there
is the formation of its character. The moral personality
of the nation is determined in its consciousness; in its
conscious purpose subsists its independence of other nations, that it is not to be necessarily what they are nor asthey are. Its object is before it, which it knows as its own;
its freedom is in the working out of its vocation, and in its
goal there is the satisfaction of its desire.
The condition of the realization of personality is the
same in the nation as in the individual.  This condition in
each is the clearness and fullness in which it comprehends
its purpose and is centred in it. The source of strength
is, as with the individual, in working faithfully after the
type of its own individuality, and bringing this to its free
and clear development.    The being of the nation is,
therefore, not merely in an apparent sequence, but in
conformance with the law which is laid in its being.
The scope of the nation thus is not exhausted by, and
its powers are not derivative from a sphere of outward circumstance; it is not comprehended in a summary of enactments nor defined in an abstract system.  The only limitation 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 fiee
spirit of the people, and the nation moves in its advance
towards the higher personality which is realized in its
vocation, which is of God, in history.1
The nation is a moral person, since it is called as a
power in the coming of that kingdom in which there is
the moral government of the world, and in whose completion 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, Philosophie 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 character 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 individual will, but of law which is the universal will; its institution is not in the right of one, nor of a few, but in the
rights of man.
The nation is a moral person, since it is formed in a
moral conflict. It is not merely phenomenal in its moral
being. It is not the perfect image, nor yet the passive
reflection of righteousness, as of something external to it,
but its being and the condition of its being is in righteousness.  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
the power of a personal life. It is to be governed in the
conscious determination of the will, and to act as one who
looks before and after.  The strength which is to be
wrought in it, exists only in rectitude of thought and of
will; wisdom and courage, steadfastness and reverence,
faith and hope are attributes of it; the highest personal
elements become its elements and are moulded in its spirit.
The relation of the individual to the nation presumes, as
its necessary condition, the existence of the nation as a
moral person. The individual becomes a person in the
nation, and this involves the existence of the nation as
also a person; for personality, as it is formed in relations,
can subsist only in an organic and moral relationship - a
life which has a universal end. The nation is thus the
sphere of a realized freedom, in which alone the life of
man fulfills itself, and it is to give expression to all that is
compassed in life. It moves toward the development of a
perfect humanity.  Its symbol is the city of an hundred
gates, through which there passes not only the course of
industry and trade, but the forms of poets and prophets




22                   THE NATION.
and soldiers and sailors and scholars - man and woman
and child, in the unbroken procession of the people. Its
warrior bears the shield of Achilles, on which there are
not only the figures of the mart and sea and field, the loom
and ship and plough, but the houses and the temples and
the shrines and the altars of men, the types of the thought
and endeavor and conflict and hope of humanity.
The condition of the being of the nation, as the power
and the minister of God in history, is in its moral personality; in this it is constituted in history as the moral order
of the world, and for the fulfillment of that order.
The assertion of the moral being of the nation has been
the foundation of that which is enduring in politics, and
has been embodied in the political thought and will which
alone have been constructive in the state. Aristotle, who
gave the' furthest attainment of the ancient world, says,
"The end of the state is not merely to live, but to live
nobly." 1  Hegel, who has given a yet wider expression to
modern thought than did Aristotle to the ages before him,
- and 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 being.  He says, "The state is the realization of the moral
idea," 2 and " The state is the realization of freedom, and
it is the absolute end of reason that freedom be real," 3 and
"The state is no mechanism, but the rational life of selfconscious freedom, the order of the moral world;" 4 and
again he says, " There is one conception in religion and
the state, and that is the highest of man." 5
There is no other conception which has such power in
the thoughts of men, and in this age it has the greater
significance when it is drawn, not from a school of puritan
1 Aristotle's Politics, bk. i. ch. 2.
2 Hegel's Philosophie des Reehts, p. 312.
8 Ibid. p. 317.
4 Ibid. p. 340.
5 Hegel's Philosopiie der Religion, vol. i. p. 170.




THE SUBSTANCE OF THE NATION.                23
politics, but from those most widely separated from historical puritanism, and finds its expression in the literature
of a people which is rising to great political might,. But
those who have been the masters of political science, and
it has perhaps fewer great names than any other science,
all repeat this conception. Milton says, " A nation ought
to be but as one huge Christian personage, one mighty
growth or stature of an honest man, as big and compact
in virtue as in body, for look, what the ground and causes
are of single happiness to one man, the same ye shall find
them to a whole state." 2   Burke says, " The state ought
not to be considered as a partnership agreement to be
taken up for a little temporary interest and dissolved at the
fancy of the parties. It is to be looked on with other reverence, because it is not a partnership in things subservient to the gross animal existence of a temporary and
perishable nature.   It is a partnership in all science; a
partnership in all art; a partnership in every virtue and
in all perfection." 3  Shakespeare says, -
" There is a mystery - with whom relation
Durst never meddle - in the soul of state;
Which hath an operation more divine
Than breath or pen can give expressure to." 4
1 See Rothe's Theologische Ethik, vol. iii. sec. ii. p. 900. Stahl's Philosophie
des Rechts, vol. ii. sec. 2, p. 181. Bluntschli's Allgens Stats Rechts, vol. i. p. 140.
2 Milton's Reformation in England, Preface to bk. ii.
8 Reflections ol the French Revolution, p. 368.
4 Troilus and Cressida, act iii. sc. 3.




CHAPTER II.
THE SUBSTANCE OF THE NATION AS DEFINED IN THEORIES.
THE conduct of affairs in the nation is shaped after
the conception which men may have of its origin and end,
and yet it does not subsist in the individual and arbitrary
conception, and cannot be made the exponent of that. It
exists in its necessary conception, and every divergence
from that is the building of some abstraction, or, as the
French phrase is, " in the air," and through vagueness
will result in feeble action, or, through defect, in negative
action. The error in thought can involve only disaster
in fact.
The representations of the nation, which most frequently
recur in politics, and especially in its later phases, are
mainly as follows: —
The nation is represented as a necessary evil. It is a
sequence of the evil which is in the world, and is incident
to that. It is imposed on man to control the desires and
lusts, and to curb the tendency with which it is said the
inclination of his nature is toward evil. It is made necessary 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 necessary to check the evil drift of the world. This defines the
state as the resultant of the existence of wrong, and necessitated 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 necessarycharacter is not formative. 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 disturbs them.    Therefore the nation, its unity and order
and progress, cannot be derivative from    evil and an evil
condition.
Government, which is the central organization of the
nation, is not an evil.    Its substance is in itself good,
and is implicit in the conception of the good. Law, which
is the ground and expression of its authority, is in its ultimate apprehension the manifestation of the divine will, as
has been said of it in imperishable words, 6 Its home is the
bosom of God, and its voice is the harmony of the world." 1
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 tendencies and an impediment to evil courses, as this theory
assumes.   It has a positive character and content.    It is
the manifestation of the life of the organic people, after a
moral order, and in the institution of justice and of rights.
It is a constructive power in history.  It is not a local and
temporary expedient, and its elements are not those which
the scientific culture of another and a later age may set
aside. It is not a fetter and a burden imposed upon the
race, in an evil necessity, which it may gradually come in
1 Mr. Bro.wnson 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 promulged in the Garden, while man retained his innocence. It exists in heaven
as well as on earth, and in heaven in its perfectness." —The Amersican 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, Philosophie des Rechts, vol. ii. sec. ii. p. 81.




26                           THE NATION.
its progress to discard, and from which it may be ultimately
wholly emancipated. It is itself the condition of progress,
and in its course there is the striking off of fetters, and
the deliverance from burdens, and a constantly increasing
freedom.
The representation of the nation as a necessary evil, appears through many periods, and in many forms. It was
the prevalent notion of the mediaval age.              It arises often
from   a want of satisfaction      in  the merely jural and economic representation of the state. The spirit of man demands something more and better than that, his hope
and purpose look       to something     ampler and worthier, and
that offers no sphere in which he canl fuilfill 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
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 they may
be used as instruments of oppression, that by which this is prevented is called
constitution."  While this is the postulate of the argument of Mr. Calhoun's
essay, it is significant that he should write, in one of its first sentences, " To man
the Creator has assigned the social and the political state as best adapted to
develop the great cacpacities and faculties, intellectual and mnoral, 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
Wor7cs, vol. i. pp. 7, 15, 52. Mr. Spencer is the most recent advocate of this
theory, and presents it in its extremest shape. He says, "Nay, indeed, have
we not seen that government is essentially immoral? Is it not the offspring
of evil, bearing about it all the marks of its parentage?  Does it not exist
because crime exists?  Is it not strong, or, as we say, despotic where crime is
great? Is there not more liberty, that is, less government, as crime diminishes?
and must not government cease, when crime ceases, for very lack of objects on
which to perform its functions? Morality cannot recognize it. " - Social Statics,
p. 230.  He says again, " Government is a necessary evil" (Social Statics, p.
25), to terminate with the evil which is assumed as the ground of its existence; " it is a mistake to assume that government must last forever. The institution marks a certain stage of civilization, is natural to a particular phase of
human development. It is not essential, but incidental. As amongst the Bushmen 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 necessary 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 incident 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 dependent as he is isolated or withdrawn from          it.   It is
not the occurrence of some fortuitous scene, to come and'
go, in the unlimited play of events, some single strand
which is caught and woven in the loom of the years, with
thought of a people, they must work inevitable disaster, alike to the individual
and the nation, and their repetition of the mediaeval conception of the state,
which in that age was always given with a certain sadness and regretful sense
of loss, involves in this age wider consequences. The characteristics of *' the state
among the Bushmen antecedent to government," are not further described, and
there is no positive presentation of facts on which to. rest these " other stages
of civilization," which also were rid of government, whose existence the writer
assumes, except as the " state among the Bushmen," may be also illustrative of;
them. When these assumptions are presented, with the pretension of a school
that it always keeps a foothold of facts and is characterized by a scientific exactness, 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 support, 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 individual 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 dissolution of society.
In this representation it is common to regard the organization of government as identical with the nation, and to
limit it to that conception. Thus the dynasty or the municipality, 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 organized for plunder, as in the brigand's band or on the
pirate's ship.1 When the nation is apprehended as only
an external order, the recognition of a certain authority,
in a certain locality, and by a certain association of men,
1" Que est enim civitas? Omnisne etiam ferorum et mmanium? Omnisne
fugitivorum ac latronum congregata unum in locum multitudo? Certe negabis." - Cicero, De lepublica, bk. ii. ch. 2.




THE SUBSTANCE OF THE NATION.           29
then it may indeed be assumed as the transient circumstance in a continually changing condition, but there can
be for human society no real stability.
The nation is represented as a jural society.  Its sole
object is the maintenance of private interests and the protection of private rights. Its end is effected in the keeping of the peace among a certain number of men in a certain locality. Its process is a system of police. It is a
vast constabulary force, which is to prevent disorder within
certain limits of the earth.  The nation is only a judge
and warden, and that government is best which governs
least. Thus one's country is a larger bailiwick, whose
boundaries some convenience of administration has deterinined; the father-land is the circuit of the judge and
the sheriff. The exponent of national power is the tipstave. To be a citizen, to be the member of a nation, has
no other significance than a certain relation, in which
each is held and bound over for the keeping of the peace.
The only association recognized in the state is a jural relation, 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 criticism, 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, embraces a wider sphere and exercises larger powers. The
aim of society, in its most meagre form, could not be accomplished in so contracted a principle.
This also regards the maintenance of the necessary relations of the individual, and private rights and interests, as
the end of the state. Its law is in necessity, and in the
relations which conform to this law, but it subsists no
longer in a real freedom. It is no longer the growth of
national character and spirit. There is no organic and




30                  THE NATION.
moral continuity, and its citizenship is no longer a living
relation. There is no principle in which it can animate
the spirit of man, and it can awaken no reverence for the
past nor hope for the future. It cannot inspire the gen,
erous sacrifice of the present to the.fuiture, by which alone
the life of nations is conserved.  There is no place for the
self-devotion which is the so.urce of public spirit, and in its
whole scope there is no ground for public rights and public
duties.
This also confounds civil and political rights, or rather
the whole province of political rights is denied, and the
nation is limited to the definition of the civil organization.
It is constituted only of persons in private relations, and
only for their protection in these relations. But this is
inconsistent with the essential constitution of the political
people, and there is no principle in which it can apprehend
the people as organic, and therefore as invested with political power, in the will of the political whole.
This conception is also destitute of an historical foun dation, and does not serve to describe any historical nation.
It is a low and imperfect representation which fails to define the life of the people in its organic unity and organized
relations, and makes no history possible in its own limitation. There is no ground for an historical unity and
continuity.  The historical course of every nation has
elements which transcend it.  It fails to represent, for
instance, the life of Greece or Rome, of England or France,
and eliminates from their history all their spirit and all
that gives dignity and grandeur to their action.
This proposition has for its postulate necessarily a false
conception, both of the origin of society as only an association 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 destination 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 society it would represent in the institution of a civil court,
and the close of history in twelve men sitting in a jurybox. Its final achievement it would reduce to a codification of the laws.  The better conception of society and of
the individual perishes, and the largeness in the forethought 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 political people, that is, the nation in which it subsists; and
it has in itself no element of continuity, nor even of continuous 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 relations 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, perished. 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 codification.
It allows no sphere for the maintenance in it of the
relationships of life. They cannot in their normal conception subsist in it, and wlhen 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 corporation, the other has come to be held as only a civil contract.
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 expression nor its comprehension; but the proposition assumes
their isolation, so that in the state the conception of the
one excludes the other.  This has its illustration, and has
obtained in some respects its more recent influence,
through the aphorism  of Kant.1 Kant represented the
state as deriving its content and its powers from a formal
law, and defined it as, "the association of men under a
system of laws."  He asserted that the moral cannot be
external, since it requires that duty shall spring from the
conscience which is within man, and proceed through an
inner motive, while the order of the state regards only the
conformance of the external act to the law, and to it there
is attached also compulsion, the physical force, which belongs 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 NATION.          33
on which a number of men are justified in the act itself, in
compelling one man.    The state also acknowledges as
legally binding without express enactment, a moral relation and obligation, and the primary obligations, for instance, of patriotism, which in no state have been defined
in its system of laws, and cannot be so defined, are necessarily assumed and asserted by every state. In this argument, 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 scleme of politicians.  The very
conception of law as the affirmation of justice, and its universal 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 excltdes 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.




84                   THE NATION.
This is the merely economic state; its law is in necessity; its relation has a material basis; its existence is contingent 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 accumulated 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 structure 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 organization 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 deficient. 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 existence, 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 rejection of apparent material advantages.
This proposition fails, also, since it necessarily involves
the formation of society after a selfish principle, or in selfinterest. 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.           85
tion through self-antagonisms, and the result in fact, as it
is the necessary sequence of the principle, is the dissolution of society.
There is not in this assumption the condition of permanence; 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 righteousness, tlat 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 determined in its economy. It is not exhausted in the schedules of its produce and exchange; its unity is not in
material interests; its history is written in other books
than tile tables of its census; its capital is other than the
centre of its trade.
Tills proposition has had a various support, and has determined 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 righteousness 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 regarded 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 excliange are as
wide as the seas on whicll their sllips sail.  They are laws
whllich are applied by every nation, but they are not
immanent in the organism of tlle 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 rigllts; for the nation, as an organic
and moral power, is subsistent in these.  There is nothing
in the principles of political economy which can become the
ground of the separate life of the nation.1
This conception, in its premise and conclusion, corresponds 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 individual ambition, and selfish interests, and private ends.
1," Die burgerliche gesellschaft rein als solche, ist eine Kosmopolitin." -
Rothe, Theologische Ethik, vol. ii. p. 123.




CHAPTER      III.
THE ORIGIN OF THE NATION AS DEFINED IN THEORIES.
THE conception of the origin of the nation is necessarily
presumed in the conception of its unity and its substance.
They alike shape the action of men in the conduct of
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 beginning of the nation, in its historical circumstance, 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 instance, in the growth of a family, and the accession of
other families, or in the planting of a colony, or in the
migration of a race, and so on. But there is in this only
the incident of their historical inauguration, and we do not
attain to the origin of the nation, nor of its unity, nor the
authority in its government, nor its rights and powers.
The characteristic of these various propositions in review
is their lack of consistence with the necessary conception
of the nation; they are mere abstractions, and their worth
is only in their illustration of the necessary conception.
It is said that the nation has its origin in the development
of the family: the family is the unit of human society,




38                    THE NATION.
and of its organic process in the nation; and in the explication of the family the nation is formed. The right in
which the government of the nation subsists, is then also
the right of the father, and the people who form the nation
are, related to the government as its children.
It is true that the family is the unitary form  of society, but it is not therefore the only form, nor determinative 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 developnent 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 imperative, the former is the determination of the organic
will as law, and obedience to it is in the conscious obligation 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.
Tlhe right which is the ground of the government of
the family, cannot become that of the government of the
nation. The government of the family rests in the right
of the father to govern his child, but this is necessarily
limited to those who are his children, and cannot justify
the extension of his authority over those who are not his




THE ORIGIN OF THE NATION.               39
children.  When it is thus extended over the children of
another, it conflicts with the unity of the family and its
authority in its natural head, and wherever, in the organization of society, it has been transposed beyond its natural
limits, it lias sought its justification in a civil conception,
and in some legal fiction, as tliat of adoption.
Tlhe nation is over the family, and tie latter in its relation to it is subordinate.  The falthler is responsible to the
nation  for tile manner in which lie 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 fiom    the formal authority of tile fatler, and
even in earlier years it may take the cliild ftom him when
it deems necessary, and institute a guardiansllip over it.1
The riglit of the nation, therefore, instead of residing in
the right of the fatlher, holds tlhe latter in subjection.
Tlhis proposition is often stated thus, tllat the nation has
its origin in the association of certain separate families. It
is derived from the existence of a certain numb)er of families, separated from all others, and connected by marriage
among themselves.    But this does not necessarily transcend the limits of a tribal relation, and does not attain to
the nation.  It does not correspond to its historical institution and course.  It is, for instance, descriptive of the plebeian or the patrician organization in Rome; but neither
of these was Rome.
Tle evidence of history is, that whlere society has not
passed beyond the development of the family, tlhere has
been no national existence.  With the long dynasties and
vast populations in Asia, where society has adhered to the
patriarchal type, there has been no nation, no citizenship,
1' Society must suffer if the child is allowed to grow up a worthless vagabond or a criminal, and has a right to intervene both in behalf of itself and of
the clild, in case his parents neglect to train him up in the nurture and admonition of the Lord, or are training him up to be a thief, a drunkard, a murderer,
a pest to community." - Brownson, The American.Republic, p. 41.




40                    THE NATION.
and no political freedom.  Their life has been characterized by the absence of political spirit.
There is yet a truth which underlies this conception of
the origin of the nation; and while the latter does not
exist in identity with the family, and is not formed simply
ill its continuance, there is still a necessary connection;
their origin and end is not diverse.  They exist in an
organic and moral interrelation, and the nation has its
fruition in the life of huinmanity, in the universal family.  It
rests in the unity of lhumanity 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 fraternity of the nations, in the order of the world.
It is said that the nation has its origin in mere might: it
is founded upon force; it is the right of the stronger, as
superior, to control the weaker, as inferior.
But this involves the immediate contradiction to the being
of the nation.  The nation is constructive of an order in
law and freedom.  There is the subjection of barren force
to rihlit, and autlority in it is wrested from the ruide hand
of power and placed in the hand of justice, and the conquest of civilization is in the manifestation of power no
longer, as mere force, but in the recognition of a law of
righteousness. The conception is subversive of rights, for
these necessarily presume another postulate than mere
force.
There is in mere force no element from which progress
can be evolved, but in the prospect of its prevalence there
is the awakening of dread, and by it man is not ennobled
but subdued.  There is the rejection of a principle of humanity.  The law of justice is unrecognized, and the procedure of justice is leveled beneath its iron tread, and in a
condition in whlich 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 result, 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 assumes, there has not been in mere physical force the institution 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 devastation, and the progress of civilization has been in the increasing direction of physical force to a moral end. It has
not been strong enough to regard the weakest and the
lowliest with indifference, and in its course the things
which are not have brought to naught the things which
are.
Yet there is also a truth in this conception. It is a protest 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 action. It is the psychological notion of the origin of the
nation.
But there is in this no cause from which the being of
the nation can be derived.  The nation has an integral
life, a positive and substantial content, and can have its origin 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 freedom.
There is, furthermore, in the nation, in its unity, its
rights and its powers, that which cannot be derived from
the action of an impulse or emotion. There is no power
in the nature of man which could result in the right to government 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 subjection of impulse to the determination of the will, in conformance 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 mal 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 nature of man, and it is formed in the realization of his true
constitution.
It is said that the nation has its origin in a contention 
it is founded in a contractual law, - in the social contract.
The historical genesis of this theory has a separate consequence, 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 support in succeeding periods the most extreme men and
parties, serving now as the defense of the established
order, and again as the summons to revolution. It has
prevailed in countries the most diverse in their political
spirit and constitution. It fills the political literature of the
last two centuries, and the association of nearly all their
great names with it indicates alike the character of the
age, the source of the strength and the weakness of its
great thinkers and workers.  In Germany it claims the
names of Grotius, of Puffendorf, of Kant; in England it
was with Hobbes the staff of authority, and with Locke




44                  THE NATION.
the shield of liberty; but its clearest assertion was in
France, and its highest influence was obtained through the
Contrat Social of Rousseau. It became the scholastic tradition 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 political writings of Adams.
The inception of the theory has been traced by Mr.
Maine, to an imperfect apprehension of the Roman form
of contracts, denominated Contracts juris gentium.' It
was not until the language of the Roman lawyers became
the language of an age which had lost the key to their
mode of thought, that a contract of the law of nations came
to be distinctly looked upon as a contract known to man in
a state of nature.". But this is its scholastic and legal derivation, and it could not have obtained its great historical
place, had there not been involved with all its error a great
truth as to the being of society and the foundations of the
state, which was struggling for expression, and which confronting precedents in the confusion of the age, took the
form of a legal fiction. The discussion is mainly of interest as an historical study. It has a certain dryness as " a
theory which though nursed into importance by political passions, derived all its sap from the speculations of lawyers." 2
The theory assumes the existence of man in a pre-social
condition, which is described as the state of nature. The
imagination lays the boundaries of this province, and then
peoples it with its unlimited conceits, as the island of the
Counselor, in " The Tempest."  From its occupancy by a
joint contract, men emerge into the social or political state;
the latter is thus constituted as the voluntary association of
certain individuals who enter it and hold it as the contracting parties. The proposition presumes a universal application; the origin, and in a certain form the continuance
1 Maine's Ancient Law, p. 299.  2 Ibid.




THE ORIGIN OF THE NATION.              45
of all states that have been in all ages, are referred to a
social contract.
The proposition in its assumption is arbitrary, and proceeding from a condition which is unreal, in its induction
it carries the state necessarily into an abstract and formal
sphere, - and because it has its inception in an assumption,
it results necessarily in a political system, and not in the
nation in its organic being.  It is this which has limited its
recent advocacy to the most barren of political schools,
although of itself not the most dangerous, - a technical
school of lawyers.  It has assumed the existence of the
precedent condition, which is called the state of nature.
There is of this pre-social state no report, but it appears
upon the chart of lawyers, who hold authentic tidings
of it, and within it find stable footing.  It advances, then,
through a continuous series of assumptions, each of which
is introduced to prop the preceding. After the assumption 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 recognition 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 contractual 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 inference in this antithesis is allowed, and the social state
is represented as the unnatural, or more strictly, the abnormal condition of life.
The theory, in its exposition of the nature of man, contra



46                   THE NATION.
diets at its outset the fact which is the postulate of Aristotle, that " man is by nature a political being." He is constituted for society, and his nature has its development in
it. There is in his being, the rudiments of the state. The
fact in the existence of man, which it also contradicts, is
that he has no existence apart from society. The archaic
condition is everywhere one of dependence, and there is,
however dimly apprehended, the recognition of some relationships, 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 constant 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 obligations for a certain object; but there is no record of a nation
itself established by the voluntary pact of separate individuals.  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 inextricable contradiction. It assumes that the people form a
contract, but they are not yet a people, nor even an association of men; it is to ascertain the ground for obedience
to law, and yet the contract it assumes is the most definite




THE ORIGIN OF THE NATION.           47
of laws; its object is to establish the foundations of the
state, and yet, in its conclusion, it falls short of the conception of the state. The individuals enter the association, as contracting parties, but the resultant, by the conditions 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 cannot 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 association 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 contract proceeds from and through a voluntary act, and therefore 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 obedience to law, the apprehension of and the devotion to public 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 punishment, 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 coitract cannot become the ground of the unity or
the continuity of the nation; - not of the unity, for it is
the agreement of parties in the exchange of equivalents,
and each remains a possessor, or as the phrase is, "it
takes two to make a bargain," and in the result the parties
remain the several proprietors; —not of the continuity,
for a contract presumes the positive consent of the parties,
but the constructive consent of succeeding generations
evades this, while yet the continuance of the formal contract 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 foundation; 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 deliberately 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 separate or withdraw, and there would be no power inherent
in society to justify its prevention. There is then in government no authority, but only an agency limited to the
securance of the private interests of the contractors, and in
society no permanence beyond their formal bond, and no
nation which lives on although the individual dies.




THE ORIGIN OF THE NATION.                      49
The falsehood in this proposition becomes apparent when
it is confronted by the peril of the state. The permanence
of the whole, and the supremacy of law, is conditional upon
the option of the individual. It is subject to the unlimited
play of individual caprice. The state may be rent asunder
in the willfulness and whim of one, and beyond this it has
no defense in internal disorder or external assault. The
proposition is the postulate, not of the unity and order, but
of the dissolution of society. It has been truly said, that
the social contract should be called rather a theory of anarchy than the doctrine of the state.1
The truth which the proposition subverts, as it sweeps to
its perilous close is, that the nation proceeds in the divine
guidance of the people in history.         " And yet there is,"
says Bluntschli, " in this conception, involved in the most
deceptive and perilous error, a certain truth. In opposition to the notion which sees in the state only the necessary product of nature, it asserts the truth that in its normal process the human will can and must act positively
and determinately upon the form of the state, and in contrast with an' empty empiricism it vindicates the reason of
the state and the right in human freedom." 2
1 Bluntschli's Allgemeinen Statsrecht, vol. i. p. 260.
2 Ibid. 263. See on some of these theories, Ibid. vol. i. pp. 250, 270,
Hooker has a statement of the social contract, and the institution of government in it: "Men knew that strifes and troubles would be endless, except they
gave their common consent, all to be ordered by some whom they should agree
upon," -" for the manifestation of the right to govern, the assent of them who
are to be governed seemeth necessary." - Hooker's Works, vol. i. p. 187. But
this proposition lies upon the page of Hooker in a fragmentary shape, and is the
contradiction of the profound conceptionof 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 resting in the eternal and divine reason. - Dr. Tulloch hasjustly 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 orderly national development in the face of all preconception of whatever kind,
that he really vindicated." - Tulloch's Puritanzism, p. 29. There is an impassa4




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 ascertained. It presumes the existence of the people, but obviously 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 foundation, and there is nothing, in the phrase of Locke, " to
bottom it on."
The description of the people, which is commonly assumed in this theory, presents the immediate contradiction
to the political people. It represents the people as a collection of individuals in a certain locality, but there is
nothing in this to distinguish it from the mob. It is destitute 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 organism  determined in law. In its conception any collection 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 corresponding inferences, in another form, of the ecclesiasts of a recent puritanism.




THE ORIGIN OF THE NATION.           51
The state moreover is not derived from the sovereignty
of a mere collection of men, since its origin is not in a reflective act. It is not the result simply of choice and design. It would be consistent with this to refer the existence 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 responsibility beyond itself. Its sole mandate is law, and in this
alone the whole political order subsists. The merest caprice of the multitude is the only authority. In another
form it is the foundation of society upon mere might.
There is in it no recognition of the state as the institution 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 private 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 tyranny of the one, but the tyranny of the multitude; and
yet the latter passes indifferently into the former, and in
the degradation of the individual through the subversion
of individual freedom the way is open to imperialism; the
domination over men in one form succeeds to another.
The sequence to the assumption of political power which
this proposition involves, has been always the same in




52                  THE NATION.
every form. The inevitable result of political atheism has
been a political absolutism. But the consciousness of the
divine principle in political power cannot be wholly effaced,
and there follows the apotheosis of the dominant authority.
The Roman emperors are worshipped as divine. In the
rejection of the moral obligation in political power, with
the overthrow of all freedom, and the degradation of the
individual, there invariably will come the apotheosis of the
emperor or the apotheosis of the people. The sovereignty,
as the freedom of man, neither in the individual nor in
the people is absolute. It can consist only with the recognition of a divine relation and the consequent obligation
to a divine law. The freedom of the people has its postulate 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 freedom, the mighty voice of nations, has not been " The ruler
is absolute," "The people is absolute," but it has been
" God and the people," and it has confessed its deliverer
in Him. It has not been the shout in the host, but in
the name of the Lord of hosts.
The truth which this proposition controverts is, that the
origin of the nation is not in the will of the individual, nor
in the will of the whole, but in the higher will without
which the whole can have no being, and its continuity is
not in the changing interest of men, but in the vocation
which in a widening purpose from the fathers to the children joins the generations of men, and its unity is not in
the concurrent choice of a certain number of men, but in
the divine purpose in history which brings to one end the
unnumbered deeds of unnumbered men.
And yet the truth which underlies this proposition also
comes into clearer light in the higher development of the




THE ORIGIN OF THE NATION.                 53
nation.  The sovereignty of the nation is from    God, and
of the people. The representative of its sovereignty is
therefore responsible to God and accountable to the people. 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
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 issue 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 result of the social compact, nor the creation of the sovereignty of the people; while the truths which underlie
these otherwise false assumptions, in the course of providence, illustrate in a greater or less degree the rise and
growth and conservation of the nation.1
The origin and foundation of the nation has, in certain
aspects, its illustration in its analogy with the family. The
family is a divine institution, and so also is the nation; the
family is the natural condition, and so also is the nation,
and as natural it is not of human construction although a
human development, its constituent elements are implanted
in the nature of man, and as that nature is unfolded in the
realization of the divine idea, there is the development
of the state. The family also is rude and imperfect in
its form in the early period of the race, and it slowly develops into the true and the normal, that is, the monogamic form; thus also the nation slowly develops into the
more perfect type.
1 I assume in this argument, from the outset, the being of God and His connection 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 however may be scarcely necessary, since the work would not perhaps have detained
so long any reader who may deny these propositions.




THE ORIGIN OF THE NATION.               55
Tne nation exists as an organic and moral being; its
existence is a fact, and the apprehension of its existence
in its beginning, is in the conscious life of man. There is
therefore, outside of this consciousness, evidence which is
only indicative of its origin, as of the origin of the individual and of the moral life of the individual.1
The evidence of the origin of the nation is in its necessary nature.- The nation is an organic unity; it is not
an artificial fabric nor an abstract system, but it has a life
which is definite and disparate, and has a development;
therefore it has not its origin in the individual nor the
collective will of man, but must proceed from a power
which can determine the origin of organic being. - The
nation is an organic whole; but the whole, in which there
is the conception of the parts, cannot be determined by the
parts, since there must be the predetermination of the
whole to which the parts belong; but the whole cannot determine 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 personality, as it transcends physical nature, only a divine origin,
and its realization is in a divine relation. The subsistence
of the human personality is in the divine personality, and
its realization is in its divine relations, and as with the
individual personality, so also with the moral personality
of the nation,- its origin and its consistence can be only
in God.
The origin of the nation has its illustration in the various
aspects in which the nation in its necessary conception may
1 Plutarch says, in a citation by Haller, "In my judgment, a city could be
more easily built without ground, than a state could be founded or exist without
faith in God."
Cicero says, with a singular and reverent beauty of language, " Nihil est illi
principi Deo, qui omnem mundum regit, quod quidem in terris fiat, acceptius
quam, concilia coetusque hominum jure sociati qute civitates appellantur." ISomn.
cipionsis, ch. iii.




56                   THE NATION.
be regarded. Thus the personality of the nation is indicative of its divine origin.  The necessary elements of
personality are freedom and justice, and wisdom and courage, and the like, but these are not physical powers, and as
moral, they are in their origin above the sequence of physical 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 collection 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 incorporated in the state is higher than the enactment of the
law, and more than the impulses of the people; it is presumed to be the content of the law, and controls the impulses of the people.  It is not the device of legislators,
and as it exists in the nation, there is manifest its divine
origin. The illustration may be traced further in all the
necessary moral elements of the nation, as wisdom and
courage.
The powers with which the nation is invested, are also
indicative of its origin. It is clothed with an authority,
and has a majesty which no power of earth may assume.
The affirmation of its will is law, but apart from it, the
will of no man and no collection of men, is law for another.
The right of government is its right, but apart from it no
man and no collection of men have the right to govern
another, and it belongs to the nation only as it is of divine right. There is no human ground on which it can
rest.  They who are intrusted with it hold it as the
representatives of the nation, and as the ministers of the
divine purpose in the nation.  The President and the
Congress, as the Crown and the Parliament, rule by the
grace of God.
The elements which are manifest in the government of
the nation, in its moral being, can have only a divine
ground. The power, which is in the people forming the




THE ORIGIN OF THE NATION.                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 derivative from God.   This alone in government, is the condition also of the reconciliation of law and freedom.1  The
character of the authority of the nation also indicates its
origin.  It has authority, and is invested with power in
the maintenance of a moral order on the earth.    But the
right thus to maintain authority over men, belongs in
itself to no man and no collection of men, and is existent
in the nation only as it has a divine genesis.
There is evidence, also, of the divine origin of the nation,
in the historical facts which bring out the consciousness of
the people.  Its expression may be traced in the greater
historical nations, and in their greater ages, the crowning
centuries of their civilization. It appears in the symbols
of all their power, and is reflected in their laws and literature and art. In Judsea 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 vicissitudes of its course exaltation could not bring into forgetfulness, nor humiliation into denial.  In Greece it was
shaped in the beginning of its history in all its traditions,
and is the last word of its philosophy; it was joined with
the sacredness of the family; it united in one aim its heroes 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 sacredniess of the family and the
state, and the divine obligations in the relations of a father
and a citizen. This moulded all her institutions. The
recognition in these nations of a divine origin was also
1" Government like man himself participates of the divine being, and derived from God through the people, it at the same time participates of human
reason and will, thus reconciling authority with freedom, stability with progress."' —Brownson. The American Re.public, p. 126.




58                   THE NATION.
clearest in the ages of their strength. It was not in periods characterized by superstition, by prostration and abject fear, when the powers of man were dwarfed by the
impending vastness of nature, before he had discovered
the harmony in the wide sweep of her courses, and the
uniformity in her cycles, and the imagination was bewildered by an apparent discord, but it was in the manhood
of the people, when there was the highest self-respect and
self-assertion, in periods whose colossal monuments attest
the triumph over physical nature, whose noble monuments
attest the higher triumph over foes in the spiritual nature.
It was not in what are called the pre-historic ages; in
these nations there is the constructive course of history.
It was held in no individual conception, but the very
names Roma and Athene were the names of divinities as
well as nations.  There was for each in its name a twofold
significance, and it denoted not only a political organization, but was the sign of a divinity in whom it was conceived 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, consuming the evil which was destroying it, and gaining for it
a divine deliverance from the evil. Therefore in Judsea all
the great testimonies in its national history, through the
procession of its centuries, were repeated, of Him that endureth forever.
The conscience of man also gives the evidence of the
origin of the nation. The moral spirit of the people recognizes the life of the nation as sacred. It is apprehended
as a life which cannot be trifled with, nor weighed lightly,




THE ORIGIN OF THE NATION.               59
nor judged indifferently. Its inviolability is affirmed, and
the obligation of its members to it. And as there is in the
conscience the witness to a divine relationship, if the nation had merely an external or a physical being, there
would be no ground in which the conscience could acknowledge a relation and obligation to it; there would be
only the individual obligation which one may hold to another.  The conscience testifies also to a judgment as
coming upon the nation, because formed in a relation involving an immediate and a divine obligation.1    There is
no thought which has had a more intense expression as
reflected in literature and art.  In Rome and Greece as
they recognized in the disaster of the individual a moral
judgment, it was still more apparent that the wider disaster
that came upon the nation could not be divested of a moral
condition.
If the divine origin and foundation of the nation is denied, the authority of its government is resolved into mere
force. The power in the nation, as self-subsistent, is necessarily 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 people. 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 sacredness, inviolability, and hold upon the conscience." — The American Republic,
p. 122.




60                         THE NATION.
in the sovereignty of the nation the divine source of its
unity and power, and whose,action in it is therefore in immediate 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 separate from God, then in that awful absolutism his strength
is broken, and his power is resolved in those living atoms.
The ruler is silent in the popular clamor, as he is swayed
by the agitation of the crowd, and is blind as he is hurried
by the popular impulse and passion. But the nation, when
it is conceived as separate from God, can have no realization, for in that separation the ground of all unity and continuity is lost, and there is no more a people.1
1 Bluntschli cites the language of President Washington -the first inaugural of the first President- as among the strongest assertions of this principle in
modern political literature. - Allgemeinen Statsrecht, vol. i. p. 253.
While it is denied by popular schools, and avoided by ecclesiasts and pronounced enigmatic by newspapers, there has been no age in which it has been
more clearly recognized in the thought of statesmen. Napoleon III. said at
Rouen, June, 1868, "We cannot separate our love of country from our love of
God."
" The human authority in the state can never again be confounded with the
divine authority (the theocracy), but it must necessarily be founded on the divine
authority." - Stahl's Philosophie des Rechts, vol. ii. sec. ii. p. 184.




CHAPTER V.
THE PEOPLE AND THE LAND.
THE people and the land form the natural elements of
the nation, in its physical unity and circumstance; they
exist in a necessary inter-relation.
The people in its organic unity, constitutes the nation.
It is not a sum or an aggregate of men, a chance collection 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 interests, 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 individuals, it has nothing to do, and they can have nothing to
do with it.1
The people is not determinate in any enumeration of
individuals. It is the people, not the population, which
forms the nation.   It is not ascertained in any arithmetical
notation, and the political order has not this nominal basis.
It is a mechanical conception which assumes a certain normal number as its true condition. Rousseau estimated the
normal number for the people at ten thousand, and at peri1 French and German publicists,- the former constantly and the latter mainly,
— use these terms, the people and the nation, in this significance. The organic
people in its physical condition, as the natural element of the state is called the
people (Peuple, naturvolk), in its political condition it is called the nation (Nation, statsvolk). But the terms in German political literature are wide away
from any other. Bluntschli adopted the above distinction in his earlier writings,
while in his later, against the common use, he has followed the strict derivation
of the words.




62                     THE NATION.
odic intervals it was to be changed to conform to this census, but it has no more an arbitrary ground in the numbers 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 6 numbers
as the stars for multitude," or in only a remnant who keep
its calling and guard its ancient faith, and endure through
captivities, and at last triumph over every conquest. The
national type is not obliterated in the vicissitudes of events,
nor overborne by the migrations of races, and does not
perish, although the individual die.
The people in its wholeness constitutes the nation, and
it is to comprehend in its political aim the purpose, and in
its end to realize the destination of the people as an whole.
It is not of the one, nor of the many, but of the people.
There is no individual, as Louis XIV., who can assume to
be the state, and no hereditary class, and no party or section 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, subordinates 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 comprehending 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 individual or artificial basis. And it is not simply the physical
condition which conforms to a tribal law.  It cannot make
a physical condition the principle of its being.1 There is
1 " America, though the best representative of the social and political gains of
the eighteenth century, was not the parent of the idea, in modern civilization,
that man is a constituent member of the state of his birth irrespective of his
ancestry. It was become the public law of Christendom. Had America done
less, she would have been not the leader but the laggard of nations." -Ban



THE PEOPLE AND THE LAND.              63
not among its powers any by which it may elect those who
shall be in it, but as the'normal and moral condition men
are born and live and act in it.  It is not to restrict itself
to those who may be rich or learned. There is no human
imperfectness that can be made the ground of exclusion
from it, and no human greatness that can justify an exaltation 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 fragmentary collection of individuals or parties, no ground in
which the unity, apparent in political spirit and political
character, can subsist.
The people is to work out its own political conception
in the nation, after the type of its own individuality. The
external circumstance, the limitations and conditions in
which it is to act, are as varied as in the development of
the individual type in nature, while its life which runs
through human cycles, has a wider range than in the
sequence of physical nature. The forms through which
its spirit is to work, are more manifold than those written
in nature's book of infinite secrecy.  The life of history is
the more opulent in its types; and the forms of the bud
and the tree in limitless forests, are not so individual or so
diverse as those wrought in the spirit of the people in
history. It is to work out its own purpose in a moral
world, and in it alone it has the satisfaction of the spirit.
It can no more conceive the desire to be another people,
than the individual can conceive the desire to be another
croft's History, vol. ix. p. 449. " Der zustand der Barberei besteht darin dass
eine menge ein Volk ist ohne zugleich ein Staat zu sein." -Hegel, in Rosekranz 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 integral and moral life the political order. It belongs to none
separate from it to prescribe its political course. The people can acknowledge no control beyond its own organic law
save only that of God, and the law of its being as a moral
person presumes that, as its freedom subsists in that.  The
power belongs of itself to no individual and no family and
no class, separate from the nation, as there is also no individual 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 divine right. Its power is from God and of the people.
Its authority is therefore in the name of God and the people, 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 authority.
The right of government is in the will of the people,
while it is only in its being in the nation, as a moral person, 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 political 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," Amnerican 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 comprehended 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 condition 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 authority 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 deprived 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 determination 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 necessary in its political administration, for the maintenance of
its authority and the enforcement of its laws, and the institution of its order, and without it there would be a source
of constant confusion.
The boundaries of the nation are laid in nature and in
the historical course of the people. This law is universal,
and the nations which have violated it, again have been
compelled to acknowledge it. Italy has never passed her
boundaries so clearly defined in nature and in history,
but she has been driven back again with loss; and Germany in its aggressions has overstepped these limits, only
after disaster to withdraw again. The law has its illustration 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 historical 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' unvexed 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 occupy 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 integral unity'of its territory, and no change which will encroach 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 nation, and the right to it is in its moral order. The exclusive possession and entail of the whole domain by a few
may prevent this object and subvert the moral order, asit
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 hundred and fifty proprietors, and the whole number of proprietors is reduced to thirty thousand, while the majority




68                   THE NATION.
of the people subsist on wages. " The yeomanry," says
Mr. Disraeli, "has vanished from the face of the land,
while the tendency of business has been to introduce a
condition to consist only of wealth and toil."
There is a common conception in which the land is so regarded, 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 contiguity.1 But in an existence in a local contiguity there is
not the origin nor the foundation of the political life of
men. While the fact of residence and coexistence is
necessary in the historical course of the nation, it does not
bear in itself its germ, nor is it the source of its integral
unity. It is not the circumstance of neighborhood, but
the consciousness of relations to one's neighbor that is
indicative of the origin of the nation. The unity of the
nation is not in the existence of man in a certain contiguity, but in a conscious purpose and a relation which is
necessary to the destination of each and of the whole; its
condition is not a merely physical relation, but a mora.
relation; and it has not merely the existence of the individual for an end, but the whole for an end. There are
thus, for instance, vast contiguous populations which have
existed for centuries on the plains of Asia and Africa, and
in the most diverse geographical positions, and yet they
have not formed a state. There are populations by the
Rhine strictly more contiguous to the French, in their
bulk, than to the Germans, but they would go to battle
rather than be wrested from the unity of the German
nation. This definition of the origin of the nation in local
contiguity, has also no historical justification. There was
a people dwelling by the banks of the Tiber before the
beginning of that national development which was to determine 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 conception. 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 influence, 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 reference 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 climatic conditions, the soil, the climate, the agricultural products, and the like. The writings of Mr. Buckle illustrate
this. But in the existence of the nation, which is the substance of civilization, there is a power higher than the
necessary process of the physical world. It exists in the
order of the moral world. This cannot be determined by
physical elements. The history of the world cannot be
deduced from its geography. In the political course of
the nation the land is a necessary element, but it is not the
creative nor the controlling element. The future of the
nation will not be concluded by its relative nearness to the
equator. The nation exists historically in the realization of




70                    THE NATION.
the freedom  of man, and his consequent dominion over
nature. Mr. Buckle, when he stood in Judsea, avowed that
his only interest was in the agriculture of the country; but
the soil is the same upon which a people lived who stood in
the continuity of a nation, which long captivity in strange
lands and under strange skies did not destroy, whose unity
was lost in the grandeur of no imperialism, and whose lines
of kings and prophets looked to the coming of One in whom
was the hope of humanity; but the physical process of nature does not renew that life.  The mountains of Attica
are the same upon which the Parthenon was built, and
their quarries the same which furnished the marble for the
sculpture of Athene, and the windy plains are the same
upon which an army was mustered at Marathon, and the
sea is the same whose waves were parted by their ships at
Salamis, but the conflict which in its moral interest made
these names immortal, has closed.1
Since the land is necessary to the historical development
of the people in the continuity of the nation, the nation has
supreme authority over it. It is in its integral character
the domain of the people. Within its limits, therefore, the
people can allow no possession exempt from its control, and
no individual beyond its law.
The people and the land exist, in their interrelation, in
the historical realization of the nation as a moral order.
The land becomes associated with the spirit and the destination 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 sacredness which is derivative from the moral being of the
nation, and it is held as inviolate.
The land in its integral unity is thus a divine gift, a
1 Comte has a more exact statement of the influence of the physical world
upon man::'The world," he says, "furnishes the materials, and man determines the form.".... "Man is not a result of the world, and yet he depends upon it." - Catechisme Positiviste, 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 associations grow up around it, and blended with their traditions
it passes sacredly from the fathers to the children, and
constitutes in its wide domain the heritage and the homestead of the people.l
1 " The land is the essential condition of the normal and moral development
of the state, and therefore it is absolutely holy and inalienable. It is here that
the real moral spirit of the love of the father-land rests: originally it is a love of
one's native land, and always retains this natural element, but in its completeness 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
attained 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 formulas and abstractions.
Personality has its condition and its realization in freedom. Personality is constituted in self-determination; one
whose action is self-determined is a person.1
The human personality subsists in the divine personality;
as it is realized in the moral life, it is derivative from God,
and has its fulfillment in God. It comes not in entire forgetfulness; whether it looks within or without, it gazes into
no abysmal depths. It is not attained through negations;
its necessary being is not ascertained in a law of thought,
as in the formula of Spinoza, nor by a rule of subtraction,
as in the resultant of Comte. It does not recede into
nothingness, it does not pass into vacancy. In its beginning it is formed in relationships, and in its development it
is not severed from  them, but there is the fuller expres.
sion of them. These relations are not the result of the
reflection, nor of the volition of man, and man is not
their centre. In the realization of these relations man
is always brought nearer to Him in whom they have their
consistence, and in whom is the perfect unity.
The central attribute of personality is the will. The will
in its freedom is defined in no formal or empty notion; it
1 "A being endowed with self-consciousness, reason, and freedom, is called a
person, or has personality." - Ahren's Naturrecht, p. 83.




THE NATION THE INSTITUTION OF RIGHTS.       78
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 realization of personality, and the fulfillment of which is the end
of its being; it is in its highest conception the will of God.
The mere formal notion of the will and of its freedom,
which separates it from its substance in personality and
empties it of all content, could not form the principle of
rights. It could produce a scheme concerning rights, but
not the realization of rights; it could result in a system,
but not in the nation.
Rights belong to man, since in his nature he is constituted as a person.  Personality, since it has its origin in
God, has an infinite sacredness. This is the ground of the
sacredness of the rights of man. The individual personality can therefore be apprehended rightly only in this conception, - the life of each must be held sacred, his worth
must be allowed, his dignity must be regarded, his freedom
must have in the nation its maintenance and its sphere.
It is only in his personality, in his moral being and
freedom, that man has rights beyond the other animals.
In the necessary sequence of physical nature there is no:
ground for rights. It is because man exists also in a moral
world, which is in freedom, that he has rights.
The realization of personality is manifested in the ampler 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, reversely, the decay and loss or abandonment of rights is connected 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.
his original constitution.   Thus the condition of their existence, as of their sacredness, is in the nature of man, as
it is in the divine image.
Rights have their foundation in the nature of man.
Personality manifests itself in the realization of rights;
all rights are of a person.
Rights express and define the relation of a person in
the nation, to the nation, and to other persons.
The fundamental law of rights is, -Be a person, and
respect others as persons.1
The nation is the institution of rights.       The primary
distinction of rights is of Natural and of Positive Rights.
Rights are natural, as laid in the nature of man; rights
are positive as defined in the nation. Rights are natural
as immanent in the nature. of man; rights are positive
as emanent in the nation.
Rights are natural, as founded in human nature.         They
are inherent; they are written in the law and the constitution of the being of man. These rights are variously
denominated in the various representations of their content and form.
Blackstone calls them absolute rights. But this is inexact 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 Philosophie 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 personality, and a deference for it in others. This has had, perhaps, its finest illustration in the character of the Quaker. It has no ground in a formal distinction
of classes, and the very quality of vulgarity is a respect for the accidents of
life and a deference to them.




THE NATION THE INSTITUTION OF RIGHTS.       75
They have been called inalienable rights, but there is no
right which has its institution in the external sphere, that
is, the sphere defined by law, that is inalienable. The
right of the nation is necessarily precedent to the rights
of the individual, and they are all limited by it in its supreme necessity. They must yield also to its force, as, for
instance, life is subject to the call of the state in war and
its calamities, property is subject to its claim in taxation,
liberty may be interrupted in the peril of the whole, and
is 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 compact, 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 indicates the origin and the content of rights.  It has a
better place in the common thought of men, and may be
trusted to hold its own, in the long run, against a more
scholastic term.'
1 Hurd's Law of Freedom, etc., vol. i. p. 36. Lieber's Political Ethics, vol. i.
p. 281.
The declaration of principles at the close of the War of the Revolution was,




76                       THE NATION.
These rights cannot be referred to the assumed existence
of man in an imaginary state of nature, which is represented 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.l   But this assumed state is unreal, and
if man be represented as out of society, there is no limit
to his action which can be defined in rights, and no power
by which the title to rights can be conferred.         The title
to these rights is affirmed and acknowledged only in the
organization of society.   This definition has its consistency
also only in the fiction of the social compact.
These rights cannot be referred to the assumed existence of man in an atomic state.         Thus Kent describes
them as rights which belong to individuals in a single unconnected state.2     But this atomic state is also unreal.
Man does not exist in this isolation and cannot be rightly
conceived apart from relations, and as these relations had
not their origin in the volition or reflection     of the individual, 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 remembered, that it has been the pride and the boast of America, that the rights for
which she has contended were the rights of human nature." - April, 1783.
Journal of the Continental Congrcss, 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 individuals, or single persons; relative, which are incident to them as members of society, or standing in various relations to each other.
" By the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a
state of nature, and which every man is entitled to enjoy whether out of society or in it." - 1 B1. Comm., 123.
2 " The rights of persons in private life are either absolute, being such as belong 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 RIGHTS.     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 condition of life, but in the constitution of man. They are
the rights of human nature, and their derivation is signified 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 content of those enactments. They are imprescriptible; the
image in which they are given is effaced by no priestly
illusions, and is extinguished in no imperial obscurantism;
they are not wholly buried beneath the most artificial of
policies, and are worn out by no continuance of customs,
although lying " heavy as frost and deep almost as life."
Rights are positive, as enacted in the law and embodied 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 historical 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 moment 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 be'come thus the signs of its progress. They
are the landmarks of the march of the people; and since
its rights are the realization of an organic and moral
being, there is no definite terminus to its advance.
Rights are positive, since every nation has its own vocation 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 freedom 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 nation, in a certain sphere of external circumstance. They
are thus affected by the external relations of the people.
The laws in which they are established are modified by
the age, the race, the association with other peoples, and
then also by the physical condition, the soil, the climate,
the products; by agriculture, and commerce, and trade; by
all those elements which, in the necessary relation of man
in physical nature, so clearly affect, while they do not determine, 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 fiction, and to leave to man only the poor pretense but not
the reality of rights.
Positive rights, therefore, are natural rights, as they are
ascertained and affirmed in the normal Civil and Political
process. It is only in law, in which this process consists,




THE NATION THE INSTITUTION OF RIGHTS.        79
that natural rights obtain their necessary form. They have
apart from this neither the requisite precision, nor the obligation which secures their authority and validity. They
are the principle to determine the action of the whole
people, but in law alone they become the necessary form
for the action of the whole people. In certain rights there
is always a vagueness, since that which in itself, for instance, is determined in the development of the individual
and the nation, is to obtain a formal determination in law.
Thus the time when the majority of the individual begins,
and the qualifications by which an elector is ascertained,
are illustrations of this. But the principle to be regarded
in these instances is, that the state shall not determine
them arbitrarily but in the reason of the state.
The relation of Natural and Positive rights has been
represented in two opposite conceptions, each of which
involves an error.1
The one proposition isolates the sphere of natural from
the sphere of positive rights; they are defined as existent
in an external and formal separation.      The ultimate
ground of natural rights is assumed in the nature of persons, 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 necessary relation between them, nor do positive rights, in
the normal process of the nation, exist in the recognition
and institution, of natural rights,
This conception has its source in the antithesis of natu.
ral and political society, in which a definite existence is
assumed for the former, and the latter is held in its separation as an artificial existence; the foundation of society
1 Aristotle distinguishes between a natural right which is everywhere alike
valid, 4vctr6v; and a positive right which is right only as being established,
votLKOY; 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.




80                   THE NATION.
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 another age, and while wide apart, yet aiding toward 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 society upon the dogmas and theories of an abstract speculation, and fabricates it after an arbitrary scheme and an
empty metaphysic; instead of this, he maintained its existence 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 rights, which, originating
in an accident, are to be perpetuated inviolate with the inviolateness 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 society. It is the postulate in political science, of Aristotle,
whose solid vantage is the defense from so many errors,
64 man is by nature a political being." The nation is the




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 customary law, or a contractual
form, or an arbitrary power.   It cal only be justified in
the origin of the nation in force, or in the accident of history, or in the " use which custom bends."  But this is the
unreason of the state, and it can then no longer be comprehended in the moral order which is history, nor as the
constituent of that order. And rights can allow no arbitrary 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 restriction to a part, they may be always confined to an individual, or a family, or a class, for their only basis is arbitrary.
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 natural 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.1
The opposite proposition identifies the sphere of natural
and positive rights; it assumes for natural rights, in themselves, a valid existence, and makes them then the necessary 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 distinction in which natural rights are regarded as essential, and positive as accidental;




82                       THE NATION.
with the apprehension of the former. The distinction of
rights in their conception and in their formal institution is
obliterated. That which is deemed a natural right is assumed to be already the law, and to possess an immediate
validity.
This merges the whole order of the state into the subjective conception of the individual; the organic action of
the whole ceases, and its conduct is left to the determination of the private judgment.     Its course is no longer defined 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 setting 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 individual, 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 upon all, and therefore it is necessary that they should have so clear an expression 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 regarded only as the accident of history; and personality, moreover, is not determined 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 natural 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 the incividual subjective conception can in no moment assume to
be the law or the measure of this advance. It is manifested always in the development of the spirit of the organic 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 guaranties are forged which are the securance of freedom, and
they are to be clinched and riveted to be strong for defense and against assault. The rhetoric which holds the
loftier abstract conception, avails nothing, until in the
constructive grasp and tentative skill of those who apprehend 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 indifferent 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



84                   THE NATION.
ness but the weakness of disdain: the latter is the work
of the statesman who alone knows how patient and vigilant 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 enacted in the laws, and moulded in the institutions of the
state.
There is a tendency, which this proposition also illustrates, 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 speculative 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 design. 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 generations 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 organization, it can find in the abstract reason the ground only
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 gathered stones, but it is not thus in the political life of the
people. And when 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 the justification for some
further change in some new theory. But stability is the
condition of growth, and the furthest advance of a single
generation is slight in comparison with that which is embodied 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 history. This conception can only appear in an unhistorical
age, and in the extremes, - the provincial and cosmopolitan theories which coincide in their denial of the organic
and moral being of the nation.   Its source is in the false
and deceptive exaltation of the individual, and it becomes 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 determination 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, positive rights the law of action.  The relation is not one of
identity nor of difference, but of development through
content into form.1
Natural rights in their positive determination, are further defined as they are determined in the Civil or the Po1 Melancthon has a passage, cited by Hegel, - " Verum quia jus positivum
determinatio est juris naturalis, facile intelligi potest, jus positum tamen habere aliquam regulam videlicet, ne pugnet cum jure naturali."
" Alle rechtsbildung hat danach ein doppeltes moment, ein Gottlich-nothwendiges (naturrechtliches) und ein menschlich-freie (positives) und beide durchdringen sich ohne abgranzung, bestehen in untrennbarer einheit." - Stahl,
Philosophie des Rechts, vol. ii. sec. i. p. 220.




86                     THE NATION.
litical process in the nation.  Civil rights belong to the
jural; political rights to the moral organization of the
nation: civil rights are those in which the individual obtains 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 constitutional organization of the political people: civil rights attach to the province of private law; political righlts 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 right 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 with 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 external 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, - " Reputation, as a thing which men strive to acquire and preserve, may be regarded




THE NATION THE INSTITUTION OF RIGITS.       87
The right of personal liberty 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 right to unrestricted action in the choice of the vocation 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 conditions 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 impress of the spirit of all their schools. It is more complex 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 propriet6 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 existence of property, then, was recognized as an institute of
the nation, not its first nor its main institute, but subsequent to many others, as the order of the family, the
rest from labor in the succession of the week, and yet it is
presumed with them and as sacred as they.
The legal definition which 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 personality. AR old writer has said," A good name is better than great riches."




88                   THE NATION.
to the 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 adverse that shall
overawe their desire, and prevent possession from yielding to the assault of those who at length in turn may
prove the stronger; nor can the mere continuance of possession justify the deference of men for the institution of
property. The same legal conception is repeated in a
more narrow form in the phrase 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 primitive estate of man, from which Blackstone with his speculations journeys forth,- belongs to a later form of society
and to a complex system of jurisprudence, and presumes
for its recognition an established order.1
These formulas indicate the line of legal thought, but
there is a wider scope and grasp in the theories which appear 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 interest.  Locke represented 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 prop1 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 property in the thing, and then the work put upon it creates
a higher value, but not the thing itself. And if the increased 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 physical forms, in her ceaseless laboratories.
The proposition of Considerant is connected with this,
and starting from another premise holds the same position.  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 possession 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, who
come afterward, not being in actual possession, have also a
right to the land, but only to the land, not to the improvement laid out upon it, which has created its higher value.
But the defect in this proposition at once becomes apparent when the application is made.  If the actual possessors should hold on to their exclusive possession, that




90                 THE NATION.
would be unjust to the new comers, who are thereby excluded from possession, and have the common gift and good
of nature withheld from them; therefore the actual possessors 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, therefore, 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 common good and gift of nature, 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 from 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 those 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 fathers 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 separation 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 treasury of goods, which has not God for its Lord but only
men, and so they can divide them up." I
The proposition of Hegel has a higher worth than any
preceding it in recent politics.  According to Hegel,2 the
beginning of property is in the fact of occupancy; but
he says occupancy is only the incident, and property exists 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 actualization of the right of a person to a thing. This proposition is true in its recognition of the fact that the mate1 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.




92                   THE NATION.
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 fulfillment 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 personality, 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 the 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 property, were subjected by M. Proudhon, in the approach to
his famous inference, to a thorough and vigorous criticism.
The right, he said, is not derivative from the fact of occupancy, 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 derivative 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 diminished by labor upon it,




THE NATION THE INSTITUTION OF RIGHTS.      93
as the detriment that follows the destruction of forests. It
is not derivative from positive law, that is, a legal arrangement and cantonment in the beginning of society, for positive law can regulate nothing which does not of itself
already exist; the reference of its origin to a formal law
would leave still, moreover, only an arbitrary ground.
Therefore. said M. Proudhon, since all the theories of
your schools fail, since there is no ground in all that you
have claimed for the right to property, property is not a
right but a wrong; property is robbery.1
The argument of M. Proudhon is conclusive against the
theories he assailed, theories held often as the idle or the
convenient evasion of a deeper truth, and held in the degradation of the nation, as the consequent of the schemes
which deny its moral being, and assert its existence, as
only the support of private interests in the combination of
capital and toil. The error of M. Proudhon is in his premise. The existence of property is presumed to be a
wrong, because no title assumed to the acquisition of property is proven to be founded in justice. But as Stahl has
said, the title of acquisition is not the basis of property, but the property is the basis for the title, and occupancy and labor and law are indicative of possession, on
the ground that apart from them the necessity and justice
of property exists. M. Proudhon has proven nothing
against the right in the existence of property, nor against
the right to property, but he has proven the defect of the
weak and false theories in which a foundation for the institution of property has been sought. M. Proudhon has
been called an atheist, but those by whom the accusation
has been made may have to consider how far their representation of the origin and institution of property, which he
assailed so passionately and so conclusively, separates them
from atheism. They who hold the tenure of property in
these theories may justify themselves, but it may be for
1 Proudhon, Systeme des Contradictions Economiques, vol. ii. p. 234.




94                  THE NATION.
them to ask what they may have in these theories to protect them and their rights; or what the future of society
may be which is educated in them; or how they may
meet those crises which try the defect in social schemes,
and which they may defer in their dogmas but cannot defer in history, the inevitable days in which false theories
and false systems are burned up like stubble. It is in the
avoidance of the divine origin and subsistence of the nation,
and in the indifference to its existence in its moral being,
and in the assertion of individual and economic schemes, that
these theories have prevailed, and in them they have their
consistent assumption. The Hebrew commandment presumed the being of the nation in which it was declared, as
a moral order, and as subsisting in the name of a righteous
will, from whom the commandment came, and in that conception the tenure of property was defined.
The origin of the existence of property and of the right, is
in no formal law or precedence, and law is only regulative
and descriptive of it. It is in no external circumstance,
and occupancy is only the incident of it, and, in its exclusive apprehension, allows to it no moral significance. There
is in neither a formal law nor an external circumstance the
source of rights, and it is only as property consists with the
nature and vocation of man that occupancy and law follow
from it, but its origin is not in them.
The ground of the right in the existence of property,
and of the right to property, is in tile vocation from God
in the world, of the individual and of the nation. Property is the material for the work of man in his vocation on
the earth, and in that alone is the ground of its right. If
property becomes in itself an end, then personality is subjected to the things which it possesses. If it be held apart
from the vocation of man and the moral relations and obligations involved in that, then it becomes mere possession,
the instrument of a selfish interest, and the means for the
degradation of personality.




THE NATION THE INSTITUTION OF RIGHTS.         95
To the individual and to the nation God gives his powers and his working field, and these are the talents of each,
and in this alone does property consist. It is thus, as it
is given in and for the vocation of man on the earth, that
its use affords a ground for the manifestation of character,
and there may be in it the expression of individuality, and
elements of culture and freedom. In this also is the sign
of the sacredness of the relation which the individual and
the nation bear to the earth.   Thus, also, if there be no
recognition of a vocation which the individual and the nation are to fulfill, then the origin of property is only in the
arbitrary or the accidental; it is in its origin arbitrarythe seizure by force and choice of that which each may
lay hold of; or accidental-that which each in his fortune may stumble on or is in luck to obtain,- and it is the
sign only of the avarice of men who clutch it in their
grasp, or the risk of men who find it by the way.1
The origin of the existence of property and of the
right to property is not in the physical condition of man.
There is no more ground in his physical being for property than there is in the other animals for property, as in
it man has no more rights than they.   Man is dependent
upon the physical world, and in his physical being is
related to it, through the sweep of all its changes, and it
may be in the evolution of all its forms: but in his spiritual
nature, he is over it; he exists in a higher sphere; his citizenship is in another world; and in that ampler realm of a
realized freedom there is alone the ground of rights. In
the physical world man is to find the satisfaction of his
physical necessities, and therefore he has power in it and
over it. But property is not therefore simply the means
for the satisfaction of physical necessities, nor is its ground
in the aimless subjection of the material world; in this
there can be the source of no right.
1 Dr. Brownson's definition of property is as profound as it is beautiful, -
"Property is communion with God, through the material world."-The American Republic, p. 15.




96                   THE NATION.
In the physical world man has a formative power, and
there is in his physical condition the hard necessity for labor, but labor follows from the existence of property and
the right in it; not the reverse.  It is an element in
property, and in the necessary condition of life it appears
as the wages for toil and the return for service, but labor
itself passes into the higher conception of work in the
vocation of man.
The recognition of property on this postulate is alone
consistent with the correspondence in the rights and duties
of property. When recent economists, as Bastiat, admit
that the true condition of property and the relations of
capital and labor can be fixed by no adjustment of economic schemes, but by the recognition of a moral obligation
in the use of property, it becomes an evidence of this proposition as to the ground of property. It is not simply the
purchase by the individual, which is to be held in exclusive
use, and suffers an indifference to moral relations; it has a
moral aim, and thus the advance in civilization will not be
in its negation, and the degradation of all in a mere communism; there will be its better assertion, and in the
recognition of the duties of property as correspondent to
its rights there may be the coming of the true communism,
of which the world once has seen the type.
The relation of property to the family has its basis in
the constitution of the family, as a moral order in the
world.  The fact that in archaic society it is held as a
common possession in the family, is consequent on the
fact that the family is the archaic form, and the inception
of the moral order and relations of the world is in the institution of the family.  Thus the relation of property to
the family does not cease in the progress of society, but is
held with more'definite limitations and provisions as society passes into more complex and varied relations.
The process in the realization of a moral order, in the
institution of property, appears also in the realization of




THE NATION THE INSTITUTION OF RIGHTS.      97
the nation. The people possesses in the land the external
sphere of its vocation in history. The right to the land is
not in the fact of occupancy, but in the vocation of the
nation as a moral person. The nation has the right to
property in its own vocation, and as a moral order it is
instituted and maintained, in the nation, in and with the
vocation of the individual. Thus property is to be maintained as an institute of the nation, and secured alike to
the individual and the family and the nation. The right
of property, as it is existent in the nation, has its formal
assertion in the right of eminent domain or expropriation.
It obtains, not because the right of one man, or of a collection of men, is precedent to the right of another, and
there is no ground on which the rights of several should
exclude the right of one, but because the right of the nation is necessarily precedent to the rights of the individual.
Yet here also the nation in its moral order is to regard
and to maintain the existence of property. Therefore in
the formal exercise of expropriation, an adjustment is to
be made by compensation.   The obvious maxims given
by Bluntschli in defining this are, first, that the nation
maintain the freedom and the security of property; and,
second, that it exercise no arbitrary disposition of property.  And as an element in property is labor, the nation
in the exercise of expropriation is to render compensation
to the individual for the return of his labor appropriated
by it. It is the fact of the nation as a moral order that
makes the maintenance of the rights of property imperative, and while it belongs to it to define values in the issue
of money, it is to make this issue the representative of
actual values, and while its own right is precedent- and
may be exercised in its peril, as in war -in the possession
of all property, yet in its normal course, if it fails to sustain the validity of contracts and exchange, in correspondence with their actual values it becomes itself destructive
of property, and as the obligation of the nation is higher
7




98                    THE NATION.
as its right is higher, every act of national dishonesty is the
greater wrong, and is subversive of the moral order of the
whole.
The right to the recognition of these civil rights, and
to their maintenance in the civil order, is the primary
civil right. It is the necessary condition, in which all
other civil rights are established, and without it they remain a fiction.  To each and all the nation is to leave
open the avenue to these rights, and is to allow it to be
closed in the private interest of none. This is what Burke
has called the right to justice.  It is the right, in the organization of justice, of every man to a fair trial for himself and against every other man.    The justice of the
state is to be for each and all, or it becomes the institution
of injustice; its tribunal is to be open to hear the cause of
all, or it becomes the inquisition of wrong. It is the right
of all to equality before the law.
This right is implied in the necessary conception of law
as universal. It is indicated in the most ancient symbols
of justice, and its types are traced in the most archaic of
social forms.  The earliest traditions are of the institution
of tribunals, to which all may appeal, and in whose judgment all may abide. The signature of justice most widely
found is the scale held with fair and even balance.  It is
the figure of one who is blindfold and sees not those who
may approach, but whose ear is open to the cry of all.
The rich and the poor, the strong and the weak, may all
share its protection and must abide its decision. The life
of the humblest is as sacred as that of the greatest, and
the possession of the poorest in shelter and tools, is as well
regarded as the estate of the rich.
It is this principle of equality before the law that appears in the foundation of social order. In the myths of
Plato, it is represented in the inception of society. " Man
was furnished with all he needed, for his individual
life; but he had not yet the wisdom by which society is




THE NATION THE INSTITUTION OF RIGHTS.      99
formed. This wisdom was kept in the citadel of Zeus,
and into that awful sanctuary forethought could not enter.
As time went on, the power and weakness of man was
seen. He instituted ordinances of worship; he defined
language; he invented clothing and procured food for himself. But lie lived in isolation and was unfit for social
union. Then if men were scattered they were in danger
of perishing from wild beasts; if they tried to combine,
they were scattered again by mutual violence. Thereupon Zeus, fearing for the safety of our race, sent Hermes
with self-respect and justice, that their presence among
men might establish order, and knit together the bonds of
friendship in society.' Must I distribute them,' saic Hermes, as the various arts have been distributed aforetime,
only to certain individuals, or must I dispense them  to
all?'To all,' said Zeus,' and let all partake of them.
For states could not be formed, if they, like the arts, were
confined to a few. Nay, more, if any is incapable of selfrespect and justice let him be put to death, such is my
will, as a plague to the state.' "
The wide historical influence of the axiom of the jurisconsults of the Antonine era, " omnes homines, natura
equales sunt," has been illustrated by a recent historian of
Roman law. Its auspicious assertion as a principle and
aim in the destination of the state, in the beginning of the
independence of the republic, will always have an historical significance.
The recognition of an equality before the law is slow to
come, and the attainment of an impartial justice is marked
by careful and painful steps. It seems so fair an ideal, as
to win the thoughts of men. It alone reflects that holy
faith in justice, which men feel in their hearts has somewhere its abode, and to which the right does not appeal in
vain. It is the only shield of human weakness, against inhuman wrong, and the violence and fraud and oppression
1 Thecetetus, sec. 21.




100                   THE NATION.
of wicked men, but many have fallen striving for it who
have been the prophets of the world whose cry is still "how
long? " It is the policy of evil to devise against it, and it
is overborne by all the evil elements of our nature, by selfishness and pride and lust.
Political rights are those rights which are instituted in
the normal process of the people as an ethical organism.
They are those rights which have their ground in the
being of the nation in its moral personality, and in them
the freedom of the people in its organic unity is realized.
Political rights include the right of every person born
in the nation, to be and to remain in its citizenship. The
nation cannot arbitrarily determine who shall or shall not
exist in it as members of it.  " The right of citizenship as
distinguished from alienage," says Kent, in defining the
law of civilization, " is a national right, character, or condition."  This is applied to " all persons born in the jurisdiction and allegiance of the United States."l This is
irrespective of ancestry, and consists with a national not a
racial principle.  It is involved in the being of the nation
in its moral relations, and therefore, as every other right, is
only forfeited by crime, which is in its nature and effect
the severance of relationships.
Political rights include the right of every person who is
a member of the nation, to participation in its resultant
advantage. The strength and power to which it has attained are to be the aid and defense of every member, and
the domain of its order is to be open to him. Its historical memories and associations are no more truly the glory
and hope of all its members than are its results the possession of all. It has a universal end, and to restrict its
advantages to one or to a few, to an individual or to a
class, would involve the subordination of the whole to private and special ends.
1 2 Kent's Comm. 39.




THE NATION THE INSTITUTION OF RIGHTS.    101
Political rights include the right of every person who is
a member of the nation to the actual determination of a
person in its destination. The personality of each is to be
respected in it, and to act in it, not negatively but positively, not passively to be allowed as if the nation were
only some power over it, but it is to act as itself a determinate power in it. Since the normal and moral process of
the nation is in the determination of personality, every individual who, being a member of it, has personality, has the
right to its determinate assertion in the nation. It is its
defect when, by an arbitrary act, certain persons are included and determine its action and certain other persons
are excluded.
Political rights include also the recognition and institution of all those rights which are involved in the relations of life as a moral order. These are to be guarded
and affirmed by the nation, which is invested with authority
to maintain the order of society. Thus the family in its
normal and moral conception is to be maintained by it, and
the violation of its organic law is to be punished.
Rights have their correspondence in duties; they may
be arbitrarily separated, but it cannot be without the defect or the distortion of the one or the other. Since rights
have a moral content, to every right a duty corresponds,
but it does not follow that a right corresponds also to every
duty, since there are immediate duties in the relations of
life, as for instance, the duty of a child to its parents.
Rights and duties have the same ground in personality.
Rights have not their ground in duties, and do not proceed as if only derivative from them. A right is a condition, in which there may be the fulfillment of a duty; but
a right is not simply the means for the fulfillment of a duty,
only the instrument by which a duty is performed, and having apart from that no significance. Rights no less than
the fulfillment of duties have their immediate content in




102                   THE NATION.
personality; they are therefore to be held not simply as subsequent to duties, and as if only incident to them.  Since
rights proceed in their conception from  a righteous will,
and subsist in that, therefore in the realization of rights
there is the fulfillment of duties. The rejection of the
immediate foundation of rights and duties in personality
can result only in the construction of a formal law of duty
and a formal system of rights.
Mr. Caird has said that, " in the philosophy of Kant,
the demand for the rights of man first manifested its true
nature, because in that philosophy the claim of right was
based on the idea of duty."  But rights are based in personality, and in that alone can they subsist, and from that
alone is their content derived. Kant asserted that the
rights of man exist only in conformance to an abstract
moral law, and only for an end defined in that law, but
this can become the ground 6nly of a formal conception
of rights and a formal freedom. It would merge the being
of the state into a formal system of laws. The necessary
inference of this postulate of Kant, is the derivation of
the right of personality from a law of duty, and thus he
assumed it to be resultant fiom the law, - "Let not thyself be used as a means." But this reference of the right
of personality to an abstract and formal law, and its definition in the limitations of that law, is not a sufficient ground
for the right of personality.  This law, for instance, which
requires me to guard my own personality, and forbids that
I should allow myself to be used as a means to an end,
is obviously too narrow; it does not comprehend the
right of personality, for this involves the right against
other persons, that they also shall respect my personality,
and shall not use, nor dare to use me as a means to an
end.
1 Inaugural Lecture in the Common Hall of Glasgow College, by Edward
Caird, 1866.  Kant's Rechtslehre, sec. xliii.  See Stahl, Phil. des Rechts, vol. ii.
sec. 1, p. 96.




THE NATION THE INSTITUTION OF RIGHTS.    103
The rights of the organic people, or national rights,
have an integral unity as they are instituted in the realization of the nation as a moral person.  They do not
compose simply a formal system. They are not a mere
accumulation of institutions, to be held by the people,
as a miscellaneous budget of receipts, nor do they exist
only as proceeding from the duties of the people, and as
the resultant of certain obligations.  The rights of the
people subsist in the consciousness of the people in its
unity, and this is the condition of political rights. They
bear in their form the imprint of the type of the nation's
individuality, and are the expression of its spirit. In their
institution they constitute its political order.  There is
thus in its political course the expression of its aim and
the subjection to it of the whole external order. There is
indeed apparent in the institution of its rights, the influence of the physical condition of the people, the age, the
land, the climate, the races, but these only modify while
they cannot determine its process; this is determined only
in the freedom of the people, and is the manifestation of its
spirit.
The rights of the people have a universal as an individual element, and move toward one end in every nation,
and thus there is a correspondence in different nations.
But the one element does not preclude the other, they have
an integral and individual character. They have no exotic forms, and cannot at once he transplanted from one
people to another. They cannot be applied as abstract
ideas adopted with some abstract system. Thus, in the
development of rights, while they may not always have
the harmony of a system, yet formed in the life of the
people they have a deeper unity, and, wrought and forged
in the great events of its history, they have subtler power
and robuster proportions.
There is a certain representation of rights in which




104                   THE NATION.
they are defined as original and acquired rights.  But
strictly there is only one original right, the right of personality, and to this all others may be referred.  It is the
right which is primitive in the rights of man, the right
of a man to be himself.  The term  acquired rights, when
rights are held as the acquisition or private property of
certain individuals or families, denotes a condition isolated
from the normal and organic being of the nation, and deriving its content from traditional force, or custom or accident; it describes rather the privileges or prerogatives of
an individual or a class. These may invade the whole
sphere of natural rights, and when encroaching upon them,
become in reality the ancient wrongs of a people. Acquired rights are positive, but they have no necessary basis
beyond, and exist only as the creation of law.
There is a definition of rights as absolute and relative.
The defect in the phrase absolute, as applied to rights, has
been noticed; there is, moreover, no necessary antithesis to
separate relative rights and the rights of personality, since
all rights are the rights of persons in certain relations.
The term  describes mainly the rights of persons in certain necessary relations, as for instance the rights in the
family, of the parent and child, of the husband and wife,
and these relations are founded in nature, and maintained
by the nation, as belonging to a moral order.
There is sometimes added to the same category the
rights of corporations,-"'artificial persons created by
law, under the denomination of persons."   These rights
are more exactly defined as franchises and privileges.
They are formed by vesting a certain individual, or a
number of individuals, in a corporate character with an
artificial personality, and attaching thereto certain definite
franchises and privileges, which, since the artificial personality is constructed, are described as rights. They are
1 1 Kent's Comm. 3.




THE NATION THE INSTITUTION OF RIGHTS.      105
created by the state in its enactment, and have their origin and limitation in positive law.  Their accumulation in
great monopolies, presumed to be chartered for tlhe public
advantage, is to be rigorously defined, and if not guarded
may be an injury to the natural rights of the people.
Tley are only the creation1 of law and exist always in
subordination  to the law  of the public weal, but the
strength, which resides in their assumption, by a legal
fiction, of personality, is a significant illustration of the
real ground of rights.
There is a definition, the most prominent in the history
of civil rights, in which they are described as the rights of
persons and the rights of things.  This had its source in
Roman law, which defined rights as ad personam and ad
rem, and it had there a better justification than in later
civilization, since in Roman law the definition of humanity, as Hegel says, was impossible.1 In Roman law, rights
ad personam  are not the rights of a person as such, but
the riglhts of a certain person or of a person in a certain
status; personality as distinct from  slavery, is represented as only a status or a condition.  The phrase in
which the distinction appears, remains as a reminiscence
of the Roman conception, or is retained as a technical
term  or as a nice rhetorical antithesis.  It denotes, says
Christian, " by the former the rights of persons in public
stations, and by the latter the rights of persons in private
relations." 2 But since all rights are the rights of persons,
and things can be only the objects of action, the merely
verbal antithesis involves confusion and may become the
source of constant error.
The description of rights as existent in some formal
1 -Tegel, Philosophie des Rechts, p. 23.
2 1 B1. Comm. 123.
" Now rights and obligations are manifestly the attributes of persons, not of




106                    THE NATION.
system which the nation is to apply is unhistorical. Rights
are represented thus as complete and beyond modification.
They are the fiamework out of which man is to construct society, the house which is so built that one state
may move out and another come in.       They are the dry
anatomy which a political spirit is to clothe with life. This
can be justified only as the origin of the nation is defined
in a formal law; it is inconsistent with its organic being.
The nation is the realization of rights.  The foundation
of righlts is in the nature of man, but their positive determination is in the civil and political organization.
Tile content of rights is in personality; the realization
of rights is in the being of the nation as a moral organism.
There is for rights no positive existence apart from the
nation.   The imaginary state of nature in which rights
are represented as existing in their completeness, apart
from the civil and political being of society, is unreal, it is
only the fiction in which man is stripped of the actual
circumstance and relations of life, in order that he may be
costumed in the theories and speculations of later schools.
There is beyond the civil and political organization no
right but might; there is no security, and rights which are
primary, as of life and liberty and property, are neither
acknowledged or affirmed.   The absence of the rights of
man is characteristic of his existence, in so far as the
germ of the nation is undeveloped and its form undefined.
There is in the nation the institution, not the creation
of rights.  Since their foundation is in the nature of man,
and their affirmation is in the nation, and since no man
can take that which is by nature his right, simply as a
things, and to divide rights, as Blackstone, into the rights of persons and the
rights of things, if by the latter words are meant rights not over in or to, but
belonging to or inherent and vested in things, we have seen evinces either inaccuracy of thought, or is at best misapplication of language." - Reddies' Inquiries, etc., p. 171.




THE NATION THE INSTITUTION OF RIGHTS.     107
gift, they are formed and maintained in the nation only
as the being of the nation has a divine origin and is itself
a divine gift. Tlere is, therefore, in the development of
the nation the manifestation of the riglhts given of God to
man.   Thus, in the representation of the nation as only
an external organization, or as an economic association,
there can be no just conception of the origin or subsistence
of righlts.  Thus, also, they cannot be regarded as having their origin in law; in law there is their assertion'
but not their creation, and in law there can never be the
perfect measure or expression of them. In the course of
the nation their recognition in law, in any moment, is necessarily incomplete, and is never a finality, but is always
advancing to correspond to the life and the freedom they
represent.
Since tlle nation has its being in the realization of rights,
the higrhest obligation of the nation is that rights be real.
In the institution of rights there is the manifestation of
the nature of' man as it is made in the divine image. As
the orioin of the rights of man is in his creation in the
divine image, so also is their realization in the nation the
fulfillment of the divine will. As the realization of rights
is in the vocation and the destination of the people, so
also is the ricghteousness in which they are wrought the
condition of the being of the people. The realization of
the rights of humanity in the nation is the fulfillment of
righteousness.  It is in the being of the nation as a moral
person that there is the realization of rights, and in this is
tlhe affirmation of righteousness on the earth, and therein
also the nation, in its personality, can subsist only in the
righteous name, and can proceed only in the righteous
will of God.




CHAPTER VII.
THE NATION      THE REALIZATION        OF FREEDOM.
THE necessary being of the nation is in the realization
of freedom; that is, its end is to make freedom           real, and
its development is only as it does make freedom           real.
The freedom      of the people subsists in the nation         as a
moral person.'Freedom    is the manifestation of personality.       Man has in
his nature impulses and the power of following them, and
desires and the power of gratifying them; but his being is
not in these, and deeper than these and beyond these, there
is a consciousness of an I -     a person. In the assertion and
the realization of this, and in the exclusion of all that is
alien fiom   this, alone is fieedom.       It is the realization    in
man, through      his own    self-determination, of his true being.   The law     of freedom    is the law    which is laid in the
being   of personality.     The act of freedom       is a self-determinate act, the determination of personality.1
1 There is a common phrase in ethics, which asserts the existence of law
precedent to life -a law precedent to the divine being, or as the phrase is, in
one shape, "the throne of justice is above the throne of God; we may appeal
from the throne of God to the throne of justice." If there be the assertion of a
law as existent "in the beginning," those who postulate a law having a moral
content as the just, and those who postulate a law which exists only as a formula
of thought, -the necessary limitation of conception - may oppose each other,
but the bystander can scarcely question the result; the latter has a consistence
which the former cannot claim, and the pure dialectic has the start of the ethic.
But the law which has for its substance the good or the right, is in the divine person, the being of God; it is the will of God. The assumption of a
precedent law is not necessary to the assertion of the immutability of the good,
as it is apparent in moral distinctions, for this immutability is in the immutable
being,- the personal being of God; and then it is manifest in the moral order
of the world, as the moral order is the realization of the will of God. The good




THE NATION THE REALIZATION           OF FREEDOM.         109
The assertion of personality is in the will. Tile will derives from    personality   its content.     The    self-determined
will alone is free.      The will defined in an        abstract and
formal conception, and divested of personality, and its subsistence in it, allows no freedom, and when thus divested
of its content it is without freedom       also.
The action which is arbitrary is not free. It is the mere
formal act of the will; it proceeds only from o        the will, not
from  the conscious determination of personality, -           that is,
the whole, the real person, -       and having no other source,
it is only willfulness.    This action, separated thus from        its
subsistence in personality, is mere force, and instead of
implying force of character, it is force without character.
It is a barren sceptre.       It has no more dignity than the
operation of a pllysical power in nature.          The will in this
conception may be as strong and as unbending as iron, but
its quality is no better than iron.
is maintained in the realization of a moral order by the divine will, and this in
the relations of a moral order is the just.
"The good is as little a law for the divine will (that is, God wills it because
it is already in itself good) as it is a creation of the divine wiill (that is, that it
first becomes the good, because and after that God has willed it), but it is even
in itself the original will of God, from eternity to eternity. The good, as the
substance of the divine will, is something specific, distinct fiom the divine reason and the divine omnipotence; not less original thanl these: it springs originally purely out of the will, but it springs not out of the abstract conception,
(abstraktum) of the will (Kant's abstract conception of the principle, be a law
unto thyself; or Fichte's abstract conception of pure self-activity); nor fiomn the
formal conception (formalismus) of the operations of the will (Hegel's development of the moral out of the (momente) incident of the operations of the will),
but it springs out of the eternal positive (inhalte) content of the will.
"The good is, to speak in a general way, nothing else than the substance of a
person. Man can therefore endeavor to derive the conceptions which we recognize in the attributes of God, and the virtues of man from the original conception of personality. In the substance of personality there lies the spirituality
which contends against losing itself in external objects and in sensual inputlses,
and of this alone and of nothing else, has the ethic of Kant and Fichte given a
scientific representation; in the substance of personality there lies further the
unchangeableness of the will, that in relation to the moral order of the world is
the just; in the substance of personality is the love that goes forth toward those
who are persons; in the substance of personality there is the oneness of all these
energies and qualities in the innermost centre - the person; and therewith its
impenetrability by all that is external or strange or alien to it-its holiness 
— Stahl's Philosophie des Rechts, vol. ii. sec. 1, pp. 85, 86.




110                   THE NATION.
The action which springs immediately from impulse or
appetite is not free. The pursuance of a blind instinct, or
the subjection to a strong passion, is the negation of fieedom.   Thus the animal is unfree.  It is determined and
limited by its animal nature.  The desires and the emotions, the impulse and the passion of men, as separate from
personality, are therefore to be apprehended as external
to the will, and tle immediate subjection to them is ignoble, as the degradation of personality, and unworthy, as
the negation of the true and real self in man; there is in
it the loss of freedom. Thus Shakespeare says:"I'll never
Be such a gosling to obey instinct, but stand,
As if a man were author of himself
And knew no other kin."
The action which is merely unlimited and unrestrained
is not free; the power to do whatever one lists or pleases
is not freedom. The most false representation of fieedomn
is this apprehension of it in the absence of restraint.  It
is then identified with mere caprice.  The freedom which
in this assumption is called natural freedom is unreal. It
is illustrated by the old words denoting the widest and the
most unrestrained play of desire, "a boy's will is the
wind's will."  But in that unceasing motion and that
sweep of limitless fields there is no freedom. It is not
until the boy has passed on to the life of a personality,
realized in its conscious self-determination, tlat he is truly
free. Yet it was only this false conception of freedom
which appeared in the later phases of the French Revolution. Freedom   was sought in the removal of all that
was assumed as a limitation. It was to be attained in
the erasure of the whole organization of society, and of
all the institutions and associations of the past. The
path of the revolution, in its principle, was not far from
that of the cloister, and the ideal still was that which had
been sought in the via negativa of the mystic. It oblit



THE NATION THE REALIZATION OF FREEDOM.    111
erated all that appeared beyond its immediate intent.
The existing order was to be determined in tile monentary action of the individual. It was not a freedom which
presumed the existence of the nation in its organic and
moral being, a freedom which had a moral content, but it
was assumed to consist in the absence of all limitation and
restraint. Then when all the institutions of the past were
swept away, and no apparent barrier was before men to
check their advance, and there was notling in the wide
blank of the horizon to debar them, there was a painful
discovery tlat they were not yet fiee.  It was the rejection of the moral relations whlich subsist in the nation, and
the striving after fieedom in mere vacancy, that opened
the way to any influence from without that might take
possession of the empty domain. In the denial of all organic and moral relations tlere arose everywhere the distrust and crimination of mlen, and there followed what
was called the reign of terror, when those who never
were bidden, came to the room all swept and garnished,
and men became tle slaves of fear and of dread, and the
way was open to the entrance of an imperial power.
The action which is simply momentary is not free. The
will in its freedom has elements of continuity and identity,
which subsist in personality and are reflected in character.
It is not merely the capacity to vault hither and thither,
and to pass and repass from the one side to the other.
The power of choice certainly is involved in freedom, and
therefore it is to be recognized as existent in it, and it is
not to be obstructed nor confined by that wlich allows no
room for individuality to act, and no sphere in which it
may have its sweep; but the choice in which freedom is
realized is the choice which is in accordance with personality, - it is the realization of personality. The active
choice between good and evil in man is brought forward
in the contradiction of his nature, and in the issue of the
conflict of life, and it appears in his being influenced by a




112                  THE NATION.
power against himself and by a presence alien to his true
and real self; and in this there is manifest, not the freedom
of man, but the defect of fieedom. The error in the popular apprehension of freedom in the schools of theology,
and as it goes out from them in politics, is in representing
it as consisting only in a power of choice, only an empty
formal possibility in the life of man, but having no determinate moral content.  The freedom of man is not
simlnlly in tills momentary choice, and the realization of
freedlom is not in the broader road opened before it and
the wider scope of possibility in its action. It is not found
in thle larger alternative between right and wrong, or the
longer balance witll tile more even play between them.
It is iiot found in the perfect suspense between the opposite forces, and it is not won by the people that stand on
neutral ground.  On tile colntrary, in thle higher freedom
of man there is tlhe less clioice between thle good and
the evil, and there is the less possibility of a decision unworthy of one's real and true self, that is an ignoble decision.
When the will is represented as only in identity with
the power of choice, wlich when thus emptied of all moral
content is the merely willful, that is, the arbitrary, then
the assertion of this power is not freedom, and the maintenance of this power is not among the rights of men.  The
nation is to realize the freedom of man, and to guard it in
the institution of rights, but it is not in any conception to
establish the wider province, and to open the more unlimited scope for this power to act, and to guard the exercise
of it, and to remove all restrictions fiom its way, and to
keep it from all hindrance and molestation, in the indefinite sweep of its arbitrations. The fieedom of the citizen
is not defined in the power to turn a traitor, nor is all restraint upon the power of turning to be forbidden. That
people would not be the more free, in which the larger
choice was left open to its soldiers to desert, and which




THE NATION THE REALIZATION OF FREEDOM.    113
made such action a principle of rights, as it must become
if it be the real freedom of man; but the people is the
more free when there is in the spirit of its soldiers no
possibility of desertion, and the soldier is the more free to
whom even the suggestion of such action does not come,
who is beyond its suspicion, and who knows only and determines only to meet and fight the enemy. The soldier
who even deliberates, or allows the choice to pass before
him, is the less free  the more exposed to subjection to
impulse and fear. This assertion of the mere power of
choice is not freedom, and its maintenance is not among
the rights of men, and its extension does not constitute the
progress of the people. In the choice and the assertion
of the right, man acts in accordance with his real and innermost being, his own true self, and with the exclusion
of all that is alien as external to that being, but in the
opposite, man chooses that which subverts personality and
subjects him to evil, that which does not belong to his
being, which comes out in the contradiction of his nature; but in freedom and the realization of freedom there
is no contradiction, - there is in it alone the act and the
unfolding of the true being of man.
Freedom is not attained in the negation, in which man
without personality, as if all before was a blank, momentarily determines whether to be this or that, whether to do
or not to do. In the determination which is in the right,
there is alone in the individual and the nation the realization of freedom and the attainment of the being and end
of each.
The nation is the realization of the freedom of the people.
The freedom of the people subsists in the being of the
nation as a moral person.
If the nation be regarded as only a formal organization,
an exposition of a barren system of rights and a miscellany of institutions, then only a formal freedom can be
8




114                      THE NATION.
predicated of it as also the postulate of a formal freedom
has its sequence in an empty and formal conception of
the nation.   But the real freedom     of the nation in which
it works out its end as a power in history, the freedom in
the attainment of the vocation of the people, in the manifestation of its own character, in the strength and endurance of its own will in the divine will, in whose purpose
is the development of history in the moral order of the
world, - this freedom can have no ground in a merely
formal conception.
The defect in the popular definitions of the schools, of
the freedom of the nation or political freedom, is consequent on their proceeding from this formal conception, and
while only a formal conception has been assumed, and a
formal definition has been allowed, it is not singular that
the latter has been, as Mr. Hurd calls it, the problem      of
publicists. Thus the subject which is central in politics
and formative    of its whole course, has obtained in this
premise no clear definition.    Dr. Lieber, in a treatise concerned   exclusively  with  national and    political freedom,
represents it as " that liberty which results from the application of the general idea of freedom to the civil state of
man." 1   In  this reference to "the general idea of freedom," the subject is left undefined, and one is sent in quest
of the "general idea."    And the freedom of the people in
its organic and moral being, that is, national freedom, is
avoided in these abstractions. It does not exist thus complete in an abstract form, which a people is then to adopt
1 Lieber's Civil Liberty, etc., vol. i. p. 34.
Dr. Lieber, in attaching so great weight to certain institutions of freedom, allows no corresponding weight to the fact that these institutions have their only
ground in the organic unity of the people in the nation. This leads to the application of certain institutions of a certain type to all nations, and thus all are
to be made to conform to an Anglican type. But while recognizing the worth of
these institutions, in themselves, to civilization, the condition of freedom is
the national spirit of the people, which will mould institutions in its own
strong individuality. While the United States has in its history a lineal relation to some of these institutions, and they are an inheritance of inestimable value, yet work is to be done in new conditions, and in a life which is neither
Anglican nor Gallican.




THE NATION     THE REALIZATION       OF FREEDOM.        115
and apply by some induction, and when thus apprehended
it can result only in the construction of a formal system
or a collocation of institutions.      It would be as consistent
to represent the freedom of the individual person, as the
assumption and application of the " general idea."
The freedom     of the people, or political freedom, subsists
in the nation in its organic and moral unity. It is the
self-determination of the people, in the nation, as a moral
person. It is formed in the conscious life, and its process
is in the conscious vocation of the organic people.1
Freedom     has, apart from    the nation, no positive existence. Thus among the vast populations of Asia, there is
no political freedom, but only the natural freedom           of man,
and the term    freedom    can be applied to those peoples only
negatively as denoting the absence of a positive system ofslavery.    Thus, also, in the loss or the destruction         of the
national unity, that is, the organic and moral being of the
1 Milton's whole argument rests on the identity of political and moral fieedom,
and the utter rejection of any conception which does not presume this. He says
of the formal representation, -"The way to freedom is without intricacies,
without the introducement of new or absolute forms or terms, or exotic models,
ideas that would effect nothing." - Milton's Workcs, ii. 127. It is " a real and
substantial freedom, which is rather to be sought from withia than from without,
and whose existence depends not so much on the terror of the sword as on sobriety of conduct and integrity of life." -  Works, i. 208. " Unless that liberty
which is of such a kind as arms can neither procure nor take away, which alone
is the fruit of piety, of justice, of temperance, and unadulterated virtue, shall
have taken deep root in your minds and hearts, there will not be long wanting
one who will snatch from you by treachery what you have acquired by arms;
unless by the means of piety, not frothy and loquacious, but operative, unadulterated and sincere, you clear the horizon of the mind from those mists of
superstition which arise from the ignorance of true religion, you will always
have those, who will bend your necks to the yoke, as if you were brutes, who
notwithstanding all your triumphs, will put you up to the highest bidder, as if
you were mere booty made in war; and will find an exuberant source of wealth
in your ignorance and superstition. You, therefore, who wish to be free, either
instantly be wise, or as soon as possible cease to be fools; if you thinkl slavery
an intolerable evil, learn obedience to reason, and the government of yourselves;
and finally bid adieu to your dissensions, your jealousies, your superstitions,
your outrages, your lusts. Unless you will spare no pains to effect this, you
must be judged unfit both by God and mankind to be intrusted with the possession of liberty and the administration of government, but will rather, like a
nation in a state of pupilage, want some active and courageous guardian to undertake the management of your affairs." -  Works, ii. 295.




116                     THE NATION.
people, its freedom perishes although its external condition
and its sphere of external circumstance, for the individual,
may not at once be materially changed.        The form   and
external institutions of society may remain as before in so
far as individual action and individual pursuits are concerned, but the freedom of the people expires with the
national being. It was not in this form nor in these institutions, and it cannot be perpetuated in them alone. The
external structure of society in which the individual moved
was not immediately subverted nor destroyed in the dissolution of the national life of Greece and Rome, but their
freedom, which.was of their spirit, immediately perished.
The freedom of the people, or political freedom, is formed
in the self-determination of the people. This precludes all
external constraint, since an action which is constrained
by a power or influence external to the will, is not free.
This precludes also the conduct of the people itself, from
mere impulse or passion, for since these are external to
the will, in so far as it is controlled by them, there is no
freedom.    The course which is the result of mere whim
or willfulness, the caprice of men in its desultory play,
is not of the freedom of the people; in it personality is
overborne, and the very unity which is the condition of
the freedom of the people is lost, and there appears the
agitation of the popular tumult, but not the conscious
order of the state.1
The freedom of the people, or political freedom, involves
the assertion of law.   It subsists in the nation in its normal being. There is in it, therefore, the assertion and the
manifestation of law, but it has not therefore a formal
1 Bluntschli says, "Natural freedom is the power to do whatever one likes.
Moral freedom is the manifestation of the will, and the power to do what is becoming to one's own nature and in accordance with the divine economy in the
world. Freedom in its political conception presumes the organization of rights,
of which it is a part. It is the power and warranty protected and secured by
the law to exercise a self-determined end." - Allyemeinen Statsrechts, vol.
ii. p. 487.




THE NATION THE REALIZATION OF FREEDOM.     117
ground which would follow if the law was merely external
and definitive only of a formal order. The law which is
asserted in it, as the norm of its action, is the law in the
foundation of its being and is realized in its being, - in its
self-determination, as a moral person. There is thus in law
and freedom an inner unity. In the limitations defined in
law, there is, therefore, no bondage, but they become the
evidence of the emancipation of man.  This emancipation
is not indeed in the institution of mere external limitations,
which are devoid of all content and may be only obstructions, nor in the mere limitations of formal laws, but in a
life which is formed in moral relations, and the laws which
are asserted are those which define and regulate those relations.  Freedom, in the assertion of law, assumes restraint and accepts obligations in the relations of an organic and moral being, and in these there is no limitation
in the sense of hindrance, or as the mere impediment to
action.  There is in them  no barrier, but freedom  is
wrought through them. It is a divinity that doth hedge
us in. The law in the being of personality, instead of
the terminus of freedom, is its postulate.
The freedom of the people, or political freedom, is the
realization of the self-determination of the people in the
nation as an ethical organism.  There is in it the expression of the self-determination that is the freedom of a person, in an order which is formed in moral relations.
There is in it the assertion of the. individual person. The
order in which he is to act and to which he is to be subject, is to correspond to his own inner being, - to accord
with his own real and true self. The sphere in which he
is to work must consist with his own aim and endeavor,
It is thus that every polity, and all laws which are immoral are destructive of freedom, as they are subversive of
the true being of men, and are repressive, and hold the
elements of tyranny. But in the increase of the freedom
of the nation, its political order becomes always the more




118                   THE NATION.
perfect expression of the moral being and longing of the
individual person, and therefore of his own true and inner self. Then as the self-determination of the people is
manifested in the nation, the individual person in his
action attains in it his determination, and in his obedience to it he is obeying his own true and inner self.
There is in it the correspondence to his own being, and
the embodiment of his own aim. That this attainment is
at any moment imperfect, is because the individual and
the nation have a life which for each is a development;
and then also the life of each is subject to the conditions
of a moral conflict. But every polity which avoids this
end and neglects to regard or to build upon it, or to strive
constantly for its attainment, is itself inherently weak, and
only increases the action of disturbing forces, and clogs
and thwarts the course of the people, and delays, while it
cannot prevent, its inevitable coming, in the development
of the nation.
The freedom of the people, or political freedom, presumes
that the political order shall conform to the will of the political people. It is not to be restricted by forms and institutions which are alien from it, nor compressed into the cast
of some exotic mould, and these limitations, while they
impede the free course of the people, may induce a spirit
not of law, but of legality, which may be the worst tyranny.
It is not to be directed by the exclusive aim and interest
of an individual or a family or a class, which are over but
not of the nation, and in this there is the inception of a
despotism, not the freedom of the people.
The freedom  of the people, or political freedom, presumes also that the political order shall express the conscious spirit of the people. It is to be open to the knowledge of the people. The policy and laws are not to be
kept as the mystery of a craft, or the tradition of a caste,
nor as the speciality of a class. The political design is
not to be locked up as a state secret, nor to be conducted




THE NATION THE REALIZATION OF FREEDOM.      119
by hidden bureaus. The laws are not to be withheld, as
if written only in volumes where the people cannot have
access to them, but the whole course and action of the
state is to be open to the knowledge of the people, and its
loyalty and its obedience is to be the assertion of a conscious spirit.
The realization of the freedom of the nation, or political
freedom, is in rights.  Freedom  embodies itself in rights,
as in rights also there is the manifestation of personality.
The institution of positive rights defines in the nation the
sphere of a realized freedom.  There is in freedom the
right which is fundamental in the rights of man; freedom
is the eternal right of a man to be himself. It is not the
exclusive claim of an individual or a family or a class, but
of man, as the nation has no lower nor special end, but a
universal end in the rights of man.
The freedom of the people as it becomes determinate
establishes itself in rights, and in its advance it raises barriers in the institution of rights against alien forces and
evil influences, the principalities and powers that hinder
and thwart it. It is only in rights that freedom is actualized in the nation; it is only in positive rights that it
gains a sure foothold in its progress; they alone afford the
requisite strength and security for it. In rights freedom
is guarded against denial, fortified against fraud, shielded
against conspiracy and surprise and sudden overthrow.
In the same measure in which freedom fails to establish
itself in rights, whose institution is in law, it is liable to the
whim and the caprice of men, and the highest interest is
left to the adjustment of changing circumstance.  This
secure institution and organization of freedom in positive
rights is the work of the statesman. It demands the more
comprehensive political sagacity. Freedom does not gain
much while it is held in an ideal conception, and is left to
the pages of scholars, or the rhymes of poets, or the voices




120                  THE NATION.
of orators. These are not laws, and the condition of every
advance in freedom is its assertion in laws and its organization in rights. It has in their strong guaranties alone protection against selfish interests and private aims.
The identity of freedom  and of rights in the nation is
implied in their subsistence in personality, and thus we
cannot conceive of the actual existence of an individual
in a civil or political relation, or of a nation in which there
is freedom but no rights.1 The second clause of the thirteenth article of the Constitution is not superfluous, and
the nation necessarily can only enforce the declaration of
freedom by the institution and the maintenance, through
laws, of rights.  To grant freedom but no rights would
be fit subject for the fool who is always about the king's
court in Shakespeare, and fit work only for some king's
jester.
The freedom of the people never attains its perfect expression in the organization of rights.  It may strive unceasingly toward this end, and with toil and energy it
may shape them in their clearness and strength, and yet in
its spirit it is always beyond them.  They can thus, in no
moment in the history of a people, be regarded as having
obtained their ultimate form, nor can the people have in
them the perfect satisfaction of its aim. Its endeavor is
always to mould the organization of rights toward the expression of its ampler and fairer freedom.
As the freedom of the people is established in rights,
these rights, through laws, may be embodied in institutions. There may thus often be traced in the form and
growth of these institutions the progress of rights and the
line of their advancement.  These institutions often have
thus of themselves an historical increase, and are wrought
into shape and use in the history of the people. They are
1 " Freedom in its civil and political conception, can never be separated from
the process of rights which is its ground and its support." - Blun.tschli's Allgem.
Statsrechts, vol. ii. p. 488.




THE NATION THE REALIZATION OF FREEDOM.     121
guaranties in which rights are fortified and stand as the
barriers against the betrayal of freedom from within, or its
invasion from without. They endure against the assumptions of arbitrary power, and in them, as in a retreat, freedom may hold out through evil days of apathy, and is
secure against overthrow alike from the agitation of the
many and the conspiracy of the few.  The illustration of
these institutions is, for instance, in the organization and
administration of the township; in the trial by jury; in
the office of the justice of the peace; in the common law.
These institutions have often also their expression, while
their exact form is of slight significance, in some sturdy
maxim of the people, some "words that have hands and
feet," some sentence in whose clear light the way is seen
through dangerous channels, and whose signal is the alarm
of freedom. An illustration of this is in the phrase which
denotes the right to the sanctity of home,-" every man's
house is his castle."
There are certain conceptions of political freedom which,
in their error and their defect from its necessary conception, can tend only to thwart or delay its progress.
It is represented as in itself a negation, and as appearing in the check or balance of opposing forces, or in the
restriction of adverse power. This has its postulate in the
assumption that power is in itself essentially dangerous in
the state, and that freedom is manifested in the construction of certain other powers to stand against the current
and keep it back; and these, then, since danger is inherent
in power, require the building of others to offset them, and
so the erection is to go on indefinitely, and the degree of
freedom is graduated by the successive and alternative restrictions of power. It is indeed true that freedom, in the
conditions of history, presumes an unceasing conflict, and
must overcome adverse elements, and at every advance
intrench itself in positive rights. But freedom is. in itself




122                  THE NATION.
a determinate power, and of itself advancing; rights only
denote in their institution its line of march. And checks
and guaranties have only the strength which they may
obtain from the power which shapes and holds the check,
and asserts and maintains the guaranty. Freedom is no
negation as is assumed in this conception; it is not found
in the construction of the most exact and formal balance
of opposing interests or classes or factions. The balance
in itself could effect nothing, and instead of the living
unity, which is the condition of freedom, it implies the
disintegration of society which it regards as only the combination of certain separate interests which are to be pitted
against each other. Freedom is not in this negation, but
in the positive determination of the people, and conversely
the weakness which appears in the decay of national
power is in the loss of freedom, when the people can
assert no rights, and even in its spirit can apprehend none.
Freedom is alone the power of the people in its organic
and moral life; it is the might of the living people; it
may break in one moment the fetters which centuries of
oppression have forged, and throw down prison walls in
which evil dominations have labored to immure the spirit
of man.
Political freedom is represented also as existent only as
some spectral ideal, some remote abstraction. It is described as some imaginary figure, if it have shape or form,
which exists, in its perfectness, in isolation from the body
politic, and distant from the organization of the nation.
But the ideal is not the contradiction of the real; it is in
identity with it, and is striving always toward a more perfect embodiment in it; the ideal is not the unreal. There
are sometimes those who, in the guise of a specious devotion to freedom, are ready to consent to the dismemberment of the nation, and for some spectral and abstract
presentation of freedom would conspire for the destruction




THE NATION THE REALIZATION OF FREEDOM.    123
of the whole organization in which it has toiled toward its
realization, however imperfect its advance. This is that
blind fanaticism, that weak egoism, which is the unreason
of the state. These visionaries cannot build again in the
ruins it was so easy to make; it is only destructive forces
that work thus swiftly; freedom will not follow at their
behest, nor go and return at their beckoning, nor enter
the abodes to which they invite it, and it is only with
long and patient toil and sacrifice that the organization is
won by the people in which it dwells.
Political freedom is represented as a power formed in
external limitations, or as construed in the formal relations
of the individual and the nation. Mr. Emerson says it
is the largest liberty compatible with the liberty of every
other man. But freedom is not described in this external limitation, nor is the freedom of one the restriction
of the freedom of another. This confounds freedom with
arbitrariness, and it is only willfulness that is incompatible.
Freedom is not thus attained through infinite individual
antagonisms. The largest freedom in each is consistent
with the same in all. This conception empties freedom of
all moral content, and it could be constructive only of a
formal, not a real freedom. It could not be the postulate
of the freedom of the people in its organic and moral being and relations in history. The freedom of one is no
limitation to the freedom of another, but an aid toward his
emancipation.
Political freedom is represented as something which
may be bestowed or withheld by some external power. It
is apprehended as the circumstance of a formal law, the
consequent in a formal order; it is described as the boon
of some priest or emperor, some preacher or convention.
It is true that a power on earth may acknowledge or
deny it, and may do much to aid its growth or to crush it




124                  THE NATION.
in the spirits of men, but it belongs to none, neither priest,
nor preacher, nor president, nor congress, nor emperor,
nor armies, to bestow it. It is not received as a gift; it
belongs to the spirit of man, and therefore is only of God;
and only as the personality of man has its subsistence in
God, is emancipation wrought in it; and only as the nation
is a moral person, in the crises of its deliverance, is He
recognized as its deliverer.
There is a representation of the origin and nature of
political fieedom which, as affecting the conception of the
moral being of the nation, involves the most false of political sophistries. It is the theory which is built upon the
postulate that mal possesses a real freedom in a condition precedent to the nation, and that he then surrenders
a certain part of it upon his entrance into it. Freedom is
represented as existent in this condition which is precedent to society, in its perfectness, and as diminished when
man enters society, and to that extent he suffers a deprivation of it in consideration of certain other advantages
which are secured to him in its stead. Blackstone says,
" Every man, when he enters into society, gives up a part
of his natural liberty, as the price of so valuable a purchase."'  This part is regarded as surrendered in order
to secure the residue, or as exchanged for certain other
advantages, held at an equal valuation.
This representation of the origin and nature of freedom
proceeds on the assumption of the social contract.  It is
implied, also, in the position of Mr. Emerson, which was
also the position of Kant, when the liberty of one person
in society is the possible limitation or restriction of the liberty of another person.
But this condition in.which man is represented as existing anterior or exterior to society, and in which freedom is
conceived as flourishing, has no reality. It is a fiction, and
1 1 B Comm. 125.




THE NATION THE REALIZATION OF FREEDOM.    125
is only a repetition of the picture sketched so many times,
and for so many uses, in the imagination of political theorists. In the actual condition of man, in so far as he is
withdrawn.firom the organization of the state, there is no
freedom.   The records of the actual condition are of a
life in which man is most of all a slave, and a slave to the
lowest and meanest wants. He seems the subject of nature, and not one who is to assert dominion over it. It is
a stage of abject dependence. There is no freedom, and
the recognition of no rights, but each is exposed to the
open wrongs of every enemy. There is no security for
life, or liberty, or property. The freedom, then, which man
is supposed to barter away in a certain part, upon entering
society, in order to keep the remainder, has no existence.
It is an imaginary possession which then afterwards, by
an imaginary transfer, is conveyed to the state. The proposition falls with the fiction of the social contract in which
it has its premise.
It bears also the conception of private property into the
state, and makes freedom itself a concern of formal transfer and exchange. It contradicts the necessary conception of freedom, which is no longer a living and moral
power, but apprehended as something which the owner
can parcel out and traffic in; and it is by trade in freedom.
that man is represented as entering the state, and he not,
only buys but sells out.
To this there are also the same objections as to tihe social contract; and men do not from a precedent condition
enter the state voluntarily, nor with specifications in this
style.  It contradicts also the necessary conception of
freedom as involving law, when it is thus represented, for
the nation is the sphere of law. It could then also, if it
were an actual occurrence, result only in a formal freedom, since the amount which is retained in the state
would have its formal reduction, in the amount of the




126                  THE NATION.
entrance fee, which is the condition of the purchase or
exchange.
This proposition is inconsistent also with the common
language of men, and there is scarcely any fact of deeper
significance, or capable of wider illustration, than that
which makes a synonym of citizen and freeman.
This proposition implies also a conception of natural
freedom which is not a real freedom, but the arbitrariness of the individual, and the freedom of the whole is
then only in the limitation of the arbitrariness of each.
The contrast to this false conception of freedom, was
given in words worthy of an inaugural, in the beginning of the history of the nation, by a governor of one of
the early commonwealths, -" There is a twofold liberty,
natural - I mean as our nature is now corrupt — and
civil or federal. The first is common to man with beasts
and other creatures. By this man, as he stands in relation
to man, simply hath liberty to do what he lists; it is a liberty to evil as well as to good. This liberty is incompatible and inconsistent with authority.  The exercise and
maintaining of this liberty makes men grow more evil, and
in time be worse than brute beasts:' omnes sumus licentia
deteriores.' This is that great enemy of truth and peace,
that wild beast, which all the ordinances of God are bent
against to restrain and subdue it. The other kind of liberty I call civil or federal; it may also be termed moral, in
reference to the covenant between God and man, in the
moral law, and the political covenants and constitutions
amongst men themselves. This liberty is the proper end
and object of authority, and cannot subsist without it; and
it is a liberty to that only which is good, just, and honest.
This liberty you are to stand for not only with the hazard
of your goods, but of your lives if need be. Whatsoever
crosseth this is not authority but a distemper thereof. This
liberty is maintained and exercised in a way of subjection




THE NATION THE REALIZATION OF FREEDOM.     127
to authority; it is of the same kind of liberty wherewith
Christ hath made us free." 1
The great epochs in the lives of nations in the modern
world, have been the realization of the freedom of man.
It has been said that what the German Reformation whispered in the closet, the French Revolution shouted on the
house-tops, that man should be free; and the end of the
American War was the assertion that the nation in its
conscious spirit is the realization of freedom, and that in
the freedom of humanity the nation has its conquest and its
end. In the nation freedom is real, and as freedom has
its subsistence in tie nation, so also in slavery is the resistance to the being of the nation.  The nation and slavery cannot abide in one house, but at last the one or the
other must be driven out. The nation must overcome and
destroy slavery, or at last be destroyed by it.  There is in
history the evidence of this, and as it appears in the ancient and in the modern world, - in the fall of Rome and
the uprising of America.
The antagonism with slavery is in the being of the nation. For as the nation is a moral person, and personality
is realized in freedom, slavery is its necessary antagonist,
and as it is the realization of rights, and in its universal
aim of the rights of humanity, slavery with the denial of
these rights and with the consequent degradation of humanity, is its immediate antagonist.
There is always a tendency in those withdrawn from the
battle, and its " confused noise and garments rolled in
blood," to bear its issues into some ideal and abstract sphere.
Thus the war is represented as the immediate conflict of
the antagonistic ideas, - freedom and slavery. The reality
is other than this; the hosts are mustered in no intellectual
arena, and the forces called into its field are other than
spectral ideas.  This tendency to resolve history into the
1 Winthrop's Journal, vol. ii. p. 13,




128                  THE NATION.
conflict and progress of abstract ideas, or the development
of what is called an intellectual conception, can apprehend
nothing of the real passion of history.  It knows not
what, with so deep significance, is called the burden of
history. It enters not into the travail of time, it discerns
not the presence of a living Person in the judgments which
are the crises of the world. It comprehends only some
intellectual conflict in the issue of necessary laws, but
not the strife of a living humanity. The process of a
legal formula, the evolution of a logical sequence, the supremacy of abstract ideas, this has nothing to compensate
for the agony and the suffering and the sacrifice of the
actual battle, and it discerns not the real glory of the deliverance of humanity, the real triumph borne through
but over death. There was in the war, in the issue which
came upon us, " even upon us," and in the sacrifice of those
who were called, the battle of the nation for its very being,
and it was the nation which slavery met in mortal strife,
The inevitable conflict was of slavery with the life of the
nation.
There is'no vague rhetoric, but a deep truth in the
words, - "liberty and union, now and forever, one and
inseparable." They are worthy to live upon the lips of
the people, for there can be no union without freedom,
since slavery has its necessary result in the dissolution of
the being of the nation, and there can be no freedom without union, for it is only in the being of the nation that
freedom becomes real.




CHAPTER VIII.
THE SOVEREIGNTY OF THE NATION.
THE freedom     of the nation has its correlate in the sovereignty of the nation.     Political sovereignty is the assertion of the self-determinate will of the organic people, and
in tllis there is the manifestation of its freedom.      It is in
and thlrough the determination of its sovereignty that the
order of the nation is constituted and maintained.1
The existence of the sovereignty of the nation, or political sovereignty, is indicated     by certain   signs or notes
which are universal: these are, independence, authority,
supremacy, unity, and majesty.
The sovereignty of the nation, or political sovereignty,
implies independence; it is subject to no external control,
but its action is in correspondence with its own determination.  It implies authority; it has thle strength inherent in
its own determination to assert and maintain it. It implies
supremacy; this does not presume the presence of other
powers which are inferior, but it is itself ultimate and can
be subordinate to none; it is suprema potestas.          It implies unity; this belongs to the necessary conception of
the will from which sovereignty proceeds, and in the will
1 The necessary correlation of sovereignty and freedom was expressed in the
common illustration of the old Protestant theologians,-" Liberum et voluntarium sunt synonVryia" ac voluntatem non liberam dicere, est perinde ac si quis
dicere velit, calidum absque calore." Hegel has a very beaiitiful statement of
the proposition (Philosophie des Reclts, pp 20-60). " Denn das frei ist der Wille.
Wille ohne freilieit ist ein leeres Wort." - Ibid. p. 23. Stahl says, "Desswegen
fallen anch Freiheit und Wille in ihrem urbegriff vollig zusammen, der Wille
ist frei, und es ist nichts Anderes, frei als nur der Wille."- Philosophic des
Rechts, vol. ii. sec. 1, p. 116.
9




180                      THE NATION.
alone, in which there is the highest and essential unity, is
the postulate of sovereignty; the presence, thus, of separate supreme powers, to which equal obedience is to be
rendered, involves a moral contradiction.     It is characterized by an inherent majesty; it is a majesty which manifests
itself in all the symbols of the state; it is not simply the
dignity of noble action, but it is the conscious possession
of powers and obligations, on which depend the highest
issues, in the history of humanity. This has had its expression always in the historical nations, appearing in the
purpose and action of the people in its higher national development.1
These are the indices by which the presence of political
sovereignty is indicated, and in them there is its external
manifestation.   There are in its content also certain capacities.
It is inalienable; the state cannot transfer it to another
nor divest itself of it, except that in the act itself its own
existence and its own freedom terminates.
It is indivisible; a divisive sovereignty is a contradiction
of that supremacy which is implied in its necessary conception, and inconsistent with its subsistence in the organic
will.
It is indefeasable;2 it cannot, through legal forms and
legists' devices, be annulled and avoided, nor can it be
voluntarily abdicated to be voluntarily resumed, but involves a continuity of power and action.
It is irresponsible to any external authority; there is
1 The peoples which were made subject to Rome, were thereby divested of a
separate sovereignty, and to all terms made with them, the Romans added, -
" Imperium majestatemque populi Romani, conservato sine dono malo. - Livy,
bk. 38, sec. 2.
"Majestas est amplitudo ac dignitas civitatis. Is eam minuit, qui exercitum
hostibus populi Romani tradidit,- minuit is, qui per vim multitudinis, rem ad
seditionem vocavit. - Cicero, De Oratore, bk. ii. sec. 38.
2 It is incapable by any juggle based upon legal analogies, of being defeated
or abrogated. In the expression of James Wilson, " sovereignty is and remains
in the people." -Jamison's Constitutional Convention, p. 20.




THE SOVEREIGNTY OF THE NATION.        131
none on earth over it to whom it has to justify its course,
or in. whose conclusion it has to abide.
It is comprehensive of the whole political order; it acts
in its determination as organic through the whole political
body, and its authority is conterminus with the whole; it
works through all the members, and in all the offices and
all the organs of the state.
The sovereignty of the nation, or political sovereignty,
primarily presumes the power in the political people to determine the form of its own political life. This cannot be
imposed upon it from without. It cannot be referred to
the dictation of any power over and separate from the nation, as some imperator. It cannot be restricted to certain
special formulas, and the nation is not to be compelled to
shape its order and organization after some theory and preconception of state forms which may be alien from it, and
thwart the purpose or defeat the hope of the people. The
oppression of a mere form or system in politics, may become the extremest tyranny, and far more crushing than
an imperial power for the will of the solitary tyrant cannot have so universal a sway, and there is always hope of
change, but the tyranny of a form or a system of itself
precludes change, and prevents progress, while it outlives
men and generations. In its own sovereignty and in its
own free spirit, the political people is to mould its own political life, and to embody in it its own ideal, and to apprehend in it its own aim.
There have been certain theories, which have only a
formal and historical interest, as to the residence of the
sovereignty of the nation in its normal process. These
assume the identity of its sovereignty with a certain form,
for which then a universality is claimed, and in their conclusion, they have become the assertion of a sovereignty
external to and against the nation, which in any form,
whether of an individual or a system, is the very definition of despotism. Their interest is merely illustrative.




132                  THE NATION.
It is said that the sovereignty is inherent in a family or
a certain number of families constituting the special aristocratical or regal organization, or caste, whom the possession
of certain qualities or some circumstance may at the outsetlhave designated, and thereafter it is to remain continuous in them by the necessary and organic law of the state.
This is the contradiction of tle real sovereignty of the
nation and its- freedom, and is the assertion not of a sovereignty in and of the nation, but a sovereignty external to
it. It is tis which has drargged the people to war after war
to decide a disputed succession, wllere the whole was embroiled with individual claims and family divisions. There
is no family or number of families which have an original
and indefeasable right to govern.  It is not subsistcnt in
the ancestry of a family, or a tribe, or a race, but continues only in the nation. It belongs to no individual or
family save only as they are invested with its exercise of
and by the nation. The right of government, which is
alone of divine right, the right in the nation as a moral
person, is of no uncertain succession and of no transient
tenure. It is not the exclusive heritage of a family, and
is not transmitted in the entail of its estates.  "The patrimonial doctrine of the state," says Bluntschli, " which
regards it as the property of the prince, and therefore ascribes sovereignty only to him, and the absolutist doctrine
of the state which identifies it with the individual ruler,
both forget that all the might of tle prince is only the
combined might of the people, and that the people and
the nation as the organization of rights remain, although
princes and dynasties change and perish."l The recent
justification of this proposition has been in some representative principle, as for instance the sovereignty is regarded
as representative of the unity of the nation, - Coleridge;
or of the permanence of the family in the nation,  Maurice; or of the personality of the nation,- Hegel.
1 Allgem Statsrechts, vol. ii. p. 11.




THE SOVEREIGNTY OF THE NATION.         133
It is said that the sovereignty of the nation is resident
in certain abstract ideas or principles, as justice or reason.
This has been assumed by publicists who have sought thus
to modify the conception of popular sovereignty. Royer
Collard gave a definite statement to the theory: "There
is an individual and a moral element in society. To make
the majority of individuals sovereign, is popular sovereignty.  When, with or without their consent, this blind
strong sovereignty passes under the control of an individual or a class, without changing its character, it becomes
a wiser and more temperate authority, but it is yet rude
force, and remains always such, and becomes the root of
absolute power and privileges. If, on the contrary, society be founded on the moral element, that is, on justice,
then is justice sovereign, for justice is the law of rights."
This assertion of sovereignty as existent in an abstract
principle or law, whatever its quality, as justice, or reason,
or love, is illustrative of the tendency to convey the whole
subject of politics into a realm of mere abstractions, and
to merge the state into a formal idealism. The nation has
certainly in justice, the law which is implied in its being
as a moral person, and the condition of its being, and must
conform to the reason of things, but the nation is itself an
organic being, and invested with actual powers.  Sovereignty is existent in the nation only as it is an organic
and moral person, and in it and through it, justice is asserted and realized in a moral order.
This proposition is the assertion of a specious and abstract ideal, and becomes the substitution of a law or a
system  for the determination of the organic will. It is
inconsequent, since an abstract conception, however high,
which is thus asserted, can have no real strength. It is
moreover perilous, since it avoids the foundation in an
organic being, of the organic and moral relations of the
nation. It creates a tendency to regard with indifference
the real life and conflict of the nation, in comparison with




184                  THE NATION.
the barren conceptions of the idealist, and to consent, on
the pretense of an abstract reason or justice, to its destruction and to conspire with its dismemberment.
This proposition is also sometimes connected with the
assumption of popular sovereignty in its lowest and crudest
form; -in disregard of the being and government of the
whole, - the assertion of what is represented as the reserved sovereignty of the people, is assumed by some individual, on the ground of his subjective conception of
justice, which is exalted in this unlimited egoism. This
was the attitude of those who regarded the battle for the
nation and its unity and authority, at least with indifference, and as devoid of moral content, until it should become an immediate war against slavery.
It is said that the sovereignty inheres in the people simply as the collective people, in a certain locality. This is
the premise in certain phases of the preceding proposition,
and, as in each of them, in its ascribing sovereignty to the
collective mass in a certain locality, it is the assertion of a
sovereignty apart from the organic people.
This proposition, as before stated, postulates the power
of the will of the people in its organic unity, and ascribes
it to the inorganic mass. This formless crowd is destitute
of the consciousness of unity which is implied in the will
and is the condition of sovereignty. The state is resolved
into its atomy. There is no ground for the continuity
which is presumed in government and in law, and as
sovereignty is apprehended as existent in the momentary
action of the multitude, then in some momentary change
the authority in government and law expires. As sovereignty is represented as resident in a mass of individuals
who may coexist in any locality, and as determined by
their momentary action, the conception of the whole is
precluded, and any section, or faction, or sect, may withdraw if it have the momentary strength.
The proposition fails, also, because it cannot make clear




THE SOVEREIGNTY OF THE NATION.         135
what the will of the many is, nor by what law its sovereignty or its reserved sovereignty is to be ascertained, nor
how it is to be exercised. The existence of a law, giving
authority to a political majority, cannot be assumed in the
multitude, since the proposition places before us only a
collection of individuals, an inorganic mass, in whom
there is no consciousness of a common political principle,
nor of the authority of a common political law. It is, as
before, the assumption of the mob and not of the people.
These theories are the assertion of a sovereignty; external to the nation, not in it nor of it, and identical only
with a formal organization.
The sovereignty is of the organic people, constituted as a
nation. It has its condition in the consciousness of the
people, and it is the manifestation of the nation in its
moral personality, and therefore, as subsistent in personality, it is from God; —it is from God and of the people.
The form and the circumstance of sovereignty in the
beginning of the historical life of the people, are as manifold as the incidents of the individual existence. But in
whatever form, and however slow the development of its
power, the sovereignty subsists in the organic people, who
in the consciousness of their unity and order form the
nation.
The sovereignty has not its ground in the empty conception of the people with no conscious unity nor vocation
in history. There is no conception of sovereignty, and
none of the state, attaching to this mass.  The numerical
accumulation of men by no multiplication could attain to
the sovereignty of the organic people. The sovereignty
whose normal expression is law, and whose realization is
freedom and order, is not in the multitude, nor in the
momentary action of the multitude,l but in the will of the
1 When Rousseau asserts an absolute sovereignty as resident in the momentary volition of the individual, and regards it as always justified by the act it



136                      THE NATION.
organic people; it is the majesty of a people, the          sov
ereignty of a nation.
Tlhe sovereignty of the nation is the original power
through whose self-determinate action the political order is
established, and in it all the other powers subsist and from
it they proceed.    It is not merely the supreme power, in
respect to which others are subordinate, but it is the original power which determines all others.        Its affirmation is
the supreme law.
The sovereignty of the nation has an external and an
internal maniftstation.    Tie external sovereignty is manifest in its independence of, and in its relation with, other
nations.   It is its own right to be and       to be itself; it
exists as a power on the earth, with other powers, equal
and self-subsistent.   In its external sovereignty the nation
is manifest as a power in the historical order of the world.
It is its highest being; it is conscious of the authority
with which it is invested, and the obligations in which it is
involved, but it recognizes no human control, and acknowledges none nearer than very God, none over it but only
God.
The internal sovereignty is manifest in its assertion in
its self-determinate action, of its political order and organization.  It ordains its constitution     and laws, and prescribes  its political course.   As all the     powers of the
nation, as an organic whole, proceed from and in conformance to its sovereignty, so its constitution and its laws define the order and administration of the whole.
self, in setting aside the whole existing organization, and renouncing obedience
to the whole existing authority, and repudiating all obligation which has its
source in a past action, it contravenes the necessary conception, both of fieedonm
and sovereignty. The will is emptied of all moral content, and apprehended as
identical only with a transitional action- the immediate power of choice.
The will in this conception is not sovereign and is not free, when its whole
determination is construed in a momentary action, and its freedom is exhausted
in the play of caprice. Thus, also, the repudiation of past national obligations
has its precedent in the denial of the being of the nation in its continuity.




THE SOVEREIGNTY OF THE NATION.                 137
iTe sovereignty   of the nation    in its determinate form
is law. Law, in its political sense, is the formal assertion
of the will of the political people. The common definition is thus, a rule of action made obligatory by the state
upon all who are subject to its authority. It is the formal
affirmation of the will of the people as regulative of the
action of the whole in its civil and its political process.1
The ground of law is not formal nor abstract.        It is the
affirmation of the will of the people, and therefore consequent from no empty conception of the will.        It is the will
of the people in the nation, as organic and moral.         It is
the formal expression of the purpose of the nation, but it
is none the less the continuous purpose which is implied
in its being.    The conception of justice, the reason and
law of right is implicit in the nation as a moral person. It
is in the will in its sovereignty and the realization of its
freedom, and therefore all willful and arbitrary action is
in its nature lawless.   The law is laid in the foundation of
the being of the nation. It is-then the assertion of justice,
which is the fountain of all law, not as the illusion of visionaries, nor as the scheme of theorists, nor as the device
of legislators, nor as the compromise of interests, nor as
the trade of parties, but as implied in the being of the nation in its necessary constitution, and the realization of its
being.
Law, in its political determination, has certain characteristics which are necessarily presumed. There are, in
1 Rome, through all the successive periods in her history, represented as the
source of law, the "majestas populi Romani," and asserted as the law, the
"voluntas populi Romani."
"The will of the state, indicated in some form of expression, is the law, and
no natural rule which may exist forms a part of the law, unless identified with
the will of the state so indicated. What the state wills is the cotermninous measure of law; no preexisting rule is the measure of that will." -Hurd's Law of
Freedom, etc. vol. i. p. 4.
"Law is the direct or indirect, explicit or implied, real or supposed, positive
or acquiesced in, expression of the will of human society represented in the
state; or it is the public will of a part of human society constituted into a state."
- Lieber's Political-Ethics, vol. i. p. 98.




138                         THE NATION.
the distinction of laws with reference to their object, general and special laws, but there are certain elements implied in all law in the civil and political order.1
The law presumes the being of the moral person from
whom it proceeds: it presumes a consonance with reason
and justice. It cannot contravene the nature of things,
this would involve the unreason          of the state; an      incongruous law is inoperative.2
1 The definition, which is most prominent in the history of law, is that
which, after the Roman law, defines the provinces of public law and private
law. The distinction of these departments, as given in the Digest, would serve
as the definition of the nation and the commonwealth, -the political and the
civil order. "Hujus studii (juris) duse sunt positiones; publicum et privatum.
Publicum jus est quod ad statum rei Romane spectat; privatum quod ad singulorum utilitatem." -Dig. lib. 1, tit. 1, sec. 2. But with the apprehension of
society only in its civil relations, that is, as the commonwealth, these boundaries,
in fact and then in law, became obliterated, and the conception which underlies
their distinction was lost: the division has been held by later writers vaguely
and again not inconsistently rejected by some, and its reason denied.
The Roman juridical writers thus regarded public law, in the imperfect development of this distinction, as inclusive of criminal law. Savigny, Heut Rone.
Recht. bk. i. ch. 2. Austin rejects the distinction, but his' definition of public
law is worth noting: " Public law, in its strict and definite significance, is confined to that portion of law which is concerned with political conditions; that is
to say, with the powers, rights, duties, capacities, and incapacities, which are
peculiar to political superiors, supreme and subordinate." - Lectmues on Jurisprudence, vol. ii. p. 435. Mackeldey describes the province of each, " The
public law comprehends those rules of law which relate to the constitution and
government of the state; consequently it concerns only the relations of the people to the government. The private law comprehends those rules which pertain to the juridical relations of citizens among themselves." - Civ. Law Conm.
Introd. p. 8. Falck, as cited in Pomeroy's, Constitutional Lae, p. 3, has defined
them with more precision.  " Public law embraces those precepts which impose duties or confer rights upon the political superiors in the state, those who
organically represent the state. Private law includes the civil law proper, police law, the law as to crimes and punishments, the law as to civil and criminal
procedure. It embraces the rules which define the rights, powers, capacities,
and incapacities of various classes of persons, private, domestic, or professional;
the rights of property; the rights which flow from contracts and obligations between private persons; the description of the delicts and offenses called crimes;
the means by which civil rights are secured and enforced; the means proper to
maintain good morals, order, health, etc., in general all those means which augment the convenience and promote the tranquillity of social life." - Courc
d' Introduction Gen&eale a l'Etude (ld Droit, ch. i. These citations indicate the
historical scope of the distinction, and in its application to the relations of the
political and the civil order-the nation and the commonwealth - it has the utmost value for American publicists.
2 "Lex spectat naturae ordinem." The law respecteth the order of nature.




THE SOVEREIGNTY OF THE NATION.                139
The law is personal; its presentation is to persons, and
its obligation is imposed upon persons. Its direct assertion
in its simplest expression is, - thou shalt, and thou shalt
not. It takes every man apart by himself, and appeals to
him, and evokes his responsibility.1
The law has in its conception a universal aim. It presumes a principle of action which is applied in it; it is
then set forth as regulative of all action and appertaining
to all cases which fall within this conception.
The law is the definition of relations to be maintained
as constituent of a moral order and is regulative of them.
The law assumes the existence of man in moral relations,
as of the family.
The law has no retrospective action, it is the on-going
determination of the organic will. There is an injustice
in an ex post facto law; when one in conformance to existing laws has done his whole duty, and certain consequences have ensued, it would be manifestly wrong to
adjudge him and reverse the procedure, because the lawgiver had changed his mind.
The law is subject to amendment, to change or repeal.
It is not immutable; it is not stationary, but always presumes a progress toward the more perfect attainment of
its end.
The law is inclusive of the nation in its physical unity
and being, as a whole. The nation is the domain of law;
the law is of the nation, for the nation.     It is thus, in its
inclusive character, an authority over the individual lawgiver through whom     it is set forth.   It is even its own' Lex non cogit ad impossibilia." The law compels not to the impossible. The
argument " ab impossibile," is valid in law. "Impossibile est quod naturze
repugnat." - Dig. lib. i. tit. 17.
1 " Law is always in its nature personal, or a law for certain persons."Hurd's Law of Freedom, etc., vol. i. p. 22.
" The law relates to persons as its basis and aim, that is, it has an essentially
personal character. All law is throughout a law of persons. The law necessarily has also reference to things, since these compose the physical conditions
of human development. But the law in reference to things, constitutes only a
subordinate division of the law relating to persons." - Ahren's Naturrecht, p. 83.




140                        THE NATION.
necessary interpreter, and while the private judgment of
the law-giver may be allowed as an aid to ascertain, it
cannot absolutely determine its import; the reference to
it, is only private judgment.
The law     is an  affirmation; it is positive.       The    subjective apprehension of right and wrong cannot assume
the place of an objective rule. Private opinion is not
to be elevated     into  the  position, nor invested      with   the
authority of the nation.1       The law    itself is the standard
by which the will of the nation is to be ascertained.          This
is requisite to the necessary obligation and validity of law.
While    the   antithesis   is  superfluous, the     aphorism     of
Hobbes is valid, "'authoritas non         veritas, facit legemn."
There is in law alone the formal assertion          of the will of
the nation, and through it alone its will is ascertained,
and the private judgment of no man can be the authority
for another, nor control his action.
The sovereignty of the nation, in its affrmation in law, and
acting through its normal powers, constitutes the government.
The government is the institution in which the sovereignty
of the nation is realized.     It is the order in which the will
of the political people is inaugurated and established.
1 This applies also to the practice in equity, and the procedure in it is based
upon the assumption that it is the will pf the nation. Of the application of natural law in jurisprudence, Mr. Hurd says: -
" Whatever rules or principles, tribunals may apply as law, they apply them as
being the will of the supreme authority, and as being themselves only the instruments of that will.
"The will of the state is to be ascertained by the tribunal in one of the following methods:First, direct and positive legislation is the first and ruling indication of the
will of the state, whether it acknowledges or refers to any rule of natural origin
or not.
Second, since the will of the state is to be presumed to accord with natural
law, when the positive legislation of the state does not decide, the tribunal must
ascertain the natural law which is to be enforced as the will of the state. But
this law can only be determined by such criteria as are supposed to be recognized by the supreme power of the state, if such criteria exist; and this law when
so determined becomes identified in its authority with positive law." - Hurd's
Law of Freedom, etc., vol. i. p. 24.




THE SOVEREIGNTY OF THE NATION.                141
The government is of the people and it is over the people. There is in this no contradiction, but it is predicated
in the being of the nation as a moral person. The government is therefore, in its highest conception, the self-government of the people, -of but over the people in every
moment of its action. It is the will of the people in its
self-determination, that is its sovereignty and its freedom.
The government is the representation of the political
people as a whole.    It asserts the authority of the whole
over the individual; then only the will of the whole is law.
The government is often described as a government de
facto and de jure. The former is strictly the force which
at a certain moment may get and hold possession in the
state, without reference to its origin or character, and it
may maintain itself by foreign influence or by fraud; the
latter is the power in the state which exists in conformance to its organic law, althouagh    the term   is sometimes
more narrowly applied to define a government which has
an antecedent claim     in mere legality.     This is strictly
described as a legitimate sovereignty or government.
This, as the claim of a pretender, may contravene the
sovereignty of the people, that is the nation, and that
government in the higher sense is only legitimate, which
is the exponent of the will of the people, and in conformance to its organic law.1    The term has been mainly connected with the patrimonial conception of the state.
If the government is deficient in its power, and          its
authority is no longer in the security of rights, and of free1 Bismarck says of these minor pretensions of sovereignty in the German nation,
in reference to their claims of legitimacy,- and it applies as well to the theory of
legists of separate sovereignties here: "There are many pedantic people who
want Prussia to protect the principle of legitimacy. But this principle of dynastic and conservative legitimacy is a fiction, and that a most pernicious one.
Unless the conservative party renounce this principle we shall have to go the
length of applauding the hallucinations of the petty potentates, who supposing
they are powers, avail themselves of the pedestal of our own might to play at
kings. And yet all this swindle is unauthorized by the history of the past, is
quite new, unhistorical, and equally opposed to the teachings of God, as to the
rights of mankind." - September i0, 1861.




142                  THE NATION.
dom, it is consequent on the decay of its internal sovereignty, and while then through certain changes its external
form may remain, the ultimate result is the overthrow also
of its external sovereignty. If the domain of law is not
maintained, and crime is left unpunished, and justice is not
executed, and everything falls into disorder in the lapse of
internal sovereignty, there is no basis for an external sovereignty. It can no longer claim recognition as a nation
by other nations; the self-determination, the moral spirit
in the people is gone, and the government perishes in sedition and crime.
The government cannot be imposed upon the nation by
any power which is external to it, nor can it be inaugurated by a clique, nor instituted by a bureau, nor by the
decree of an individual, and in none of these is there the
assertion of the organic law. If in some transition, when
the order is interrupted by the violence of revolutions, the
authority is assumed by these powers, as in events recently
in Spain, it yet can be only temporarily, and the ultimate
reference must be to the people.
The government is the manifestation of the sovereignty
of the people. It rests on no contract. The nation and
the government are not two separate parties who enter
into a joint agreement. The people ordains and establishes
the government, but does not contract with it. The description of it as only a party to a joint agreement repeats
the fiction of the social contract, in which some ground
was sought to establish the obligation of the feudal prince
to his subjects. When it is applied to the government of
the people, instead of a constructive principle, it becomes
a source of division and is inconsistent with the unity of
the people.
The government as the representative of the will of
the people as a moral person, has its strength in the
will. The strongest government is that in which there is
the higher assertion of personality, -that is, the realization




THE SOVEREIGNTY OF THE NATION.        143
of the freedom of the people. In the common phrase a
strong government is too often identified with an arbitrary
rule, which is inherently weak. The government which
is without strength, lacks the constituent principle of government. It is in its true conception stronger in the development of the people, in the maintenance of law, the
institution of rights, the realization of freedom. For this
it is clothed with power and with majesty on the earth.




CHAPTER IX.
THE NATION       AND   ITS CONSTITUTION.
THE constitution of the political people has a twofold
character: there is a real and a formal constitution. The
one   is  the   development of the nation          in history,-     the
historical constitution; the other is the formula which             the
nation prescribes for its order, - the enacted constitution;
the one is the    organism; the other is the form          for the organization of the nation; the         one is in identity with       the
nation in its organic being, it is written        only in the law     in
which the members are fashioned; the other is the method
which    the  nation    establislhes for its procedure, and         the
order to which the whole is to conform.1
1 When it is not otherwise mentioned, the term is used strictly of the constitution in its formal character, the constitution as a legal instrument, and the institute of the government.
" The written constitution is simply a law ordained by the nation or the people instituting and organizing the government. The unwritten constitution is
the real or actual constitution of the people as a state or as a sovereign community and constituting them such or such a state. It is providential, not made
by the nation but born with it. The written constitution is made and ordained
by the sovereign power and presupposes that power as already existing and
constituted." -Brownson's American Republic, p. 218. See Hurd's Law of
Frseedom, etc., vol. i. p. 296. Jamison's Constitutional Convention, p. 67.
"The more we examine the influence of human agency in the formation of
constitutions, the greater will be our conviction that it enters only in a manner
infinitely subordinate, or as a simple instrument, and I do not believe there
remains the least doubt of the truth of the following propositions: —
" 1. That the fundamental principles of political constitutions exist before
all written law.
" 2. That constitutional law is, and can only be, the development or sanction
of an unwritten preexisting right.
"3. That which is most essential, most intrinsically constitutional and fundamental, is never written and could not be without endangering the state.
"4. That the weakness and fragility of a constitution are in direct proportion
to the multiplicity of written constitutional articles." -De Maistre, On the
Generative Principle of Political Constitutions, Boston, 1847.
L The comparative value of a written constitution has been the subject of wide




THE NATION AND ITS CONSTITUTION.           145
The sovereignty of the nation has its first formal expression in the convention.    The convention represents
the constructive power and intendment of the people in
the formation of its constitution. It is the assertion of the
will of the people in the ordination and institution of its
government. The power existent in it is not then withdrawn, but as has been truly said, the convention persists
in the constitution and never expires. It is the people
forming the nation that ordains and establishes the constitution, and acts in and through it.
The nation is before the constitution.  It precedes and
enacts the constitution as the determinate form of its political life; it establishes the constitution as the order in which
it will realize its determination.
The constitution, which defines the formal organization
of the nation, is the law which is regulative of its normal
action, and then also of the institutions which are its
normal powers. The law is the formula of its process,
the institutions are the structure of its process. The
law and institutions, in their positive character, become
the firm support of order, and the muniments of freedom.   They are established, and in them the people recognizes its own stability. The constitution stands as the
continuous expression of the sovereignty, the freedom,
and the rights of the people. It has the authority of law,
and there is the defense of the whole from arbitrary action; it has the stability of institutions, and there is tlie
defense of the whole from individual action. It is constructive of the course of the people in its entirety, and
in the constitution in its true significance, " we stand altogether, and we march altogether.'    It is the impregnable
barrier against the assault of a mere individualism, and
discussion, but, if the proper limitation of a constitution be regarded, as simply
the definition of the order of the nation, and if it does not assume the functions
of the legislative power, the argument for it may be justified, and.at least has
the higher historical support.
10




146                  THE NATION.
the stable basis of the whole against the strife of factional,
and the pretension of provincial supremacy. It remains
while parties rise and disappear, and while systems change,
as the constitution of the whole, stable in the power and
supreme in the majesty of the people.
The constitution, as established by the will of the
people, is of the nature and authority of law, and in its
necessary process is the supreme law of the land. As
law it is the assertion of the will of the people, and
yet it is over the people, and obedience is to be ren
dered to it. It is instituted in the self government of the
people. It has therefore, as the law which is the expression of the moral being in the nation, the sacredness of
law. But this sacredness is derivative from its content.
There can be no sacredness attaching to the abstract form,
and neither devotion nor sacrifice for the constitution when
it is regarded only as an abstract formula; it is sacred only
in so far as it is affirmative of the law which is implicit in
the nation, or as the life of the nation may be affected in
its. maintenance.
The constitution is to have the style and language of an
instrument of law; it has the intendment of positive
law. It is ordained of the people as the law of the land,
the will of the whole people, and the authority over the
whole land. It is not in its scope, since it is an instrument of law, to present any theory or speculative notion
of the origin and substance of the nation. The presentation of any theory is superfluous, in the presence of the
being and sovereignty of the nation itself.
The constitution defines the formal organization of the
normal powers of the government. But while these powers are established in conformance to the constitution, it is
not to be so construed as to become the substitute for their
normal operations. The distinction between the convention and the congress, the constitution and the laws, is
fundamental; the one is the definition and construction of




THE NATION AND ITS CONSTITUTION.        147
these powers, the other is their action in the condition and
circumstance of the people.
The nation forms the constitution, in its own conscious
determination. It is not a necessary physical sequence,
as if the product of physical causes; it is not the result
of aimless forces; it does not come into existence apart
from the conscious thought and action of the people, as
if it were to be had without effort, and sustained without
vigilance, or as if it were to be held in a superstitious reverence.  It is not attained without thought; it does not
increase as the trees in the wood. It is not formed, and it
cannot be sustained in the lethargy and passivity of the
people. It is the assertion of the will of the people, and it
subsists in the conscious and continuous-determination of
its will. It consists in an ethical and not a physical organism, and proceeds from, as it is maintained by, the sovereignty which exists in a conscious freedom.
The nation is to realize in the constitution the determination of the sovereignty of the people.  It is not to be
formed in the working of some sect or party. It is not
to express the intent only of certain individuals; and
while in isolated individuals there may be the longing for
a better constitution, it must pervade the whole and become a common conviction before it can be realized. The
constitution thus also in its completeness, cannot be the
work of a single generation or separate age; it can be
promulgated on the adjournment of no convention, as,
ample to embrace all events and all times. This is the
oriental conception, and could result only in Chinese stability, not national permanence. It cannot consist with
the existence of the people as a living power, and civilization as a living principle. It belongs to oriental immobility, not occidental spirit.
The nation is to apprehend in the constitution its object
and aim. The formal constitution must correspond to the
real. It is the order in which the people are to act, and




148                  THE NATION.
the people must find therefore in the constitution the
expression of its spirit, and its purpose must not be fe-ttered nor perverted by it; but it must be able to act
in and through it with entire freedom, in the furtherance
of its aim. There must be reflected in it its own spirit,
and in so far as it fails of this it has elements of weakness
or of peril. The life of the people cannot be sacrificed for a
political form, or a political dogma. The nation is not to
perish that a political theory or a political abstraction may
strive vainly for realization. There is thus danger if some
conception which belongs only to the past is adhered to,
and none the less, if some which is too far in advance is
insisted upon. The value of the constitution is relative as
well as positive. Napoleon I. gave to Spain a constitution
which was abstractly better than she had before; but it
worked badly, for it was not adapted to the people, and
they held it as something strange and alien. In modern
English politics there are the most frequent illustrations
of the neglect of this principle. They have furnished constitutions ready made for all communities. They are the
same empty and stereotyped form, and struck in the same
mould, and with the same trade stamp. The spirit of all
peoples is to find embodiment in Anglican forms and
institutions, and to realize an Anglican freedom. England,
which never has apprehended the spirit of another people,
and holds forms as immutable when of her own cast, has
always had those which she regarded as the only hope
of other countries. In the organization of society in
India, the native farmers of the revenue, as the best material to be had, were taken by force to be made into
squires. It was necessary to society that there should be
squires, and that they should be of the Anglican type. In
the last century an English minister proposed a plan for
the introduction of the whole feudal system into St. Johns;
in this century the Dominion of Canada has been designed
in the same device. The constitution is to be the exponent




THE NATION AND ITS CONSTITUTION.        149
of the will and spirit of the people, and that which is over
it, but is not of it, or no longer of it, has elements of
weakness or of tyranny. It is the weakness of an empty
form, or the hard tyranny of an abstraction or system, and
repressing but not expressing the spirit of the people, it
crushes its energies and consumes its freedom.
The neglect of the distinction between the real and the
formal constitution and the consequent identification of the
nation with its formal organization, becomes the most dangerous of political falsehoods. The nation not only is
before the formal constitution, but the events in its history,
which it holds in highest honor, may be precedent to it;
as the war of the Revolution was fought and brought to
its close before the adoption of the existent formal constitution.
The nation continues in its identity, while constitutions
are changed or abolished. Rome was the same under her
kings and under her consuls. France is the same through
all her revolutions, and under her feudal and republican
and imperial organizations. The nation, in her formal constitution, has not always even the indication of her real
condition, but under the same constitution may advance
or decline.  The constitution has, in itself, no inherent
power and no abstract virtue to deliver the people. It is
not for the individual nor for the nation to be saved by
any system, however complex, nor any dogma, however
stbtle.  The constitution may become itself only the
mask which hides from an age its degeneracy, or the
mausoleum which conceals its decay.   The pedantry of
systems may be made the substitute for living forces.
The nation is not comprehended in its formal organization.
There is a political truth in the rude verse of a poet of
the Republican Age in England: —
" Let not your king and parliament in one,
Much less apart, mistake themselves for that
Which is most worthy to be thought upon;




150                    THE NATION.
Nor think they are essentially the state.
Let them not fancy that-the authority
And privileges on them bestowed,
Conferred are, to set up a majesty,
Or a power or a glory of their own;
But let them know it wasfor a deeper life,
Which they but represent;
That there's on earth a yet auguster thing,
Veiled though it be, than parliament or king."
The nation may amend or alter the constitution which
it has formed. The course of history in which the nation
stands is a development; and there is to be in it always
the better institution of rights, and the broader domain of
freedom, and these are to have their assertion in the constitution. The constitution must be open to recognize the
advance in each age, since in each the work of the people
is to be carried on under the changed conditions of an historical life. Neither the individual nor the nation can in
any moment regard its course and order as perfect; and,
with entire subjection to the constitution, there must
be in it always the expression of an higher historical
development.    It is here that the relation of the permanent and the progressive element in the organization of
society becomes apparent; the one involves the other,
and is even its condition.   The new is to be built in the
old. It is not to be the isolation from the old; but it is
wrought out of the old into the new. The change which
comes is to be ingrooved in that which flies. The retention of all that is good in the past is to be held as no hindrance to advance, but its precedent. There is to be no
divergence from the old, as if it were necessary to take
from  the outset a new start.  The wise change is not in
the weak conceit of the ability to construct out of one's
own political materials the best constitution, but with carefulness, lest, from  the acquisition of the past, anything of
worth shall be allowed to perish.       While Rome has
bequeathed to the world the universal terms of law,and her civil law has become an institute in history of the




THE NATION AND ITS CONSTITUTION.               151
world's civilization, -  she yet held, in undying deference,
the tables on which her first law was written. There
must be thus always in the constitution itself forms to
enable its amendment, and, while it is open to no sudden
change in the momentary action of the people, it is not to
prevent the freedom of the people.      It is to assert the continuous will of the nation in its organic continuity, and it
must, therefore, possess permanence. It is to be open to
the expression of progress, also, for it is to be the institute
of freedom and of rights.1
If there be in the constitution no provision whereby the
political people in its normal action can effect an amendment, or if the mode provided be such as to obstruct its
action, there yet subsists in the people the right of reform;
and if, while yet there is no way open to it or only some
inaccessible way is indicated, the hope of reform     shall fail,
and the constitution and the government which is instituted
in it be wrested from their foundation in the consent of the
organic will, there is then, at last, the right of revolution.
This, in the supreme peril, is the supreme necessity of the
people. If the people no longer finds the correspondence
to its aim in the constitution which it has once established,
if its advance is thwarted and it is being deflected from its
course, and its life is being deformed, although under the
form it once enacted and alone has the right to enact;
if the government becomes thus subversive of its ends,
and the future holds no hope of a reform      which may effect
those ends, then revolution is a right. This maintenance
1 President Washington, in his farewell to the people, which, in its political
wisdom has, in modern political literature, no parallel, asserts, as a fundamental
right, "the right of the people to make and to alter their constitutions of government;" but, since the constitution has the form of law, the mode of amendment which it provides may be so intricate or so difficult, as to so restrict the
action of the people, that this fundamental right shall be more effectually
wrested from them, than by the most consummate tyranny.
A constitution which has no place for amendment is absolutely immoral,
for it sets itself forth as absolutely perfect; it is far more immoral than the
anlimited power of the monarch.'"- Schleiermacher, Christliche Sitte, p. 270.




152                       THE NATION.
of the continuous life and continuous development of the
nation, against that which is hindering its growth, or sapping its energy, is not strictly a revolution. It is rather
the reverse, since there is in it the maintenance of the
organic being of the nation and it is in conformance to
the organic law. It is not anarchic, for it is the only possible pursuance of the order of the nation, and its vindication
from the false order which is interrupting it. It is the spirit
of the people in its real strength which breaks through
the system by which it is gyved. But it is only to be
justified in the supreme necessity of the nation, and as
itself the act of the nation as an whole, the work of the
political people. It is not to be the act of a part only, as a
section or faction. The development is only of the nation
as an organic whole, and conditional in its organic unity,
and it is this alone that is thwarted or imperilled, and in
this alone the right subsists. Thus a revolution is not an
insurrection, since    the  one presumes the action        of the
people as an organic whole, and is justified in proceeding
from the people, whose determination is law; the other is
the act of individuals, a section or a faction, in revolt from
the will of the whole.1
The revolution which is thus a necessity is not the discord, but it is more strictly the concord of the nation, and
when thus a necessity, the order which is set aside will be
1 " The moral condition of a revolution is that it express the conviction of
the common people and the common will." - Fichte, Naturrechte, p. 238.
" The right of revolution must begrounded in the living conviction of the
whole." -Schleiermacher, Chistliche Sitte, p. 265.
"Regarded abstractly, revolutions are always moral anomalies; but actually
they are to be regarded as unavoidable and therefore only apparently moral
anomalies. For in human history, through the power of sin, the development
cannot continue to proceed in a continuous sequence, but only through many
throes and crises. The revolution which is really the work of the nation itself,.
can only be regarded as such a crisis, which, through external impediments,
becomes the condition of the maintenance of the moral life of the nation; and
such a revolution therefore can only be justified when it rests on the living conviction of the people in its totality." -Rothe, Theoloyische Ethik, vol. iii.
sec. 2, p. 984.




THE NATION AND ITS CONSTITUTION.        153
succeeded immediately by the real order of the nation, in
its new form, with the return of the energy of the people,
and its ampler freedom. It is not therefore of any to
glorify revolution, which can appear only in a disturbed
order; but when in the mystery of evil, the energy of the
people is impaired and its life withering, although its path
can be only through violent struggle, it is yet to rejoice in
the power which may resist and overcome the evil. It is
thus that epochs of national revolution have been those not
of despair, but of hope and exultation, and there has
been in them, as there is not in the triumph of parties or
factions, the renewal of the strength and spirit of the
people.
The nation thus may be the stronger in the crisis in
which its constitution is swept away, and there may be in
it the evidence of a power which opposing evils could not
wholly destroy. It is the life which could not be utterly
crushed, and the strength which could not be entirely consumed by fetters forged through lapse of time, in which
privileges assumed to be alone the precedents of action,
and were girt by legal forms and devices, until they barred
out the rights of men. The transition from the feudal
constitutions of Germany, has been in every crisis the
development in its higher unity of a national life. The
age of the commonwealth, when the same result in part
was effected in England, was the last great age in her
history. The French Revolution bore throughout the
deepest devotion to the nation, and in its tumultuous
changes no voice was lifted against the unity and glory of
France. The American Revolution was the act of the
political people of the whole land, in the endeavor toward
the realization of the nation. These crises were in the
development of national life, and the constitution displaced
was foreign to the political people.
The constitution is primarily to define the structure and
the mode of action of the normal powers in the nation.




154                  THE NATION.
It is the enumeration and the limitation of these powers,
and is then simply the norm of their action. It is to regulate the form, but it is not to specify the content in their
action. It is to prescribe the organization of the nation,
and not that which shall be in the action of the organs.
It is as the chart of a ship, and the order of its company;
but it knows not the voyage it shall make, nor the storm
nor mutiny it may encounter, nor those whom it shall
carry, nor the seas it shall sail.
The prescription of the action of the people in all
events and circumstances, is not in the scope of the constitution, and it would not be possible. It is not requisite to its stability, nor to the firm order of the government; but in the effort of the past to control the
future it would induce elements of conflict which would
impair the whole.   The constitution which sought to
predetermine the future, and to forestall the conduct of
affairs in the infinite change of time and circumstance,
would presume that a people was already beyond the conditions of history. If the people possessed a living energy,
and was not itself as dead as the past, the object, if attempted, would be as vain as the insistance that men in a
real battle should listen, for the word of command, only to
the echoes of the voices of commanders on some battlefield of the past, whose banners are folded, and from which
the ranks have long since marched away. It would be,
against the inevitable current of events, which still would
sweep on resistless as time, the building of "parchment
barriers," and in the real crises they would be thrown
aside, as the impediment in the path of a free people in its
necessary course.
To attempt to make the constitution the formula which
not only shall define the order of the people but mould
the events in its history, to make it determinative of the
course of the people in these events as they arise, to make
it the substitute for the process of laws and statutes which




THE NATION AND ITS CONSTITUTION.        155
become in their immediate enactment the embodiment of
a living will, is itself possible., only as the nation is no
longer a living power, and has no longer a living will. The
constitution which the convention has formed, and which
has been adopted, is in its nature the supreme law, but
in its own provision, to make its amendment difficult or
well-nigh impossible, and then to assume that it shall be
exclusively and exhaustively definitive of the action of the
people in all events, involves the denial of the organic and
moral being of the people. It is directly immoral, since in
its necessary inference the people no longer exists as a
power in the moral order which is the life of history. It
does not honor the past, nor is it joined with it in living relations. Thus in the strict historical school there
is always a regretfulness, as that the convention of 1787
should have adjourned, and that there is now no Hamilton
and no Madison; but this deference does not honor them.
We may only know of them that they had the strength
to do, knowing that things were to be done, and that their
strength was as their days.. Of this spirit, which may become
a weak superstition, the age has to learn, in the words of
another, that the bones of the giants of old have been
found and they measure no more than ours. This conception enslaves the present to the past instead of eriancipating it with the past. It is the worst tyranny of time, or
rather the very tyranny of time. It makes an earthly
providence of a convention which has adjourned without
day. It places the sceptre over a free people in the hands
of dead men, and the only office left to the people is to
build thrones out of the stones of their sepulchres.  The
spirit is immured in the walls it has built. It is in politics
the thought which in history had its expression in Egypt.
It is said by Hegel, that as it is reflected in her monuments, the Egyptian was in love with death, and thus
there was always a skeleton at the banquet, but this places
the same image not only in the assembly of the people,




156                   THE NATION.
but in the power of the majority in it. It elevates the
past to a throne over the present, of irreversible decrees.1
The constitution determines the order, but it cannot
predicate the course and destination of the people.  It is
not providence, nor destiny.  The years and what they
bring, are withdrawn from the gaze of conventions as well
as of men.   They have no more a horoscope to forecast
the future in the lives of nations than of individuals, nor
can they outmaster time, nor wrest the secret from the
years. The constitution is to provide that the people shall
stand together, and march together, but their line of march
is hidden from it. The nation is formed in the changing
conditions of history. It must pass through conflicts
which the prescience of no assembly can anticipate, and
they will not regulate their coming by the action of any
convention, nor conform to its project, nor abide in its
provision. The aim of the constitution is to leave each
generation free to do its own work to which it is called,
but in the continuity of the nation, and in its normal process, and therein, it becomes the assertion of the unity of
law, with the realization of the freedom of the nation in its
being in history.
The constitution, when it transcends its province, and,
from the enumeration of powers and the exposition of
rights proceeds to the specification of their content in
the immediate direction and adjustment of events, becomes
imbedded in political theories, which are introduced to supplement its literal articles, or encumbered with minute
detail.  Since it is in its form a positive law, it becomes,
then, through judicial interpretation, complicated with precedents and opinions, and is tortured by judicial decisions,
until, instead of representing the will or the freedom of
1" Whosoever will have a government that cannot follow its living conviction,
sets the dead over the living, and denies the moral development of the state." -
Schleiermacher, Christliche Sitte, p. 273.




THE NATION AND ITS CONSTITUTION.        157
the people, it is only the field ground for lawyers; the
people no longer recognize their aim  nor their stability
in it, and its intricate and complex character tends to
produce ignorance of, and then indifference to it.
The constitution has a positive and a relative value.
It has the elements of a universal as well as an individual
character, since the nation has a universal aim as it has
an individual life.  In the critical study of a constitution its comparative advantages are therefore to be
regarded, and there is to be applied to it a common as well
as special estimate. There is thus a high value in the
comparative study of the constitutions of nations.
The constitution is to become in the progress of the people the institution of an ampler freedom, and a more perfect
organization of rights. As the sovereignty of the people
attains a more determinate expression in it, that which is
vague and incomplete, or inconsistent and incongruous, is
set aside. The arbitrary can find in its vagueness only
the cloak for tyranny, and the treacherous the mask for
secession and anarchy. Its language is, therefore, to be
plain, to express the purpose of the people. It is in its
high conception, the evidence of the stability and the
instrument of the freedom and the assertion of the sovereignty of the people, in whose will it is ordained and
established.
The more perfect constitution is always to be the aim of
the whole as it is the indication of its advance. But the
formal constitution is not to be an end in itself, and its
worth is derivative only from the life it conserves. To
reverence it for its own sake, may create a spirit not of
law but of mere legality. The superstitions of lawyers are
more perilous than the superstitions of priests. It is the
adherence to a political formula, to which it attaches a
separate sanctity, and refuses all change, while its spirit
is wasting and decaying. It holds the form above the
life and being of the nation which it was instituted to




158                       THE NATION.
maintainl. There is here the contrast of a righteous and an
evil conservatism; the true conservatism aims at the maintenance of the being and the unity of the nation, although
the form    be changed or destroyed; but there is a false
conservatism, - there are those who, in their regard for
the constitution of the nation, deny the nation itself.1 They
would sacrifice the nation      to maintain    the   constitution.
They hold the constitution as something above and separate from   the people, to be looked upon with another reverence.     They place the symbol above the reality, and
adhere with a blind attachment to the letter, when it is
dead to the spirit. It is at last the conservatism of a political hypocrisy. It is the conservatism of the scribes and
pharisees and lawyers; but they neither knew           nor cared
for the calling of the ancient nation.        It is busy reading
the inscriptions and repeating the legends upon the stones,
while the fires upon the altar are dying, and it will build
and adorn the sepulchres of the prophets, while the great
Prophet of humanity stands unheeded in the streets of its
Capital.
1,, Conservatism consists not in that the old form be retained, but that the
substance be maintained." - Stahl, Philosophie des Rechts, vol. ii. sec. 2, p. 200.
" Conservatism, when it rightly understands itself, will in no way hold on to
the exact form of the state as hitherto existent; but will hold fast the preservation of the state itself, under the development of its form." -Rothe, Theologische Ethik, vol. iii. s6c. 2, p. 995.
"We have heard of the impious doctrine in the old world, that the people
were made for kings, not kings for the people. Is the same doctrine to be
received in another shape in the new, that the solid happiness of the people is to
be sacrificed to the views of political institutions of another form? It is too early
for politicians to presume on our forgetting that the public good, the real welfare
of the great body of the people, is the supreme object to be pursued; and that
no form of government whatever has any other value than as it may be fitted for
the attainment of this object." - President Madison, The Federalist, No, xiv.




CHAPTER X.
THE NATION AND ITS SOVEREIGN RIGHTS.
THE nation, in its sovereignty, is possessed of certain
necessary rights. These are rights which are involved in
the attainment of its necessary end in history.  They subsist in the unity of the nation, and in their historical manifestation, they become the indices of its sovereignty. They
have thus an integral character; they are not an indiscriminate and incongruous collection of powers, but.are formed in
a necessary correlation, as the sequence of the unity in
which they subsist. They exist in the correspondence of
rights and duties, and there is resident in them the necessary responsibilities of the nation.
Firstly; the sovereignty of the nation involves the right
to its own existence. The right which is precedent to all
others is the right of the nation to be; the law which,
in the conflict of laws, abrogates all others, is the
law of its supreme necessity.  It may, therefore, in its.
necessity, interrupt and suspend the ordinary course of
rights in their reference to the individual or the community.
The supreme object of the government is to care for the
preservation of the nation. In this end, it is justified, in
its necessity, in the suspension of the ordinary procedure
of its law and order, which then becomes the assertion of
its higher law, and the maintenance of its enduring order.
The principle of action is then, salus populi, suprena lex.
When the necessity of the nation thus demands it, it.is not the negation of rights and of laws, but. in the
deeper sense and sequence their maintenance. But in




160                   TEE NATION.
this action, the necessity of the government is the exponent of the necessity of the nation, and of and for itself,
the government has no right to interrupt the process of
laws.
It is justified only as the peril of the nation is actual or imminent.  There is no consideration of a resultant advantage that can become its ground, since then it
would presume to be itself the normal law and condition
of the land. It is a power so high, and yet so imperative,
that there should be in the constitution itself the careful
provision for its exercise, and the protection from its abuse.
The right has been recognized as necessary by every
historical people. In Rome, it was asserted in the words,
" videant Consules ne quid detrimenti capiat respublica ";
in England, it is construed in the right to suspend the
habeas corpus; in France, Italy, and Germany, in the right
to declare martial law; in Rome, it could be formally exercised only by an act of the senate, and in England, by an
act of parliament.
The nation may call for the willing sacrifice of the life
and property of its members, and this has its precedent, in
the being of the nation as a moral person, to whom is given
a vocation in the moral order of the world. The sacrifice
of the individual is for the longer life, and the surrender of
material wealth, is for that in which the moral acquisitions
of humanity are conserved. But this is consistent alone
with the being of the nation as a moral person, and when
the nation is assumed to exist only as a necessary evil, or
only for the protection of property and persons, this right
becomes a contradiction, since in the one instance it would
be the deference to a mere fate, and in the other its exercise would presume an immediate negation of its end.
Secondly; the sovereignty of the nation embraces the
right to declare war and to conclude peace.  The nation
1 Rothe says, " Every war which is morally justifiable, is a national war." -
Theologische.Ethik, vol. iii. sec. 2, p. 958.




THE NATION AND ITS SOVEREIGN RIGHTS.        161
is the investiture on the earth of right with might; it is
constituted as a power in the moral order of the world
and for the maintenance of that order. The right to
declare and make war belongs only to the nation, and
to that only as the minister of righteousness, the power
which in its normal being is to assert justice against violence, and law against anarchy, and freedom   against oppression. The nation in its sovereignty alone can declare
war, and alone can conclude peace, to which all surrender
is made. The nation has therefore the supreme command
of the physical force of the people, - its military. In the
armed might of the nation there is the manifestation of its
power, but the might is to be one with the people in its
unity and its totality, and then there can be no danger to
the freedom of the individual or of the whole, but there is
the immediate security of that freedom. Therefore every
member of the nation that can bear arms, and not a separate order and organization, must be trained to arms.1 This
belongs to the education of the whole people, and should
be the instruction of its schools and universities; there
is in this the moral significance of the world discipline,
which the study of the technic of science and of abstract
propositions inclines to forget, and which always has so
singular beauty in its significance in the pages of Roman
literature. This discipline is presumed in the nation in
its being as a moral person, and is inconsequent in education only as instruction is limited to a formal or an individual conception of the nation. It is as one army that
the people becomes conscious of its power as a nation.
There is then the apprehension of righteousness as no abstract principle or spectral ideal, but as invested with might
on the earth. Then there appears that spirit of sacrifice
in which the unity of the nation is laid, and in which its
1 " The army must not only be national, but be the nation, -the nation in so
far as it is capable of bearing arms, in its totality, must form the army." —
Rothe, Theologische Ethik, vol. ii. sec. 2, p. 964.
11




162                      THE NATION.
life is gained. Then the prophecy of the future of the
nation is not in those that are, but in those that have given
themselves for it, and its continuity is in those that died
that the nation might live.1
The declaration of war, therefore, can be justified only
as it is national, or the act of the nation. Its end is to be
that which is involved in the being of the nation, and in
its vocation in a moral order.     This indicates the spirit in
which war is to be conducted. It is to be waged with no
individual hostility, nor against private persons, nor with
a subordination to private ends. It is not the destruction
of the lives or of the property of men that is its object; it
is not the destruction, but the defeat of the enemy that is
sought; and all destruction is justified only as necessary to
its prosecution, or to the public defense, or as effecting a
more speedy termination, and a more sure peace.2
The formal declaration of war and conclusion of peace
must be the act of the nation in its sovereignty; a company or a division of an army may, with no immediate
authorization, in certain circumstances, commence hostilities, but it cannot declare war; and the enemy may lay
down its arms, before a company or a division of an army,
but it cannot conclude peace.
Since there belongs to the nation the supreme command
of the physical force of the people, the nation can allow,
within its limits, the accumulation of no force which is
not subject to its ultimate authority.    The commonwealth
1 " The meaning and the end of the military power of the nation, is found
not merely in the conquering of enemies, and the suppressing of rebels, and the
preservation of an undisturbed order, but in that the nation itself in its might
shall stand forth as a righteous warrior." -Stahl, Philosophie des Rechts, vol.
ii. sec. 2, p. 180.
"This might is not merely the outward means, for the maintenance of public
order, but it is also in itself the moral energy of the nation." - Stahl, vol. ii. sec.
2, p. 140.
2 A very striking definition of war is cited by Rothe from Wirth, -"the
power of one people against another people in its whole might, its totality."
Pomponius, - "hostes sunt quibus bellum publice populus Romanus decre.
vit; cceteri latrunculi vel predones appellantur."




THE NATION AND ITS SOVEREIGN RIGHTS.                  163
necessarily cannot declare war, nor conclude peace, and
it has in its direction the physical force, only as a constabulary for the maintenance of internal order, and for
operations only within its confines. The nation, in its
sovereignty    alone, can     appeal to    the  issues of war. in
which the existence of the whole is involved.
The nation, in its physical as in its moral unity and
being, is a power over the individual, and must effect
its purpose, notwithstanding individual caprice or intent.
But in     the basis of the state, in a mere         individualism,
there is the foundation for none of its rights of sovereignty,
nor can it justify     their necessary action.       It is not the
security of property and persons which is primarily involved in war; but it is the direct reverse; and the call
of the nation, in its right in war, belongs to no individual
and no collection of individuals, but it is an authority in and
over the whole.
The end of war is peace,'"a peace that will come,
and come to stay." A universal peace is the goal of the
nations in history.     But it is assured only.in the realization of the unity and of the being of nations, and in
their higher development and power there is the advance
toward peace and its surer prophecy.1
1 Napoleon III. has often expressed this, but it is not in the empire.
Rothe says: "That end which is a universal peace is approached in the
same degree in which the idea of the nation - the political idea, fills and
penetrates the consciousness of the people." - Theologische iEthik, vol. iii. sec.
2, p. 954.
The recognition of the Rebels as belligerents, by England, and their consequent investiture with the rights of war, indicated the spirit of an hereditary
aristocracy, a governing caste toward the nation, and its want of all consciousness of national rights and duties, and the subordination of national to
private interests. It was not the act of the people of England, if there be a
people. The neutrality, which England professed between the nation and the
ebels who were seeking to destroy it,'in the nature of things and in the moral
order which is the precedent of the laws of nations, was no neutrality; but her
recognition of them as belligerents, and their investiture with the rights of war,
threw around them the protection of rules and regulations which were formed in
international law only for nations, and placed a rebel force, in the view of Roman
law -a ttrunculi vel prcedones - on the same footing with a nation, and the advantage was secured to them of the rights of nations, while the hazard of their
political recognition as a nation was avoided.




164                   THE NATION.
Thirdly; the sovereignty of the nation embraces the right
to form and sustain international relations.  This is in
history the immediate sign or note of political sovereignty.
It is the formal manifestation of the external sovereignty
of the nation. It belongs to the nation alone to enter into
those relations with other nations which are in the province of international law; it alone can make treaties with
them, and send ministers and embassies to them, and receive them in turn.
Thus, also, the members of a nation can have no public
or official communication with another nation, excepting
through the representatives of the nation to which they
belong, and can receive from another no mark of honor or
consideration without its consent. Thus, also, no representative of another nation can be accredited to, nor
recognized by, nor in his official character hold communication with any individual or section of a nation,
excepting through the constituted authority of the nation.
Fourthly; the sovereignty of the nation embraces the right
to adopt in its citizenship, and to invest with political rights
and powers, those whom it may for this object elect, of
those who may emigrate to it. Thus, also, each citizen
has the protection of the nation, in the rights it has conferred, not only through its whole domain, but among
other nations in so far as these rights are defined by
treaty; and, wherever he may go, he may claim, in his
integrity, its defense. It throws around each its entire
majesty, and an injury to the least who is its citizen
is an injury to the whole.
There is for every person who is in the nation, or may
travel or reside in it, security in civil rights,-the protection of life, liberty, and property, in conformance to its civil
administration and subjection to its civil authority, - since
these rights subsist in the necessary relations of life; but
it belongs only to the nation, in its sovereignty and its freedom, to invest those who may come to it with political
rights,-its citizenship and its freedom.




THE NATION AND ITS SOVEREIGN RIGHTS.      165
But the citizens of another nation, who may travel or
reside in it, or acquire and hold property in it, are subject
to the conditions of its civil order. They hold property
on the same conditions with its own citizens, and subject
with theirs to loss incurred by accident, by the possible
interruption of order in social crises and by the vicissitudes of war. No nation can invade the domain of another on the pretense of the maintenance of the civil rights
of its citizens, nor obtain any reparation for loss or injury
to persons or property which may arise in these circumstances, except that which is allowed by the nation itself
to its own citizens. The opposite principle would involve
not only an unequal preference of aliens, but would concede to them an increased security,-that of the land to
which they belong, in addition to that of the land in which
they choose simply to reside and hold possessions.
Fifthly; the sovereignty of the nation embraces the right
to coin and issue money- the representative of all values
within it. The signature of the nation which is stamped
upon the money it issues, is the sign of its power in its
original right of possession, and of the maintenance of property, as an institute of the nation, whose value it is to sustain. The description of money is not limited to a single
style, as gold or silver or copper, which form in common
the accepted standard of values, and which in the transaction of exchange are less rude than an exchange in cattle, but are not of themselves stable.
But the nation, in the exercise of this power, does not
and cannot by any formal act create values, and as it is to
maintain the institution of property by its laws, so in the
issuing of money there is to be the representation of
actual values. The issue which does not represent actual
values, but is made a legal tender in the formal exchange
of values, as in the liquidation of contracts, may be and is
justified in the temporary destruction of war, while yet it
s destructive of actual values and can have no justification




166                  THE NATION.
in peace. It becomes then, not an appropriation of a
part by the nation, in its supreme necessity, when the
nation in its original right owns the whole, but a fraud,
and involves the robbery not only of the poor but of all
men.
The crime of issuing counterfeit money is also twofold,
and is not only a fraud and a robbery, but in a higher
degree is a crime against the state.
Sixthly. The sovereignty of the nation involves the right
which is described in its formal phrase, as the imperium or
eminent domain. The organic people holds the possession
and inheritance of the land, as one and indivisible. The
supreme authority over the whole land belongs to the
people in its organic and moral being, and it has a right
correspondent to its authority not only over persons but
over the land and all things in it.
It is to maintain the authority and the supremacy of its
laws through the whole domain. In this rests the right
of the nation to interdict the assumption of authority or
the exercise of power by another nation within its territory.  Therefore no foreign government can perform
within it an office, even of civil police, without its consent, and can hold no possession or private estate within
it, but as subject to its authority. This is the occasion for
treaties of extradition.
The right appears also in the levying of taxes, which
are a prior lien upon all property within it. A tax is
not, as in false representations of the state, primarily a
certain amount paid to the nation in consideration of the
advantages obtained from it, nor as an equivalent for its
protection, nor is it a certain sum donated to it in order to
secure the remainder, but it is the taking by the nation,
for its own necessary use, of that which it alone holds in
full in its original right.
This right forbids the alienation of any part of that
which by nature and in history constitutes the domain




THE NATION AND ITS SOVEREIGN RIGHTS.         167
of the people in its integral unity.1 In the barbaric constitutions and in the feudal system, the ruler could divide
or transfer the domain, as in the administration of a
private estate; but, in the public character of the domain
of the nation, it is held, as constituted in nature and in
history, as one, and as inalienable and indivisible.
This right includes the immediate, that is, the proprietary right, to certain places and parts which are the
immediate possession of, and are to be held by, the nation
in its sovereignty.   This includes, -   Firstly, All that
which by its nature is withdrawn from private possession,
or is of immediate necessity for the public use.      The
rivers, lakes, bays, and harbors or ship-homesteads, and
the great highways, the military      and post-roads and
telegraph-routes, are of this description.  The line, for
instance, of the Ohio or the Mississippi, the bay of New
York or San Francisco, or the passes of the Atlantic and
the Pacific Railways, are the possession of the whole
people, and belong to the nation. They do not belong
to those who are resident by them, but are the domain
of the people. Secondly, This includes all places and
parts which by nature are formed for the defense of the
whole. The cliffs or outlooks which are suited for forts
or signal-stations, or the lines adapted to military fortifications, or places for naval yards are of this description.  Thirdly, This includes all waste and unoccupied
lands and places throughout the whole; thus, the territories are in the immediate ownership of the nation.
Fourthly, To this may be added the immediate possession,
by the nation, of its capital. This is not a city simply of
certain municipal privileges, but belongs to the nation,
and, in its central position, should be free from immediate
social and commercial influences and their agitation.  It is
1 " The mere rectification of a boundary is not to be regarded as the alienation
of the domain of the state. A part of the domain of the state is not alienated
thereby, but the whole is more exactly defined." -Bluntschli, Allgenmeines
Statsrechts, vol. i. p. 217.




168                   THE NATION.
the place of the government and of the ordained and representative majesty of the nation; it is the witness of its
unity; it is connected with the long line of its presidents
and representatives, and judges; and around it gather the
armies of the nation; and over it, always, the nation's flag
is floating; to it the ministers of all other nations must
proceed; from it there goes forth that law which is an
authority over the whole people and through the whole
land. It is around its capital that the deepest associations
gather; its peril stands for the peril of the people, and its
deliverance is the sign of the deliverance of the people.
In the necessary correlation of rights and duties, there
is also attached to this right the duty of the nation, in its
physical progress, to undertake and execute those works
which are necessary to the well-being of the people, and
which by their nature are beyond private enterprise, and
are removed from the immediate scope of individual interest and individual power, such, for.instance, as the construction of military and post roads, the improvement of
rivers and harbors, the survey of coasts, the building of
lighthouses, the planting of forests, etc.
The fact that whenever the nation may assume possession of any place and part, compensation is rendered,
involves no contradiction of the right of eminent domain.
The national right is asserted in the right to effect a cession of the property, and the private right the nation itself
sustains, in the allowance of an adequate compensation to
those in immediate possession.
This right comprehends, also, the right in the nation to
the extension of its domain by purchase, by occupancy,
or by conquest. The extension of its domain is the act of
the nation in its sovereignty. When another nation is
affected, it may be by treaty, and this is a free and peaceful cession.  To this Grotius first added as a condition, the
consent of the present occupants of the parts annexed; but
the interests of the nation are in no comparison with those




THE NATION AND ITS SOVEREIGN RIGHTS.            169
of an isolated and detached territory in which there is no
political organization and no political life, and the former
cannot be conditioned upon the latter. The requisition of
an inquiry, as to the consent of the existing occupants, has
only a formal justification, and is a pedantic compliance
with a formal political theory.1
The inquiry as to the residence of the right of eminent
domain in the United States has an interest for lawyers,
as the phrase is strictly technical; but it has only a formal
interest, and the fact is determined in the political being of
the political people.   The evidence of the subsistence of
the right in the people of the United States rests in the
fact, firstly, that the organic and historical people is, and
can only be, the dominus or lord: secondly, that the defense of the whole domain is in and of the United States
alone: thirdly, that all acquisition of territory, by purchase
or conquest, is by the United States alone, and the immediate transferal is to the United States, as in Louisiana
and Alaska: fourthly, that all rectifications and determinations of boundaries are made in and through the
United States alone: fifthly, that treaties of extradition are
made by the United States alone, and from it alone can the
extradition of any person be obtained: sixthlry, that all
vacant and unoccupied territories are held by the United
States alone: seventhly, that taxation bythe United States
is a prior lien upon all property throughout the whole: and
finally, on the other hand, the fact that no commonwealth
can enter upon or effect an acquisition of territory, nor
alienate territory to a foreign power, and that no common1 The principle which is to govern territorial extension has been stated as
follows: "The government has long since laid down its principles in respect of
territorial extension. It comprehends, it has comprehended, those annexations
which are commanded by an absolute necessity, uniting to the country populations having the same manners and the same national spirit as ours. France
can only desire such territorial aggrandizements as do not impair her territorial
cohesion, but she should always labor for her moral and political aggrandizement
by using her influence to advance the great interests of civilization." - Napoleon
IIL  Circular. 1868.




170                    THE NATION.
wealth can of itself determine its own boundaries.or effect
their rectification; these considerations, from a simply legal
position, are decisive. But if there is a legal doubt, let it
be supposed that, in fact, some commonwealth begins a
course of territorial aggrandizement, or attempts the alienation of any portion of territory to a foreign power, and the
error in the claim becomes apparent.
The legal confusion has arisen from the fact that while
the right of eminent domain is in the United States, the
formal administration of the power implied in the right, as
a civil procedure, is referred to the commonwealth in conformance to its normal constitution. The evidence assigned for the residence of the right, primarily and exclusively, in the commonwealth, has been in the fact that all
private escheats fall to it, but this conforms to the province
of the commonwealth, since private interests are constituted in it; but no general or public escheats fall to the
commonwealth, and it has within its confines the right to
vacated lands, but it has no right to vacant lands. There
is the fact of the possession of unoccupied lands by Texas,
but this is anomalous and ought not to be allowed to
remain.1
1 "The dominus is the United States, and the domain of the whole territory,
whether meted into particular States or not, is in the United States. The
United States do not part with the domain of that portion of the national domain included within a particular State."-Brownson, American Republic, p.,300.




CHAPTER XI.
THE NATION AND ITS NORMAL POWERS.
TIE sovereignty of the nation has its institution in the
powers in which the government is constituted. The will
of the organic people, in its normal action, works through
different members, to which are attached different functions. The nature of these powers and these functions is
implicit in the nation in its organism, - their manifestation is in the process of freedom and of rights.
The formal organization of these powers has obtained its
higher construction in the modern age. The distinction
of their different organs and their functions, is illustrative
of its higher development. In the political body, as in the
physical, each organ has its separate use for which it is
formed, and each has no separate existence, but they subsist as the organs of one body.
The distinction of these powers, although in imperfect
outline, is traced by Aristotle. He describes, firstly, the
assembly for public affairs; secondly, the chief magistracy,
- the executive power; thirdly, the judicial power. The
decision in regard to all crimes of a public character is referred to the first or the legislative power and the chief
magistracy or the executive power is made subordinate to
it.' It is the proper work of the popular assembly to
determine concerning war and peace; to make or terminate alliances; to enact laws; to sentence to death, banishment, or confiscation of goods; and to call the magistrates to account for their behavior when in office." 1
In modern politics the distinction has been held in a
I Politics, bk. iv. ch. 14.




172                          THE NATION.
clearer and firmer conception, and obtained a wider actualization    through    Locke and       Montesquieu, but it has
been defined by none with greater fullness than by the
earlier American publicists, and especially in the writings
of President Madison. Its genesis forms one of the most
significant pages in the history of modern politics. The
assertion of legislative and judicial powers, as original in
the civil and political organization, against the sole and exclusive prerogative of a king, to the exercise of all powers,
has been     indicative   of the   advance of freedom; and the
assertion   of the   distinction of all these powers, and their
ampler development, has been             indicative   that the more
perfect organization of the nation is in the realization of
freedom. The distinction of the normal powers of the
nation in its civil and political organization        has been    principally as the Legislative, the Executive, and the Judicial.1
1 There have been various analyses of these powers, but their value is chiefly
illustrative, and they have no correspondent historical justification. The description of Locke, and of Montesquieu, and also of Hegel is, I. Legislative. -
Pouvoir lgyislatif. II. Executive, - Pouvoir exZcutif.  III. Judicial, - Pouvoir judiciare.  B. Constants added to these, IV. An intermediate power, —
Pouvoir mod'rateur. This was an attempt to define more clearly their unity.
The executive power has also been further divided into (a.) An administrative
power, — Pouvoir administratif; and (b.) A supervisory power,- Pouvoir inspective.
Trendelenbulrg designates four powers,- vier finctionen, - I. The Government, -Die Regierung. II. The Military power. III. The Legislative power.
IV. The Judicial power. But it is obvious that the Military is not a power corresponding to the other powers, since it is simply the organization of the physical force of the whole; it is in subjection to the political power, and its necessary principle of action is that of entire subordination in the political whole.Trendelenburg. Ntturrechte, p. 160.
Bluntschli's description indicates the tendency of recent German publicists.
The common distinction is criticized as too formal and abstract, as something
dry and-pedantic, and this also is the criticism of Stahl. In Bluntschli's statement the legislative power is necessarily precedent, and is over against all
others and is regulative of them, but in the organization of this power, the
Crown and the Parliament, or the President and the Congress form each an integral and inseparable element. The powers are thus defined, as, I. The Government, - Die Reqieruzngsgeeatt, das Regiment. II. The Court, - Die Richterlichegewalt, das Gericht. III. The Public Instruction, - Die Statscultur. IV.
The Public Economy, -Die Wirthschaft. The presentation of these powers is
given with great fullness of historical illustration.- Allgemeines Statsrecht,
vol. i. pp. 446, 503.




THE NATION AND ITS NORMAL POWERS.                 173
These powers in their origin and content are not determined in some historical accident; nor are they merely the
expedient of human ingenuity, for which some substitute
may be found in some other and better expedient, whereby,
for instance, legislative or judicial functions shall be superseded: nor are they the sequence of some formal law.
They are the manifestation of that which is immanent in
the organism of the nation.1
These powers represent the will of the organic people
in its civil and political organization. Their origin is in!
the necessary being of the nation, and their action is its:
normal process.
The necessary characteristics of these powers may be
traced in their structure.
These powers are organic. They are not the mere incident of the action of the state, their distinction is not accidental nor arbitrary. They are not merely an artificial
contrivance; their connection and their action is not as in
some ingeniously devised mechanism, but as subsistent in
the civil and political organism their action is unitary and
organic, and in the civil and political development is their
ampler organization.
There is an abstract conception which represents the
state as simple not complex, as arbitrary not natural in itsstructure, but the law of organic life appears in it also"More complex, is more perfect, owning moreDiscourse, more widely wise."
1 Kant finds the source and the necessity for these powers in the formula of
logic, and they are presented as corresponding to its sequence. But they can
have their ground in no formal or empty conception, either in logic or law;
their ground is in the organism of the state, that is, the political organism,
and their correspondence is to its real constitution. The presentation of Kant
is consistent, however, with his formal conception of freedom and of rights. -
Rechtslehsre, sec. xiv.
"The exercise of power, whether by an individual or a nation, is naturally
divided into thinking, judging, and doing. Action implies all three: thought
to originate, will and force to execute a conceived purpose, judgment to compare
it with rules of conduct." -Fisher. The Trial of the Constitution, p. 4L




174                     THE NATION.
The tendency which this conception constantly induces,
in its correspondence with an empty and barren conception of freedom, is to eradicate those institutions which
have been established in the ampler organization of the
state.1 The substitute, when all are swept away, is the
reconstruction of the whole after some abstract scheme
or some formal design. But freedom is not found in the
vacant spaces which this devastating force has opened, nor
in the sweep of their bleak and windy plains; the assumption again combines the conceit of individual egoism
with the limitless caprice in which freedom    is feigned to
exist.
There is also a representation of these powers, as simply
a well adjusted balance, when each is of itself negative or
merely restrictive of the other. A trivial and superficial
description of their origin and relation is formed after this
pattern. The nation is represented as identical with the
formal construction of its government, and described as
simply an association of men under laws; then a power to
make its laws must exist; and as some power is required to
execute them, an executive is established; and then as an
arbiter is required between them to regulate and settle
their differences, a judiciary is established. This representation is defective, since it fails to define the content
of these powers and their relation to each other and to the
nation, and their subsistence in the unity of the nation.
It is also destitute of an historical justification; there has
been no people the process of whose government it could
presume to describe. Its postulate is a formal and mechanical conception of the state.
1 " Nothing is more deceptive or more dangerous than the pretense of a desire
to simplify government. If we will abolish the distinction of branches and have
but one branch, if we will abolish jury trials and leave all to the judge; if we
will then ordain that the legislator shall himself be that judge; and if we place
the executive power in the same hands, we may readily simplify government.
We'may easily bring it to the simplest of all forms, - a pure despotism."Webster's Works, vol. iv. p. 122.




THE NATION AND ITS NORMAL POWERS.            175
These powers are coordinate; that is, neither is so related
to another, that it could be defined as in itself a negation,
and as existent only as the instrument of another.   Such
a definition would make the action of a power mechanical,
and would leave but one or two actual powers in the state.
It would be incorrect to represent the judiciary as existing
to receive the opinions and to justify the actions of the
legislature, or to represent the executive as only the passive agent and pliant tool in the hands of the legislature,
and neither of them    as having a determinate character
of its own.
Since these powers subsist in the organism of the whole,
one cannot proceed from    another, nor derive its content
from another; each subsists in the being and immediately
in the sovereignty of the nation.   They are, each in its
own sphere, invested with the power and formal sovereignty of the nation.   Each is not determined from     or
through another, but, within the limitation of its necessary
sphere, exists in the determination of the whole. Neither
can assume to represent, in its isolation from the others,
the sovereignty of the whole.1
These powers are coextensive; they do not exclude each
other, but each implies the other and the action of the
other; and each acts in and through the whole. Thus,
no individual and no section can be entirely isolated from
them.
These powers are correlative; not only neither has its
ground in the other, but neither has its ground in itself;
its ground is only in the whole.    Since they subsist in
the nation they cannot be regarded as isolated and selfsubsistent, but as existent in a necessary correlation. They
are not separate sovereignties, but each is subsistent in
1 "It should be remembered as an eternal truth, that whatever power is
wholly independent, is absolute also; in theory only at first, whiile the spirit of
the people is up, but in practice as fast as that relaxes." - President Jefferson,,
Letters, Sept. 6, 1819.




176                       THE NATION.
the sovereignty of the nation in its unity. They are constituted not in a formal but an organic unity, and therefore each is in necessary relation       to  the   other, and    is
necessary to the completeness of the other.
The common phrase, " a division of powers," may become the source of error and disaster. An actual division
would imply the division of the nation itself, and the severance of its sovereignty. The very assumption of a sole and
entire sovereignty, by each or either power, would tend
toward the dismemberment of the nation, through the ultimate strife of the one necessarily to subject the others to
itself. The isolation of powers, neither of which subsisted
in the sovereignty of the nation, but each of which, as complete and self-subsistent, held a barren sovereignty in itself,
would make the realization of a national unity impossible,
since the unity involved in sovereignty, would still strive
to attain its necessary realization; but this would become
the occasion of conflict, and the actual and entire sovereignty of the one power would          be attained only in the
subversion of the others.      In the constant recognition of
this fact there is the strength of each, and each is sustained
in its normal action.1
1 The argument in The Federalist has for its object the refutation of the assumption of the entire isolation and severance of these powers, - it is the assertion of their necessary correlation. President Madison stated as its aim the proposition, -" that unless these departments be so far connected and blended as to
give to each a constitutional control over the others, the degree of separation
which the maxim requires as essential to a free government can never be duly
maintained." - Tle Federalist, No. xlviii.
Of the consequence of their entire division Calhoun says, " Instead of a government it would be little better than the rdgime of three separate and conflicting departments, ultimately to be controlled by the executive in consequence
of its having the command of the patronage, etc."-Calhoun's Works, vol. i.
p. 374.
There is no exception to this statement in the writings of any eminent modern publicist. Bluntschli says, " The entire division of powers would involve
the dissolution of the unity of the state, and the dismemberment of the political
body." -Allgemzeines Statsreclits, vol. i. p. 450.
" The error involved in the maxim' a division of powers' is almost universally
recognized in the science of politics, but it has not been until it has wrought the




THE NATION AND ITS NORMAL POWERS.                    177
There is thus in the government, no aggregate of
powers, but the manifestation of an inner and an ideal
unity as it exists in the sovereignty of the organic people.
These powers are the distinct powers of the civil and
political organism.       There    is for   each a distinct function. As the errorwhich would isolate them            is destructive
of unity, so also the error which would identify them               is
destructive of freedom.
They are distinguished in their nature, in their content,
in their form and object of action, and in their institution.
They are also vested in different persons. To identify
one with    another, so that its own normal action should be
suspended and its content determined by another, would
subvert the development of the whole.
The distinction    of these powers, in the organization of
the  nation, tends toward       the  realization   of freedom.      It
is in  the   formation   of these relations      that the freedom
of the people is established. When the organization is
imperfect,-when, for instance, the sole power is vested in
a popular assembly which enacts the law, and then enforces
and administers order under it, and judges all cases that
arise from it, the result, in the construction of a power of
unrelated and unlimited action, is an absolutism. And
greatest confusion in theory and disaster in practice. It is refuted alike by the
facts which have been adduced to sustain it, by logic and by the prudence of the
state. Instead of the common endeavor toward the common good, it would
result in conflict, and the antagonism of divided powers, and instead of stable
freedom it would lead to anarchy." -. von Mohl, EncyklUldidie der Staalswissernclhften, p. 112. See also R. von Mohl's Liteterateu und Geschichte lder
Staatswissenschrften, vol. i. p. 397. Stahl, Philosophie des Recits, vol. ii. sec.
2, p. 198. Hegel, Philosophie des Rechts, p. 272.
The interrelation of these powers in the constitution of England, in some respects, is one of its best results. The obligations of Montesquieu and of ITegel
to its study are well known. It is to be noticed that their closer interrelation increases the actual power and capacity of the Parliament, through its ampler organization. Thus the Parliament and the Crown together constitute the government; and the ministers of the Crown are the members of the Parliament, and
the judges sit also as members of the Parliament, but with no vote, and the
action of each may modify but does not control the action of the other, and
the realized sovereignty of the state is only in their unity.




178                    THE NATION.
when one power destroys the others, or assumes their
offices and capacities, or usurps their functions, and there
remains only the unrelated and unlimited action of a single
and separate power, the consequence is again the same,the destruction of freedom.1 In the French Revolution,
the legislative destroyed the executive power, and then
the executive in turn destroyed the legislative, and this
subversion of the organization of the whole left the way
open to an imperialism.
The distinction in these powers is illustrated in the fact,
that while in each there is a field for the highest attainment, the special qualifications for each are different. He
who excels in deliberation, is often lacking in executive
force, and a speculative breadth of thought often brings a
larger hopefulness than is justified by events; and he who
is clearest and firmest in action     may often   be without
largeness of discourse; and each may be wanting in that
fair judicial spirit which is open to all sides.
These powers therefore are not to be vested in the same
persons, since they are so distinct that each demands for:itself an exclusive vocation, and their offices in the modern
state are obviously beyond the capacity of the same persons. Their reference in their offices to different persons,
who are resident in different chambers, is itself, in the
careful maintenance of their distinction, a guaranty of
freedom.
These powers in their organization cannot be too strong
nor too great, since they have their origin in the civil and
1 " Through Locke and Montesquieu, the great truth has been won, and it constitutes their undying renown, that the participation of the different elements, in the exercise of the power of the state, and that too in its threefold
functions, is the foundation of civil and political freedom; and on the other hand,
when one and the same power, whether a prince or a popular assembly, alone
exercises all functions, despotism is the inevitable result." - Stahl, Philosophie
des Rechls, vol. ii. sec. 2, p. 203.
" The accumulation of all powers, legislative, executive, and judicial, in the same
hands, whether of one, a few, or many, and whether hereditary, self-appointed, or
elective, may justly be pronounced the very definition of tyranny." -President
Madison, The Federalist, No. xlvii.




THE NATION AND ITS NORMAL POWERS.        179
political organism; but it is a merely formal conception,
which is the premise of the phrase "an equality of
powers."  It assumes their division and then aims to
establish their equilibrium, regarding them as external
forces to be pitted against each other. This predication
of a formal equality, as if between mechanical forces,
fails of the necessary conception of the nation as organic.
The phrase has no real significance nor consistent application, and it has to learn again the wisdom well nigh as
old as the state itself, of the political fable of the belly
and the members.    In the political as in the physical
organism, each member has its own functions, and the
full and normal action of each is necessary to the normal
action of the other and the normal being of the whole.
The representation of the equality of these powers has
moreover no historical justification, and when they have
been thus held and balanced against each other, the balance has always been a varying and disturbed one, until
in their entire separation, which the proposition assumes,
an inevitable conflict has demonstrated the greater strength
of some one power. Thus in periods when the people is
summoned to meet insurrection or invasion, the strength
of the executive is more manifest, while in the subsequent
construction of order the strength of the legislature appears. In these succeeding periods; the assumption of a
formal equality of powers would tend to produce weakness
or conflict, or to impair and retard the action of the whole.
In the prudence of the state it is not the feigned or the
constructive equality of the powers which should be sustained, but their necessary correlation, so that the action
of each may promote and modify and not subvert the
normal action of the other.
The representation of these powers each as the necessary restriction to the other is imperfect. It has its premise
in the distrust of power as in itself evil, and implies not a




180                   THE NATION.
spirit of unity but of latent hostility and dread of each
other.  This proposition, as Hegel says, makes ill-will
and aversion the foundation of the powers of the state.
The result is also negative; there is only the formation
of a system of checks, which also require other checks without end. The object set before each power is to reduce
the other to a negation; their construction is the adoption
of the economy of a political house that Jack built. Since
each, to use the common illustration, is the offset to the
other, each is to be placed as a makeweight in the opposite
scale, but the balance, if evenly held, is a dead weight.  It
is constructive of nothing. Power implies energy, and
each must act in its own normal conception, and is not to
be apprehended primarily as restrictive of the action of the
other.
The character of these powers, and of their necessary
relation to each other, appears in their relation to the physical force of the nation, - its military. This embraces some
of the most important principles in politics, and in the
administration of the state.
It is evident at the outset, that the organized physical
force of the nation does not constitute, in correspondence
with these powers, a distinct power in the government,
since instead of being; constituted in the moral organism
of the nation, it is the physical force wielded by the nation,
and it is not existent in a sphere in which it is self determined as are the necessary and normal powers, and the
law of its action is that of subordination.
It is the organized might of the whole, - the nation in its
unity and entirety; in it men move in the highest personal
spirit and freedom, and this is the root of valor, but the
many as one, and therefore they march as an host, and with
the accordance of music, and the ensigns and symbols of
the unity of the nation.
But its determination is in the nation in its political or



THE NATION AND ITS NORMAL POWERS.        181
ganism. Its members are citizens before they are soldiers;
if they were not citizens they would not be soldiers. Its
action is in conformance to a strict discipline. The authority which immediately directs it is by command.
Of the normal powers of the nation, it is evident that
the judiciary has no immediate relation to the military, and
the military has none to it. The action of the judiciary,
is only through a constabulary.
The executive is the head of the physical force of the
nation,- the commander-in-chief of the army and navy.
This belongs to his office as the representative of the unity
of the nation, and of its external sovereignty.  The army
and navy in actual service must also have a single commander-in-chief, since it cannot be directed in the field
by a council or an assembly. But the executive, as commander-in-chief, is a part of the army, and in that capacity,
as entirely in identity with it as any officer or private, and
thus all that refers to the army and navy refers to him as
officially included in it.
If now this power of the executive as commander-inchief were sole and supreme, the whole force of the nation would be constituted no longer necessarily in conformance to law which is the normal expression of the will
of the nation, but in subjection to a single individual will,
and the result would be the institution in and over the
nation of an imperial power. There would be in the formal
constitution only a formal but not an actual limitation to
this power, since on this assumption it could suspend the
actual operation of the other normal powers. The power
instituted would be imperial, whether hereditary or elective in its origin. Its possessors might succeed each other
as rapidly and irregularly as the elective emperors in the
catalogues of the annalists of Rome, or each continue for a
certain term of years or for life, but this would not change
the character of their power.
The subjection of the physical force of the nation, whose




182                  THE NATION.
principle rightly is that of subordination, to a single individual will upon whose action there is in the organization of
the whole no limitation, would tend to the subversion of
the nation.  It would no longer exist as an organism
whose subsistence was in freedom, but there would be the
sway of an individual will, to whose intent there was no
limitation.
The nation is constituted not in subjection to a single
individual will, but in the organization of and the obedience to law. Its freedom and rights have their institution
in positive law. Its force is to stand in and maintain the
authority of law. To open before it another course would
be the construction of a power which, in the exercise of
its private opinion' and fiat, would be above and separate
from the law. The only and the ultimate authority which
the nation recognizes is the law, and no citizen, nor soldier,
nor lawgiver, nor ruler can be above and separate from the
law.
The clear discrimination of the military from the civil
and political powers, appears first in the later periods of
Roman history. In so far as it places the soldier before
the citizen, or makes the duty of the soldier precedent to
the duty of the citizen, it indicates the utter destruction
of national life and the construction of a physical force
which had no ground in a moral order. But in the higher
organization of the nation, the relation of the military -
the organized physical force - to the law must be clearly
defined. The imperialism which would leave it to the ultimate and unlimited control of a single individual will, also
separates the soldier from the citizen, and is necessarily the
subversion of the nation and its freedom.
The military is therefore constituted and organized by
law. Its immediate direction, which is by word of command, is necessarily with its commander or commanders,
but the ultimate direction of the whole, as the organized
force of the nation, must be through law, and by no com



THE NATION AND ITS NORMAL POWERS.        183
mand can it be carried outside of the law.  The ultimate direction then must be with that power, which, in the normal
process, alone can affirm its will as law. The legislature
certainly cannot assume executive functions, and the immediate direction is necessarily with the executive, but the
executive in the capacity of a military commander is in
identity with the army and navy and simply a soldier of
of the nation, although in rank the first soldier.  The
legislature is not to command the army, since its action
is in the form of law and not of command, but since the
assertion of the will of the nation is in the form of law
and not of command, the ultimate direction must still be
with the legislative power, and the military can never be
carried beyond nor removed from its ultimate control.
This object has been guarded and secured in many
ways, and its constitutional guaranties and securities form
the amplest illustration of the relation of the legislative
power to the military. The legislative power alone can
declare war1 and as implicit in this, alone can conclude
peace. The military in all its ranks, and in the person of a
private or captain or commander-in-chief, is immobile, until,
as regards the operations of war, it is called to act by the
declaration of the Congress.  The legislature alone can
"provide for the common defense," 2 and "raise and support armies."3 The army and navy has no existence until
the Congress shall form it. The legislature alone can provide for the " organizing, arming, and disciplining" 4 of
the army, and alone can "make rules for the government
and regulation of the land and naval forces." 5 To its government and regulations the whole force is necessarily subject. There is no officer, who by command can authorize
their violation, and no member, either officer or private, is
exempt from their operation, and as a soldier the executive
is subject to the government and regulations which the
Congress may adopt. The President certainly is the exec1 Art. I. sec. 8, cl. 2.  2 Ibid. cl. 1.  8 Ibid. cl. 12.
4 Ibid. cl. 16.     5 Ibid. cl. 14.




184                   THE NATION.
utive before he is the commander-in-chief, and has power
which is external to the latter office; and no action by
Congress in reference to the latter can encroach upon the
sphere, or interfere with the immediate action of the presidential office.  The legislature also alone can provide for
the calling out of the military to " execute the laws, suppress
insurrections, and repel invasions." 1 It alone has control
" by exclusive legislation, in all cases, over forts, magazines, arsenals, and dockyards." 2  There is certainly in
the executive the power necessarily in every nation, to
call out its force to execute laws, to suppress insurrection,
or to repel invasion, and this becomes his immediate duty
in the supreme necessity, but the constitutional limitations
to this authority become the evidence of the residence of
the ultimate direction of the military in the legislature.
The Congress alone can maintain the army, and furnish
the means and munitions of war; it alone can "support
armies," 3 and make all appropriations for their sustenance,
and thus the very condition of their existence is in the
act of the Congress, and in the house which is in the
more immediate control of the people.  It is thus only by
an act of the legislature that any soldier of the nation,
from the commander-in-chief to the private, may obtain a
single requisition of the war-office, or own a sword. or
carry a gun. Then also the appropriation which the Congress may grant is restricted to the term, when it again
is subject to the election of the people; " no appropriation
for that use shall be for a longer time than two years." 4
The legislative power alone has the ultimate determination, as to the declaration of martial law, or what in substance corresponds to it, the suspension of the habeas corpus.  Martial law, in the celebrated charge of Cockburn,
Art. I. sec. 8, cl. 16.  2 Ibid. cl. 17.  3 lbid. cl. 12.
4 Ibid. In the constitution of England, to which this clause corresponds,
the army and navy in this respect is subject to the Parliament, and the
Miutiny Bill, by which the army is organized, is limited in its operation to
one year, and is annually enacted at the session of Parliament.




THE NATION AND ITS NORMAL POWERS.          185
C. J., is defined as "either the law of necessity, which
will always warrant the use of violence by a state in selfdefense, although the imperative nature of the case must
be shown as a justification of the act, or on the other hand,
military law to which soldiers alone are liable, and which
is a system of fixed rules laid down by the articles of war;
beyond this," he adds, " there is no such law in existence
as martial law, and no power in the Crown to proclaim
it." 1
The power to establish martial law, in the latter sense,
belongs expressly and exclusively to the Congress, since it
alone can " make rules for the government and regulation
of the land and naval forces." The power in the former
sense must belong also in its ultimate determination to the
Congress. The declaration of martial law in this sense,
is in substance the same as the suspension of the habeas
corpus, since each is the formal assertion of the right of
the nation in its supreme necessity, the one being the form
in which it is established in Germany, France and Italy,
while the other is its form  in England and the United
States.
The declaration of martial law, or the suspension of the
habeas corpus, is the intermission of the ordinary course of
law, and of the tribunals to which all appeal may be made.
It places the locality included in its operation no longer
under the government of law.    It interrupts the process
of rights and the procedure of courts, and restricts the
independence of civil administration. There is substituted for these the intent of the individual.    To this
there is in the civil order no formal limitation.  In its
immediate action, it allows beyond itself no obligation and
acknowledges no responsibility. Its command or its decree
is the only law; its movement may be secret, and its
1 The Queen vs. Nelson and Brand. London: 1867. Martial law is defined
as "the will of the general who commands the army." -Digest, p. 130. War
Department, 1866.




186                  THE NATION.
decisions are open to the inquiry of no judge and the investigation of no tribunal. There is no positive power
which may act or be called upon to act, to stay its caprice
or to check its arbitrary career, since judgment and execution are in its own command, and the normal action and
administration is suspended, and the organized force of
the whole is subordinate to it.
The power which appears in the suspension of the
habeas corpus is a necessary right. It is the assertion of
the right in the supreme necessity of the state and in the
imminent or immediate peril of the people to suspend the
ordinary process of rights. It is the right of the nation
which is precedent to the rights of the individual or the
community. The inquiry has been, as to its residence,
in the legislative or the executive power. The evidence
of its ultimate residence in the former, appears in its
nature, in its historical institution, and in the conditions in
which it may be formed.
It is a right of the nation in its sovereignty. But there
is always implied in sovereignty the conception of law, and
the legislative power is the only one which in its action can
affirm its determination as law. Thus Blackstone says:
" sovereignty and legislation are convertible terms, and
one cannot subsist without the other."  This power, moreover, is the only one, the nature and method of whose
action tends in itself to exclude the arbitrary.  Thus, as
the act of the sovereignty of the nation in its highest
expression, it is to be presumed that this is not wholly
withdrawn from the legislative power.  Its reference to
the legislature would also correspond with the residence
of the sovereign rights of the nation, in immediate analogy
with it, as for instance, the declaration of war.
The government is, morever, in its normal structure,
a government of laws. If then the legislature by its own
enactment suspends the ordinary action of the government,
there is still, in its ultimate conception, the continuance of




THE NATION AND ITS NORMAL POWERS.        187
law, and as the power from which the law proceeds declares, by its enactment, the suspension and then the restoration of the habeas corpus, there appears still, in the permanent and substantial order, the maintenance of law.
The act is divested of its apparent antagonism, and wears
no longer the appearance of a civil cataclysm. But to
refer the suspension of the habeas corpus to the executive,
seems an immediate contradiction to the normal process of
the nation and the subversion of its order.
To refer this office to the executive might, in fact,
occasion the negation of the other normal powers, as in
their process they became subject to the single power in
whose exclusive control this act was placed, and by whom
it might alone be exercised. The form might remain, and
the judicial power could still open its courts, but the act of
the executive would decide if any might seek their protection, and the legislative power could continue its sessions, but all laws might be rendered inoperative by the
sole actual power, the executive, - " the will of the commander-in-chief as general, commanding the army." It is
not implied that, if the action were vested in the executive
power, it would remove the other powers, since this would
be the subversion of the organization of the nation, and the
destruction of its constitutional order; but this would not
be requisite to its design, since the act of the executive,
in so far as it might elect, would be, in fact, an absolute
veto. upon the action of the other powers, and would enable the executive to avoid all laws enacted by the legislature and all decisions of the judges.
If, moreover, the executive alone held this office, it would
allow an individual to originate a condition of affairs, in
which not only an individual will could act without control,
but the will would be the same which originated the condition. The act and the whole subsequent power resultant
from it, would be referred to the same department of government, and that resident in an individual. It would not




188                  THE NATION.
be possible for a people to construct a broader highway for'a tyrant to come in. It would concede the assumption of
all power beyond all actual limitation, to an individual.
The political body can scarcely contemplate the possibility
thus, of the accumulation in the hands of one person of all
its powers, beyond its normal control and in the cessation
of its normal process.
The whole body of rights, moreover, in which freedom
subsists, both civil and political, is in the process of positive
law, and to allow its suspension to an individual who then
could alone determine the continuance of the period of that
suspension, is not only what the nation could not concede,
but it is a power which no member of the nation should
possess, since the inevitable disaster which follows all
arbitrary action is too great and the contingency of such
action in the weakness and the aberration of the individual
is too near.
The highest guaranty of the freedom of the nation, and
the prudent limitation to this act is in its being so construed that the suspension of the habeas corpus by one
power shall require the immediate transfer of all authority
under it to another and separate power.  The legislature
in suspending the habeas corpus does not assume the resultant authority, but refers it to the executive, from whom
in its discretion, it may withdraw it.
There is the necessity for the most careful and yet the
most ample provision, for this act and the exercise of. this
right, in the constitution. It is a right of the nation in its
sovereignty, and it has been held and exercised by every
historical nation.  There has been none but has been
called to pass through crises, when the evil forces assailing
its life and unity were so many, or their attack so sudden,
that the omission to exercise it would be the abandonment
of the plainest political obligation, and the impotence and
crime of government itself, and might involve the ultimate
and lasting subversion of all rights. And yet, since the




THE NATION AND ITS NORMAL POWERS.                189
legislature cannot always act with the immediate energy
which may be demanded, and does not act continuously,
in its supreme necessity, in the actual or in the imminent
peril of the nation, it becomes not only the office but the
imperative duty of the executive to assert it. But the
action of the executive in its assertion is here subject to
certain definite limitations; firstly, it should assume under
no pretense whatever control over the legislative and judicial powers, to obstruct their organization, or to approach
the persons of those in whom these powers are vested by
the people; and secondly, the legislature should be summoned, if not in session, it may be by the act itself, and the
imperative necessity of it should be made to appear, and
its justification presented; and when the latter has been
rendered, an act of indemnity may be granted by the legislative power, the process of whose action has been          suspended, and the further conclusion as to the continuance
of the suspension of the habeas corpus revert to the legislative power.1
But the investiture of the legislative power with this
right illustrates, also finally, the residence in it, of the ultimate direction of the military, since, excepting as the duty,
with definite limitations, is for the moment imposed upon
the executive, the legislature alone can call the military
into action. There can be between these normal powers
indeed no actual conflict, except in the most awful crime,
1 In the constitution of England, the Parliament alone has the power to suspend the habeas corpus, but, in the interval of its session, or if necessity demanded
sudden and secret action, during its session, the ministers of the Crown have
exercised the power; but it has been always followed by the solicitation of a
bill of indemnity, and the consent of the Parliament has been held requisite to
justify it, and since the statute 31 Charles II., this has been always asked and
allowed.
Sir Edward Coke said in the first Parliament of Charles I., of the king's claim
of a right to imprison, and of the decision of the judges, " What is it but to
declare upon record that any subject committed by such absolute command may
be detained in prison forever? What doth this tend to but the utter subversion
of the choice, liberty, and right belonging to every freeborn subject in this kingdom? A Parliament brings judges, officers, and all men into good order."




190                  THE NATION.
and then, in the destruction of the organization of the nation
by the very powers called to act in its constitutional order,
the individual is thrown back upon himself, and each has
only to remember that he is a citizen before he is a soldier,
and only a soldier because he is a citizen.
The more perfect organization of the legislative, executive and judicial powers in the government is attained
in the long historical development of the people, but their
institution is the first object of the constitution.
The immediate aim is that they shall not be severed,
so that there shall be an isolation that induces alienation
between them, and that they shall not be merged, so that
their separate functions shall be impaired, but their construction is to conform to their nature and correlation.
Since they are the manifestation of that which is immanent
in the civil and political organism, the constitution may
define, but, as it did not create, it cannot change their nature
nor their attributes. They are not the product of a political empiric, and the ingenuity of no individual and no convention can make them other than they are. The change
of these powers in the being of the nation would presume
the change of the nature of the reason and judgment and
will in man. They are as in a musical- notation, where the
separate notes are necessary to a full harmony, and yet
these notes are not the creation of art, nor could art change
them, and it is thus that the powers of the state are described by Shakespeare, "as converging to one natural
close, like music."
The constitution is to describe these powers and their
limitation, but their strength, in which each is involved
with the other, is in their construction, according to their
unity and necessary correlation, and their formal description
apart from this will not avail much. Their action can be
determined in the words of President Madison, by "no mere
demarcation upon parchment."  Mr. Hamilton says, also,




THE NATION AND ITS NORMAL POWERS.         191
"as all external provisions are found to be inadequate, the
defect must be supplied by so contriving the interior structure of the government as that its several constituent parts
may, by their mutual relations, be the means of keeping
each other in their places." 1
The sphere of each in its limitations is to be so construed,
that the legislature shall not execute its own laws, nor decide in a conflict of rights under the laws; and the executive shall not decree its own will as law, nor decide in
a conflict of rights; and the judiciary shall not establish its
opinions as laws constructive of the political order. The
legislature alone can enact laws, and its act, by the veto
allowed the executive, is detained and restricted, but it is
not imperatively determined, and its enactment is to be
thereafter enforced by the executive, and to be applied by
the judiciary in judgment on cases where controversy arises
under the laws, but the legislature cannot assume the execution of laws, nor intervene to conduct their immediate
administration; it can not render judgment between parties,
nor forbid a judicial procedure so as to impair the vindication of rights, and the only case which can be brought before
it, is that in which the senate is constituted as a court, if
the people shall appear with charges against the executive
or the judges. The executive is to execute and administer
the laws, and it has in its veto the qualified restriction of
legislative action, and is to communicate to the legislature
whatever may concern the state of the nation, but it cannot be summoned before the legislature, except on the presentation of charges for its impeachment. The judiciary has
its province most clearly defined, since its action is in judgment, and judgment is only of force as the expression of
conviction, and as subject to no external control; its
decision in all cases is final of those cases, and in its final
judication is open to no revision.
These powers in their organization are to be shaped
1 The Federalist, No. ii.




192                  THE NATION.
through history, in the patient toil which will care most
that nothing of value received from the past be allowed
to perish, but will hold their construction in any moment
as very far from perfect.
The interrelation of the powers is to be so defined, that
neither shall be isolated from another to become its opponent, nor subjected to another to become its instrument.
The action of either, when, in its alienation, it becomes the
impediment to another, will result in the weakness of the
government, and tend to the corruption of the whole. If
their interrelation is not clearly defined and established,
there will be, through vagueness, a greater risk of divergence, or their action will proceed without dignity or decent
respect, or through irregular channels, or with undue influences.
There will be the resort also to special and temporary
devices and contrivances by the one power to hinder or
control the other. While the mode of communication between them  is not clearly established, slight and irregular means will be introduced.  Then the condition of
affairs is ascertained through private channels, or the
casual testimony of investigating committees.  The executive becomes only the man at the other end of the avenue;
but the legislature is then only a crowd of men at this
end of the avenue. The confusion is increased, and the
relative strength of the powers is disturbed by the neglect
of the legislature to organize a civil service, so that the
executive has a vast preponderance given to it in certain intervals. But the most obvious danger is in the too wide
separation of the legislative power from the executive and
the judiciary.  The isolation of the latter from the legislative power, becomes the source of indifference in the legislative power to them, and then of their weakness, and in the
consequent disorganization, there is the defect of the whole.
Thus Stahl says,'4 the complete isolation of the executive
strips it of everything and makes it the tool of the legislative power."




THE NATION AND ITS NORMAL POWERS.        193
The high offices of a minister of a department of administration, are imperfectly organized. Their growth and
number are beyond the provision of the constitution, and
are to be determined in the historical necessity of the state.
While their immediate relation and administrative responsibility is to the executive, they are more than merely its
registrars. It has been suggested that the ministers of the
executive, in conformance to some modern political constitutions, should sit in the chambers of the legislature, but
without a vote, and a member or attorney of the judiciary
should also sit with them, but without a vote. This might
improve legislation, since it would give to the legislature a
higher strength in its ampler and more complex organization, and aid toward the removal of the breach between
the powers, and open clear and definite means of communication between them, instead of the vague and indefinite, and therefore perilous ways which now alone exist.
The legislative, executive and judicial powers, in their
formal organization, constitute the government.
The legislature is the precedent power in the government. Since the government is of law, and the assertion
of the sovereignty of the nation is in positive law, the
power which can alone constitute its determination as law,
in its relation to the other powers, is necessarily precedent..
It is not, that these powers do not each subsist immediately
in the sovereignty of the nation, and it is not, that the other
powers are subordinate, since the action of each, in its own!
sphere, can neither be directed nor determined in its content by another; but in the normal process the inception
of civil and political action is in the legislature. It is
not the power which executes the law, nor the power
which interprets the law in adjudging cases under the
law, but the power which in its nature can enact its will
as law, that in the formative process is precedent.
The legislative power has the definition of its sphere of
13




194                   THE NATION.
action and the enumeration of its special powers in the
formal constitution, but the objects of its action exist only
in the change and circumstance of history. It alone is constructive, and alone can act with a reconstructive power
in the historical crises which come to every nation, for
which it is not in the capacity of a formal constitution
to provide, and for which it could no more prescribe than
it could predict the circumstance of history, - epochs which
no individual prescience could anticipate and no expiring
convention could forestall. The political course is not to
be shaped by an executive decree, for this, apart from
law, is authority for no man, nor by a judicial decision,
for this has only a revisionary power, but in the process of
law, and therefore by the power which alone can enact its
will as law. The recognition of authority, in the formative
course of the nation, in any other form than as law is
anarchic, and is the inauguration of an imperial power.
It is to law alone that every individual, both the power
that makes and the power that executes the law, is subject.
The distinction between the constitution and the laws is
indeed fundamental; but it is to be considered that the
formation of the constitution is in its nature a legislative
act, as the constitution, when formed, is the supreme law, and
every amendment is also in its inception a legislative act.
The legislative power is regulative of the order and
organization of the other powers, in so far as this is not
defined by the constitution, but is left to be determined in
the continuous process of the state. The other powers, indeed, subsist with it in the organic constitution. It did
not create them, and it can neither nullify them, nor assume
their functions. Because they are subject to its action as
law, it does not follow that they are subordinate to it,
since it also is subject to law; this does not reduce the
executive simply to an instrument of its intent, and the
judiciary to a registrar of its opinions.
"1 To prevent collision in the action of the government, without impairing




THE NATION AND ITS NORMAL POWERS.              195
There is also, in the representative structure of the legislative power, a vested authority, in relation to the other
powers, which theyhave not to each other nor to it.   Thus,
on  an  alleged violation of his trust, it may summon an
executive or a judicial officer before it, and if a high
crime or misdemeanor is proven, he may be convicted
by it; but no    other power has a corresponding office,
and it alone can judge its own members, and determine
their qualifications.  It also holds those who are to fill the
judiciary subject to its confirmation, and a vacancy in the
executive, in certain circumstances, may be filled by it,
but if any occur in itself, it must be referred immediately
to the people.   It also is to receive from   the people the
announcement of an election of tlhe President, and to
induct him into office.
The more perfect structure of the legislature has been
the index of the progress of the political spirit of the people.  In the higher political development its organization
has become ampler and it has embodied more varied elements of strength.    This has been the principal aim       of
modern political constitutions.   The effort has been also to,
make it more free, and less subject to repressive legislative codes and rules, without impairing its power of coming to a conclusion.    But the construction of the legislative power, its history, its order, its system of rules, the
number of which it should consist, the form. of election,
the duration of office, the dual system   of houses, and the
like, is a special study.1
the independence of the departments, all discretionary power was vested in the
legislature. Without this, each would have had equal right to determine what
powers were necessary and proper to carry into execution the powers vested in
it, which could not fail to bring them into dangerous conflicts."-Calhoun's
lWorks, vol. i. p. 346.
Bracton said, " The king ought not to be subject to man, but to God and the
law." Christian cites Yeasr Books, 19 Henry VI. 31: " The law is the highest
inheritance which the king has: for by the law he himself and all his subjects
are governed, and if there was no law there would be no king and no inheritance."
I Bluntschli says, but it is to be noticed that the executive is regarded as ifa



196                      THE NATION.
The executive is the power to which belongs the execution of the laws and the administration of affairs. It is
in immediate direction of all the departments of administration.  It is the head of the army and navy, and in
command of them for internal order and external defense.
But the name - the executive - imperfectly indicates the
character and dignity of the office and even its relation to
the other powers.     While it is entirely in subjection to
law, and cannot pass beyond the law, it far transcends
the office of a merely executory instrument of the legislature.   Nor can it be described even as the exclusive
executive, since in the ordinary course of affairs the
law is not executed, but is pronounced and applied by
all concerned, or more strictly, the law may be said to execute itself, since the proclamation is presumed to be identical with the execution.1   The name still less indicates its
relation to the judicial power, since the execution of the
judgment of the court is in the immediate authority of
the court, which acts through its own constabulary, and it
is only in its discretion that it may call for the aid of the
executive. While imperfectly denoting the relation to
these powers, the name is itself dry and formal, and suggestive rather of a pedantic and scholastic distinction;
there is in the office a far larger conception that embraces
higher duties and trusts.
It is representative of the unity of the nation, and its
unity in personality.   It is therefore vested in one person.
It is representative of the majesty of the nation, and it is
to preserve and protect and defend the constitution in the
unbroken supremacy of law.        It is representative of the
tegral with the legislative power, " Die gesetzgebende Gewalt bestimmt die Statsund-Rechts-ordnmLng selbst, und ist ihr hichster, das ganze Volk umfassender
Ausdruck. Alle andern Gewalten iiben ihre Functionen innerhalb der bestehenden Stats-und-Rechts-ordnung in einzelnen concreten und wechselenden
Fallen aus."- Allgemeines Statrecht, vol. i. p. 452.
1 The signature of the executive is always presumed to be upon a law, and
indicates something of its necessary relation to the legislature, and while it is
only a form, it yet has a significance, and would be insisted on by one who
guards the executive office.




THE NATION AND ITS NORMAL POWERS.        197
organized might of the nation, the power of the nation in
its totality.  It is therefore the head of the army and
navy. It is representative of the nation in its external
sovereignty, and the nation acts immediately through it,
in its relation to other nations.  It is through it alone
that all communication with other nations proceeds, and
it alone is to receive ministers and embassies from them,
and is to send its own to them. It is representative of
the nation in its unity, beyond all interests and sections
and factions and parties, and is in identity with none of
these, but in immediate relation to the people in its entirety.
It is representative of the relation of the nation to every
person who is a member of the nation. This has had
no higher exemplar in the life of nations, than President,
Washington and President Lincoln. They kept a conscious
relation to all, and they heard the petitions of all the people.
In the conscious life of a free people, it is a power which
is not left to be determined -if that word may be applied
in this connection -by any accident, and it is not restricted
to a single line of family descent, but he who is called to
it is to be called of the whole people. There is no form
in the barbaric constitutions, and no type drawn from the
confusion of the changing conditions of the feudal age so
noble as this, in which the nation is manifested in its
moral being, and no imperialism has such elements of
strength as this, in which there is the representation of the
nation in its conscious purpose, and in the recognition of
the majesty of law. The inauguration of its power, is
the expression of the conscious determination of'the people, and in the fulfillment of law.
It is to guard the unity of the nation, and to protect the
people and the land in all perils. Since the judicial power
is withdrawn by its process from immediate action, and
the legislative power is without the continuous action and
the capacity for immediate action, which some sudden or
imminent peril to the nation might demand, it becomes its




198                   THE NATION.
duty and power, in the emergency, in the defined limits of
the constitution, to suspend the habeas corpus, and to call
out the armed force of the nation; but the provision for
this act is to be so clear that it may not become in itself
a source of peril.
It represents the might of the whole in its relation to
the individual, and in it the nation stands forth in its unity
on the approach of insurrection from within or invasion
from  without.  It -holds for the individual the power of
pardon, and this is always its prerogative.
There has been through all the conflicts of history the
exhibition of no quality in the sovereignty of nations,
which does not belong to it, and there has been no tyranny
but is alien to it. Its authority is in the supremacy of law
and its power is in the majesty of the nation. The phrase
is, the king can do no wrong, and it has a deep significance in the assertion of the sovereignty of the nation as
subsisting in its being as a moral person; and every act
which does not proceed from this, or is in variance with
this, is unkingly.1
The construction of the executive power was widely
considered in the formation of the constitution.  The conditions of its organization were, that he who was called to
it should be called from the whole people, and that it
should be left to no accident. There was the suggestion
of various forms, as its entrustment to an elect council,
or to a person elected from the legislature and responsible
to that, and its duration for life or for different terms.
The proposition adopted was its investure in one person,
elected by a college, which was elected by the people;
and the term of office, open to a reelection, was four
years. The project of an electoral college failed, continuing only as a form, and it remains as an illustration of the
want of inherent strength in a constitutional form which
1 " He that does injustice dishonours the king," - Samuel Mulford, 1714,
Doc. Bist. of N. Y. vol. iii. p. 371,




THE NATION AND ITS NORMAL POWERS.        199
does not correspond to the purpose of the people, since
in every election some name has been immediately before
the people. This course alone has an historical justification. It has been truly said, that the people can best
appreciate great services to the nation, and great qualities
in action, and they are without the envy and the prejudice
of the narrow circles of cliques and parties, and no separate interest as of a certain family or a class prevails with
them, and they are indifferent to the private ambitions of
great men.
The executive power in its organization is vested in one
person, and no other form is consistent with it. The plan
of an executive council was sustained by Milton in his
description of a free state. It was the constitution of the
executive in the triumvirate of Rome; but its internal dissension illustrated the defect of a plural system.
It was established in France, in the directory of five; but
the want of unity and decision, and the variance in this
collegial rule, opened the way to the power of the First
Consul. There is an inevitable weakness in the assumption
of executive power by a college, as a senate or parliament.
The higher organization of the executive power comes
in the historical development of the people, giving to it
greater strength, and a more perfect correlation to the
other necessary powers in the nation, and its better conception is gathered from the work of those who fill it best.
The judicial power has its sphere in the interpretation
and application of laws in a conflict of rights. It renders
judgment in a controversy in law between man and man,
and man and the state. Its conclusion is an opinion in
pursuance of which decision is made, which is final in
respect to the status of the parties concerned. In order
to its action, a case must be laid before it, and judgment
is given between parties in dispute. Its procedure is in
court,




200                   THE NATION.
It is withdrawn from the military, and can execute its
decisions only by a constabulary. "c The judiciary," says
Mr. Hamilton, " has no influence over either the purse or
the sword; no direction either of the strength or of the
wealth of the society; and can take no active resolution
whatever.   It may truly be said to have neither force nor
will, but only judgment."
Its decision is not a law, but a precedent from which
its subsequent action in all corresponding cases is presumed, but by which it is not imperatively determined.
Its decision is a finality, in the case considered, and is
beyond even its own revision.' It would be a digression
to inquire into the nature and philosophy of a precedent
in law; but as the conception of rights is widened in the
increasing freedom of the people, and courts change, and
the wisdom of the application of the law is not perfect and
does not reach a finality, it may follow that precedents are
annulled or avoided with the process of time, as with the
action of courts; and yet, in a conflict of rights, a precedent is rightly presumed steadfast, and to settle affairs for
all time.
The inquiry of special importance as to the judicial
power is in reference to its relation to the other powers,
and the political sphere which has been assumed for it.
The organization of this power, in conformance to its
nature and end, is judicial. Its structure is that of a bench
of judges, and not of a representative order.  It is established as a court, and not as an assembly of the people.
If it were invested with positive political power, it would
necessarily be formed as representative in the political
constitution; if it were invested with ultimate political
power, it would be formed from and of the whole
political people. In the election of those who were to exercise its office, the people would not be restricted to a
single profession or class, as that which is variously
described as solicitors, proctors, attorneys, counsellors,




THE NATION AND ITS NORMAL POWERS.         201
lawyers, but it would be composed from the whole people,
and from them there would be drawn scholars and artisans,
and farmers, and tradesmen, and economists, who, no less
than lawyers, have their sphere in the process of the political people, and are to act in its decision.
The concession to the judiciary of an ultimate decision
in the political sphere, would be the reference of the destination of the state to a regime of lawyers, and, as it is
now organized, to a power which is not responsible to the
people, and holds its position for life, and whose action is a
precedent which is presumed to be final and beyond reversal, and whose opinion is a decision from which there is no
appeal. Then the historical progress of the people would
be traced no longer in the better institution of rights, and
the broader freedom, and the more varied organization of its
powers, but in judicial decisions rendered, it may be, upon
feigned issues and pronounced over contending litigants.
Then the crises in the political life of the people would
await for their event, the process by which a case could
be made up and brought into court, and the development
of the state would be shaped by an exclusive profession or
class, and that one which is of all the most superstitious,
and superstitious of the letter. It is the poet, and not the
historian of laws, who says that freedom broadens from
precedent to precedent.
The nation also exists in the conditions of an historical
development, and therein is the on-going of its power,
but the action of the judiciary is retrospective.  It is
invested with a revisionary but not a constructive power.
It can only consider a case which is brought before it, and
pass judgment upon that. It is, in the rendering of judgment on a case, to say what the law is, but not to say
what the law shall be. The formative political power belongs only to the power which is representative of the
political will.
The form and procedure of the judiciary also precludes




202                   THE NATION.
its exercising an ultimate political determination of the
destination of the political people. It is incapable of the
functions which the proposition demands.   "It is," says
Kent, " to determine the supreme law whenever a case is
judicially before it."  The fact that its action is limited
to the case before it, is the evidence that this power is
beyond its capacity.  The vastest changes and crises might
follow in swift succession, and yet give rise to no case,
nor involve in a special controversy, contending litigants.
The actual course of events would not await the constant
construction and conclusion of feigned issues, and yet, the
judiciary is silent, until the consideration of a case opens
its lips. These feigned issues would also render the house
of judges only the moot court for the examination and
trial of political theories.
The construction of feigned issues by the legislature,
which it is to refer to the judiciary, is indicative of the
bias of jurists, and not the constructive grasp of statesmen.
It would be as consistent, in the difference of opinions by
the judges, to refer the conclusion to the legislature. It
would involve peril, also, in the subversion of the integral
character of the legislature, since, while it might avail as a
temporary device, there must be but one power to enact
laws, and this power can suffer no evasion of its responsibility.
The reference of this office to the judiciary is inconsistent
with the normal institution of law in the political organism.
In the political order law subsists in the consciousness of
the political people. The determination of the individual
must be the assertion of a conscious power, and obedience to the law must be a conscious act. Therefore the
deliberation of a political assembly is public, and the law
is published and presumed to be in the knowledge of all.
But the formation of judicial opinions is private, and the
study of these opinions and precedents, and the examination of the decisions of courts, demands the prolonged and
laborious research of an exclusive profession. To allow to




THE NATION AND ITS NORMAL POWERS.              203
these opinions and precedents the ultimate determination
of the political order, is to dissever it fiom its basis in the
conscious spirit of the political people. It is as if the laws
were to be hidden in costly and obscurely written tomes,
and required the interpretation of a special craft.      They
would be as completely withdrawn from       the conscious life
of the people, as the laws of the tyrant which were recorded,
but so high that none of the people could read them.
The special scope of the judiciary is indicated also by
the qualities demanded for it in contrast with the work of
the statesman.    These qualities can only be described as
judicial.  The breadth of thought and the prescience of the
statesman have not in the judiciary their immediate field.
But the opinions of the judiciary cannot be regarded as
the power determinative, in its ultimate action, of the destination of the state, nor accepted as the finality in its
course, since this would be inconsistent with its existence
in the realization of the freedom of the people.     To make
the opinions of the judiciary a finality in the political
order, would fetter the free spirit of the people, confining
it, not in the assertion and recognition of law, as the
determination of the organic will, but in the conformance
to a mere legality.   The past by its precedents would impose its. authority upon the present. The energy of the
people perishes when precedents become the substitute for
the action of a living will and the strength of a living spirit.
The Israel which once had kings and prophets, has then
only Rabbis of the law.1
1 " The law spoke to each man individually, bound him to his fathers, bound
him to those who should come after him; it united him to every member of
his nation. Suppose that law reduced to a mere collection of letters, written on
stone or in a book, yet invested with all its traditional sacredness; suppose it
changed from the witness of a nation's vitality, into the witness of a glory that
has departed; suppose a set of men possessing hereditary claims to reverence,
untiring diligence much acuteness, devoting themselves to the task of expound.
ing this law, - suppose this and you have probably the best conception you
can get of the Rabbinical casuistry, and its immediate influence upon the mind
of a people, crushed and fallen, but full of grand memories, seldom quite deterted by an inspiring hope."-Inaugural Lecture, by the Rev. F. D. Maurico
Cambridge, 1866.




204                  THE NATION.
There is a proposition connected with this which refers
to the judiciary, the preservation of the constitution, as
an exclusive province, regarding its final interpretation as
obligatory upon the other powers, and.placing it as an
arbiter over them, to confine them in their constitutional
limitations. This also is inconsistent with its character,
and is an office which belongs to no separate power, and
involves a misconception of the relation of each and of the
whole. It is in its province to interpret the law in every
controversy in rights which is brought before it, and it
may hold a law invalid in a certain case, because in conflict with the constitution which is also a law, and to which
every enactment of the legislature must yield. Its decision is final only of the case in controversy, although held
to apply to all corresponding cases. Its decision is to be
received by the executive and by the legislature with the
highest deference, but it is to be accepted by them, in their
action, only in so far as their judgment may approve and
confirm it.
The judiciary would also fail as a final arbiter, since no
power is constituted to act as arbiter over the others, but
each is to conform to its own normal sphere, and the avoidance of conflict is to be found only in their interior structure and their interrelation in the whole. This would also
impose upon it a duty which it could not fulfill; it would
refer the final arbitrament to the inherently weaker power.
It is withdrawn from the military, and has the least ability
to enforce its decisions. Its endeavor would be futile,
since the mandamus of the court, if issued to the President
or the Congress, would of necessity be disregarded.
To ascribe this province to the judiciary and to impose
its decision upon the legislative power as a finality would
make the latter subordinate. The judiciary would control
the legislature, and its opinions might become the substitute for laws in the political order, and its decisions supersede legislation. It would be as consistent to give the




THE NATION AND ITS NORMAL POWERS.                205
legislature the revision in certain cases of the opinions of
the judiciary, and to make that revision obligatory.
The reference of this province to the judiciary is a political solecism, and has no historical justification. Its only
parallel would be the power of rabbinical opinions, in the
decay of the national life of Judsea, and the influence of
the jurisconsults in the decadence of Rome.         Blackstone,
in defining this assumption, says, " To give to the courts
the power to annul the laws of parliament were to set the
judicial power above that of the legislature, which would
be subversive of all government." 1
It would be also an imperfect arrangement, since the
judiciary, when involved in a conflict, is left with no arbiter over it, and there is no provision against its encroachment upon the other powers, and its assumption for'
instance, of legislative functions.   It places an arbiter between two parties; but it is a third party and is also
concerned.    Story says, " a declaratory or prohibitory law
would be the remedy;" but the judiciary alone would be
the interpreter of this law, and might set it aside, and in
a decision beyond appeal.
To allow to the judiciary a decision upon the validity of
a law itself, and that before it had involved a wrong to any,
would give to the judiciary an       absolute   veto  upon   the
legislature.   It would have no parallel except perhaps in
the tribunitial veto in Rome,2 the ultima jus tribunorum
1 B1. Comm. 91.
2 Argument of the Attorney General, 1867.
The exclusion of the judiciary from the constructive political power of the
nation, has been recognized in an opinion of the Supreme Court. It states that
when the national government acts, for instance, in reference to the concerns of a
commonwealth, "the constitution, so far as it provides for an emergency of this
kind, has treated the subject as political in its nature and placed the power in
the hands of that department," i. e. the legislature. It continues, " its decision
(i. e. the legislature's) is binding on every other department of government, and
cannot be questioned in ajudicial tribunal."- Luther v. Borden, 7 Howard's R., 1.
"Invested with political power to keep the other departments in their prescribed limits, such a doctrine must destroy the judiciary.  The people will
not bear a political power which is independent of their control. If the judici



206                        THE NATION.
of the republic, and the illustration         still would be imperfect, for the tribunitial power was of the people and was
held only for short periods.
The decision of the judiciary is authority in            all courts,
and this is necessary to the unity of a judicial system and
the uniform      interpretation    and   application of the laws;1
but the decision is in no respect binding as a rule of legislation upon the legislature.
The judiciary demands for its strength             exclusion' from
all legislative   and   executive    functions.     It has the indication   of its independence        in  the   tenure    of its   office.
It is not a representative        body, and      therefore is not to
be   constructed    as representative.       The call to it is to be
from   the government of the nation, in its authority.                It
demands also exclusive qualifications, and the study requiary exercises such power it must become representative, which is the nature of
all political power under free institutions. A branch of government which can
dictate to the legislature is legislative."  Fisher, Trial of the Constitution, p. 82.
" By the Constitution of the United States the President is invested with certain important political powers, in the exercise of which he is to use his own
discretion, and is accountable only to his country in his political character and
to his own conscience. To aid ihim in the performance of these duties he is authorized to appoint certain officers, who act by his authority and in conformity
with his orders. In such cases their acts are his acts, and whatever opinion may
be entertained of the manner in which executive discretion may be used, still
there exists and can exist no power to control that discretion. The subjects are
political. They respect the nation, not individual rights, and being intrusted to
the executive the decision of the executive is conclusive." ~ Marbury v. Madison,
1 Cranch's R., 137.
"The Supreme Court of the United States, like all other courts, is simply a court
ofjudicature, to decide controverted cases, in law, equity and admiralty, that are
brought before it by actual litigants. It is not charged with any special function conservative of the constitution, like the so-entitled Senate of the French
Constitution of December, 1799.  In cases before it the Supreme Court has
no other jurisdiction over constitutional questions than is possessed by the humblest judicial tribunal, state or national, in the land."
" The court does not formally set aside or declare void, any statute or ordinance inconsistent with the constitution, It simply decides the case before it
according to law, and if laws are in conflict, according to that law which has the
highest authority, that is, the constitution." -Wheaton's International Law,
Dana's note, p. 79.
1 " And the judges in every state shall be bound thereby, anything, etc.
Art. 6, sec. 2.




THE NATION AND ITS NORMAL POWERS.            207
site to its higher attainment often withdraws men from
direct intercourse with the people.
The judiciary must always resist in so far as it can,
arbitrary action or usurpation in every form and by every
power; but it is not invested with superior or special functions for this end, and its resistance is simply that which
belongs to every degree of power.
The judiciary has, in fine, no power of origination, but
only of judgment and comparison.    But it subsists in the
nation in its sovereignty, and therefore, while it is not constitutive of the political order, it has not merely a formal
relation to it. Though it cannot make its opinion a law
constructive of the political order, because then it would
be a legislative power, it is yet in its sphere to interpret
and apply the law. It cannot determine what shall be the
law, but only ascertain and define what is the law.   The
fact that it is to interpret and apply the constitution as law,
and then also the laws of the legislature, has been the
occasion of the advancement of the judiciary, and of the
reference to it of public or national law.  If it be allowed
that nations stand related and their rights and powers and
obligations are comprehended in public or national law, as
individuals stand in their private relations in common law,
it is then in the apprehension and explication of the former
that the province of the national judiciary appears. And
the strength and consistency of the judiciary in its historical course has been in the fact that it recognized the
necessary being of the nation, as subsistent in the sphere
of public or national law; and its greater decisions were
formed. in the conception of the nation in its necessary
being, - the organic power which in its sovereignty asserts
itself in the constitution, and enacts its will as law.1  The
1 The illustration of this is, for instance, in the decisions of Gibbons v. Ogden,
Martin v. Hunter's Lessee, Luther v. Borden, McCulloch v. Maryland, Ogden v.
Saunders.
The constitution is interpreted in no exclusive or restrictive sense. "It did
not suit the purposes of the people, in framing this great charter of our liberties, to




208                         THE NATION.
office of the.national judiciary is necessarily the explication
of those principles, in which the necessary being of the
nation consists, and in which alone national rights and
powers can be construed.        The terms of the constitution
which presume the being of the people, and the law              as
the expression of its organic will, can only be rightly construed in conformance to the necessary conception of the
nation. It is certainly to allow the proper authority to the
historical interpretation of law; but this can be only as it
apprehends the actual history of the nation, and in so far
as it substitutes for the actual facts in this history, its own
abstractions, its opinions will become as worthless and vain
as all abstractions are, which cannot be allowed to thwart
or to stay the organic course of the people, and the realization of its historical life.   The earlier decisions of the
Supreme Court were characterized by their profound and
lofty conception of the nation. There was, in that period,
in the varying conflict of rights, a conception of the nation, its being, its rights, its powers, its capacities, which
places the names of the earlier justices by those of the
earlier presidents.    Chief Justice Marshall is second only
to President Washington, and the services of Mr. Justice
Wilson were no less than those of Mr. Secretary Hamilprovide for minute specifications of its powers, or to declare the means by which
these powers should be carried into execution. Hence, its powers are expressed
in general terms, leaving to the legislature from time to time to adopt its own
means to effectuate legitimate objects, and to mould and model the exercise of its
powers as its own wisdom and the public interests should require." - Martin v.
Hunter, 1 Wheaton R. 301.
" This instrument contains an enumeration of powers, expressly granted by
the people to their government. It is said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence
in the constitution which gives countenance to this rule? In the last of the
enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized to make all laws which shall be necessary and proper for the purpose. But this limitation to the means which may
be used is not extended to the powers which are conferred, nor is there one sentence in the constitution which has been pointed out by the bar, or which we
have been able to discern, that prescribes this rule." - Gibbons v. Ogden, 9
Wheaton R. 1.




THE NATION AND ITS NORMAL POWERS.        209
ton. In their decisions, there is the foundation of a national jurisprudence, which Kent has justly described as
" a solid and magnificent structure." It is in later decisions that a provincial theory or a partisan scheme or a
narrow legal dogma succeeds to that high conception of
national powers and rights; it is in recent decisions that
there is displayed the conceit of a power, which in its historical interpretation may ignore all the facts in the history
of the nation, and proceed to determine the issue of the
gravest historical crises, by the application of certain pedantic formulas, which the spirit of the people does not
know nor recognize.
The legislative and executive and judicial powers, in the
exact significance of these terms, are but imperfectly defined. The distinction has a scholastic style, and is suggestive rather of the terminology of science than of the
powers in the civil and political organism. These phrases
become the occasion of error, when they are assumed to
define powers which have not their source in the organic
unity, and their development in the organic relations of the
nation. When they are described as proceeding from a
formal law, it has been truly said that they make of the
nation only a great law machine, and the government a
necessary contrivance for making laws, where one power
institutes the law and a second executes and a third applies
it. But these powers, in their immanence in the civil and
political organism, and in their institution in the realization
of rights and of freedom,, transcend this empty conception.
There is beyond these terms a significance in the words
which always will denote these powers with the people,the Congress, the President, the Judges.
14




CHAPTER      XII.
THE NATION AND ITS REPRESENTATIVE CONSTITUTION.
THE sovereignty of the nation has its normal assertion
in representative government. The representative principle is illustrative of the higher political organization.
The representative constitution is the realization of the
sovereignty of the nation in its necessary conception as a
moral organism..
Government is necessarily of and through a person.
There is in its action the assertion of personality, and
sovereignty is existent as the determination of personality.
In the normal process of the nation in its representative
organization, in whom does its sovereignty rightly exist?
The common answer is in two forms:
Firstly; it is said that it is existent in the whole people.
This embraces each and every individual in the nation,
with no further discrimination. This is merely indefinite,
and can admit of no actualization.  It does not presume
even the consciousness of a political unity and order, which
is the precedent and condition of the action of the political
will. It does not ascertain a real sovereignty. It is physically impossible, since the whole population comprises a
certain proportion who are not capable of performing what
the proposition presumes. It is unhistorical, since there
has existed no political organization where the power was
held in common by the whole population; some law regulative of political action in the consciousness of the people
must be assumed.   The proposition is inconsistent with
the organic and moral being of the nation, and has its
premise in the conception which identifies the contiguous
population in a certain locality with the nation.




THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 211
Secondly; it is said that it is existent in the qualified
electors. But who, in the normal representative constitution, are qualified? What qualification may be rightly
assumed by the nation as defining an elector? It is said
that the nation of itself has a right to define the qualifications of its electors. This is evident; for as the act
of the elector presumes the being of the nation, and
the consciousness of unity and order, that is a political
spirit, so the nation alone may define the qualifications of
its electors; and the act then of the elector is that of one
in whom there is the political spirit which subsists in the
nation.  The act of each- the nation and the elector
-is primarily involved in the other, there is a logical,
but not a formal, precedence. But since, then, the nation
alone has the right to define the qualifications of its electors, in what principle may it rightly proceed to define
them? In what principle may it ascertain the real sovereignty of the nation, so that in the designation of its
qualifications its "sovereignty may have full and free
exposition?  The nation cannot be left to define these
arbitrarily, since that would contradict the reason of the
state, and would imply injustice in the nation itself; its
process would become the expression of the willfulness
of men, not of the will of the people. It cannot be presumed that they are to be left for their definition to the
adjustment of accident, since the conception of sovereignty
precludes this; and the nation can allow no accident to
shape its course or determine its end,
In what principle, then, is the nation to proceed in its
representative constitution, -in the realization of its sovereignty?  This inquiry may be carried further.   What
is the quality of the act of an elector for which qualifications are requisite in order to define it?  In other words,
what is a vote? A vote is the formal assertion, in conformance to certain political prescriptions, of a free will in
the determination of the government of the civil and polit



212                  THE NATION.
ical organization. It is the act of a person in the political
process of the people of which he is a member. A person
is one who has a free will, - one whose action is free and
self-determined. This is the substance of personality, and
in this personality is in identity with sovereignty. The
existence of personality is therefore necessarily presumed
in the qualifications of an elector.
The inquiry; then, as to the principle of representation
is resolved into the further inquiry, what is the organization of the nation, -the normal political organization, in
which a person acts as an elector, in the determination of
its sovereignty?  The answer to this inquiry has always
been in correspondence to some antecedent assumption, as
to the being and end of the nation.
It is said that the nation is formed in the representation
of interests, which in their combination are assumed to
constitute the political organization. This is the postulate
of Mr. Calhoun. He says: "There are two ways in
which the sense of the community may be taken. One
regards numbers only and considers the whole community
as having but one common interest throughout, and collects
the sense of the greater number of the whole as that of
the community. The other, on the contrary, regards interests as well as numbers, considering the community as
made up of different and conflicting interests, as far as the
government is concerned, and takes the sense of each
through its appropriate organ, and the united sense of all
as the sense of the entire community."  This is defined as
a universal principle and applied to all forms of government.   " In a republic, in consequence of the absence of
artificial distinctions, the various natural interests rise into
prominence and struggle for the ascendency;" and he says
of the restriction of each by the other, "it is this negative
power which in fact forms the constitution."
1 Calhoun's Works, vol. i. p. 221.




THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 218
This identifies the nation with the commonwealth or
the civil corporation, while in that it is imperfect, since it
allows no real ground for its continuance. It apprehends
the organization of society only as the combination of conflicting interests, each struggling for the ascendency, and
the constitution is the negative result which is obtained in
the balance of these repellant forces. This theory of selfishness, or of enlightened self-interest- l'interet 6ien entendre, which is assumed as the basis of society, cannot
become the foundation, nor, in the balance of its endless
antagonisms, constitute the authority of the nation. There
is no combination of private interests or private rights
which can attain to the conception of public rights or duties, or create a public spirit; no accumulation of special
interests can form the whole, and the nation does not exist
for the furtherance of private or special ends.
Interests, even in the low and evil conception of life in
which this theory proceeds, do not form the stronger motives to human action, but are overborne even by the
habits and impulses and passions of men. These interests
moreover, centering in self, cannot become constructive of
unity, for unity can subsist only in the consciousness of
moral relations.  There is also in the foundation of the
nation the manifestation of a spirit and law of duty and
sacrifice, and there has been none but has been called to
crises in which no interests could be weighed against the
sacredness of its life, or the obligation of maintaining it.
While each interest is thus constituted as a negative
against every other interest, these negations can form
nothing positive; they are constructive of nothing.
The proposition assumes also a representation "through
their appropriate organs," of various interests, whose value
is to be regarded, and which are weighed and counted
against each other, and estimated by some special consideration. As this becomes the ground of representation,
it would consistently require a representation of interests




21.4                 THE NATION.
proportionate to their value and extent, and form a constantly changing schedule.
It is deficient even as a description of the commonwealth
or the civil corporation, and in it the organization of society
is severed from its moral ground; its bond is only the
maxim of expediency, and its permanence the dictate of
some separate and private interest seeking its own end.
There is no longer a higher authority for government, nor
the recognition of a divine obligation to maintain order
and to punish crime.  It is the disintegration of society;
and the subversion of the whole, by the secession of any
interest which deems the action justified by the grievance
it may suffer, or by the profit it may anticipate, is its logical
and historical sequence.
It is said that the nation is constituted in the representation of families.  The family is the integral and formative
unit of the nation; each family is to be represented in it,
and only one who is the head of a family is to be an elector.
But the nation as an organism is distinct from  the
family. Instead of being limited and defined in its end
by the end of the family, and in its order subordinate to
it, it is constituted over it.
The proposition would conform to an oriental type of
society, and instead of consisting with the organic and
moral being of the nation, it would be constructive of a
state in which there was no political spirit, and no citizenship or law or freedom. It would also, unless supplemented
by a fiction, obviously exclude some who have wrought
with the highest power in history.
It is inconsistent with the nation in its necessary conception, as itself a moral organism, to which the individual has an immediate relation, and not merely a relation formulated through the family.  But the error in
the premise of the proposition, is the implication of the
identity, of the family with the nation.




THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 215
It is said that the nation is constituted in the representation of numbers.  The whole number of inhabitants as
enumerated by a census, is to be represented.
There is no more reason why men should be estimated by their numbers than by any other physical quality, as for instance their bulk. There would be the same
consistency in basing representation upon the stature or
color or gesture of men, and these might with the same
justice enter into the representative government. There
is no clearer discrimination of sovereignty in numbers
than in any physical proportions.  This also assumes the
identity of the nation or the political people simply with
the population.
It is said that the representation should be of certain
capacities or properties or accidents attaching to men. This
regards certain powers of mind, or incidents of life, as
for instance, occupation, as the ground of representation.
The practical application of this proposition has been attempted in the scheme for a plurality of votes. Mr. Mill
denies the proposition, " that all persons ought to be equal
in every description of right recognized by society," and
therefore demands a distinction in the number of votes
which each should give; "if every ordinary unskilled
laborer ought to have one vote, a skilled laborer ought to
have two, a farmer, manufacturer, or trader should have
three or four, a. lawyer, a physician, or surgeon, a clergyman of any denomination, a literary man, an artist, a public functionary, ought to have five or six." These proportions are laid down, "putting aside for the present the
consideration of moral worth, of which, though more important even than intellectual, it is not so easy to find an
available test."  If then this consideration of relative moral
worth were added in this arithmetical estimate, the difference between the single vote of the workman, who knows
enough to cast one vote but not more than one, or is good




216                  THE NATION.
enough to cast one but no more, and the higher grades of
social and intellectual acquisition would be very great. But
the proposition, in its application, would be unjust upon its
own premise, while this condition is omitted, and of this
the external condition gives no test. If the power of each
as an elector was made thus proportionate, in a numerical
scale, to certain external signs of relative moral worth,
the standard would inevitably be so imperfect, as to make
the actual process corresponding to it the most complex
system of injustice. It not only would revive the maxims
of the Pharisees, but it would attach to their schedule of
virtues a power beyond any compensation that has been
assumed in their estimates. If it were joined to a merely
economical conception of the state, there could be for a
people whose moral strength had any living energy or
spirit, no agent of debasement so potent.
But the principle which the scheme assumes is false, for
it is not the occupations nor the acquisitions of men, nor
literary attainment, nor official place, nor artistic nor professional skill that is the ground of rights, but it is personality itself, and in the infinite worth of personality - the
worth of manhood- is alone the foundation of rights. The.state can compute this by no arithmetical notation, nor by
any addition or subtraction can it find its numerical equation. It cannot set against some intellectual or professional
acquisition in one person the whole determinate action
of another person.   The proposition proceeds from   a
merely artificial notion of personality, a mechanical standard of duties and rights, a formal scheme of morals, the
empiric of virtue; it is the "excellent foppery of the
world."
It may be further said of this scheme, that none of the
properties and powers enumerated in it correspond to the
nation as founded in the nature of man, and as the normal and moral order of human existence. If it were a
great utilitarian organization or machine, a cutlers' associa



THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 217
tion, or a railway or gas company, or a produce exchange,
or an economic society, and it were required to choose
those who should be its foremen or directors, then it might
better give to skilled labor or to professional attainments,
and to these in their strictest estimate, the sole or the substantial choice; and- if it were only an academic society, a
school or sect, then literary culture or scholastic habit
might chose its dean or doctors.
But it is none of these; the principle, moreover, in so
far as these estimates have been applied, has been disproved. The literary and scientific class, to whom in this
estimate, and perhaps, on its premise, no better could be
made, a power sixfold beyond that of the unlearned is
allowed, have only too often been betrayed by whim and
caprice, and subservience to political abstractions.  They
are men withdrawn, perhaps, in the narrow circle of some
ethnic or linguistic theory, and blind to all facts beyond its
narrow horizon, or scholars who draw their political precedents from the ideal world of Homer's heroes, and not the
grander world of to-day. The Universities, when a special
representation is open to them, are more often represented
by lower men; as Oxford in England, whose later representatives could scarcely justify the working of the representative system in comparison with the greatest of its
medieval politicians, William of Occam, or might suggest,
in the comparison, some question as to the principle itself.
A fact often noticed, is the tendency, also, to defect of
political spirit and loyalty, in men of an exclusively scientific or mathematical culture; it may be in the latter,
because their study is merely formal; there is the depreciation of the moral or political world, the life of man in
history and the order of society, in comparison with the
physical world.
But this empiric standard would require also for its.consistency the adoption of a negative scale, by which the
number of votes should be diminished, as, for instance, one




218                  THE NATION.
who lives in idleness, whether in poverty or with inherited
wealth, whatever be his profession or his attainment in it,
should have his number of votes correspondingly reduced;
this rule of subtraction would require constant changes
with the changes of condition or character, as on some
weather-gauge with its shifts; and in the representation
of professions,. the difference between the better and poorer
members is more than the difference between separate
professions, and this also would require representation.
While the aim in this proposition may be well enough,
the principle assumed has no foundation, and therefore
fails of any clearly defined practical application. It is at
the outset in conflict with the foundation of rights, or it
may be said, that it allows its inconsistency with an equality of rights.  The proposition has its premise in the mechanical notion of psychology, which classifies and divides
the will and the affections and the powers of the mind, so
that, as in Hegel's illustration, a man is represented as
carrying one faculty in one pocket and one in another. It
is after the distinctions of the school-men, who pronounced
their judgment upon the masters in the medieval schools
by a fixed scale, representing for instance genius as four,
learning as five, imagination as six, judgment as seven,
aind striking the balance in order to arrive at their comparative merit. When Mr. Mill, to maintain his proposition in opposition to "' equal suffrage," defines the latter as
an "equal claim to control over the government of other
people,"1 it resolves the state into its atomy, and is the
merest individualism; for no man has a claim to control
over the government of another, but the nation has the
claim to government over the whole.
The nation, then, is not constructed in the representation of interests, for it is in itself before each and every
separate and special interest, and can be formed by no accumulation of them; it is not of numbers, for these may
1 J. S. Mill, Dissertations, etc., vol. iv. p. 160.




THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 219
exist separately from it, and no aggregate of numbers, however vast, is in identity with it; it is not of families, for it
is other than the family, and no collection of families can
attain to it; it is not of special acquirements or capacities;
as an association of trades, or arts, or schools, for the state
is in none of these; it is not to interests or families or numbers, or special and exclusive professions and attainments,
that the right of government in the nation belongs.
The nation is constituted in its normal political order, in
the representation of persons; and the right to representation is the right of a member of the nation who is a
person.
Government is and can be only of and through a person.
The vote is the right in the nation of a person, as the
act can be only the act of a person.  This is no abstraction to be newly applied in the sphere of politics, and
no scheme for which from the outset an actualization is
sought,e but it is the principle which has the broadest
ground in history, and the only ground in reason, and the
necessary ground in justice.
Firstly; this principle has the broadest ground in history. It alone can claim an historical justification in the
representative constitution.  It has not infrequently passed
into the order of the state without a direct or avowed recognition, as if of itself coming forth. There has been a con'
stant endeavor, in some shape, toward its assertion. The
most common tests which have been established have had
no other consistent basis, and without the recognition of
this law fall to pieces as a miscellaneous bundle of terms
and conditions.  Thus, in the most common conditions for
instance, a universal principle being assumed, the child,
or the dependent, or the demented are not allowed to
vote, since they have not the will, the conscious self-determination and freedom of a person; and in the conception
of the law they are constructively, but not actually per



220                  THE NATION.
sons; and they, also, who have been proven to have taken
a bribe, or made a wager on the issue of an election, are
not allowed to vote, since their act, as controlled by an
external consideration, is regarded as no longer free, that
is the act of a person; and they who have committed a
high crime are not allowed to vote, not because this privation is an immediate punishment of crime, but because
through crime they are regarded as having lost their freedom, as in wickedness men are no more free, and there is
in it the destruction of personality. There are no other
tests which have been established so widely as these, and
in this principle alone they have their consistent ground.
The qualification of property might claim as wide an application, but that refers to this also for its ultimate justification. Blackstone, in a passage of great breadth and significance, concedes this. He says, " The true reason of
requiring any qualification, with regard to property in
voters, is to exclude such persons as are in so mean a
situation, that they are esteemed to have no will of their
own. If it were probable that every man would give his
vote freely, then every member of the community should have
a vote. But since that can hardly be expected in any of
indigent fortunes, or such as are under the immediate
dominion of others, all popular states have been obliged
to establish certain qualifications, whereby some who are
suspected to have no will of their own are excluded from
voting."  Again he says, "only such are entirely excluded
as can have no will of their own."  While this presentation
of human nature, which makes property the sign of personality, is neither just nor edifying, the principle of representation is conceded in it. There is, therefore, in all
these tests, which have had the widest institution, the
recognition of this principle and the endeavor to establish
it. It alone has the broadest historical ground, and only
in their reference to it are the common conditions justified.




THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 221
Secondly; this principle has the only ground in reason.
It has its precedent in the being of the nation as the
natural and normal order of human society. In personality, man has the condition of all rights, and a realized
personality is to have its normal expression in the nation,
as the nation is the natural and normal condition of human society.   The right to vote is therefore a natural
right, - the right of a member of the nation. It is still the
induction, in fact, of the postulate of Aristotle, " man is by
nature a political being." If the nation was only a formal
or an artificial association, then it could allow any formal
qualification and any artificial test, and the political artificers constructing the fabric could elaborate them  after
their own device; but if it be the natural order and condition of human existence, as there is in personality the
realization of the true nature of man, so in the nation, as
the manifestation of the true nature of man, there is to be
the expression of it. There is no other conception of government which is not inextricably involved in the arbitrary
or the accidental.
Mr. Brownson says,'" The elective franchise is not a natural right, because it is political power, and political power
is always a trust, never a natural right, and the state
judges for itself to whom it will or will not confide the
right."  It is evident that the nation is to judge for itself
to whom it is to confide the right, but the whole inquiry is,
as to what principle it may rightly act upon, in the assertion of this right, and what is to be the premise of its judgment. It is a right as well as a trust, but the position of
Mr. Brownson assumes as the condition of the process of
the nation, the isolation of positive from natural rights, and
the severance of the sphere of each. It is a trust and a
right, and there is an inherent weakness in its separation
as a trust from its conception as a right. In it, as it is
nowhere else apparent, there is the correspondence of a
right and a duty, as they subsist in personality; it is a




222                     THE NATION.
trust vested only in an actual or realized personality, and
in this only is it a right.1
In this the nation is constituted in conformance to its
necessary conception, as a moral organism. There is
evolved in a moral organism the affirmation of personality,
and the nation is formed in the realization of personality.
The person who is a member of a nation is not to be regarded as a negation in his relation to it.  For personality
no negative condition is to be postulated, in which its being is ignored, and its aim is disallowed; but it is to be
regarded, as the nation strives toward the realization of a
moral order.
It is not alone the passive right to the advantages resultant from the nation, for in this there could be neither
the satisfaction of the moral longing nor the fulfillment of
the moral aim   of man, and this would indicate only the
defect in the moral condition of the nation and its degradation, but it is the right to recognition as a person and
the correspondent affirmation of personality in the process
of the nation.2
In this the nation is constituted in conformance to its
necessary conception, as the realization of freedom. Freedom is no negation; it is not found simply in the security
which is obtained by restrictions imposed upon an external power, nor in the uses resultant from the checks and
guaranties constructed against an external power. It is
not attained in a condition of indifference to the nation.
It is not in the acquiescent reception of its common advantages, nor in the permissive participation in the things in
which it has profited. Personality is not regarded in the
nation when it is restricted to some special end, nor has it
1 Brownson, The American Republic, p. 379.
"No man has a natural right to be a toter without qualifications or conditions,
but every man in a republican state has a natural right to become a voter." -
Mr. Taylor Lewis.
2 " Die volksvertretung ist im Staat absolute sittliche Forderung, nimlich
genau in demselben Maase, in welchem der Staat, bereits wirklicher Staat ist."
Rothe, Theoloyische Ethik, vol. ii. p. 125.




THE NATION AND ITS REPRESENTATIVE CONSTITUTION.           223
compensation in the partnership of its accumulated gains.
The personality of man is not in the multitude of things
which he possesses. Freedom is only in the realization of
personality; it is only as there is in the nation, in its process and order, the expression of personality that there is
in it the realization of freedom.1
Thirdly; this principle has a necessary ground in justice.  In this, government in the nation is constituted in
conformance to its normal law.      It rests in the conscious
consent of the people.    It is the assertion of the political
will'of the political people. The more perfect expression
of the will of the people is in the government, and it embodies in it its purpose, and has in it the satisfaction of its
aim. The government in the determination of its sovereignty is not a mere order apart from the people; it is not
an abstraction having no ground in the organic and moral
being of the people, but it is the determinate life of the
people in the realization of a moral order.
The government in its necessary conception is over the
people, but it is none the less the determinate action of the
people, and of the whole people in its realized sovereignty.
The individual person is not simply to exist as a subject to
the government of the nation, while yet he is in perfect
subjection  to it, but he is to     act determinately in it.
The self government of the people is then no speculative
pretense, and no legal abstraction; it is no formal order
and no aggregate of institutions, but there is in it the realization of the self-determination of the people, the asser1 Franklin asserted these two theses: " That every person of the coummunity,
except infants, insane persons, and criminals, is of.common light and by the
laws of God a free man, and entitled to the full enjoyment of liberty." " That
liberty or freedom consists in having an actual share in the appointment of those
who frame the laws, and who are to be the guardians of every man, of life, property and peace; for the all of one man is as dear to him as the all of another;
and the poor man has an equal right, but more need to have representatives in
the legislature than the rich one." - Franklin, Works, vol. ii. p. 372.
Auch in der rechtlichen Freiheit, ist demn ach, die Wahl, ein unentbehrliches
moment, —ja, sie ist die Blithe der Freiheit, denn die Wahl ist eben die Ausraung der Individnalitat." - Stahl, vol. ii.sec. i. p. 327.




224                  THE NATION.
tion of and the obedience to law. The right of government in the nation is not then merely prescriptive; nor is
it derivative from  any convention; nor is it to be construed as a private right, to become the privilege of a
caste; nor is it to be restricted to a succession in a certain
family or a certain number of families to be accounted only
as some domiciliary right, vested in its present occupants,
and to descend as their estate, but it is the right of the
people in the realization of its moral being.
If any other principle be assumed, it must justify itself
in another and a lower conception. If for instance, the
nation is based upon property or has for its end the security of property, then property may control it, and money,
not men, may rule it, and those who have their highest
accomplishment in the making and keeping of money may
represent it;-if it consist as a private possession in the
privileges of the few, a family, or class, or race, whom force
or accident has placed in power, and if it be only the increment of their privileges to be held against all comers,
until some may come with stronger and more subtle force
to oust them, and hold these privileges against the former
proprietors, then, those holding them alone may determine
the course and destination of the whole. If any form be
assumed by which the expression of personality is denied,
then in so far, the government is defective, as the form is
arbitrary, since it exists not in the affirmation of that
which yet, in a realized personality, has in itself the spirit
and the determination in which government subsists. It
becomes the suppression and not the manifestation of the
power immanent in the nation in its moral being. And
as the form in which the affirmation of personality in its
normal process is denied is arbitrary, it may assume the
form of the determination of an individual, or family, or
class, and becomes the support of the power and privileges
of one or of a few, who hold only a formal and legal precedence. It establishes the government in an exclusive, and




THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 225
not in a universal principle, and it is formed in a narrow
separatism, as if the individual personality were to act in
the nation for some special end which is placed before
each, but not in its being, in the realization of the universal end.
The representative government is therefore constituted
in the representation of the people, in the realization of
its moral being. It is the representation of persons.  This
principle has had its assertion in the progress of the nation,
and with the higher result of history. It is in the being
and order and sovereignty of the nation, in the institution
of rights,,in the realization of freedom, that common men
as a fact have proven themselves to be men. The succession in the authority of the nation, since its inauguration, has been maintained unbroken, and has triumphed
over anarchy, when allied with the hate and the secret
assault and support of aristocratic and imperial powers.
It has been the ordination of a mightier sovereignty, and
the institution of an ampler freedom, and the realization of
the noblest political order which the world has seen. The
line of the Presidents, the elect of the people, from President Washington to President Lincoln, has been greater
than any line of kings. In the succession of events, the
self-determinate purpose, the moral strength of the people,
has been tried in its integrity and firmness of resolve,
through the crises of the most mighty insurrection, and it
has sought the maintenance of the authority of law, and
the consistence and continuance'of order, and with the
love of peace in its steadfastness it has followed them with
an unselfish end.
The right to vote is the right of every person who is a
member of the nation. It is the birthright of freedom. It
is the right only of a person, that is one in whom there is
the realization of personality, one whose action is self-deter15




226                  THE NATION.
mined, - one who has the consciousness of law and of
freedom in the self-determination of his own spirit, and in
that alone is the power which can shape the course and
destination of the state. It is the right of every person
who is a member of the nation, that is, who is born and
educated in it, as the nation itself is not simply a physical
but a moral organism. It is in the assertion of this right
alone, that there is the expression of the political will of
the political people. In this alone the government of the
nation has also the manifestation of its divine origin and
institution; as personality has its realization only in the
realization of divine relations and the fulfillment of the
divine will. In the institution of righteousness and of freedom is the being of the nation, and in this in its highest
conception, government in the nation is manifested as a
trust and a right.
The aim of the political constitution should be, to give
to every member of the nation who is a person, representation in it, that is, every actual person should vote, and
none beside. This and this alone ascertains the actual sovereignty of the political people. The qualifications which
proceed on this ground, which is also the nature of the act
itself, - and no power can make it other than this, - alone
give expression to the political thought and political will.
These qualifications may become more exactly defined in
the historical development of the political people; but their
aim will be always the same. These qualifications as defined in law have necessarily the form of a general law.
Their intent is the exclusion of those only who have no
will of their own, that is, no personality. Thus children
and minors, and those who have taken bribes or made
wagers, and the- imbecile and insane, and all convicts or
criminals are not allowed to vote. The government of
the nation is founded then in the determination of its
manhood and in the spirit of the people, and not in the
accidents of life,, as property or occupation, or rank, or
color, or race.




THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 227
The vote then, as the representation of a person, precludes all special distinction.  There is an infinite worth
in personality, and therefore every person in its representation counts one. It is representative of the whole personality.  There is no graduated scale in which to estimate
the relative worth of real manhood, or the valuation of
the whole moral determination. If the personality of man
could be made secondary, then by a graduated standard
the most extensive system of a plurality of votes could be
adjusted to the proportionate worth of the moral determination of men, and many votes could be given to one, and
few to another; but the personality of none can be held
thus as itself inferior and its all, the entire moral determination in its integrity, as of a diminished quality.
To confer the power of an elector upon one who in the
course of nature is not a member of the nation, belongs
only to the nation in its sovereignty.  There is for every
individual as such, whether citizen or stranger,:all rights
subsisting in the necessary relations of life, that is all civil
rights; but all rights subsisting in the nation in its freedom, that is all political rights, are only of the political
body, and if an alien be received and made a member of
it, it must be by the act of the nation in its sovereignty.
The homely phrase of the law is- to get naturalized; but
this is not a slight nor easy thing; and nature works, even
as in the life of states, slowly and patiently, and is not subject to the act of legislatures, or the administration of
courts. The Republic is indeed to welcome the stricken
and the oppressed for conscience sake out of every land,
and is to be as the city whose gates are open by night and
by day, and not the least among its titles is that of the
name of the home of the pilgrim; and if it be forgetful
of this, it loses some of its noblest historical traditions.
But to admit to immediate representation whoever may
come to its shores, who have no consciousness of the aim




228                  THE NATION.
and destination of the nation, and no participation in its
political spirit, becomes a defect of government and is a
detriment to the Republic.  To bestow upon these the
same political power with those born and educated in
the nation and animated by its design, is no more just,
than to refer the decision as to the direction of a house or
the disposal of an inheritance to some transient guest who
may come to lodge over night or take shelter in a storm.
They have no apprehension of the unity and continuity
of the nation, and do not partake of its conscious spirit;
it is elsewhere that their thoughts turn to cherish the
memory of their ancestors, and elsewhere that their hopes
look for the home of their children. Thus, there are Keltic
and Asiatic populations who have been educated under
an imperialism, and bring with them imperial tendencies
which involve the degradation of the individual personality.
They have thus no clear conception of freedom and of
rights which subsist in personality, nor of what constitutes
a nation; there is thus often among the Keltic populations a merely tribal feeling, and the nation is conceived
as itself vested in a race, and in the want of personality
they fall under the control of some priest Or demagogue.
The immediate characteristic of the Asiatic populations
is this want of personality.  Through customs which
have a weight which the occidental mind can scarcely apprehend, they retain their attachment to the land
of their nativity. They have here no enduring home,
and regard another land as alone sacred. Thither they
turn with reverence to the graves of their ancestors, and
look forward themselves to finding a grave in it, avoiding to fall in battle elsewhere, and refusing elsewhere to
be buried. There is an evil in the accumulation of masses
of populations whose thought and spirit separate them from
the nation, and who are subject to a foreign ecclesiastical
or political influence; but the evil is not obviated by conceding to them a political power which has no root in




THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 229
devotion or sacrifice, and is inspired by no love.  There
may and should, in the prudence of the state, be some
form or law of naturalization; but to refer to these populations political power, with no discrimination, involves
danger to the political whole.
It is thus, also, that Indians are excluded from voting;
not because they are not taxed, but because, as they are
subject to the will of a chief and absolutely controlled
by it, they are without freedom; they also exist in a
tribal relation, the organization of a race, which isolates
them from the organic and moral being of the nation; but
in withdrawing from this tribal relation, they come upon
a national position and should be regarded as members of
the nation.
There have been some qualifications defining the right
to vote which claim a separate notice.  The qualification
in property, maintained by Blackstone as the sign of a
conscious freedom and independence of character, has an
historical presumption. But property is no more the evidence than it is the basis of manhood.  It has always in
itself too great power, and there is always danger that it
may seek to subvert character, and to subordinate the
whole to selfish ends. This pecuniary condition of suffrage tends, also, to an estimate of the nation itself by a
pecuniary consideration.  It induces the disposition to regard the government as the agent of special interests, and
in the crises of its existence there has been the inclination, in great divided interests and monopolies, to pursue
exclusively their own separate ends.1   When it is said
that the owner of property should vote, because possession
gives a stake in the nation, it makes self-interest the condition of the nation, which it cannot be; and as in these
1 Mr. Brownson says, "The mere men of wealth, the bankers and brokers,
are those who exert the worst influence upon the state; their maxim is, let the
state take care of the rich, and the rich of the poor, and not let the state take
care of the weak, for the strong need it not." - The American Republic, p. 383.




230                   THE NATION.
crises the nation may call for the sacrifice of property
and of the.life of the. individual, there is the negation of
the so-called stake in it.
But a property qualification has its premise in the assumption that the nation exists primarily to protect property. It regards security as the only end, and prefers
Babylon to Judara if only the ducats are stowed away more
safely in it, though they never are.  But the residence of
government in property is consistent only with the organization of the nation in certain private rights, the barbaric
or the patrimonial constitutions, where power is a private
estate.  Thus when property has been made the exclusive
qualification, there has been the disposition to regard a vote
as something which one possesses, as itself property, something which may be held at a pecuniary valuation, and
bartered or transferred.
A qualification in education, or more strictly, a literary
qualification, as the ability to read some state document or
to write, has obtained a recent advocacy. In so far as intelligence is implied in the conscious freedom and self-determination of the will, that is, in so far as its action has
a rational content, this test has a higher worth than the
preceding, and the real education of the people, in which
there is a moral more than an intellectual element, is, in
another phrase, the realization of personality. But the
inquiry is, how far a strictly literary qualification is indicative of this. If it was the only qualification, then lads
at school, on passing their examinations, could vote.  The
qualification is then assumed as but one, with certain
others, and the ability to read or write, and a certain technical or scientific acquisition, is held as indicative of fitness
for the offices of a citizen, so that all lacking this are precluded from its highest exercise.
But the test is a superficial one, and perhaps of all is
the most artificial.  A technical or scientific acquisition
is not the evidence of the real education of the people.




THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 231
Mr. Hare says justly, that "no science can reach the
depths of the knowledge painfully won in the daily life,
and the experience of man and woman." The life of the
workman, the fulfillment of human relationships in the
family and the community, the endeavor of men in the
realities of life, is a deeper education; and in work rather'
than in a certain literary or scientific acquisition, is the
evidence of the capacity for political power.
There is nothing in the political action of a distinctly
literary or scientific class to justify the application of this
test.1 They have seemed more often to be controlled by
notions or theories, or by some vulgar conceit withdrawn
from politics and the organic life of the people, to become
only a learned mob. The elements of character, clearness,
foresight, and the self-determination of the will, are not
always among the acquisitions of literature or science.
Even Comte says, "'clear-sightedness, wisdom      and even
consistency of thought, are qualities which are very independent of learning."
A qualification of a literary or scientific form for political action has also no historical justification. Some of
the most intellectual periods in the course of a people
have been the most corrupt; they have been characterized
by the destruction of personality and the coincident decay
of national life.  Greece in her dissolution was crowded
with the most fluent rhetoricians and the most subtle
sophists, and her citizens became at once the slaves and the
tutors of other peoples; and the Greek still with his intellectual acuteness is destitute of the most primary civic
virtues.  The age in Rome which was marked by the
1 See Milton's reply to the grammarian, " Whosoever therefore he be, though
from among the dregs of the common people, that you are so keen upon, whosoever I say has but sucked in this principle, that he was not born for his
prince, but for God and his country; he deserves the reputation of a learned
and an honest and a wise man more, and is of greater use in the world than
yourself. For such a one is learned without letters; you have letters but no
learning, that understand so many languages, turn over so many volumes, and
yet are but asleep when all is done."-Milton's Works, vol. i. p. 30.




232                   THE NATION.
transition from a nation to an empire, although its creative
power in literature in certain forms may be traced to a
preceding national development, was yet characterized by
a wide intellectual culture, and a rare although superficial
refinement in letters.  The movement for Secession was
marked by a skill in its leaders that could ransack history for their legal and diplomatic precedents; and the
growth of imperialism in England has drawn to itself the
almost entire support of the literary class of the English
race; but literary and scientific culture is not always indicative of the moral strength and determination of a people, and the intellect divested of moral spirit is not a
power working in the institution of righteousness, which is
the condition of national being.
But a literary or scientific test fails, because the act to
which it is to apply is not of a literary or scientific character, and the qualification must be conditioned upon the
nature of the act. These qualifications, to the effect that a
certain amount of property or a certain degree of literary
acquisition shall determine the fitness for the duties of a
citizen, proceed from the notion that the character of man
consists not in what he is, but in what he possesses; that
in the conditions of his action what a man has is to be preferred to what he is.
The real education of the people is to be provided for
in the organization of political power. They for whom, in
the want of a realized personality, the exercise of electoral power is not possible, yet have a right to the aid of
all in the nation that may tend to its development. They
are not to be left in political indifference because destitute of the capacity for political power.  They have the
right to be educated by the state for the state. Their education is to be regarded as the necessity of the state, and
in the endeavor toward the development of their personal
power, the nation advances toward its destination. It is
the formation of an independent manhood, so that he who




THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 233
has reached his majority in years, is always in his political
majority.
The correspondent evidence of the law of representation is in the fact that every divergence from it, as the
sequence of a false premise, issues in disaster. The sovereignty and representation of numbers, and the entrustment of political power to those, who have in themselves
no ground for it, has only this result. There is no basis
for, electoral rights, when there is no capacity for electoral action. The force which is impersonal in the state,
cannot be called upon to shape the destination of the state.
The crowd, that is, the disorganized elements, the anarchic fragments, are not to be called to the government
of the state. The power referred, on the premise of some
abstract notion of rights in representation, to this impersonal
mass, is a contradiction. This force does not and cannot
offer a vote, when the occasion is open to it by electoral
laws. Its action is expressive of no free and conscious purpose; and called to act in the institution of freedom, and to
incorporate it in the state, it moves only as some fate. In
the construction of a moral order, it sweeps on as a physical force, not as if directed by an inner will, but by a
mere momentum. It is the casting into the scales, when
the highest issues are to be decided, of a dead weight. It
drifts, and like all forces not guided in human life by a personal power, it drifts downwards. Its course, apart from
the real will and freedom of the people, is so inevitably
toward the wrong, that the language of a clear and selfdeterminate spirit is, "I have not gone with the multitude
to do evil." It is the building not of an order, but of a pandemonium; it makes the nation the confusion of strange
tongues, and the Babel of incoherent and unmeaning
voices.  It creates a power which is not the will of the
people, but is without the consciousness of the unity and
order of the people.




234                   THE NATION.
The object of every political constitution is to exclude
this element, that is, the impersonal mass, from authority
in the state. The reference of power to it subjects the
organization of society to brutal force, while the whole
effort of civilization has been to wrest it from that blind
and unthinking sway.   It is this which has been the constant aim and the condition of freedom.
This reference of power to mere numbers, that is, the
impersonal mass, is justified by no right.  It is a barren
sceptre, and in the defect of sovereignty in itself it cannot
act for its institution in the state.  It is not the assertion of
the sovereignty of the people, but the negation of sovereignty and of the people. Its exclusion is no violation of
the law of democracy, but is necessary to the assertion
of democracy. Its exclusion is not despotism, but its inclusion  is the worst despotism,- the absolutism   of a
multitude, not the government of a free people. It is a
rabble of men which is called to the expression of the
thought and purpose of the political people. It is a formless waste, out of which the determination of the form of
the state is sought.  It is the necessary degradation of the
whole, and the state supplies in itself the instrumeht of
corruption.  It does not act with freedom, and it will not
act for freedom.  It falls under the influence of parties
and sects, to be used for their special ends. It becomes
subservient to men who will employ it for the accomplishment of selfish schemes, or the furtherance of their own
ulterior interests.  Its subjection is to the domination of
those who can rule masses, but cannot rule freemen, and
it becomes the instrument of the designs of the demagogue
or the priest or millionaire.
The multitude is everywhere dangerous to the state;
but the bestowal of power upon it is to place the arms
of her arsenals in the hands of the blind.  It is the unreason of the state when it calls upon ignorance and vice
and crime to determine its career.




THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 235
This investiture of the impersonal mass with political
power, -the mere representation of numbers, —justifies
all the scorn which has been spoken of it by the best of
men.   There is a comprehensive truth in the words, so
exact, as the political expression in Shakespeare always is,
- where
"Wisdom
Cannot conclude but by the yea and no
Of general ignorance, - it must omit
Real necessities, and give way the while
To unstable slightness. Pui:pose so barr'd, itfollows,
Nothing is clone to purpose."
The result is, that it"Bereaves the state
Of that integrity which should become it,
Not having the power to do the good it would,
For the ill which doth control it." 1
The result of the bestowal of political power upon the
mass appears in the government of the municipality of New
York. With the qualifications prescribed by electoral laws,
the danger disappears in a great commonwealth, while it is
apparent in a city where large numbers are congregated,
whose education under an imperial or ecclesiastical domination has left them without freedom. The people are
used to increase the wealth of a few individuals.
There has been    a special justification sought for this
bestowal of electoral power in its educational influence
upon the individual, as invoking a sense of responsibility.
It is true that the nation, without reference to the exercise
of electoral power with this object, is the mightier power
in the education of the race; but the bestowal of electoral
power, with the special design of the education of certain
individuals, avoids the content of the act and considers it
primarily in the interest of the individual apart from the
state. Its value as an educational influence upon the mass
is not apparent, since in the want of independent action it
1 Coriolanus, act 3, sc. 1.




236                  THE NATION.
becomes the instrument of any who may get dominion
over it; it induces also a low conception of a vote and of
the government itself. The gain which may appear in
some instances is at the most slight, in comparison with
the detriment to the whole. The education of the few by
this method becomes also as costly as it is perilous, as for
instance in the municipality of New York.
This bestowal of electoral power has been justified also
as a means of protection, and has been called by a senator' the protection of ignorance and weakness." To call upon
ignorance in this way to protect itself, is to impose upon it
an office of intelligence and decision of character. It is
only in justice and foresight that the protection of ignorance and weakness is found. When the control of the
state is given to ignorance the safeguard of rights is destroyed.  The vote of the city of New York is cast blindly
against the public interest, and subserves the private
schemes of men. If protection alone, and not a realized
freedom, were the end of the state, power assigned to ignorance and weakness would not ensure it.
The necessary nature of electoral power discloses the
evil of a condition of affairs which, in the abandonment of
character and freedom and the degradation of personality,
is fraught with the deepest corruption. In the absence of
the organization of the civil service and administration, it is
the condition in which public offices and trusts become
the instruments of power, so that their places and pay
are held to further private and partisan designs, and as
agents or tools to control men to certain special uses and
ends. The profits of office are used to buy voters, and
the promise of office is held before them as an equivalent
for their vote, or the threat of removal is used to intimidate them in their vote. Their vote is unfree and of itself is made the instrument of their corruption. It works
with injury alike to the individual and to the whole. It is




THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 237
the more immoral, for it is the use of the powers of the
nation to subvert its moral order. Thus there are those
who refrain from the thorough organization of a civil service upon the simplest maxims of economy and prudence,
because they can use its offices to further private and partisan ends and to build up their own power, and an imperfect civil organization becomes the pretext for their course.
It is the undermining of the freedom and the defeat of the
sovereignty of the people.
The public offices and trusts of the nation are held as
patronage. The word is consistent with the barbaric constitutions in which power was held as a private estate;
the ruler was a patron and the place belonged to his patrimony. Yet however democratic the pretense of the form
of the state may be, to hold these positions as a means
for private or partisan ends is beneath the barbaric constitutions, for if they allowed this patronage to the prince, it
was because he alone was presumed to be in identity with
the state. In the existing condition, the offices and trusts
are held, not as in the service of a free state, but as an
imperial boon. It is, in the interest of a class of so-called
politicians, the building of a power independent of the
people, and to become a means of their degradation. To
allow these men to offer offices as a recompense for action
in their behalf, or to remove or threaten any with removal
from offices they have faithfully administered, on account
of their independence of political action, is bribery. And
when workmen in national armories and navy yards, who
are dependent for their daily support upon their daily
labor, have their places used as an instrument to control
their vote for private or partisan ends, the political crime
can scarcely be surpassed. The national offices and trusts
are employed to control men as evil dominations control
them, in the subversion of their freedom.   They are
driven to vote as a gang. It is the same in result, when
the bribe is tendered by an individual or a party, and in




238                 THE NATION.
money in hand, or a place of corresponding pecuniary
value, and there is no. distinction if the workman be discharged from a plantation or a navy yard, or driven from a
farm or an armory on account of his vote.
The public service is conducted not onlywithout regard
to prudence and economy, and honest and efficient administration, but national offices are used by those in power to
retain power and promote their private ends; or in the
triumph of a party, they are held as booty won on the
field, to be divided among its retainers. The consequence
is also the filling of public offices with bad and irresponsible men. The vote of those who are thus controlled is no
longer a free, that is, a responsible act, but is the service of
a dependent and the assent of a valet. It has no more
worth than the act of a slave, the man who does not know
his own mind and cannot call his will his own. The corruption works in those who give and those who take the
bribe, and one who uses these means to control men becomes destitute of self-respect as he destroys the self-respect of others.  It frustrates the free and independent
purpose of the people, and there is in it the degradation
of character.
The nature of electoral power is inconsistent, also, with
the singular proposition, that in certain sections or districts, representation should be made necessary, and a vote
should be compulsory. It has been said, that men might
be required to send representatives to the government, but
this would be a form with no representative character.
It would be only the authority compelling the act which
was represented, and this could act immediately with
better consistency. The action when thus required would
not be the representation of free men, and would not have
the worth of the power which in some plebiscite obeys an
imperial will.




THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 239
The necessary principle of representation illustrates the
strength. and also the weakness, in that conception which
describes the government as the representation of public
opinion, or public opinion as the basis of the representative
constitution. It is true that public opinion appears only in
the organization of society, and there is in it the indication
of an aim beyond the private and separate end of the individual. But government is not constituted in the representation of public opinion, and there is not in this the
sovereignty or the freedom of the people.
There is in public opinion the unformed thought of
men, or thought as it is being formed. It thus takes its
color from the changing impulse and emotion and passion
of the moment, and reflects its hopes and fears. It denotes,
indeed, in some phases, the purpose that will endure and
assert itself with irresistible might; and in this is the expression of the conviction of the people, that will hold on
against the treachery of those who have been called to
power. It is thus that it indicates often the course and
tendencies of historic movements. But it denotes often
the confused agitation rather than the stable purpose, the
impulse instead of the deliberation of the people. It is
the rude and crude thought, often obscured by prejudice,
and it acts often in an imperfect knowledge of events. Its
organs thus are informal forces, and not recognized in the
constitution of the state; as, for' instance, the popular rumor, that is, the mere "report of a report," the public lecture, the newspaper, the course of the exchange, the talk
of the street. It is always undefined, and there is no
power whose authentic expression it is so difficult to ascertain, or which is so open to imposition, since some alien
purpose may often raise the noise and counterfeit the voice
and assume all the guises of public opinion; there is no
vehicle of public opinion, as the newspaper or public lecture, but may be set in motion by an alien power. It is
indeed the secret or anonymous form of these agents, as




240                 THE NATION.
the common rumor or newspaper article, that thus enables
them to serve a foreign opinion.
The statesman must learn to estimate the strength and
the weakness of public opinion, and when and how to regard and to disregard it. It is always to be considered.
and weighed as a positive force in the conduct of affairs,
and those who acted in indifference to it, would expose
their measures to the unnecessary risk of disaster. It is to
be regarded in any course of action, with respect to what
it may indicate in the mind of the people. But so far
from an immediate representation of it, it is always to be
held as a force which has not even a law of discrimination,
whereby its own thought and purpose may become clear.
The disposition to overestimate it is a characteristic of
weakness. (It is more often not itself clear, and instead of
being the guide of the state, needs a firmer intelligence to
guide itJ He who would have even its support in the long
run, must be strong alike to lead and to resist; he must
learn to apprehend the enduring purpose of the people, and
to hold it against betrayal.  The danger is that men who
are untrue to themselves, and thus without self-respect or
rectitude, will listen for it blindly, and follow its uncertain
voices, until in their weakness they lose their foothold, and
are swept away by its current.
To regard the representation, therefore, as that of public
opinion, is obviously defective.  It cannot and is not to
govern. To regard the government as only its representative, would argue a defect of will. There would be in
it the subversion of personality.  The power which became its exponent to indicate its courses and the shift in
its changes, would be no longer a real government. It
would open the way to " unstable slightness."  It would
yield in the panic of unformed thought. It would be the
regiment of those who start at the shaking of the leaves.
In the agitation and surging of its crowd, they that would
aim only to follow it must leave the place of leaders, and




THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 241
become lost in its multitude as their call is drowned in its
tumult. If they rise for a moment upon it, it is only to be
swept away by its tide.
The peril is thus in regarding public opinion, not to consider what it may indicate, nor what may be its force, but
blindly to obey it. Then in this servility there is the prostration of manhood.  Then it is made the substitute for the
conviction of duty, and a foundation is sought in it instead
of the steadfastness which is " buttressed in conscience
and invincible will."-  To turn from a central rectitude,
and the inner light, and the eternal word, to this uncertain
voice, which has in itself no law by which it may become
clear, is to follow the shout of the multitude. It is the
abdication of government when statesmen look only to the
popular voice in its momentary changes, and seek the oracles that peep and mutter, and join in the common superstition that calls for its favorite magicians and soothsayers.
At last the inevitable weakness of these men incites only
the contempt of the people whom   they could not govern, and whom they could not guide when called to go
before it.
There is another phrase which has become the formula
of a certain scheme in representation - the representation
of minorities. This presumes an arbitrary division of the
majority and the minority, and then asserts an injustice in
the reference of the conclusion in political action to the
former. The principle which it aims to establish is the
actual representation of persons; but it has been made
complex not only by not apprehending the necessary principle, which alone gives it consistency, but by the introduction of extraneous notions, as for instance, the proposition for a plurality of votes.
While the aim is always to be an ampler and more
perfect organization in the representation of persons, this
principle demands the exclusion of whim and willfulness,
16




242                  THE NATION.
the mere caprice of men. It also demands the clearer
determination which is implied in, the representation of
persons; and as the principle is embodied in the nation,
the government becomes more resolute and more positive.
The government is necessarily to have strength and energy
of purpose, and authority is to have a clear and unequivocal assertion; and so vast an impersonal mass is already
allowed to act, that the form of the political decision of the
majority alone may give a positive and conclusive expression to the political will. In another form there might
result the most grave disaster in a paralysis of power and
will.
The charge which is associated with this phrase of a
tyranny of the majority, has no justification on the postulate assumed, nor in the course of government. There
has been in history no power so devoid of tyranny as the
political majority; and the more frequent invasion of
tyranny in modern nations has been in the effort through
violence to override the will of the majority of the political
people, when asserted in the order of law. If the majority is actually tyrannical in its spirit and intent, no
scheme for the protection of minorities, which alone can
be sustained by the majority, would avail, and tyranny in
some form would be inevitable. It might be inferred from
the assault upon the political majority, that the oppression
of the world had been consequent upon the political action
of the majority of the political people; but the fact is that
the tyranny has always been the power of the minority
acting with no conformance to a constitutional order, as
the despot or dynasty, the hereditary or monetary class,
some family or collection of families, bound by a tie among
themselves; and these have held the whole as their possession, and subordinated it to. their own special ends.
The majority also is constantly changing and being resolved in the people, but these powers perpetuate themselves. The assault upon the political majority has often




THE NATION AND ITS REPRESENTATIVE CONSTITUTION. 243
seemed to start from the premise that its act is held as the
standard of truth, and not as the form for ascertaining in
the political order the determination of the political people,
and for the enactment of laws which are over all.      The
political majority has always been the method of ascertaining the conclusion of a representative body, as for instance
in England, where not only the sovereignty of the parliament is assumed, but where there exist no limitations
upon its power corresponding in force to those in the
United States, and its members are elected by a majority,
and while its law is enacted by a majority, submission is
commonly rendered to it, while of course no just effort is
prevented, to effect its change or repeal.1
In the past the will of the majority has been the most
beneficent form in which the government of the political
people has been instituted.    There has been in it a more
constant recognition of a principle of right which is over
all, and an endeavor to substitute it for the arbitrary action of an individual or a class; and it has sought, though far
from its better realization, more steadily the well-being of
the whole against the design of a few as an individual or
a class, and far more unfrequently than they has it been
diverted from its end.
There is an illustration often drawn from  the action of
the mass, or the fragments of a disorganized society, against
the action of the organic people. The cry of a Judsean
mob or a Roman rabble is made an argument of accusation against the nation and the expression of the organic will. But in these instances, the illustration is of
1 The form of representation was a subject of discussion, in the Colonial
period. " The Governor, Commissioners, and Council took upon them the legislative power, and the People were governed by their Ordinances until an assembly was called which privilege was then declared to be the People's Right."
-"A great part of the injustice done in the Colony may be ascribed to an un.
equal proportion in representation." - Samuel Mulford, 1714. Doc. Hist. of N,
Y., vol. iii. p. 367.




244                   THE NATION.
the influence of imperialism. It was when the national
spirit and life of Judaea was lost, and her unity was broken
in the increase and pretension of parties and sects, that
a mob was gathered, and the crowd, that shouted for the
release of Barabbas the robber, and for the condemnation of one who came to manifest the power of a king in
the service of humanity, appeared when the multitude had
already learned to cry, 6"sesar is king; we have no king
but Caesar.'  This is no illustration of the action of a
people, but of the mob which is not a people; it is no argument for accusation against the people, but is the evidence
of the degradation of men under an imperialism.
In this principle the political spirit and political will has
its true expression. It is to be held as a constant aim,
and there can be no estimate of the higher power which
it will bring.  But the change in the application always
in larger and nobler forms, can be the result of no laws,
and it is to come in the wisdom of the state. It is to come
in the development of the state, and not before its time,
when it could involve only peril and disaster to the
whole.
In this period, as in every period of transition, when
the order of things is disturbed by a vast migration of
races, there is so large and indefinite an impersonal mass
casting its heavy weight in elections, that its uncertain increase is to be guarded against, and the change which has
elements of progress must be in reality as in form, and in
the development of the nation in its moral being. The
conditions and qualifications of electoral power have a universal premise and law, but the aphorism de minimnis non
curat lex is necessary, and while this in individual instances
and to certain persons may involve an apparent wrong, yet
the extension of political power to the inclusion in electoral
action of a vast number who have no freedom of will,




THE NATION AND ITS REPRESENTATIVE CONSTITUTION.     245
and no capacity for political action, involves a far greater
wrong to the higher personality of the nation, and the
detriment of the whole.
The electoral right is a political right, and affects primarily the political people, and it should have in the constitution of the whole its enduring guaranties, and its sanctions
should be established in the supreme law.  The constitution defines the conditions of electoral power, and the
writings of President Madison indicate that it designed this,
but it defines them as inclusive of the. conditions established in the administrative order of each commonwealth
for the election of its lower house, and the more definite
description is referred to the commonwealth. It is true
that there is a certain advantage in this, since an extension
of suffirage might be made in the commonwealth, which
in its limited sphere, would not involve the peril that might
result in an extension through the whole, and the method
of amendment in the constitution of the commonwealth is
more free; but there is often wanting in the separate commonwealths the spirit which pervades the political whole,
and there is a want of the comprehension of the wellbeing of the whole, and the conditions in each commonwealth may differ so widely as to impair the unity of action
in the whole.
By an ingenious exegesis and collocation of clauses in
the constitution, the specific designation of the qualifications of an elector may now be claimed as within the
power of the Congress, but the assertion of political rights
must require no ingenious argumentation. There is not
in that the stable ground necessary for the institution of
rights, and the argument on which they are assumed to rest
may be met by some other argument, and argument is not
conclusion. The indifference of this school to the securance of clear and express guaranties for rights in the positive law, is the source of the distrust of its statesmanship




246                   THE NATION.
with the people. The disposition to be satisfied with some
argument, however subtle, indicates the defect in the
thought of those who dwell in the abstract conceptions of
rights, rather than toil for their substantial realization in
institutions.
The Republic is constituted in the representation of persons. There is in this the institution of the actual sovereignty and freedom of the people. It is the organization
of the republic in the democratic principle.  There is
strictly no democratic form of the state. There may have
been at a certain interval, in some of the municipalities
of Greece, in the organization of the whole people in a
public assembly, some correspondence to it, but it was necessarily limited, and there is no historical nation but transcends the possibility of a democratic form. But while
there is no democratic form of the state, there is a democratic principle. It is the principle, in which every person who is a member of the nation is to be called to act in
the normal determination of its government, and the government is to be in the name of the whole.   The form
of the state in which the democratic principle is realized is
the republic.
The electoral law is the law of the Republic. This law
has in the most varying forms the wider historical justification. The only comparison would be with the law of
hereditary succession, and the latter claim can scarcely be
sustained, even with the long monotony incident to its
periods. The latter has assumed an apparent security,
since it has an immediate provision for the future; but
to leave the government to the accident of birth, and
to restrict it to the line of a certain family descent, with
the contingency of the intervals which are described as a
regency, is not the most provident constitution. It has
been from century to century interrupted by a disputed
succession; and where the hereditary principle has been




THE NATION AND ITS REPRESENTATIVE CONSTITUTION.         247
maintained, as in England, in historical crises it has been
disavowed, as in the revolution of 1688; and these crises
have been more often the precedents of national power.
The sovereignty in certain families, as in England, has
also become only a formal sovereignty,1 that is, only the
institution of sovereignty. There was courage and chivalry
in the house of Plantagenet, and there was strength to
rule in the house of Tudor, and there was always a courtly
dignity and recognition of public duties and public offices
in the house of Stuart, but it is difficult to associate a
conception of sovereignty with the existing house, and in
this aspect the later line of its kings seems a sad and
fantastic procession.  The families which have held the
government as an inheritance, have not differed from
other families; they have not been exempt from      the law
in which the sins of the father are visited upon the children, nor could they claim   more than the blessing which
showeth mercy unto thousands.      A recent writer has said
that the constitution of England, its king and peerage,
rest upon a power of great influence, although held
slightly by the philosophers, the power of visibility. It
is rather the opposite, the power of illusion. The haze of
old political traditions veils them from the sight, and in
their elevation above the people they are not visible as
they actually are.  The hereditary principle is thus maintained in a sovereignty with indifference to the actual
character of the monarch, or it is an institution without
reference to a person; negative qualities conform to it, and
there is in it no representation of the nation as a person,
and only by some figment it is described as a national
device,- " only the dot over the i."
1 In the constitution of England, the crown has not the strength which the
executive has in the United States. Mr. Disraeli is one of the few statesmen
who have noticed the increasing incapacity or lapse of executive power. The
crown is a power without reference to the character of its occupant. It is said
the Parliament has become the sovereign, but the Parliament, in certain respects,
is not sovereign; it is destitute of the power which should be vested in the
legislature, as, for instance, the power to declare war and conclude peace.




248                     THE NATION.
The electoral law was the form of the Roman empire
and of the German empire of the middle age. It was
the law of the church; and the popes, as also the bishops
and abbots of the middle age, were elective.     In Venice
the doges were elective.   In Rome the hereditary law was
modified by a form of adoption.1
It is as the representation of persons, that the republic
is formed in- the moral determination of the people.     Its
necessary foundation is in the virtue of the people.  Montesquieu defined this as the principle of the republic.   It
is the foundation of society in every form; but it is the
very condition of the order of the republic.
It is said that the republic is a monotony, and its level
a low and dead level.     The contrast is then the formal
gradation of society, the construction of lower and middle
and higher classes.  The greatness which appears here is
comparative.   Its aim is the formation of a conventional
type.   But in the republic the political people hold their
own conscious aim, and reflect and determine their own
end. It is then a necessity that the republic should have
more of life.  Its life is always necessarily one of endeavor
and conflict, or the government must lapse into some other
form.   Its greatness is only that of a realized personality.
The long monotony of a despotism      is in contrast to the
ceaseless movement and agitation of the republic, and the
latter in its stability demands a higher energy, a more
constant vigilance of the people.   But the moral life must
necessarily follow this law, and in its advance is always
1 Macchiavelli says that " most of the lineal successors of the Roman emperors
turned out badly, while those who were adopted did comparatively well."
Aristotle maintains a partly elective law, rather than a strictly hereditary monarchy.- Poliics, bk. ii. ch. 8.
Cicero says in a passage of singular force, "Novus ille populus, - Romanus,
-vidit id, quod fugit Lacedemonium Lycurgum, qui regem non diligendem
duxit sed habendum, qualiscunque is fuit, qui modo esset Herculis stirpe generatus. Nostri illi etiam tum Agrestes viderunt, virtutem et sapientiam, regalem
non progeniem queri oportere." -De Republica, bk. ii. ch. 12.




THE NATION AND ITS REPRESENTAT-IVE CONSTITUTION. 249
the more quick, and the more unresting and unsatisfied,
and borne into higher and intenser conflict. This has its
illustration in the energy and devotion and sacrifice which
give nobility to the pages of the history of nations. This,
says Rothe,1 is the nature of an holy life, and that it is the
more unresting, and that as a consequence there may be
the loss of some apparent material advantage to the state,
is not to become an argument of opposition to it.
The offices and powers of the republic constitute a
public trust.  They are not held as a private estate. In
England the higher positions are held as a private investment, and in the army and navy commissions are open to
purchase and sale.
The representation of the Republic is of a person by a
person. It is not of one person in substitution for another,
but in community with another.  To regard one person as
in the place of another, would be the negation of personality, the representation of a person by a form or symbol.
The representative violates his own personality, if instead
of standing in his own free and conscious self-determination, he aims to follow a constituency and to stand in identity with that. Then he is no longer free in his own will
and knowing his own mind, and the result can be only
the weakness and instability of government.
The representative is a person, and is the representative
of the moral personality of the nation, and therefore in
the realization of that acts immediately only in relation to
the nation and to God.  It is-the law and the majesty of
the nation, in its unity and its fieedom, and as a government over the whole, that is to be realized in his determination.   He is not the blind and mechanical instrument or exponent of an external will, as a constituency or
a party, but stands in the will and determination of the
1 Rothe, Theologische Ethik, vol. ii. p. 126.




250                   THE NATION.
state, which is not external to him, but is to be realized in
him; but every formal notion of the nation forbids this,
since then the representative has only a formal relation to
the nation, and is representative only of separate parties or
certain persons in it.




CHAPTER XIII.
THE NATION IN ITS SOVEREIGNTY, IN RELATION TO OTHER
NATIONS.
THE sovereignty of the nation, is the manifestation of
its power, in the historical life of the world. Its external
sovereignty is apparent through its relations to other nations, and in its sphere in history. While its internal
sovereignty appears in its government and order, and the
assertion of its will, as the supreme law; in its external
sovereignty it exists in its unity and independence in relation to other nations.
The recognition of a nation becomes thus one of the
most impressive events in history. It rests on the consciousness, in each of those who act in it, of its sovereignty, as a power in history. It reflects the majesty of
a power existent in its unity, in the moral order of the
world. This recognition of one nation by another as thus
existent with all the sovereign rights of a nation, can never
be divested of historical solemnity. From the unformed
life of men existing with no consciousness of political unity
and order, and sustaining only some tribal relation, there
emerges a new nation, to be recognized in its sovereignty
by other nations and to enter its course in history. The
appearing of a new planet in the wide fields of space, to be
followed in all its circles in the physical order, is not so
impressive as the appearance of a nation which is to exist
as a power in history, and to act upon the destiny of man
in that grander order, the order of a moral world. From
the vacant centuries that have furnished no element of
unity or freedom or fraternity, there rises a power which is




252                   THE NATION.
to hold a conscious moral aim, and to act as a conscious
moral energy.
The sovereignty of the nation has thus its immediate
external manifestation, in the recognition of nations. It
is the moment in which there is a conscious realization of
the historical power of a people, and each stands toward
the other in a recognized sovereignty in the world.  This
recognition presumes in the power which is recognized the
capacities which belong in its necessary being to a nation,
and in which it is constituted as a nation. The nation
recognizes in another, that which it is conscious of possessing in itself, in its own necessary being.  It recognizes
not a mere association of men in a certain locality, under
a certain form of governfnent, but a people as a nation.
There can be no recognition which does not imply this.
This recognition presumes then respect toward the nation recognized as a nation. It must concede to it the
rights, which in its own necessary existence it asserts for
itself.  There is the application here of the fandamental
law of rights, -be a person, and respect others as persons.
This law is implied in the being of the nation as a moral
person; it is the necessary postulate of rights and of
duties.  From this then proceeds the recognized right of a
nation to determine its own political end; the right to
establish its own political form; the right to exclusive legislation in its domain; the right to self-preservation, to
independence, to property; the right to exist in a common
relation to other nations. In the existence of the nation
as a moral person, is the postulate of the sacredness of
the principle of non-intervention.  The recognition of it,
in its sovereignty, necessarily presumes a deference for its
self-determination and its freedom.  It is to control its own
order, and is to be respected in this, and no other nation is
to intervene in its internal administration.
This recognition presumes that the nation which is thus
recognized, shall itself respect the rights and powers of




THE NATION IN ITS RELATION TO OTHER NATIONS. 253
other nations. There is the assumption of the formal
obligations of a nation. It is to yield respect to others, as
it asserts its own self-respect. The principle which is here
also the ground of action, is the identity involved in the
necessary being of nations.
The recognition of a nation is thus a continuous act, and
so long as there is moral integrity of action, it is limited
only by the formal existence of the nation itself. It is not
therefore to be momentarily offered, nor to be arbitrarily
withdrawn. It is the expression of the continuous relation
of nations in their existence in history, and proceeds from
the postulate of continuity in the nation.
While the recognition of one nation by another nation
is one of the highest acts of external sovereignty, the right
to recognition is a formal right and the demand for recognition can be only formal. A   people may exist with a
manifest unity and sovereignty, and with entire independence and freedom, and be in reality a nation, although it
receive no recognition from  other nations. Whether it
be in reality a nation, is to be determined only by its content, that is, the internal sovereignty which is manifest in
law and freedom, and the external sovereignty which is
manifest in independence and self-subsistence, but its recognition depends only upon the determination, in the judgment of another, whether it be a nation.
This recognition of a nation is not simply the recognition
of a certain succession in government, although it is necessarily through a government. It is the recognition of the
nation, which in its sovereignty may determine its own
government.   The act is through the government which
the nation ordains for itself, and the government thus constituted, whatever its form, is alone legitimate. It does
not follow, therefore, in any event, after the recognition of
a nation, that communication is to be opened with some
transient power which, perhaps through the aid of a foreign imperialism, may be imposed upon a people from
without.




254                     THE NATION.
The sovereignty of the nation in its external relations is
indicative of the place and vocation of the nation in history. It is manifest through it as an integral power in
the moral order, which is history.    This is the premise of
normal international relations, and the system of international laws. Since the nation has its vocation in a moral
order, and its end in the realization of the destination of
humanity in history, the nations exist in an international
relation, which has for its condition a moral relation, and
the system of international laws is definitive of the moral
order in which these relations come forth. The nations,
in the attainment of their necessary end, are constituted in
a moral order.   They cannot therefore, in the development
of national life, remain in isolation and indifference. While
a collection of men has no consciousness of national life,
it does not and cannot concern itself with other peoples
which exist as nations, except as some fragmentary mass
is concerned in the pursuance of some private interest; but
if there be the development of national life it is brought
into a relation to other nations.   The formal definition of,these relations is the office of international law.  As these
relations consist in the moral order of history, their ampler expression will come in the higher realization of the
being of the nation in the moral order of history. But the
merely formal character which the science of international
law has in the work of its yet greatest master, bears the
impress of his whole political conception, and of the formal
political tendencies of his age.1
The science of international law has its foundation in the
being of the nation as a moral person; this is the condi1 " Grotius was not a generative thinker. If the difficult problems of the duties
which one nation owes to another had been discussed in a Baconian spirit for
the purpose of ascertaining what those laws are which bind voluntary agents -
if it had been shown historically how these laws, though they may be broken by
men with arms in their hands, nevertheless avenge themselves, something would
have been gained. But mere maxims which define accurately and peremptorily
what should and what should not be done, must be rather hindrances than helps




THE NATION IN ITS RELATION TO OTHER NATIONS. 255
tion of the rights and obligations which it is to embrace
and define.    And as the nation advances in the realization of its being, the science which has for its province the
definition of the law    of international relations will become constantly the expression of a development in wider
and more varied relations. It is regulative of relations
deeper than those formed simply in the adjustment of controversies arising among nations out of a state of war, or
those which are the dictate of a mere international courtesy, although the principle of rights presumes this courtesy. It is this conception of the nation as a moral being,
which has given to the work of Wheaton an almost historical position; and however briefly defined, its clear apprehension of it has been the source of an influence which
can attach to no mere manual of rules or collection of precedents, in a science which has no acknowledged tribunal.
Wheaton says, "every state has certain sovereign rights
to which it is entitled as a moral being; in other words,
because it is a state; " and again, " every state as a distinct
moral being, independent of every other, may freely exercise all its sovereign rights in any manner not inconsistent
with the equal rights of other states; " and again, " all
sovereign states are equal in the eye of international law,
whatever may be their relative power." These propositions are constructive in the work of Wheaton.!
The progress in international law can come only in the
clearer apprehension of the being of the nation, and the
to an actual moral science. Yet the value of the work," the writer adds, "is in
its evidence that these relations have some moral ground; that they cannot be
left to be determined by accident, nor commercial cupidity, nor a Macchiavellian
policy." -Maurice, History of Philosophy, vol. iv. p. 324.
1 Wheaton, International Law. Dana's ed. pp. 52, 89, 100.
R. von Mohl has criticized the work of Wheaton as unscientific, a confusion
or miscellany of law, contemporary politics, and history; but whatever may be
its defect of method, - and that certainly is obvious enough, -its moral spirit
and conception has given it an historical influence and position beyond almost
any modern work on the subject. — Literateur und Geschichte der StaatsiDssenschaften, vol. i. p. 399.




256                   THE NATION.
consequent assertion of the rights and correspondent duties
involved in that.  It will await the institution of no tribunal, whose formal judgment will be a finality.  In the
nature of the nation in history, there can be no tribunal
and no congress which shall be in itself supreme, and
possess over the course of nations an ultimate and imperative control. As the nation is constituted as a moral person, it cannot abdicate its responsibility which is given in
its being, and can, in its ultimate determination, be responsible to none on earth, but only and immediately to
God.
The nation will hold in its own determination, so long
as it exists in the conditions of history, the issues of war,
on which it enters in its entire being. It may act in certain circumstances through another, and it may refer the
exposition of certain principles, or the estimate in the adjustment of certain concerns, to the judgment of another;
but in this it may not act so as to impair its sovereignty,
or to surrender its moral responsibility.
In the realization of the being of the nation in history,
there will be manifest among nations a deeper relationship.
In their greater strength, and as their end is apprehended
in the realization of the destination of humanity, there
will come a more enduring peace. The advance of humanity is indeed slow; but in the solidarity of nations they
will discern the sources and conditions of their aid to each
other, and that all must suffer in the detriment of each.
Then will come the sympathy and the helpfulness, which
there is among men, who march toward the same goal,
and at last must march all together if at all. It is therefore no dream, but the coming of a new life, which holds
the prophecy and the realization of the fraternity of nations. In the development of history this relation is becoming more perfectly apprehended, and as mankind recognizes more deeply the universal fatherhood, there is




THE NATION     IN ITS RELATION      TO   OTHER NATIONS.        257
manifested in the Christendom of nations the family of
nations.1
1 Napoleon III. pronounced the award in the Universal Exposition, "in the
name of the family of nations."  Thiers and Guizot have shown the course
which would have represented the selfishness of France; but the idea of the
fraternity of nations has always awakened in the spirit of modern France an
emotion, and has stirred it with hopes beyond any appeal to selfish interests.
The tendency of modern diplomacy is, to become more open, and the old devices and disguisements of merely sinister schemes and tortuous courses constantly avail less. But there is no estimate of the danger and disaster involved
in the weakness and cowardice of nations, in not meeting as men.
The premise of international rights is given in the postulate of Heffter, as cited
by Wheaton: "Law in general, is the external freedom of the moral person.
This law may be sanctioned or guaranteed, or may derive its force from self-preservation." -" The jtes pentinu is formed on reciprocity of will."
The refusal of England to submit her action in recognizing the Confederates
in rebellion as belligerents, to arbitration, proceeds upon the ground that it was
an act of England in her sovereignty, and may in itself be referred to no arbitration; but it was a deliberate act, within her control, and the injuries to this
nation which were resultant from it are therefore within her responsibility, and
maybe submitted to an arbitration.
Their, recognition as a belligerent power, by a nation, before the circumstance of war involved any necessity for it, tended necessarily.to elevate them to
an equality with the nation, and gave them all the advantages which arise from
regulations shaped to apply to nations, in defining national rights in time of
war. This was the constant security of the Alabcama in British ports. The
neutrality of England in the circumstance of war became nominal.
Mr. Gladstone attributes many of the recent difficulties of England to her
recognition of any power as a nation, when a transient interest may, dictate.
There was more than this in the eager manifestation of satisfaction at the peril
approaching the American people. It would seem to have been a sudden disclosure of the spirit of the English toward the United States. If the disclosure
was terrible, it would be weakness to forget it and peril to overlook it.
Mr. Gladstone, who seems never to have heard the Hebrew national psalms
said or sung, said, as a minister of state, that " Jefferson Davis had made the
South k nation," and the remark is mainly significant as indicating among the
statesmen of England the conception of what constitutes a nation. The sympathies of nations are more subtle and profound than are those of individuals,
and the causes of the sympathy of Prussia and Russia and Italy for America,
and the active sympathy of England for the rebellion, lie deep in the springs of
history.
The strength of the political course which Mr. Burlingame has inaugurated in
the East, is that it does not regard these peoples merely as those with whom we
are to open economic relations, - a policy in the interests of the sovereignty and
of the freedom of trade, nor to begin a scheme of conquest in which all the
elements of national life in the people, however imperfect, are to be crushed;
but it is the institution of a policy in which these elements, in the unity and
spirit of the people, are developed, and is the investiture of them with powers and
rights which have a moral content, and consist with international law.
17




CHAPTER XIV.
THE NATION AND THE INDIVIDUAL.
THE tendency of the political speculation of the old
world, in Greek and Roman thought, was to regard the
state as above and before the individual, so that the existence of the latter was subordinate and secondary;the individual existed only for the state, and the state alone
existed as an end in itself. There was the assumption of
a necessary contradiction, and the solution was in the negation of the individual. In Greece, the state acknowledged no moral, and allowed no formal limitation to its
power. It took upon itself the immediate and exclusive
conduct of life. It was to dispose of all, and not only to
prescribe the avocations and regulate the affairs, but to
direct even the thoughts and affections of men. It compelled the individual to engage in public pursuits and fill
public offices and execute public trusts in the same manner
as if subject to a military discipline.
In contrast with this, the tendency of modern political
speculation, in its abstract systems, has been to regard the
individual as above and before the state, so that the existence of the latter is subordinate and secondary; - the
state exists for the individual, and the individual alone
exists as an end in himself. In these conventional schemes,
the state is apprehended as only the form which the individual adopts in the pursuance of his private ends; it is
an artificial and temporary association, formed by a collection of certain individuals; it is established and maintained
by a certain number of men, as private persons, and is
subservient to their interests as individual or collective.




THE NATION AND THE INDIVIDUAL.          259
It is secondary to the individual in the assumption that
it is only an artificial and temporary organization, and in
the rejection of the unity and continuity involved in its
necessary conception, and manifested in its organic life.
In the course of history, there has been through the
Christian centuries, in the realization of the being of the
nation and the individual, the evolution of no antagonism,
but there has been the manifestation of their necessary
foundation and unity.
Firstly, The nation and the individual are existent in
the conditions of history, each as a necessary and integral
element, in the normal development of the other. The
nation is no abstraction. It is not a formal and external
order apart from the people. It is organic, and in its
necessary process as a moral organism it presumes in the
individual the realization of freedom. In this, it is constituted in its freedom. There is in this, instead of a source of
variance, the postulate of its moral strength and its spirit.
The individual, conversely, has his normal development
in the nation; it is formed in the institution of a moral
order. This has been the course of history. The transition from the unformed life of man, the barbarous condition, has been in the realization of the truly human,
that is, the normal and the moral condition, and this has been
formed in the relations of the nation. The isolation of man
is the representation, not only of an unreal, but an undeveloped existence, and the institution of the normal relations of men, that is, the organization of society, is in the
nation. There has been thus for the individual apart from
the nation, no realized freedom.  The nation has been
the precedent of the realization of freedom,
Secondly, The nation and the individual in their relation, exist each in a real and integral moral life and each
as an end. The necessary conception of personality forbids that it should exist only as a means to an end, and
its realization in the nation and in the individual forbids




260                     THE NATION.
that either should be apprehended as merely secondary
and subordinate.   The nation, as a moral personality, has
its law of being in itself, and its own vocation and its own
end in history; the individual in his own personality has
therein also his own law of being, and his own vocation
and end.1
The personality of the individual has not its origin nor
its foundation in the nation; the personality of the nation
has not its origin nor its foundation in the individual, but
each has its origin and foundation immediately in God,
and its vocation is only from Him.    There is therefore no
necessary antagonism, but in the law     of their being an
inner unity.   There can be, therefore, in their normal development no real conflict, and there can be no apparent
or external conflict which does not involve in the one or
the other the precedent contradiction of its own nature,
and of the law of its own action, as determined in personality.  The actual conflict of either with the other, is in
its precedent a conflict with itself.  That there should be
the possibility of an apparent or an external conflict, lies in
the fact that through the power of sin, and through the
ignorance and the weakness of men, the course of each is
agitated and disturbed, and the realization of its being must
be through many crises; and in the fact also that the existence of each in itself is a development in the.moral conclitions of history and of life; but in the realization of the
being of each, the possibility of this antagonism  is diminished, elements of external opposition are eliminated, and
all that separates or occasions variance is being constantly
excluded in the course of the development itself.
1 There is the representation of the individual personality in the consciousness, in the dramatist:"I am a nobler substance than the stars:
Or are they better because they are bigger.?
I have a will and faculties of choice, and power
To do or not to do; and reason why
I do or not do this; the stars have none.
They know not why they shine more than this taper,
Nor how they work, nor what? "




THE NATION AND THE INDIVIDUAL.               261
The organism of society is thus construed as an ethical
organism, that is, an organic whole in which that which
exists in it is both a part and a whole, -    a part in relation to an existing whole, and yet each a whole in itself.1
In the Greek representation, Aristotle justly places the
nation in relation to the individual as the whole to the
parts, and this relation exists for each individual comprehencdec in it; but the defect in the Greek thought is in not
regarding the individual as a whole and an end in himself, and also in apprehending him    as immediately related
only to the state, and therefore as secondary and subordinate. This was the fault of the Greek thought; it had not
the revelation of the divine origin of man in the image of
God, which has been from      the beginning of history the
ground of the positive Christian development.
Thirdly, The nation is withdrawn from       the individual
by a vocation, and the individual is withdrawn friom      the
nation by a vocation; but this instead of being the premise
of an inconsistence, because the fulfillment of the relation
of each is in the realization of personality, and in the will
of God from whom it proceeds, is the condition of an inner
and a necessary unity, as this unity has its subsistence in
God.    There is in this apprehension of the moral order
existent in the vocation of the nation and the individual,
the presentation of no abstract ideal, but it is the very
ground of the unity and progress and solidarity of society.
The nation has its own vocation which it is to apprehend and to realize in history; it has not its origin in the
volition of the individual, nor its end in the object of the
1 "The nation must apprehend its moral aim not exclusively as the universal
but as this in inseparable unity with the individual. Every individual must be
an absolute end also to the state. The individuality of none can be engrossed
by society as an whole to perish in it, as if crushed through the grinding of the
wheels of the state machine, for the sake of the common good." - Rothe, Theologische Elhik, vol. iii. sec. 2, p. 903.
"It has often been said that the well-being of its citizens is the end of the
state; this is certainly true: if it is not well with them, if their subjective aim
is not satisfied, if the state as such is- not the means for this satisfaction, then
the state stands on lame legs." -Hegel, Philosolhie des Rechts, p. 321.




262                   THE NATION.
individual, since as a moral person, it has its origin in
the divine will, and its end in the moral order which is set
before it.  There is thus manifest in its progress, a purpose in which it is borne toward the divine end in history.
There is an aim which in its completeness in history,
transcends necessarily the existence of the individual.
There is a continuous spirit which is apparent in the succeeding moments of its existence, and these are not merely
the, changes in a physical sequence, but in the development of a moral being.
The individual is to work in his own vocation, and this
consists with a moral order.  This vocation, in its external
phases, is incident to the realization of personality. The
nation cannot determine the vocation of the individual,
though in its moral order it is to maintain its sphere. It
can assume nothing which devolves upon the determination of the individual, but while existent with it in the
relations of personality, it is external to it. The individual
cannot transfer to the nation that which is involved in his
vocation. Since it is in the realization of personality,
there can be no transferal of it, but the individual is to
work in it, and to work it out. The individual has necessarily to work in his own purpose, and after the idea given
in the type of his own individuality.  He can only apprehend that which is his own, and an end which was alien to
his being would be for him an abstraction, or would have
necessarily to be rejected as an evil. It is thus alone,
in conformance to his vocation, that he can work with a
conscious spirit and freedom.
Personality is inalienable. The rights of the spirit alone
are inalienable rights.  They are the rights of the spirit
in itself, and are not as those which can be instituted
through positive law in the external sphere. They are
rights which are not won by force of arms. They are
not to be numbered in the conquests of earth. The inner
spirit is beyond the assault of force; its life is not touched,




THE NATION AND THE INDIVIDUAL.           263
and its strength does not yield to mortal wounds.     A
man may alienate an outward thing, but personality he
cannot alienate. Its alienation would presume its negation, the very abdication of the will. The surrender thus
of the individual will and the conscience to that which
is external, as to a priest, and the faith which calls one on
earth a master, is the degradation of personality, and its
consequence is superstition and slavery.1 Since personality has its origin in God, its spiritual and inner life is
immediately with God.   Its course is in the light in which
no shadow falls, as it is unmeasured by time; it is the path
which the vulture's eye has not traced, and is as "the
flight of one alone to the Only One.'9  " Over the soul,"
says Luther, "God can and will allow no one to rule but
himself."  The authority of the state cannot control the
inner life, it can judge none for opinion's sake, it can by
no enactment direct the course of the spirit; it is not to
invade the conscience and thought, it is not to regulate the
dispositions of men; it cannot determine their love orhate or thoughts.  These are withdrawn from the state,.
and over them  the state neither has the power, nor is it'
called upon to rule. As the freedom   of the inner spirit
is beyond external power, the rights of the spirit cannot:
therefore embody themselves in the formal sphere of positive rights, but the nation is to guard them from all attempt
at invasion from the external sphere, and to forbid every
attempt to bring force to bear upon them, and is to secure
and maintain the freedom   of conscience and of thought,
the freedom of worship and of science.
Fourthly, -The nation and the individual exist in an
organic and moral relation, in which the normal development of each has as its condition the development of the
other, and their unity is formed after the law of a moral
unity. The development of the individual has instead of
1 Hegel speaks of personality as " die hochste zugescharfste spitze." - Logik,
bk. iii. p. 349. Rothe says, " Personlichkeit ist die rechste, concreteste, und in.
tensiviste Bestimmtheit." -Theologische Ethic, vol. i. p. 66>.




264                       THE NATION.
its restriction, its necessary condition     in the nation.     It
has its postulate in no merely external order, and no formal complex of laws and systems, but there is in            these
its limitation.    As it is formed in      relations, it subsists
in a relation to the nation, as a moral person.          The life
that proceeds in     conformance only to       an  external and
formal postulate      the life that in morals is under rules,
and in art under manners, and in religion under dogmas,
and in politics under systems -is devoid of energy and of
the strength and satisfaction of a living spirit.       It is because the nation     is not merely     an external and formal
sequence or system, but an organic and a moral person,
that it consists with    the development of the individual
person.
The nation indeed exists in its freedom        in the realization of a moral order, but that order is correspondent with
the real, the innermost being of the individual personality,
and therefore the individual may         strive to   embody his
moral determination in it, and may have in it the satisfaction  of his aim.    But it is in consistence with this that
the nation may always require from       the individual, in the
external sphere, an external moral life, and the individual
may demand from the state that no law           determining the
external sphere shall be in itself immoral, or destructive
of the rectitude, or conviction of right of the individual,
or impose obligations which are an offense to conscience.1
1 The conscience is not simply a certain faculty, as the memory and the judgment, to be occupied with the perception and contemplation of good and evil,
as the memory, for instance, is occupied with the recollection of the past, or the
judgment with the comparison of objects. It is not simply the capacity for
the wider knowledge of good and evil, and the higher, - the better conscience
is not the wider acquisition of knowledge of the fruit of the tree of good and
evil, and the discernment of the quality of its fruitage.  This can account
for none of the facts of conscience, as they are attested in the consciousness of
the individual; or in the writings for instance of Shakespeare and the older
dramatists, in whom there is the most profound analysis of these facts; or in
the history of the race; or in the witness of its great moral teachers. There
is in the realization of personality the conquest of evil and the separation from
it. The conscience presumes the communion of a person with a person; it
is represented thus as the inner voice, the eternal word which speaks to the
spirit of man.




THE NATION AND THE INDIVIDUAL.             265
It is a duty to obey, but-if the law to which obedience is
enjoined is in violation of the law of conscience, its rejection
is a moral necessity.  The individual may not in his action controvert his own conscience, as if for instance the
state demanded his participation in some superstitious rite.
But the state in every law and regulation of this sort, not
only passes beyond its province, but the requisition of such
acts is in violation of the law of its own being, as there can
be no actual conflict of the individual and the nation but
it is preceded by, and in itself involves, the variance of
the one or the other with the law of its being. The rejection of an immoral requisition may be therefore the conformance to the higher law, the law of the being of the
nation, but the rejection can only be justified in the individual, when it is followed by an effort and endeavor to
repeal the law or regulation itself.
The development of either the individual or the nation
is in so far the condition of the higher development of the
other, that the ages of their higher historical development
have been coincident. They become associated in the
spirit of the people.  In the life of the nation, the very
names of its members, in whom there has been the higher
personality, become the synonym of its strength. Thus
Dante becomes identified with Italy, and his name becomes
a sign of its national hope; and Shakespeare with England,
and Luther with Germany; and in the struggles of the
peoples for national life, their names become the symbols
of national unity and national spirit.
It is thus, also, that in the decay of the nation there is
the correspondent degradation of the individual. This has
its historical evidence in many forms.  As the strength of
the organic life of the nation is impaired, and its spirit is
There is in the conception of personality, the; significance in ethics of the
golden rule, as a comprehensive law, - " do unto others as ye would that they
should do unto you." This alone removes it from a mere negation; the law of
action is in no abstract idea of justice, nor in love of itself considered, but the
content of the law is in personality.




266                   THE NATION.
broken, there is an increase in the assumption and domination of sects and parties, and the individual personality is weakened as the people become entangled and
trammeled and ridden by them. The tyranny of opinion
is stronger in the decadence of law and freedom.    The
moral energy and vigor of the people is sapped.     The
armies are no longer armies of men, but masses moving
mechanically, as if impelled by some power external to
themselves.   They become converted into the Dassive
instruments of an imperial force.
It is in the law of a moral unity -the unity in which
the realization of personality subsists - that the foundation
of the unity and continuity of the nation is laid. It is the
law which has its highest manifestation in sacrifice.  It
consists with the consciousness of the vocation of the
nation, as the fulfillment of humanity in God.   A historian of the state, as he presents, in the exclusion of all
theories, the facts of history, says,i1  The glory and honor
of the nation have always elevated the hearts of its children, and inspired them with sacrifice. For the being,
the freedom, and the rights of the nation, the noblest and
the worthiest have always offered their lives and their all.
The whole great thought of the Fatherland, and the love
of its children to it, would be inconceivable, if this moral
personality did not belong to the nation."
But as there is in the moral unity which is manifest in
sacrifice, the recognition of the moral being of the nation,
there is in it also, the preclusion of the postulate and induction of individualism.  It can find no reconciliation with
the assumption tlat the nation exists only for the institution and protection of private interests, and the furtherance of private ends. The unity which subsists with the
sacrifice of the individual for the nation, as it is formed in
the manifestation of the law of the highest moral unity in
the life of humanity, can proceed only in the conception of
1 Bluntschli's Allgemeines Statsrechts, vol. i. p. 40.




THE NATION AND THE INDIVIDUAL.         267
the being of the nation as a moral person. It cannot
consist with a mere individualism in its principle or result;
and it is abhorrent that the sacrifice of those who had the
higher moral spirit-the worthier going forth in their
prime with joy and trust —should be counted only to
serve the private and special ends of the individual, and
to secure or promote their pleasure or possession; and
when the names and sacrifice of these are kept in the
memory of the people, it is abhorrent that any should
regard the nation as existent only to subserve their private
and special interests and ends. But this is the necessary
assumption of individualism.
It is because there is an inner moral unity in the nation
that the higher realization of personality consists with it.
The ideal state of Plato regarded the freedom and personality of the individual with dread, and found no place for
it; but in the realization of the nation it becomes the
element of its strength. It is as the temple whose building is of living stones. The very substance of the nation
is in identity with the realization of personality; but this
can be conceived only as the nation is a moral person. It
is thus. in its history,.that those in whom there is the
higher realization of personality testify in themselves to
the higher realization of the nation. The will that strives
for the prevalence of righteousness on the earth, in obedience to the divine Will; the spirit that communes with the
inner voice to follow the divine Word;- as there is in
these the source of the personality and freedom of main
so there has been in these, also, the building of the nation,
The historical forces, with which no others may be compared, in their influence upon the people, have been the
Puritan and the Quaker.  The strength of the one was in
the confession of an invisible presence, a righteous and
eternal Will which would establish righteousness on the
earth, and thence arose the conviction of a direct personal
responsibility which could be tempted by no external




268                  THE NATION.
splendor, and could be shaken by no external agitation,
and could not be evaded or transferred; the strength of
the other was the witness in the human spirit to an eternal Word,- an inner voice which spoke to each alone,
while yet it spoke to every man; a light which each
was to follow, which yet was the light of the world; and
all other voices were silent before this, and the solitary
path whither it led was more sacred than the worn ways
of cathedral aisles. There was in this the foundation of
the personality of each, and the secret of the power in
which they have wrought upon the nation.
Fifthly, The conception which defines either the nation
or the individual as subordinate and secondary, is in its
error the postulate of an inevitable antagonism. If either
be held not as an end in itself, but only as a means having
the other for an end, there can be no principle of unity
and no form    of reconciliation; there can only result
the negation of the one by the other. Society, then, in its
irregular course, moving from one contradiction to another,
sweeps through the extremes of socialism and individualism. It alternates between a communism, in which there
is the destruction of the individual, and an imperialism, in
which as in anarchy there is the exaltation of the individual. There is in each of these phases of discordant action,
the contradiction to the nation as an ethical organism, -
the subversion of the organic and moral being of the people.  The result in each is the decay of public spirit,
which is the reflection of the moral aim of the people, and
the loss of even the conception of public duties.  Thus in
an individualism, - where society is apprehended as having its origin in the volition of the individual, and its
continuance subject to his option, and government is
only the temporary agency of certain individuals, its right
only the combination of private rights, its will only the
momentary choice of private persons, its end only the furtherance of private ends; and in socialism, - where the




THE NATION AND THE INDIVIDUAL.          269
individual is apprehended as subordinate, and is related
to the government only as its subject, and in himself and
his services is held as if owned by the state,- there is
in the principle and result the comprehension only of
private capacities and private obligations, and in each
there is no foundation for public duties and public rights.
Their conception is apparently preserved in the latter assumption, but in it, the necessary rights of the state itself
can only be apprehended as private rights, and in relation
to the individual the state is only a private person.
There is wanting also in the artificial conception of the
state, that is, its conception as only a formal sequence or
order, the necessary condition of the individual development. It is necessarily restrictive of the individual. This
has been conceded in the induction from the theory itself.
Those who have assumed the origin of the state in a compact, have regarded its existence as the necessary and
formal limitation of the individual, and therefore it has
been assumed that the individual surrendered a part of
his actual freedom and actual rights on his entrance into
it, and in so far suffered the deprivation of them.
The organization of a merely formal association, as the
organization of a sect or a party, is necessarily restrictive
of the individual; but it is not thus in an organization
formed in an organic life, and as freedom has no formal
ground, it cannot subsist in a merely formal association,
and it is only as the nation is an organic and moral person that freedom is realized in it, and that the freedom of
the individual may be wrought in and with it, in its normal
development.1
Sixthly, The nation is to institute and maintain for the
individual the sphere of an individual development in its
external conditions. It is to enable each to bring all that
is in the type of his individuality to its fresh and free expression. There is to be room for each that he may do
1 See Bluntschli's Geschichte des Staatsrechts, etc., p. 622.




270                  THE NATION.
all that is in him to do, so that if there be failure in any
attainment it is in the homely phrase, because it was not
in him. The state by no enactment is to thwart or restrict the working out of the individuality of each in its
own type. It is not to hamper or debar any in the creative use of the talents given to him, but in its external
conditions is to guard them against let or hindrance. The
individuality of each is to be so left, that each may work
after his own idea, as all that is alien to this must necessarily be rejected as abstract or evil.
This is the condition of the moral life, and its real
achievement. In this alone, as the individual works freely
and steadily in it, is the only sureness of strength and
repose of character. It is in this that the manifold riches
of life, more varied and opulent than in the process of
the physical world, are wrought. There is thus to be open
to each, the expression of his own conceit, his own disposition of things, his own fancy alike in the work and play
of life. There is to be also the freedom of work, and freedom of thought in every form, in theology, in politics, in
science, and freedom of study and research, and freedom
of communication and association, and freedom of cooperation in industry and economy. There is to be freedom
of action, the choice of a home, the choice of a vocation,
the choice of a wife. This freedom in every field is the
condition of moral strength. In it the bondage of the
animal is overcome, and "the ape and tiger die."
The higher individuality is always advancing toward the
universal, as universality is a necessary element in personality. Thus the mere eccentricity of style, the singularity
of manner or oddity of action which do not belong to
individuality, tend to disappear, as all mere mannerism
ceases in the work of the greater artist.
In the necessary conception of a moral organism, the
nation is to regard the individual as in himself a whole,
and its aim is to be, that his powers shall have a devel



THE NATION AND THE INDIVIDUAL.         271
opment in a consistent whole. Since the nation comprehends in its aim the universal, not as an abstraction, but
in the realization of personality, it diverges from its own
aim, and impairs its power in every course which is restrictive of the individual personality. Its attempt immediately to control and direct it, is an incursion always
marked by the devastation of human energy. In its encroachment it can only mar the work and baffle the purpose of men. It can only make men by it the agents of
imperial dominion and the subjects of priestly superstition, the tools of sects and the trade and stock of parties,
not the members of a free nation. It is the course of
principalities and powers, not of the government of free
men.
Seventhly, The nation is constituted as a power in the
education of the individual.  The individual first becomes
a person in the nation. It acts as a power in the realization of personality.. It works as an organic energy. The
elements of a moral order in it are formative of character. In the nation the individual apprehends the authority
of law in an order which is over self will, and he has
before him an aim which transcends a selfish end, and is
lifted into the consciousness of a life which has a universal
end. In the nation there is wrought into the life of the
individual the apprehension of a purpose formed not in
momentary and transient desire, but a purpose transmitted
through the succeeding generations with its sacred memories and mysterious sympathies and quickening hopes.
The nation thus becomes for the individual an-heritage,
and not his alone, but to be held for those who shall follow
him.   The wealth of its historical associations,< and the
grandeur of its historical epochs, are its gifts. The majesty of its law, and the authority of its government, and
its conquering power are around him; its acquisition is
his vantage-ground; its domain is his home; its order is
his working field; its rights are the armor it has forged




272                  THE NATION.
for him; its achievements are the nobler heights he treads;
its freedom is the ampler air he breathes.
The evil of things is in the degradation of personality,
and in that men sink into the undistinguished mass. But
the natibn in its being as a moral person penetrates the
whole, and transfuses it with its spirit. In its relationships
it becomes the realization in humanity of the brotherhood
of men; and in its continuity, it takes hold upon that
which is eternal, and man is lifted into the clearer consciousness of the being and the eternal "' I am," the foundation of all. But no theory of interests, and no scheme
of economy, and no sect in its exclusion, and no imperialism in its dominion, have power for this, and it belongs
not to the nation as these, but to the nation because it is
other than these.
There is in Stahl a suggestive and beautiful illustration
of the representation of the state in the fundamental
thought of Plato and Rousseau.  The true postulate and
the real object, it is admitted, is the perfect unity and
relationship of men in a moral kingdom, and with this
the perfect freedom and conscious self-determination of
each; it is this that has inspired the loftiest conceptions of
the state. The fundamental thought of Plato is the perfect
unity of the state, but as involving the surrender of the
individual will; and yet it is this which casts a marvelous
light upon the pages of the Republic, - the feeling that
the true condition of humanity is only realized when the
individual wholly and without reserve loses himself in the
unity and the harmony of a higher moral whole: the fundamental thought of Rousseau is the perfect freedom of the
individual, and he asserts as the problem a condition in
which every man remains perfectly free, so that when he
obeys the state he obeys only himself; and this statement
of the problem is the deep and eternal truth, but it is only
to be solved in the conclusion, that the will of the state
and the will of the individual hold substantially the same
determination, and that each hold a moral determination.




TIE NATION     AND    THE INDIVIDUAL.               273
There is a faith      in  the destination of the state which
makes the highest moral endeavor no vague                 and empty
dream. There is a faith which while it may call for the
willing sacrifice of the individual, yet makes it not all in
vain; and they that in the strength of that faith pass
though the suffering and sacrifice of prisons and of battlefields, find in the realization of the life of the nation that
the words are justified, " He that loseth his life shall
find it."
NOTE. Mr. Mill says: "The tendency of all the changes taking place in the
world, is to strengthen society, and to diminish the power of the individual;
formerly men lived in what might be called different worlds, different ranks,
trades, etc. at present in the same. They now read the same things, see the same
things, have the same rights and liberties, and the same means of asserting them.
The assimilation is still proceeding; all the political changes of the age promote
it since they all tend to raise the low and lower the high." - On Liberty, pp. 8, 43.
This proposition that the political changes taking place in the world, - the political changes tending to increase the power of society, operate to diminish the
power of the individual, is the necessary induction of Mr. Mill's conception of
liberty; but it is presented with no historical evidence. These changes, it is
admitted, are towards the realization of a stronger life in the nation, that is,
the organization of society; but the ages of national development have always
been characterized by a higher individual development.  These changes have
been the greater in the United States, in Germany, in Russia, in Italy, in Spain;
and the most superficial survey of these countries makes it apparent that the
greater unity and power in the realization of the being of the nation has been
coincident with a higher freedom - a higher realization of the individual personality. A wider illustration might be drawn from the history of preceding
centuries, as for instance, the age of the higher national development of England was the age also of Shakespeare, of Raleigh, of Bacon, of Milton.
To read the same books, to hear the same truths, to see the same ideals
in art, to become conversant with the same facts in history, does not diminish
individuality; the same books does not mean books of sameness. That all
men, for instance, read the Bible, or Homer, or Dante, or Shakespeare, or in the
facility of travel, have opened before them the whole world of art, does not
diminish individuality. If these truths, or books, or works of art, were limited
by an exclusive patent, it would not aid in the development of individuality.
In so far as any production in literature or art has a universal element, the personality of each is elevated, instead of being depressed and diminished by it.
It would be inferred that individuality is apprehended in the preceding citation
as only a formal variety or contrast. The artificial distinction is the description
of a personage, and not of personality.
When Mr. Mill assumes a diminution of individuality as the result of the
institution of the same rights, the fallacy is more apparent, but is most dangerous, for these rights have their consistent foundation in no artificial representation
of the state, but only as they are recognized as the rights of personality - the
18




274                         THE NATION.
rights of man. And individuality is not founded ins nor developed by, artificial
distinctions and grades in rank, or caste, or by various trades, or by the isolation
of provinces; these impair it as.it is compressei in their external moulds. The
force of custom and circumstance weighs upon the, spirit, as it is cramped and
bent to run in these grooves. The country may be called the more free which
has roads open through it; but it is not the more free when one is always required to take a road through the valley and one always to ride on the hills. The
stronger individuality comes to hold these distinctions which are cited, only as
an accident. And the formal distinctions of rights and liberties, as it severs
them from their only true foundation, instead of elevating crushes the individuality of men and fetters their free action; for the further statement, it is a law of
unvarying force, that when in the nation the low becomes high, it is not by the
degradation of the high, but in the elevation of the whole.
Mr. Spencer has a representation of the state, in which education and the
institution of public schools by the state is regarded as an infiingement upon the
sphere and rights of the individual; and recognizes among the rights of the
individual " the right to ignore the state." - Social Statics, p. 229. The meaning of this term is made further apparent. Mr. Spencer says: " Government
being simply an agent, employed in common by a number of individuals to secure to them certain advantages, the very nature of the connection implies that
it is for each to say whether he will employ such an agent or not. If any one
determines toignore this mutual-safety confederation, nothing can be said except
that he loses all claim to its good offices and exposes himself to the danger of
maltreatment."- Ibid, p. 229.  It may be well to have the induction of.
an out and out individualism, which holds the state only as a " mutual-safety
confederation,"-a joint-stock insurance office, and regards government as a
private "agency," and recognizes for the individual, "the right to ignore
the state."  Then when not only one but two or a crowd assert their rights and
ignore the state, and in this condition rob or murder, or in any sort maltreat each
other, the state may not act in reference to it, since it is only the agency in the
employ of other individuals. If then, - if the illustration may be allowed, - Mr.
Spencer assert and exercise his rights, and while maintaining his right to ignore
the state is robbed by some vagrant, of course he cannot recover through
the aid of the government the property which he has lost; or the vagrant, not
having determined himself to ignore the state, may bring the power of the government, being the agency in his employ, to secure him in his actual possession,
-it of course refusing to admit the claim of one who had ignored the state.
Mr. Spencer further describes this right as the attitude of " a citizen in a condition of voluntary outlawry." -  bid, p. 229.  It is difficult to imagine "a
citizen in a condition of voluntary outlawry;" and one fails to recall the political position of any whom  it depicts, unless it be not the least significant among the political characters in Shakespeare, - Sir John Falstaff.
The satisfaction with which Sir John would receive this presentation of the
state, as defining his position, can readily be imagined, and it is not surprising,
in the unshrinking conclusions of the writer, to find on the following page a
repetition of Sir John's inveterate opinion, —" The state employs evil weapons,
soldiers, policemen, jailers, to subjugate evil, and is alike contaminated by the
objects with which it deals and the means by which it works." -Ibid, p. 230.
The difference between evil doers and deeds, and this use of so-called
evil weapons, is not defined; and a people who have reason will not regard the
soldiers of the nation as justly described as "evil weapons," nor believe that




THE NATION AND       THE INDIVIDUAL.               275
it was contaminated by them. These statements need no discussion, and if
there be an illustration of a barren logic applied to the state, or in Milton's
phrase, "ideas that effect nothing," it is in these positions. Their significance
is mainly in their evidence that at the outset a mere individualism loses the
conception of a country, and the relation of the people to the land. They are
the induction of empty formulas; and they do not touch the solid ground, nor
comprehend any fact in the life of an historical nation. And it is the peril
of a people if these theories mould its thought; the right to ignore the state
becomes the justification of secession and rebellion and of every political crime,
and these principles in the thoughts of men are the dissolution of society and
destruction of the nation.




CHAPTER XV.
THE NATION AND THE FAMILY.
THE nation and the family exist in a necessary and
moral correlation.  They do not exist i identity; the
family has its own unity and order, and the nation has
other powers and obligations, so that when society is constituted after a patriarchal type, and does not pass beyond
that, there is no political life, nor the institution of an historical power.
The family is the natural and the normal condition of
human existence. It is not the unit of society, that is, the
ultimate and integral element, but it is the unitary form of
society. In its beginning it is rude and imperfect in its
structure, but with the progress of society it passes on to
a higher development and a more perfect conformance
to its type in the true and monogamic organization.
The family is of divine institution, and is constituted in
and with the nation in the moral order of the world. It
is a relationship, and there is thus in its growth the education of the individual and the formation of character.
It is as a moral order, and as constituted in moral relations, that the family has its origin and foundation, not in
impulse and desire and transient choice; but it presumes
in its beginning and its course the assertion and continuity
of a moral determination, and therefore impulse and transient choice must be brought into subjection to it. It is as
a moral order that it has its own law, and is to be formed
after its own necessary conception. It is as a moral order
that it is related to the wvhole order and organization of
society, and therefore its violation affects not only the
individual but the nation.




THE NATION AND THE FAMILY.            277
The family, in its divine origin and in its formation in
the relations of a moral order, and in its consistence with
the determination of personality, is a holy estate. It has
its beginning in the " I will " of those who enter it; and
it cannot therefore consist with the transient desire, nor
the momentary act of the will, and these are excluded
by its law, and the continuous character of the moral
determination of the will is apprehended in it. It is in
conformance to the relatiolis of a moral order; and as
these relations, while they consist with the moral determination, had not their origin in the transient volition of
man, they cannot be made subject to it. Since man did
not create this order, in the possibility of sin, he may
interrupt or violate it, but he cannot change it. It is not
therefore existent only in the momentary choice of separate parties, to be continued or dissolved, as the inclination of either or both may dictate.  This would consist
only with an arbitrary and unfree, and therefore an immoral, constitution of society.
The family is organic; it has not its origin in an enactment or a contract; it is not a construction in conformance
to a speculative theory or scheme; it is not a formal relation, but an organic and moral relation; it is not a formal
order, but the natural and normal order.  This precludes
its assumption by a certain section or a certain class as an
exclusive or a proprietary right.  This precludes also the
representation of the origin of the family in a contract.
The contract also could not become the ground of the
unity involved in the family, since those who form a contract remain separate parties to it.
The necessary analogy of the family and the nation
illustrates their necessary structure, and there is in it the
avoidance of the error of many political abstractions and
the infidelity of many political dogmas. The representation of the nation as only a formal organization, or as an
external order, or as the exclusive possession of a few, or




278                   THE NATION.
as formed in a contract, or as the scheme and expedient of
legislators, is inconsistent with the necessary analogy of the
family and the nation.
In the organization of society the family is precedent to
the nation, while in its continuance it is subordinate to it.
It is through its precedence and through its necessary constitution in organic and moral relations, that it appears in
an historical relation with the beginning of the nation,
and subsists in a continuous relation with it. The nation
has not its origin in the family, but it exists in a necessary
correlation'with it, and in the development of each this
relation must always have a deeper recognition. The
first indications thus of the organization of society, are in
the family, the life of the patriarchs and the patricians;
and the notions of a formal and conventional origin of
society disappear in the study of the historical beginning
of things.
There has been in no age the record of the foundation
of the nation, but there has been coincident with it the
witness to the sacredness of the family. In the ancient
world, or rather in the beginnings of the historic world,
this conception is central and prevails in its art and literature and laws.  The book of the Genesis is mainly filled
with the record of the foundation of the family, and the
incident of.its history; and with its close the transition is
made to the nation.    The Iliad, in which there is the
deepest reflection of the spirit of archaic life, is the story
of a war for the vindication of the purity of the marriage
bond,. and its heroes are those who go to battle to vindicate
the sacredness of the family; the 2Eneid is the story of
filial duty and reverence, and in each the spirit of the
family blends with the nation, and in each there is the
unfolding of a national life. In Judea the family, in its
primitive law, is declared to be holy, it is to be maintained
as an institute of the nation in its order, and its violation
is to be punished as a crime. In Greece, its earliest insti



THE NATION AND THE FAMILY.           279
tutions, the phratrise and gentes, are the evidence of the
power and the dignity of the family.' In Rome the reverence for the family is reflected in all the obseivances of
its religion, moulding all its institutions and its laws. The
law has a universal attestation, that when the life of the
nation has been the deeper, and its moral aim more clearly
apprehended in the consciousness of men, there has been
a clearer recognition of the sacredness of the family,
and conversely when the family has been regarded as
formed in a contractual law, or a momentary obligation,
it has impaired the power and spirit of the nation. In
its higher development, the people have apprehended in
the nation the glory in the work of its ancestors, and in its
future the enduring heritage of its children. It is thus
that the symbols of the family have been inwrought with
those of the nation, and its services have been recounted
in the inscription of ancestral honors. Its glory has been
in its devotion to the nation, and it has kept the names of
those whom it has given for it in its holiest traditions.
It is thus that reverence for the fathers and their work is
involved with the continuity of the nation, and therefore
the law which is so deep a revelation of the conditions of
national life, "Thou shalt honour thy father and thy
mother," is made the premise of the permanent possession
of the land by the people.
It is thus that in the decadence of national life there is
a loss of the consciousness of the sacredness of the family, and a consequent increase in the violation of its law.
It is the degradation of the family, and the lower apprehension of its obligations, that is represented alike by all
her annalists and her satirists, as the cause and circumstance of the ruin of Rome. When the sacredness of the
family is not regarded, when it is no longer apprehended
as a moral order, but as devised by men and shaped only
by a law of expediency, and subject to caprice, the life
of society is corrupted in its sources.




280                     THE NATION.
Thus also the system of slavery, in its antagonism to
the nation, was in conflict with the law of the family;
and among the slaves in certain commonwealths, family life
was unknown, and many on emerging from slavery had no
family name, but only the designation given to identify the
individual.1
In the family a child is educated for the nation. It is
a relation which has a moral content, and character is
moulded in it;     and the individual grows into the consciousness of a whole, in which he is borne beyond his
own separate and selfish end. In tile advance of childhood
there is also the consciousness of a continuous relation,
and in its obedience there is the education for government
and for freedom. It has been. truly said, that government
so depends on the life of home, that for a homeless conmunity, anarchy or despotism would be the alternative.2
The conception which prevails of the nation shapes the
family also. When it has been regarded only as a formal
relation, and its origin referred to a contract, the same law
has been assumed as defining the family; when it has been
apprehended in a mere individualism, the conception of the
family as organic and as a divine institution, has also perished, and in this formalism and individualism, there is not
only the rejection of the organic and moral being of the
family, but its necessary relation to the nation.
The necessary relation of the nation to the family is the
condition of the rights and obligations existent in that relation.  The nation is to guard and maintain the family, in
1 Slavery, in its necessary antagonism to the organic being of society, destroyed the family before it sought to destroy the nation; and there is nothing in
the reconstruction of society more important than the assertion of the sacredness
of the family and the unity of the household. There might be the highest value
in a homestead act of some sort, but no legislation can maintain an accumulation of property without a deep assertion of the family, and with it, in the ordinary administration of civil rights, nothing can prevent that accumulation.
2 Rousseau says, "The fthily is the primitive type of political society."
"Prima societas in ipso conjugio est, proxima in liberis, deinde una domus
communia omnnia. Id autem est principium urbis, et quasi Seminarium Reipublice." - Cicero, De Officiis, i. 17.




THE NATION AND THE FAMILY.           281
conformance to its normal and moral conception, and to
punish its violation, which is in a higher measure a crime
against the whole. The nation fails in its office, in which
it is clothed with power and authority for the realization of
a moral order, if it regards with indifference, in any form,
the infraction of that order. It is thus that it is in conflict with a system of polygamy, which has in itself the
elements only of an imperfect development of society, or
elements at variance with the moral unity of the family, so
that it becomes an impulse toward barbarism. It is thus,
also, that it is to prescribe and regulate the forms and conditions of marriage, and to require that it be undertaken
not slightly nor hastily, but with a definite form and the
attestation of the obligations of the state, in and for its
maintenance. It is thus to punish the violation of the law
of the family, and is not to leave it to the wild justice
which acts in private revenge, which is the defect of government; and it is not to omit adultery from the calendar
of its crimes, nor to intermit the judgment of it as crime;
it is an abandonment of its trust if it fails in this.
In its civil rights the family is to be sustained by the
nation acting in and through the order of the commonwealth, and its inheritance in property, and the guardianship of its members left dependent, is to be observed by
the nation, and if parents themselves are derelict in duty
to their children and to society, even the right of parental
control must be superseded by the parens patrice.'  But the
maintenance of the family in its moral order is the immediate obligation of the nation, and although it acts in and
through the process of the commonwealth, yet its obligation is not limited to the latter sphere, and while'in certain periods or phases it may act more effectually through
it, yet in others the same method might imperil the order
and being of the whole; thus, if divorce is allowed it
may devolve immediately on the nation to prescribe its
l 4 Whart. R. 11.




282                         THE NATION.
conditions. And as the family is in itself a moral order,
and has not merely a formal origin, the government of the
state cannot simply by a formal act annul it, and the divorce it grants is not the ground of the dissolution of marriage, but the authoritative recognition        of the fact that the
bond of the family has been already dissolved by crime.
The hope and the blessing of the family and the nation
is one.    Their foundations are not laid with human hands.
The years do not erase them           from   the record    of human
lives.1
1 In Tsoihts and Cressida, Shakespeare has indicated the deep moral relation
of the family and the nation, and its significance, in the story of Troy. The
war had its origin in the violation of the purity of marriage life, and it was this
which involved the city in destruction. The doom then which overtakes Troilus
and Cressida is the reflex borne on through the years, and on to the close of the
city, of the moral judgment upon Paris and Helen. There is an expression
not only in the catastrophe, but through the whole drama, of the organic and.
moral relation of the family and the state, and it shapes the discourse and even
lends its coloring to the imagery of the play. It is thus that its thought dwells
upon the
" Unity and married calm of states,"
and thus the deepest lessons of political wisdom are no digression, but are naturally connected with the conception and import of the play, and the tragedy in
its close consists with the unity of the whole. This political significance alone
justifies the drama from the criticism of Mr. Verplanck, which has the assent
also of Mr. White, that " the effect of the play is impotent and incongruous."
Mr. Verplanck yet says the drama " displays all the riches and energy of the
poet's mind when at its zenith;" and Mr. White places it " among the most
thoughtful of all his plays."  White's Ed.; vol. ix. p. 10. One may then be
reluctant to admit the conception which regards the conclusion as impotent and
incongruous, and the political lessons as only detached discussions on politics, and
the awful fate at the close as arbitrary and misplaced. But if, in the close of the
history of Troy, there is to fall upon the life of its own members- on Troilus
and Cressida, - with scarcely an immediate premonition, the shadow of the guilt
which was the beginning of the war and the destruction of the city, then in
the relation in which the family is involved with the nation in its whole course,
and from which no individual member of it can be wholly exempt, there is the
unity of the drama, and then the same doom is repeated in the close of Troy
which impended over it in the beginning of the war, as if in that alone the
burden of the city was ended.




CHAPTER XVI.
THE NATION AND THE COMMONWEALTH.
THE nation in its internal order and administration, is
constituted in the commonwealth.        The family is the
primary   form   of human" society, but in     the   natural
growth of society the family does not remain single; it
branches outward, forming other families, or in the course
of time other families become connected with it. These
have as separate families certain relations; they are subject to certain common necessities, they hold certain common lands in occupancy, and with labor and its result in
the satisfaction of necessities, there may come into use
some mode of exchange in that which they have separately
obtained.   The return of labor is scant and irregular, and
often is subject to the disposition of the stronger, but in
this archaic life some uses, in forms however rude, prevail,
in which interests are recognized, and although they may
be shaped at the outset by the will of some patriarch, these
uses obtain a certain force. It is the community which
has been formed in the transition of the family, through
common necessities, and the adoption of common uses
and the accumulation of common interests. There is in
this the beginning of the system of civil rights, and the
building of the commonwealth.1
The commonwealth may be regarded thus in its formal
organization as precedent to the nation.
1 In defining the character and relation of the United States and a particular
State, the international and the civil state, - the nation and the commonwealth,
this term is used in a strict and limited significance. Yet it is not arbitrary,
and may claim both a literal and historical justification; it is the style of
many of the earlier and larger communities, as the commonwealth of Massachusetts, the commonwealth of Virginia, the commonwealth of Pennsylvania.




284                           THE NATION.
In the process of society, the family exists in an organic,
and the commonwealth in a formal relation to the nation.
The distinction in the organization of society, of the
commonwealth and the nation, has been recognized by the
great masters in       political   science.     Aristotle    describes
(1.) the family — OKos, the house; (2.) the commonwealth-     KW;/KJt, the  community;      and    (3.)   the   statenoAts, the political body; the city state. The commonwealth, he says, is formed for mutual advantage, but the
state is formed for a moral end.1 The conception is represented by Hegel, with great clearness and completeness,
and forms one of the most masterly subjects in his politics.   Hegel maintains the        distinction   through    the whole
structure of his work.        He defines (1.) the family,-          Die
Famnilie; (2.) the commonwealth, Die Biirgerliche Gesellschaft, the civil state; and      (3.) the nation, Der Staat, the
international state.2
The commonwealth        is the   civil order of society.         It is
a formal organization, and is based upon external and necessary   relations, and its action      is through a civil system
for the security of the private rights of persons.
1 Politics, bk. i. ch. 2.
2 Philosophie des Rechts, p. 66. Hegel defines the commonwealth as "anr
association of men as private individuals, and thus as existent in a formal relation, -a relation formed through their wants, and in the civil constitution as a
means for the security of persons and property, and in an external order for
their special and common interests;" he says, " the commonwealth as an external order, in its realization recedes into and subsists in the state." -Ibid.
p. 215. The conm3llcwealth, he says, has three phases, the satisfaction of the
individual through labor and exchange, or " the system of wants; " the security
of liberty and property,.or "the jural process; " and the care of special interests
as a common interest, or "the police and corporation." Ibid. p. 248. He says
the commonwealth "is constantly apprehended and represented as the state,
but the state is other than this, and its law is higher than this, it is the righteousness," etc. - Ibid. p. 69. The representation of the commonwealth, Die Biirierliche Gesellschaft, in Hegel, may well be described by Rothe as meisterharft. It
is in no respect open to the criticism of R. von Mohl, that it is introduced simply
in conformance to a threefold logical sequence. - Geschichte u Literateur dew
Staatswissenschaften, vol. i. p. 82. The distinction is maintained with certain
modifications by Rothe. —Theologische Ethik, vol. ii. pp. 101-120. Bluntschli
rejects the formal distinction of the civil corporation and the state, but the




THE NATION AND THE COMMONWEALTH.               285
It is the society of men existing in jural relations, and in
associations which are defined in jural forms.     Its members exist in no organic unity and continuity, but in a
formal relation, through the existence of private interests
in their individual or collective character. It embraces the
administration of civil justice in its formal order.
The commonwealth, since it is formed, in the necessary
relations of life, has the law of its action in necessity. It
is thus that its characteristic is order, and its object is security through the integrity of the collective whole.
The commonwealth has for its end protection, - the
protection of private interests, as individual or collective.
Its organization is for the protection of interests involved
in the necessary relations of men. It exists for the securance of life and liberty and property, through the institution of the system of civil rights. It embraces those wants
which are necessary in life and their satisfaction. It is the
same which those who have held only a negative and formal notion of the nation have apprehended and sought
to embody in that.
The commonwealth has for its province the economic
organization of society.   The system    which is ordinarily
described as public economy belongs to it, and writings on
economy are mainly occupied with subjects which are its
concern.   It comprehends the relations of the vast and
complex industrial processes of society.      There is in its
immediate scope the separate and the cooperative interests
of agriculture, of trade, of mining, and of the mechanic
arts. It is to direct the movements of production and of'
position he afterwards assumes may be allowed to justify it, since he is there
under the necessity of establishing in the organization of the state a separate
tower or department, which is immediately concerned with private or civil
rights and the economy of the state. - Allgemeines Statsrechts, vol. i. p. 458.
The present historical tendency indicates that in the unity of the German
nation the separate states, as Prussia, Saxony, Hanover, Bavaria, will exist as
distinct commonwealths or civil societies, forming in this respect a very close
parallel to the United States.




286                     THE NATION.
exchange.   The adjustment of the relations of labor and
of capital which represents the accumulated result of labor,
is to be referred to it. It is to regulate the division of
labor, and that which is of higher value, the union and
cooperation of labor, and that which is of still higher
value, it is to maintain the freedom of labor.
The' commonwealth has, in connection with the economic interests and laws of society, the department of
social statics. The enactment of sanitary laws and regulations, and the foundation of sanitary institutions, belongs
to it.  It is to take necessary measures for the protection
of health, and to secure society against whatever may be
a public nuisance or a public peril.l
The commonwealth is formed        in the institution  and
maintenance of civil rights.   The individuals composing
it are private persons, and as such they are comprehended
by it; they have each their end in the necessary relations of life to secure, and the security of their private interests is the necessary end for which the commonwealth
exists. The individual, therefore, may require the security
of his necessary rights from   the commonwealth, and the
commonwealth may require from       each that he also hold
these rights for others secure.    There   is, therefore, to
be established through it the protection of each in his
necessary rights and his necessary avocation, with       no
undue hindrance or unequal restriction.
The commonwealth is instituted in the maintenance of
justice in the necessary relations of life, or civil justice.
This is the law which is formative of its whole organization, and is defined in a jural system. Justice is to be
recognized as necessarily involved in the organization of
society, and is to be affirmed as law, and to be adminis1 The establishment of a quarantine and quarantine regulations, thus falls
naturally within its object, but this ougit not to be regarded solely as the concern of a separate commonwealth, and is not subject to internal administration. Its institution in the harbor of New York, is of no more consequence to
the people of the commonwealth than to the adjacent territory.




THE NATION AND THE COMMONWEALTH.         287
tered between man and man. Its violation is to be set
forth as crime, and the penalties incurred by crime are
to be defined and imposed.  Since justice in the commonwealth or civil justice is apprehended as existent in the
necessary relations of life, it is to be maintained through
its whole extent for all men, and there is to be the recognition of the equality of all men before the law. It is not
to assume a different principle of action for different soi'ts
and conditions of men. It is to assert a justice which is
impartial, or it becomes itself an organized injustice. It
is to establish justice in the authority of law, and to judge
the infraction of law as crime. It is to maintain justice for
every man; and private revenge is forbidden as the rude
justice of an unorganized and barbaric state. The execution of justice is to be regarded as the necessary condition of the commonwealth through its whole extent, and
its whole power is to act in its ultimate enforcement. It
is to be the guardian of every individual.  The object,
in the increase of the commonwealth, to be steadily regarded, is that the process of justice shall not be neutralized through old and imperfect judicial organizations,
where the abuses tend only to the emolument of a special
and conservative profession, as in the commonwealth of
Connecticut; and that it shall not become entangled inintricate formalities, to become what Cromwell called the
law-system of his age, "' a tortuous and ungodly jungle; 
nor that it shall affect, beyond the necessity of scientific
precision, a phraseology unknown to the people; nor that
justice shall be made so costly that any shall be debarred
from access to it. Justice is to be open and free to all.
It should be the same for all, and thus in the apprehension of crime no special or private rewards should be
allowed, but it should be held as the office of the state;
and no officer of the state nor of its police, should be.
allowed to receive a tender of reward from private persons,
nor should any gift be made to justice. A system of




288                  THE NATION.
private rewards gives to wealth and power a special security, which is not open to all, nor promotive of the security
of the whole, and is but a slight advance from a system of
private revenge. The commonwealth is to bring crime to
the light, and its object is to protect rights and not criminals. The fair trial of all charges is to be had, and the
evidence of all, the plaintiff and defendant alike, is to be
received that all may be known. The object is to make
the conviction of crime sure and the punishment inevitable, and to determine the actual injury and the actual
degree of guilt. The course of law thus is not to be merely
formal and mechanical, as in an imperial code, but it is to
regard the varying aspects of human action and the varying conditions of human life. It is to take into account
the age and circumstance and mental condition, and all
which may be exculpatory in them, and to regard crimes
to which different degrees of guilt attach, and for which
there must be corresponding degrees in the punishment
imposed. Thus the law, instead of an unvarying and mechanical application, presumes the deliberation of those
before whom trial is had, and the judgment of a judge.
The commonwealth has the institution of its procedure
in the common law. This is its exclusive province. It is
this law which has been instituted in the ascertainment of
the justice involved in the necessary relations of men. It
recognizes a solid justice existent in the development of
these relations. It is shaped in the jural definition of these
relations.  It acknowledges, therefore, as a prescriptive
right, that which by long continuance has been wrought
in the use and wont of men. It holds the right of ways
which are open to all alike, and fair to all, and have been
long trodden by the steps of men. It is this recognition
of justice as existent in the necessary relations of men,
which is the precedent of the common law, and the condition of its legal positivism. It is not the tradition of any
code nor commandment, however ancient.




THE NATION AND THE COMMONWEALTH.         289
The principles to be regarded in the constitution of the
commonwealth are those which define its unity and its
scope. The unity of the commonwealth is that of the
unitary organization of justice. Its authority is to have
within itself no formal restriction and no sectional limitation. It is as a crime against the whole that the violation
of its law is to be regarded and punished. The denial of
the unity of the organization of the commonwealth was
the ground of opposition to the important legislation of
the commonwealth of Pennsylvania, in the succession of
crimes and outbreaks of violence in Schuylkill County in
1867, and also to a system of metropolitan police in certain
separate districts. But the commonwealth fails of its end
when crime is allowed to remain unpunished, or rights
become insecure through defect in its organization. There
is no sectional right in the outlawry of a certain locality,
to preclude the action of the commonwealth through its
whole extent.
The scope of the commonwealth has also no restriction
in the institution of civil rights, and the determination of
the whole civil order is within its sphere. The reason and
the right of the legislation of the commonwealth of Pennsylvania, which modified the whole tenure of property,.
andwas so great an advance in establishing the freedom
of property, placing real property upon the same basis in
certain respects as personal property,1 was opposed with
the argument, not that the act was in itself unjust, but that
it was beyond the scope of the commonwealth.  But this
rests in a deficient apprehension of the commonwealth, for
in the normal civil order and civil administration, there is,
no formal limit to its action.
The territorial extent of the commonwealth is commonly
shaped by some circumstance, or some consideration of
civil administration. It conforms mainly to the content of
the commonwealth, and when once established it is to be
1 Price Act, April 18, 1853.
19




290                 THE NATION.
held stably, as if it were itself bottomed in the common
law, and as describing old and established interests which
have grown up and repose in it.
The nation in its civil organization may constitute a single commonwealth, or it may be divided into many and separate commonwealths, and these may increase in number,
with the extension of the national domain, and the change
and growth of population.
The conception of the commonwealth, as it has been
represented in political science, has had its precedent in
the slow advance of civilization. Its organization is not
new nor strange, nor did it come forth at once complete in
all its powers in the beginning of the American state.
The form may be discerned in its germ in the first unfolding of the civilization of the Teuton, and may be traced
in the succeeding institutions of our ancestors as they
emerge from the shadows of German forests. It appears
in the structure of the constitution of England, in the organization of counties for civil administration and the management of local and special concerns, while embraced in
the kingdom, and subject to the Crown and the Parliament, iln whom is the determination of the political whole.
It appears in the distinction of the Hundred, and however
rude and imperfect may have been the form of this, and
however widely writers may differ in defining its character
and limitations, they all agree in the reference to it of the
transaction of judicial, and the management of local concerns; its primary object is that of civil administration.
There is, in the "Lives of the Chief Justices," an illustration of the manner in which this distinction was guarded.
The writer says of the office of Chief Justiciar, as introduced by William the Conqueror from Normandy, "The
functions of such an office would have ill accorded with the
notions of our Anglo-Saxon ancestors, who had a great
antipathy to centralization, and prided themselves upon




THE NATION AND THE COMMONWEALTH.             291
enjoying the rights and advantages of self-government.
The shires being parcelled into Hundreds and other subdivisions, each of these had courts in which suits both civil
and criminal might be commenced."1        It was not by a
single assembly of men, however great, that so vast and
noble a structure was conceived, nor in any single age has
it been perfectly realized. It has been formed slowly in
the long struggle of society toward the better attainment
of its end.  It will always obtain a more perfect form with
the progress of the people.
The commonwealth has, in the historical development
of the United States, its amplest and its highest organization. There has been the illustration of its strength and
its conformance in the order of the whole; and also of its
evil, when, severed from the whole, it has sought to build a
civilization in the furtherance of some separate and special
interest, and to base in that the foundation of society.
The sphere of the commonwealth must be ascertained
by its content; by what it is, and not by what it is
assumed to be; by its actualization, and not by any
abstract conception of law, or empty theory of society.
In the illustration of the nature of the commonwealth,
reference is made to the constitution      of the commonwealth of Pennsylvania, not only because it lies nearest
at hand, but as that of one of the original thirteen commonwealths, -a commonwealth as central, and as conservative in the habit of the community as any, and comprehensive of as great and varied interests as any, and it has had
in the revision of its constitution the aid of lawyers of singular eminence.2   And since what is assumed for one com1 Lives of the Chief Justices, vol. i. p. 33. The distinction may be traced
in its outline in defining the nation and the commonwealth, in the distinction of
public rights and duties as supreme and subordinate.- See Christian's Bl.
Comm. chart. iii.
2 The commonwealth, as the civil organization of society, opens a more immediate field to lawyers; but then, also, by the same influence, they may be withdrawn too exclusively within its contemplation, and are apt to become, and
for the same reason,-that is as also withdrawn exclusively in it,.-what Dr.




292                         THE NATION.
monwealth, in its nature, is assumed tor all, the constitution of this may be taken as a legal instrument to furnish
its illustration.
The formal organization of the commonwealth is in legislative, executive, and judicial powers, through             which   its
order   is construed.       The    legislative  department has its
province presumed in         the  nature   of the   commonwealth,
and its special limitation in the judicial department. The
judicial organization and form        of procedure is necessarily
more amply defined in the object of the commonwealth.
The executive department is defined in the office of the
governor, -a name not indicative of political precedence,
nor suggestive of the sovereignty of the state, but denoting
the direction    of the internal administration, and the regulative or magisterial character of the civil office.
The commonwealth is the institution of the authority of
law   in  the civil order.     It forbids that any      shall be arraigned but by due process of law.1 It allows neither
private revenge nor private judgment to assume the behest of justice.      It regards crime as a violation          of the
Arnold called the political economists, - " those one-eyed men." But their services have indeed been conspicuous in the formation of the constitution of the
commonwealth of Pennsylvania; and there is no commonwealth in which the
jural scope has been more clearly maintained, or the province of its judicial in
distinction from legislative powers more carefully and wisely guarded, and where
the constitution has been so little cumbered with the detail which belongs to the
sphere of legislative enactment. It bears the impress of the work of Wilson, and
Gibbons, and Chauncey, and Sargeant, and Price, and Binney, and Wallace.
1 The earliest historical assertion of law is not in the enunciation of a principle,
but in a judgment on a case (see Maine's Ancient Lawv, p. 3), and there is in it,
whatever else there may be, the presumption of a substantial order in the necessary relations of life, and crime is adjudged in the interruption or violation of
this; in this may be traced the historical development of the common law. ~ Its
origin is in no formal code, nor in the tradition of a formal code.
"There have been," Mr. Maine says, "three agencies which, in its historical
course, have shaped the process of the common law, legal fiction, equity, and
legislation." The first, whatever its advantage in some periods, is a rude device,
and belongs mainly to the past, the second must constantly seek the aid of
legislation, as it finds expression in a positive form; and the third becomes the
more potent agency. It is only within a very recent period that legislation has
been brought to shape the course or to act in the explication of the common law
in the commonwealth of Pennsylvania.




THE NATION AND THE COMMONWEALTH.               293
peace, and therefore as against the commonwealth, and in
its name it is judged.1
The commonwealth is to institute courts for the admin
istration of the civil order.2 The historical origin and formation of courts affords the widest illustration and evidence
of its province.   The court is constituted for the assertion
and protection of civil rights.
There is for every one subject to the authority of the
commonwealth, the right to bring his cause into court, and
each may be required to appear before the court, and the
award of justice is rendered by it.       The access to the
court is for all, and " every man for an injury done him in
his lands, goods, person or reputation, shall have remedy
by the due course of law, and right and justice administered without sale, denial, or delay." 3  Before the court a
trial of the cause is had, that justice in the matter may be
ascertained.   The method is demonstrative, and evidence
is given and the facts in the case examined. The parties
bring in witnesses to their suit, and everything concerning it is laid before the knowledge of the judge and the
jury by whom the verdict is rendered. These successive
steps are themselves rights, and belong to every one subject to the authority of the commonwealth. There is for
each the right to appeal to the court, to call witnesses, to
have council in law, and to bring before the judge and jury
all that may concern the action. Every individual in the
commonwealth to whom its writ may come, is required to
1 Constitution ofthe Commonwealth, Art. I. sec. 1. Art. II. sec. 1. Art. VI.
sec. 10.
"The style of all process shall be, The Commonwealth of Pennsylvania,'
and all prosecutions shall be carried on in the name and by the authority of the
Commonwealth of Pennsylvania, and conclude' against the peace and dignity
of the same.' "- Ibid, Art. V. sec. 11.
2 " The judicial power of this commonwealth shall be invested in the supreme
court, in courts of oyer and terminer, and general jail delivery, in a court of
common pleas, orphan's court, register's court, and a court of quarter sessions
of the peace for each county; in justices of the peace; and in such other courts
as the legislature may from time to time establish." - Ibid, Art. V. sec. 1.
8 Ibid, Art. IX. sec. 11.




294                  THE NA ION.
answer the summons of the court. In the feudal age, the
nobility regarded it as an injustice that they should be
held to obey this sumrmons, or that the evidence of all men
should be received in respect to them, but in the new Parliament House in London, a painting by the side of the
throne represents the arrest of the heir to the throne by a
London constable. The facts are to be brought out, and
that only can be held as authentic which is brought to the
knowledge of the judge and jury.1
In the court the method of procedure is formal and exact. This formality gives to the cause of every man the
same dignity. It invests every charge and every suit, by
whomsoever it is brought, with the same solemnity. The
same summons sets forth the claim alike of all, whether
rich or poor or citizen or stranger.  This formality secures
justice from abuse, and forbids that the cause of any
should be passed by hurriedly or slightingly.
In the court the procedure is open to all. Its sessions
are announced, and the whole action is public, since the
crime is not alone against the individual, but against the
peace and dignity of the whole; and although the cause is
between certain parties, yet the justice involved affects the
whole; and the punishment is not alone the satisfaction of
a private wrong, but the consequence of the violation of
the law.
In the court the examination is before a jury, and judgment is rendered by it, and the verdict it returns when the
offense is proven, is called a conviction. This is the office
of the jury.2  The trial by a jury is not, as De Lolme described it, simply to resign the individual to the judgment
of a few persons; but as Hegel says, it is the demand of
the conscience of the individual that justice be meted out
to him, and the conviction is rendered as expressive alike
of the conscience of the individual, and the conscience of
the community which the jury represent. It is the claim
Constitution of the Commonwealth, Art. IX. sees. 9 and 11.
2 jbid, Art. IX. sec. 6.




THE NATION AND THE COMMONWEALTH.         295
over impulse and desire, of the conscience of every man,
and the witness of his own, his true and better nature,
which no crime can wholly silence, and which by crime
has been most wronged.   The punishment which follows
is the manifestation of crime. It is not primarily reformatory, and it may not always of itself have that effect upon
the individual, but it is the sequence of crime in which its
nature is manifested. The conscience of the individual
and of the whole demands that crime shall be brought to
light, and that punishment shall be inevitable, and the
commonwealth fails of its end in so far as this is not accomplished.  The significance of punishment by solitary
confinement, is in the fact that it is the reflex of the nature
of crime itself, for evil, as the subversion of personality,
involves the loss of freedom, and is the separation of one
from his fellows, and the severance of relationships, and is
itself an isolation: thus solitary imprisonment is but the
manifestation of the sequence of crime. The adoption of
this mode of punishment indicates an advance in civilization.
The commonwealth is to make -provision for the institution of officers in the civil administration, as for instance,
the district attorney and the justice of the peace. The
former office in its very imperfect construction, has some
of the best elements of jural progress; and of the latter,
Stahl says, that the office embodies perhaps the highest
conception in the Anglican civil system. It represents the
peace of society as conditioned in justice.  It is to consider
in its inception the charge of the interruption of the peace
of society, and there was a deep significance in the formula
in which the old writs ran:' In the peace of God, and the
commonwealth."    It has to provide also for the institution
of all offices of civil order, as sheriffs, justices, constables,
coroners, prothonotaries, registrars, and recorders.1
It belongs to the commonwealth, in the guardianship of
1 Constitution of the Commonwealth, Art. VI. secsO 6, 7; Art. IV. sec. 6.




296                   THE NATION.
interests, to enforce the execution of contracts and of wills,
and the administration of estates. It has in its scope those
institutions, so fundamental in the civil order, - the contract and the will. The form in which these are executed
is of consequence, since they are to be maintained and
enforced as positive law. It is thus requisite that all wills
shall be proven, and all deeds and titles are to be given in
the name of the commonwealth, and it is to provide for the
probate of wills and the recording of deeds.1
It belongs to the commonwealth, in the securance of
interests, to regulate the relations of capital and labor, and
to maintain and protect the division and cooperation and
freedom of labor. It is to adjust the legal rate of interest
upon capital. It is to charter corporations and to provide
for their privileges, immunities, and estates.  In the direction of intercourse in trade and exchange, it has the supervision of roads and highways, excepting only military
and post-roads which are in the immediate control of the
nation. In the security of health and in sanitary provisions, it is to institute officers and boards of health, and
hospitals, and asylums, and homes for the infirm or incapable, or aged or insane, and it is to provide for the poor
and to appoint overseers of them.2
It is for the commonwealth to establish municipalities,
and to grant and convey municipal rights or privileges, and
to institute the order and confer the powers which are
requisite for the civil administration, in the organization
of counties, towns, and boroughs within its limits. The
execution of its powers is through a police and constabulary.
There is in this summary the substantial content of the
constitution of the commonwealth of Pennsylvania, to
which reference was made in illustration of the commonwealth in itself. This which was ascertained to be its necessary conception, has been its realization in its normal
1 Constitution of the Commonwealth, Art. V. sec. 10. 2 Ibid, Art. VII. sec. 6.




THE NATION AND THE COMMONWEALTH.          297
process. With the formal exception which is to be noticed,
and which is not in all respects inconsistent with its administration, this is all there is in it. There is no power beyond this that could be actualized or strive for actualization
in it without involving some contradiction. There is beyond this only the sphere of legal fictions, of empty theories, and political abstractions. There is beyond no solid
ground. It is the field of restless visionaries and political
dreamers; and instead of the domain of substantial order,
it has proven the confine of anarchy and secession and rebellion. In it an evil ambition has wrought, and the
forces of disorder. and division have mustered.
The powers which alone remain to be noticed, and which
constitute an exception to the preceding, are those which
refer to divorce, to education, to the resident qualifications
of an elector, and to the militia as a local or constabulary
force.  These powers are such as in part are properly
related to the normal administration and economy of the
commonwealth, and therefore in certain aspects may be
referred to it, or they are powers which, when left to
the commonwealth, fail to obtain any substantial actualization. There is nothing in them to justify the speculation, which has assigned the most limitless scope to the
commonwealth. The limitless in human affairs is indeed
that only which is untravelled by thought. There is, in
the civil and political life, no sphere of arbitrary and indefinite powers; the arbitrary is without the domain of law,
and the indefinite is the unformed thought and purpose,
the vagueness and weakness which appears in incapacity
of thought and irresolution of will.
There is an article on divorce, defining certain restrictions of the legislative power in its action upon it, and
then referring it to the courts. The administration in
divorce, in its connection with the common law, passes
consistently to the commonwealth; but the nation has. an




298                  THE NATION.
immediate obligation in the maintenance of the family in
its moral unity and moral order, and if it fails to attain this
in its action through the commonwealth, it is imperative
that it shall assume its immediate authority. There is no
form that can intervene by which it can be divested of its
obligation to maintain a moral order.
There is an article on public instruction, which provides
for the institution of schools, so that all may be taught
free. But while the administration of a system of education may be referred to the commonwealth, its institution is
of national importance, and also of national obligation, and
in the defect of the commonwealth, its authorization should
proceed from the nation.
There is an article on the qualifications of an elector, in
which the conditions of electoral power in the commonwealth are defined, while its electors are described as
" citizens of the United States,"} and its special provision
in respect to the commonwealth, is the limitation of the
term of residence necessary before any election for "a
citizen of the United States who had previously been a
qualified voter" in the commonwealth, in order to vote
at an ensuing election. The constitution of the United
States describes the qualifications of an elector, but its
definition is simply inclusive of the qualifications of the
lower house in each commonwealth, and the more specific
qualification is referred to the commonwealth; but since
the right to vote is a political right, and integral in the
nation, the provision for it should be in the fundamental
laws and its guaranty in the supreme law of the people.
The terms and conditions of electoral power cannot be left
to the discretion of each separate commonwealth, without
the risk of unequal qualifications which might act as a disturbing force, or tend to create alienation or division, and
the definition of political power belongs to the nation.
There is an article which provides for the arming, organizing, and disciplining of the militia, and describes the




THE NATION AND THE COMMONWEALTH.         299
governor as the commander-in-chief of the army and navy
of the commonwealth. Of this it is only to be said that
the commonwealth has no right to declare war, and over
the militia the governor has power only within the limits
of the commonwealth, and he is thus only commander-inchief, " except when they are carried into the service of
the United States."  It is only for internal order and
administration that the governor has immediate command,
and as the militia acts as a constabulary or police, to prevent a breach of the peace of the commonwealth within
its borders. When the governor is represented as the
s" commander-in-chief of the army and navy of the commonwealth," the office is not further defined. Since the
commonwealths of the nation have for the most part no
sea-ports and no sailors, and, in some instances, no navigable waters, the title can scarcely be supported. It is a
name for which there is no reality, and except for lawyers
it leads beyond all soundings. No navy has ever set sail,
and no sailor has ever trod its deck, only constitutional
lawyers have exchanged its signals and answered its
salutes. It is as a legal fiction, if it can make that
claim, but a painted ship upon a painted ocean, although
for -the lawyers who sail upon it, out on the limitless
expanse, it is as good as oak and iron.  And the governor in this character, on the streams to which he may
often be confined, is like Wordsworth's fisherman, "tricked
out in proud disguise." But this assumption of military
and naval authority in its consequent weakness, is indicative of the neglect of the nation in its own sphere, to
provide for the instruction and organization of the whole
people, as a military force, which is its express obligation.
The commonwealth is necessarily itself concerned with
the militia only as a constabulary; and when the military
organization has been left to it, it has been at the most
defective, and its display a masquerade to fill an idle holiday. There is in the commonwealth no conception, and




300                  THE NATION.
no power of war, and it may neither declare war nor
conclude peace.
These powers, in divorce, in education, in the definition
of electoral laws, and in the instruction and organization of
the militia for local purposes, are alone those which have
any description in the constitution of the commonwealth,
that are not exclusively within its normal conception, and
they in certain respects are not inconsistent with its administrative order. But they are in a necessary and immediate relation to the nation, and their exclusive reference
to the commonwealth becomes the defect in their institution, or the source of weakness and of radical error in the
organization of the whole.
The nation and the commonwealth exist in a two-fold
relation: firstly, the nation is immanent in the commonwealth; and secondly, the nation is external to the commonwealth.
The nation is inimanent in the commonwealth.
The commonwealth of itself is incomplete, and presumes
the being of the nation in which it subsists. The commonwealth of itself has no permanence, and in the nation
alone it has its consistent end. It is only as the nation
is immanent in it, that it is brought into relation to its object in the unity of the whole. Then it is no longer simply the private interest of the individual which is its end,
but it is the end of the nation itself, - a moral interest
which gives to justice alone its strength. It still institutes
and administers justice with reference to the individual,
and acts in the maintenance of private interests; but its
work is no more for a private end alone, nor simply that
each individual shall be secure in his special rights, but
that all sources of disorder shall be removed, and all that
hinders the administration of justice shall be overcome.
It is thus, as the commonwealth subsists in the nation and
its moral order, that it brings to individual rights a permanence.




THE NATION AND THE COMMONWEALTH.         301
The civil order which may have the highest formal completeness, when the life of the nation is no longer present
in it as a sustaining power, is merely abstract. The most
perfect institutes of a civil system have of themselves no
enduring power. The historian of Roman jurisprudence
may justly describe the great worth to society of those
civil institutions - the contract and the will, - but there
was in them no inherent strength to save the society of
Rome when the nation was crumbling beneath the weight
of empire. In them there was no renovating energy to
stay the corruption, or to check the swift decay that was
undermining all within. It is thus that in imperial ages
there may be a higher culture and structure of the civil
order, as in France under the empire. It is thus, also, that
the study of the civil law of itself has the attraction only of
an external symmetry, and impresses one only as a formal
system and as a cold and lifeless anatomy. It has not the
spirit of an historic power. The genius of the great masters of the Justinian era can throw over it only a faint
glow, and the energy of a living spirit is wanting in the
most splendid development of the civil organization of society.1
It is only in the immanence of the nation that the commonwealth has its continuance in history. The structure,
which is a combination of private interests, could not exist
of itself in the strenuous conflict of the moral forces of history. There can exist in history no mere negation; and
the commonwealth of itself can have no place among
those powers which, in the life of humanity, bear its issues
to their close. The assumption of the foundation of society
in the commonwealth has been the precedent of a false
civilization. Since the commonwealth exists only as the
organization of the individual and collective interests of
private persons, when the foundation of society has been
sought in it, it has assumed a selfish principle as its law,
1 See Merivale's History of the Romans, vol. vii. p. 429.




302                THE NATION.
and its end has been the predominance of a selfish interest. And as the commonwealth is formed in the necessary relations of life, it cannot become of itself a power
in history which is a moral order, and in the realization
of freedom. It-holds the web and the woof in which those
historic figures appear; but it apprehends not the unity of
that design which through centuries, is wrought in the
conscious purpose of nations.
The nation in its sovereignty is immanent in the commonwealth. Its determination is the supreme law; the
law of the nation is the law in every commonwealth. The
constitution of the United States is the constitution of every State. The real sovereignty is in the nation, and the
will of the organic people is prevalent through the whole.
The power, as in any organism, acts through every member, and thus conversely the injury to a part involves the
injury of the whole, and the peril to any commonwealth is
the peril of the nation.
The nation in its freedom is immanent in the commonwealth. This freedom is not simply the securance of
civil rights, and that in some transition may be better
effected in an imperialism, but it is in the nation in its
moral being. The life of the nation thus may become imperilled through the commonwealth when its freedom is
not realized in it; since then its spirit is no longer apprehended in it, and there is a separation from the consciousness of its historical aim, and that corruption which is
consequent when one existing among the parts acts upon
the whole without any comprehension of the whole. The
unity also of the nation is imperilled, if the freedom of the
people is not realized through the whole, and slavery has
its sequence in dissolution and division.
The nation is external to the commonwealth.
The commonwealth is invested with a-formal sovereignty.
It is not the sovereignty of the people, in its organic being,
but a formal sovereignty, limited to a certain process and




THE NATION AND THE COMMONWEALTH.         303
to the formal exercise of certain powers for the prosecution
of that process. The power is existent in the sovereignty
of the organic people, and it is only in reference to the
formal process in which the commonwealth is constituted,
that the nation is external to it.
The commonwealth has a formal, but not an organic
unity.: It is a whole only in its relation to the nation,
and through it, to the other commonwealths of the nation.
The commonwealth is defined by boundaries which are
formal, that is, they are not the natural boundaries which
divide nations, as oceans, or mountains, or rivers; nor the
historical boundaries which separate one people from another, in their integral life, and are shaped in the struggle
and conflict of history; but they are the lines and angles
which are traced in the formal demarkation of an estate,
such lines as are drawn by the surveyor and the engineer.
They cross rivers and mountains, and stretch away from
the sea, and sweep by. points of external defense, where
one people might make a stand against another people.
If there be an uncertainty as to these boundaries, the commonwealth cannot maintain its position against what might
be presumed an invasion, by any declaration of war on
the invader, since it cannot declare war, nor can it determine its own boundaries in dispute, but the settlement of
them is with the nation. These boundaries thus cannot
be conceived as those of a separate political people in its
historical course, and illustrate the fact that the commonwealth has in itself no elements of permanence in history.
In the agitation in its movements, they would be obliterated as lines drawn in the sand.
The nation exists in an external relation to the commonwealth; but the commonwealth has in itself no external relation, excepting only to the nation and to the
other commonwealths through the nation.    It comprehends no foreign relation, that is, a relation to an international state. It can enter into no league nor alliance, nor




304                  THE NATION.
form any treaty. It a crime has been committed against
its peace by any person escaping to a foreign state, it.is
only through the nation that extradition is obtained, while
on any commonwealth in the nation direct requisition may
be made. If there be any invasion, it is the nation which
is invaded, and the peril is for the whole people, and
with its whole physical power it is to meet the invader.
The commonwealth as constituted in this formal system,
as a civil corporation, that is, as an artificial person, has certain formal rights, or more exactly, immunities. If the
divided, and in the development of the nation so rapidly
increasing commonwealths, have each a necessary continuity, and the capacities of an organic people, in its organic
being in history, then the rights of each are the rights of
a nation in its sovereignty, and each may assume correspondent duties and obligations. But the commonwealth
has no continuance in its separation from the nation, and
its rights are existent in its formal organization, and it is
the nation alone which can recognize these rights. These
rights are maintained for the commonwealth, only as the
commonwealth exists in the nation.
Firstly; There is for the commonwealth the right that
the nation shall maintain it as integral in itself. It can
detach no commonwealth, and allow none to be detached
from itself. It can withdraw its authority from none, and
can alienate or transfer none. It is not only existent in
each, but it is existent in its unity and its entirety in each.
It is thus that in the invasion or peril of one, it is the
whole that is invaded or imperilled.
Secondly; There is for each the right to the maintenance of its organization, in its normal action as a commonwealth. The order and the execution of justice is to be
maintained in each, and if necessary by invoking the
strength of the whole. The due form of law in the privilege and protection of courts, and the trial by jury, is to be
sustained in each. The validity of contracts is to be en



THE NATION AND THE.COMMONWEALTH.      305
joined in each, and through the separate commonwealths,
the nation is to maintain for each full faith for its reports
and judicial procedure.
Thirdly; There is the right to the maintenance in each,
of the freedom of the nation. None can be reduced toga
condition of mere subjection, as to some imperial power
which is over and isolated from it. The right to the freedom of the nation is in so far a condition of unity that if it
be not realized in the commonwealth, the latter becomes
in fact only a province, separated from the sovereignty and
consequent freedom of the whole, and its members have
no real citizenship.
Fourthly; There is the right in each to the maintenance
of a definite boundary and domain. The lines are those
which define the order of the organized administration of
justice in the securance of private rights, that is, the rights
defined in a civil system and- the maintenance of private
interests. These boundaries, while they are not such as
separate one historical people from another, are such as
appear in a vested or a customary right. They are the
lines which are marked in the survey of property as in a
private estate, and property requires exact limits and seeks
security and stability in them, while change might tend
to disorder, and occasion conflicting forms and titles and
unsettle values.  These lines are therefore to be carefully
defined. While there is thus no moral ground which
could hold them in the supreme necessity of the people, in the normal condition they are to be maintained in
the order of the whole. It is thus that there is in them
that attraction of association, and that wealth which gathers
with the course of the generations, and they become like
the lines of an homestead. They are to be so regarded,
that no new commonwealth shall be formed out of another,
but with the concurrence of its own consent and of the
authority of the nation.
Fifthly; There is the right to the maintenance in every
20




806                 THE -NATION.
commonwealth of a form of government and organization
corresponding to that of the nation. There is to be in
none the incongruity which would appear in discordant
forms.  There is to be in none a form of government
which shall isolate it from the order of the nation and of
the commonwealths coexistent with it in the nation. The
republic is to maintain for every commonwealth a republican form of government.
These rights in their maintenance necessarily presume
the being of the nation, and have apart from it no actualization. They are defined and established in the constitution of the nation and in its supreme law, and form the
high guarantees of the constitution.
The more definite enumeration of rights is consequent
from the formal process of the commonwealth, or from the
formal equality of one commonwealth with another in the
maintenance of interests; as for instance, the right that for
every crime committed within its limits as against its own
peace and dignity, and in violation of its order, the trial
shall be had within its limits; that every criminal, whereever he may be in the nation, shall be remanded to it on
the requisition of its governor; that upon the seas, rivers,
and highways of the nation each alike shall have the same
right of way; that each shall be regarded alike in every
regulation of commerce and revenue, and in these none
have precedence to another; that no vessels bound to or
from one, shall clear or pay duty to another; that the citizens of each shall alike be eligible for the offices and trusts
of the nation; and the right, when its corporate rights and
interests are endangered, to enter as a party in court, and
the corresponding necessity to appear and answer a summons as a party in court, but it is only in a court instituted by the nation that this right of the commonwealth is
construed; and the right finally that to the citizens of each
in its normal order there shall be given and secured all
the rights, privileges, and immunities which belong to those




THE NATION AND THE COMMONWEALTH.      307
of any of the several commonwealths in the nation, or the
right to a formal equality in the commonwealth.
The commonwealth is a formal organization. If the
order of the commonwealth is overthrown in anarchy or
rebellion, and its course is interrupted or overborne, it is
in and through the nation alone that there is the power
of reconstruction. The organization is formal, and it is
upon the people in its organic and moral being, that is, the
nation, that there is the ultimate obligation, although not
always the immediate action, in the institution of rights
through the whole and for the whole. The nation can
therefore allow no civil formula to intervene between it
and a condition in which civil rights are utterly destroyed
through anarchy, or to restrain its action when robbery
and murder and violence and crime in every shape prevail,
but tried by no process of law and deterred by no punishment; and there is not in this condition the maintenance
of the commonwealth, nor can it claim even the name.
The curse of impotence would be upon the government of
a people, which should aid or abet such a condition.
There would be the failure of government to obtain its
primary ends, and whatever theory of civil relations was
adduced to justify it, it would denote the imbecility of a
people. The theory would be a theory of anarchy and not
of the state. The government restrained from its end in
this formalism could not long endure. It would be itself
the greater criminal. The commonwealth is only formal,
and the subversion of the civil order within it empties it,
and there remains only a territory and an unorganized
population among the vestiges of a past civil system.
The nation and the commonwealth, in the coincidence
of the civil and political organization, hold certain necessary powers, which are involved in their order and administration. These are the concurrent powers of the consti



308                  THE NATION.
tution. Their ultimate ground is in the sovereignty of
the people in its organic unity; but they are necessary to
executive action alike in the civil and the political sphere.
The illustration of these powers is in the power to levy
taxes, and the power to call out and employ for its object
physical force. But the power of taxation in the commonwealth is strictly internal, and the force it calls out can
act in its immediate direction only as a constabulary for
internal order.
The principle determinative of these powers is implied
in the nature of the nation and the commonwealth. The
power in the commonwealth is subordinate and dependent.
Kent says, " Although the State legislatures have a concurrent jurisdiction in the case of taxation, except as to
imposts, yet in effect though not in terms this concurrent power becomes a subordinate and dependent one.
In any other case of legislation, the concurrent power in
the State would seem to be entirely dependent," etc.1
The distinction in the nation and the commonwealth becomes more apparent in those powers in each, which have
in their procedure a more immediate correspondence, as
the judiciary. The distinct nature of each has determined
the object of the action of this power in each, while the
form of action is the same. It is thus, in the words of
Kent, that "the judicial power of the United States is necessarily limited to national objects." It has for its province
the application in cases involving a conflict of rights, of
the constitution as the supreme law, and of the acts of
Congress as laws, and it is to give judgment in cases
which arise in a controversy between separate commonwealths, and when action is brought by a member of
one commonwealth against another, and in cases arising
in the external sovereignty of the nation under treaties
and in revenue or admiralty practice. But Kent says, of
a principle which, involved in the necessary conception of
1 1 Kent's Comm. p. 393.




THE NATION AND THE COMMONWEALTH.         309
the commonwealth, has struggled toward a clearer recognition, "the United States has no common-law jurisdiction in criminal cases."  To this he adds, in explication
of the same principle, "' the vast field of the law of property, the very extensive head of equity jurisdiction, and
the principal rights and duties which flow from our civil
and domestic relations, fall within the control, and we
might almost say, the exclusive cognizance of the State
governments." 1
The earlier decisions of the judiciary of the United
States were the embodiment of a profound national spirit,
and the contrast appears, as we turn from the weight of
their decisions to the bulk of the later, and pass from their
large and solid conceptions to notions which only obtain
consistency in the writings of Calhoun and Tucker's
Blackstone. There was in these earlier decisions a conception of the being of the nation, which the nation in its
progress could advance in, but which it could only by its
retrogression reject, and by its dissolution obliterate.
They laid the foundations in which the people can build.
The precedents which they established apprehended clearly
the substance and object of the nation and the commonwealth, and they embodied in a massive and symmetric
order the conception to which the masters in political
science had sought to give expression.
The relation of the nation and the commonwealth, the
international and the civil state, is fundamental. It is only
in their necessary conception that this relation is ascertained. It is only in their substance that this relation is
realized. In contrast to the exposition of their necessary
relation, which has its premise in their content, there are
certain theories which comprise mainly the phases which
the subject has assumed in abstract speculations and legal
presumptions.  These theories are mainly significant in
their contrast to the principle which has been established.
1 1 Kent's Comm. pp. 367, 500.




310                  THE NATION.
Firstly; There is a theory in which the States are represented as simply vast corporations which had their origin
in some charter or patent, and continue with substantially
the same privileges and prerogatives once vested in them.
They are corporations overgrown with time, a mass of undefined forms and an accumulation of interests, but in conformance to no consistent principle, and constructive of no
consistent order.
But in immediate answer to this it may be said, -Firstly;
These powers are not thus undefined and unlimited, but
exist in a clear limitation, and are the same in each commonwealth, and are part of the same order. The theory
would indicate a condition which ought not to be maintained if it existed, and would imply the social disorder,
not the organization of a free people. The theory presents
the opposite of their actual condition. Secondly; It is not
to be presumed that these civil states could continue only
as vast corporations, whose charters had lapsed, and which
then remained with these positive but indefinite and miscellaneous powers. There is no country that could exist
in the confusion that this would involve, and the civil states
could not occupy the place which they have with no other
ground or content.  Thirdly; There has never been an
historical people that would refer its whole civil system to
an organization which had no other character than this.
To entrust the security of civil rights, of life and liberty
and property, to such a power as this presents, and to abide
in its judgment upon them, involves that which no people
would allow. It would contradict every conception of civil
order, and it has in civil society no parallel. Governments
in every form have been imposed upon a people, but no
people have ever conceded to an organization such as this
assumes, the powers existent in a commonwealth,of the
United States.
Secondly; There is a theory in which the States or commonwealths are represented as separate societies, each pos



THE NATION AND THE COMMONWEALTH.         311
sessed of the sovereignty and independence and continuous being of a separate political power; each is possessed
of the highest political attributes; each may claim the
ultimate obligation of all its members, and to it their ultimate obedience is due; there is for each a distinct historical place and destination, and each has immanent in itself
all the capacities of an international power. These States
are connected in a government to which they have delegated certain powers, expressed in a written contract,
while all other powers, which can attach to the most unlimited conception of political action, remain resident in
themselves.  The government established through this
agreement is formed as their common bureau, or general
agency, for certain objects. This theory was the postulate
of the action of Calhoun and Davis and Stephens. It led
the former, in 1831, to assert the right in each State,
within its own limits, to nullify any act of the national
Congress which it might deem unconstitutional or unjust,
and it led the latter, in 1861, to assert the right in each
State to secede, and to maintain in itself a sovereign, independent and continuous existence.
There is in this theory the explicit assertion of a confederate and the rejection of a national principle, and it presumes its inconsistence with the unity and being of the
nation. This will involve a separate consideration. But
the only answer to this theory, which is beyond all controversy, and is that of the realism of history, is that the
separate commonwealths have no realization in history in
conformance to this conception. The right, for instance,
which in history is the crucial test of political sovereignty,
the right to enter into relations with other nations, and
to recognize them and be recognized by them, has never
been possessed by these communities, and the power apparent in the inception of national existence is wanting
to them. The theory is unreal; but it is that evil theory
which apprehending the commonwealth as identical with




812                    THE NATION.
the political people and apprehending nothing beyond, had
its logical sequence in the subordination of the whole to a
special interest, and consistently assuming slavery as that
interest, induced the effort for that object, to effect the
destruction of the whole. The events of history in the
guidance of the people in its organic and moral being, are
the witness to that unity, the rejection of which is blindness to the actual life and relations in which men exist.
This assumption of a political contradiction - the presence
of a real sovereignty in the nation and also in the
commonwealth-has its result told in the impassioned
words: -
"My soul aches
To know when two authorities are up,
Neither supreme, how soon confusion
May enter'twixt the gap of both and take
The one by the other." 1
This theory sought to obtain realization in the articles of
the confederation, which was precedent to the constitution; but these articles failed, because they were an abstraction and had no correspondence to the real constitution
of the people. And the constitution which was then enacted is the exponent of the people only because it is the
supreme law, and the government instituted in it is not
one of separate States, but it is ordained and established by
the people, and represents an organic relation to persons
as members of it; that is, it is the constitution of a nation.'The real sovereignty is in the organic people, whose will
is the supreme law; but it is the people of the United
States, and not of each or any particular State, whose will
is the supreme law.  And sovereignty exists in the people
in its organic continuity; the people in no separate State
is thus formed, but the citizens of one State are the citizens of every State, and since a state cannot exist as an
abstraction, it follows that none can be regarded as separate from the organic whole.
1 Coriolanus, Act 3, so. 1.




THE NATION AND THE COMMONWEALTH.                 313
This theory had its consistent representative in Mr.
Calhoun, who avoided none of its necessary conclusions;
but he gave no conception of a political life beyond the
commonwealth, and the state for him was only a society
existing in jural relations, and composed of individuals
related to it as private persons, and having for its end the
securance of private interests in their individual or collective character. This theory is beyond consideration in
itself, since it involves conclusions which it would be the
unreason of things to allow, and would deny the conscious
spirit and life of the people, the organic being of the nation in history.1
Thirdly; There is a theory which represents the people
as existent as an organic whole, while in its complex politcal organism the States are each an integral and original
part.   The sovereignty is in the organic people, while in
the necessary organization of the people the States are integral; or in other words, the sovereignty is in the political
people, in whose real political constitution the States are
necessary. This is the position of Mr. Brownson, and apparently of Mr. Hurd.       Mr. Brownson says, " the sovereignty is in the States united, not in the States severally."
Mr. Hurd says, " The constitution as a political fact is
the evidence of the investiture of certain sovereign national powers in the united people of the States antecedent
to the constitution, as well as of the residue of sovereignty
1 On the false origin of civilization in the conception of the commonwealth as
separate from the nation, see Maurice's Prophets and Kings, passim.
" The commonwealth presumes the nation and subsists in it. When the state
is represented as only a union of various individuals, or an association, it is only
the commonwealth that is apprehended. There are modern publicists who have
given no other view of the state." - Hegel, Philosophic des Rechts, p. 241.
This criticism mainly applies to the view of the state in an- empirical; school.
It is given in the writings of Mr. Macaulay, and it is reiterated in the political
writings of Mr. Mill, and the political conception is constantly in the exclusive
representation of the commonwealth, and this may be at least, the consistent.
ground of the admiration of the latter for the political speculations.  Mr
Calhoun.




314                  THE NATION.
in the same people in their several condition of the people
of distinct States." 1
This theory is more thorough, and may claim an higher
historical consistence than either of the preceding. But
it is defective if it may be conceived to place the form of
the state above the life of the state, or to condition the life
upon the form. There is no preconceived political form to
which the being of the political people is to correspond.
The real sovereignty of the people can be predetermined
by no form, but it is itself to determine the form of its
political life. The fact that in a certain period it acts in a
certain form does not therefore make that form necessary
to its being, nor forbid that it may be changed.  And
sovereignty subsists in a unity, not in an aggregate, and is
existent in the people not simply as a territorial people,
although it is in the people of the land, but in the people
as organic and moral. There is also a formal sovereignty,
and the exercise of certain powers necessary to its normal
executive action, that is, vested powers, in the commonwealth, and it is because the organic people forming the
nation has a real sovereignty that the powers existent in the
commonwealth cannot be wholly beyond its recall, or utterly
detached from it, as would follow, for instance, in the secession of a commonwealth. And if, as this theory implies,
the existence of the several civil States is necessary in the
realization of the sovereignty of the organic whole, then the
acts performed and the laws enacted in the interval of the
action of each and all might be reversed or annulled, as
transpiring in some interregnum and void of sovereignty.
And the order of the separate commonwealths is formal,
and in the supreme necessity of the organic people they
may be merged and remerged into each other.   The nation is not conditioned upon the existence and continuance
of the separate civil States in their extant form. It could
1 Brownson, The American Republic, p. 220. Hurd, Law of Feedom, etc., vol,
i. p. 408.




THE NATION AND THE COMMONWEALTH.             315
exist through one as through another political form, and
even while all the commonwealths included in it were
changed. It has not the condition of its being in any form,
nor its limitation in an external order.l
But there is in none of these schemes the exposition of
the nature and relation of the commonwealth and the nation. The realization of the commonwealth and the nation
in conformance to their necessary conception, —the commonwealth as the civil organism, subsistent only in the
nation, and in its formal order invested with a formal sovereignty, but with the ample sphere of the civil organization, in which individuals have the institution of their private relations; and the nation, as the moral organism, the
being of the organic people in its freedom;-the result in
this is before and beyond any theories or any formulas.
In the realization of history it cannot be changed by them
so as to be made as if it were not, but in their prevalence
its development may be disturbed or detained.
The premise of the distinction in the nation and the
commonwealthl-the United States and a particular State,
- has been assumed in certain propositions which claim a
separate notice.
Mr. Calhoun defines the principle on which the distinction is based, "4The division of the powers of the government was effected by leaving subject to the control of the
several States, all powers, which it was believed they could
advantageously exercise, without incurring the hazard of
bringing them in conflict, and by delegating others specifically to the United States." 2  This is the application of a
1 Hurd, Law of Freedom, etc., vol. i. pp. 400-415. Mr. Hurd's exposition of
the historical course of the state is indeed masterly; and one cannot avoid
regret that the writer, who has shown the widest political learning and the finest
freedom of thought of any American publicist, should have been led to and
through this long compilation of laws on slavery. It only indicates in how many
ways the system has been the source of loss to us.
2 Calhoun's Worlcs, vol. ii. p. 420.




316                  THE NATION.
mere empiricism, which proceeds only on the principle of
an avoidance of conflict. It is for the keeping of the
peace between the separate commonwealths. It presents
the commonwealth as the integral and original power, and
the government of the whole is not ordained and established
by the organic people in its sovereignty, but constituted by
the delegation of certain powers of and from the several
States; and it again illustrates the fact that Mr. Calhoun
apprehended nothing beyond the commonwealth. It is
also the assumption of only a negative principle, the avoidance of the risk of conflict, and therefore cannot become
the ground of a positive order, nor constructive of anything. It prescribes also only the form of the commonwealth, and the principle in which the powers of the whole
are left to be determined is not given, but they are merely
represented as " others."  In theprinciple assumed, moreover, instead of escaping the hazard of conflict, in its political conception it has become the inevitable source of conflict, and has borne in itself the elements of dissolution to
the whole.
The distinction is often represented as that of a central
government and a self-government, meaning by the latter
simply a local administration. But this is obviously defective, since the distinction is not one of government and
administration.  There is government and administration
alike in the parts and in the whole. There are in the
nation necessarily immediate administrative powers, and
these affect every individual in the whole, and there is a
central government and strictly central system, as of a
wheel within a wheel, in the civil organization. There is
indeed in the commonwealth the administration of its
order, or a local administration, but this distinction fails
to ascertain the principle in which its order consists. The
work of De Tocqueville, so profound in its apprehension
of the thought of another people, the gift of a citizen of
France to the United States, has illustrated the worth of a




THE NATION AND THE COMMONWEALTH.        317
central government and local administration, or a selfgovernment in the meaning of the local administration of
local affairs; but there has been beneath this the development of a far grander and more complex order.
There is in the writings of Mr. Choate a significant illustration of the principle which has been ascertained. In
endeavoring to sustain the separate political sovereignty of
the separate States, when he defines the powers existent in
the commonwealth he says, "' one of the prerogatives of
sovereignty —the prerogative to take life and liberty for
crime,-is theirs without dispute." 1 It is indicative of the
principle in their distinction, that on the assumption of
their sovereign powers this only can be cited without dispute which is itself not strictly, in the conception which
has been ascertained, the act of political sovereignty, but
belongs to the commonwealth in its formal sovereignty,
and is necessary to its executive action as the civil system
in the nation.
There is an apparent objection to this principle in a
declaratory statement of the constitution describing powers
as reserved to the States, or to the people. But this, while
not in immediate variance with this distinction, has no
immediate application.  The constitution asserts in the
amplest measure national powers, and prohibits powers
to the commonwealth. The powers are not reserved by
the States to themselves, since inasmuch as the States
did not grant powers, they could reserve none; and the
power asserting itself, is of the people, whose will is alone
the supreme law over the whole. The phrase also, " the
States," while it is represented as identical with the
people, by a common principle of interpretation in law,
must be explained as congruous with the same term in the
preceding sentences of the legal document in which it
appears.
1 Choate's Wortks, vol. i. p. 197.




318                  THE NATION.
The importance of the definite consideration of the distinction of the nation and the commonwealth constantly
appears. A senator said of the Civil Rights Bill, that it
opened " a new epoch in the legislation of America;" and
while that great bill had its constructive principle in the
immanence of the nation in the commonwealth, and the
nation is to maintain not the pretense of civil order, but
the commonwealth in its reality organized in the unity
of the nation, yet whatever should tend to bring the nation
to assume in itself the immediate sphere of the commonwealth and its permanent retention, would involve the
most grave disaster. It might, as in the institution of an
imperialism, secure a more perfect civil order for a certain
period, but it would not continue long. In its close it
would be destructive of the noblest civil and political order
that society has yet attained.
The clearer recognition of this distinction is the condition of the higher development of the commonwealth
itself. There can be but an imperfect advance while its
nature is undefined and its province is undetermined.  Its
object must be clearly apprehended. There devolves upon
it, says Kent,' the duty that its jurisprudence be cultivated, cherished, and exalted," and this, while not strictly
comprehensive of it, indicates its immediate design. The
legislature has not in the civil organization the relative
position and precedence which it has in the political body.
The best elements of stability in the commonwealth of
Pennsylvania, have been in the withdrawal of that which
was not clearly to be referred to the legislature and its
reference to the courts. The securance of civil rights is
the immediate act of the judiciary, and it is vain to divide
its responsibility, or to construct a power to act in its stead,
or to merge its offices or functions with those of the legislature. If it becomes weak or corrupt, the only remedy is
its reconstruction in the commonwealth, and not the accumulation of its powers in the legislature.




THE NATION AND THE COMMONWEALTH.        319
As the commonwealth is formed in the jural relations of
society, the common law, through the common working of
many commonwealths in a political whole, may have before
it in their varied process an higher attainment. Its aim
is to be the administration of justice. The better civil
order is in the higher manifestation of justice, and the
clearer assertion of the nature and doom of crime. Punishment is to be made inevitable as the manifestation of
crime. Justice is imperative, and perfect justice alone
truly imperial. There are false theories of conscience
and crime which make the one a mere negation, and the
other only an imperfect stage of development, and hold the
conflict of good and evil as a neutral field; and there is a
necessitarianism in which there is the denial of the reality
of crime, and there is a humanitarianism which is consistent with no just and holy conception of the origin or
the destination of humanity, which are undermining the
order of society, and converting into a poor pretense its
most awful institutions. There is the demand for a more
manifest justice. It is a day of evil for a people, when it
comes to regard the punishment of crime only as the
sequence in some legal formula, or determined in some
social contract or some law of expediency, and when its
statesmen lose all consciousness of a divine obligation, that
crime must be punished, and wicked men must meet the
consequence of their deeds. This is the end in the commonwealth, and in its failure to realize this it is separated
from its ground in the nation, and its organization no
longer corresponds to its end.
There has been in the historical course of the United
States the higher development of the civil and political
organization of society, —the commonwealth and the nation. Their sequence is not the mere accident of history,
nor the induction of an arbitrary theory, nor the assumption of a legal formula; but it has been justified in the




320                  THE NATION.
reason of the state. It is an organization ampler and
nobler than they who in the generations have bnilded in it,
could wholly comprehend; and working steadily and faithfully in their own day, they have wrought m the ages,
building better than they knew. It has been vindicated
in political science in the pages of its few masters. It fills
the almost prophetic conception of Milton, —-  not many
sovereignties united in one commonwealth, but many commonwealths in one united and intrusted sovereignty."
The commonwealth is poor and empty, as are all things
else, in seeking to be something other than itself. When
it assumes a national place and national relations, it is
severed from its consistent strength and its symmetric
order, and is weak in the assumption of nnreal powers.
It becomes the caricature of the state, moving with a deceptive pomp in a disastrous pageant. In the building of
a false civilization, in the accumulation of merely material
interests, it bears with it the ruin of a people. CThe family
has its own place, and the commonwealth has its own dignity; but the worth of each is in the fulfillment of its own
law) And if the commonwealth, instead of its maintenance
in the unity of the nation in which its interests alone have
a moral ground, and are formed in the spirit of a moral
interest, is broken and dissevered from it, it is when material possessions are counted as beyond freedom, and gold
is more precious than humanity,- the golden wedge of
Ophir more precious than a man.




CHAPTER XVII.
THE NATION THE ANTAGONIST OF THE CONFEDERACY.
THE nation and the confederacy represent the forces in
conflict in human society.
The nation in its organic and moral being in history
may recognize other nations, and may enter into certain
relations and assume certain obligations with them; it may
form an alliance or join in a league with them, for certain
objects defined, for instance by a treaty between them;
but each is subsistent in itself, and the convention which
they form   obtains its only force from  the sovereignty of
each persisting in it, and is conditioned upon their continuance, and expires with its own limitation or with their
retirement. But this presumes the existence and affects
only the powers and obligations of separate nations.1 It
is apart from the principle of confederatism.
The confederacy is the construction of society in its own
exclusive type.  It defines the origin of society in the voluntary action of certain separate parties, and it is formed in
their contract; its powers proceed from the contract of
those who are associated as private persons in it, and the
authority of its government is derivative from the arrangement of the articles of this contract. The formation of
society is artificial, and the government and order of the
world are of human contrivance, - certain expedients for
the accomplishment of secular and separate ends.        The
1 A principle of politics of increasing strength in this age is " freedom from
alliances," and this is indicative not only of changes in the character and relation of nations, but of the stronger personal life of the nation. There was this
consciousness of freedom in the advice of the fathers of the republic, as in the
words of President Washington, " avoid all entangling alliances."
21




822                   THE NATION.
state is the exclusive possession of those who have constructed it; its government is their agent; its justice the
scheme of their legislators; its freedom the resultant consequent from  the exchange conducted on the entrance to
it; and each is limited to the proprietors who are joint parties in it.  The end of society is the securance and furtherance of private interests; its order is the balance of
these interests; its government is the representation of
these interests; its primary and exclusive function is their
protection.
The confederacy may be defined as the combination of
separate individuals or societies who enter into a voluntary agreement, and in the arrangement which they have
formed there is the source of government; the limitation of its action is with the several parties, and in the express terms of their arrangement, that is, it is the origin
and institution of society in conformance to the civil contract. The highest principle in it is not the institution of
justice which is in itself before all legislation, and is not
created by it; nor the organization of rights which it may
recognize but cannot bestow, nor the realization of freedom which although posited in an external order is of the
spirit of man, and can no more be conferred by the lawyer
than by the preacher or prelate or king, but it is the law
of combination after which it is constructed.  The confederacy has been called by its historian, " the most polished
and the most artificial production of human ingenuity,"
and defined as a system in which each party, "as an independent and sovereign'power, and as in itself absolute,
enters into a compact with others." 1  Montesquieu, while
regarding its primary object as security, which is assumed
as belonging to it in a greater degree, describes it as "an
assemblage of societies which is to arrive at such a degree
of power as to provide for the security of the whole." 2
1 Freeman's History of Federal Government,vol. i. p. 6.
2 Montesquieu's Spirit of Laws, bk. ix. ch. i.




THE NATION THE ANTAGONIST OF THE CONFEDERACY. 323
The end is here only that of the commonwealth with
which the state is identified. In the period in which Montesquieu wrote, it was presented as a formal system, -a
precedent to oppose the formal system which identified the
state with the prince, and in the conflict with the legal
assumptions of feudalism, the social contract had a value
while maintained as a legal fiftion.
The formal constitution of a people in some period of
transition- as in an early stage of political development,
or a later stage of political degeneracy, - may take the
shape of a summary of articles in conformance to a confederate system, but its characteristic is always the lack of
permanence. If the people exist in the unity of a conscious and organic life, and in the continuity of an integral
power in history, it is set aside as not representing the
reality, and in the development of the people in its national being, with which it cannot consist, it is necessarily
rejected; or if through the ascendency of a selfish power
the unity of the nation is broken by it, there is in the lapse
into the confederacy only the evidence in its external condition of that which has been wrought within in its moral
dissolution.
The confederate is the immediate antithesis to the
national principle, as the confederacy is the necessary
antagonist to the nation in history. This antithesis becomes apparent in every aspect in which they may be
regarded. The nation, as the organism of human society,
presumes an organic unity; and its being, as organic, is
that which no man can impart.. The confederacy assumes
the existence of society as artificial, as formed through an
association of men in a certain copartnership of interests,
and as only the aggregate of those who, before living separately, voluntarily entered it. The nation is formed in
the development of the historical life of the people in its
unity;' the confederacy is a temporary arrangement which
is formed in the pursuance of certain separate and secular




324                  THE NATION.
ends. The nation in its necessary being can have its origin only in the divine will, and its realization only in that.
The confederacy assumes the origin of society in- the voluntary act of those who separately or collectively enter it,
and its institution has only this formal precedent. The
nation is constituted in a vocation in history, and therefore
has its own purpose and work; and of this it cannot divest
itself, as if it was an external thing, nor alienate, nor transfer it to another.  The confederacy is the device of a transient expediency, and in conformance to certain abstract or
legal notions, or formulas, as the exposition of a scheme.
The nation exists as a relationship, as it is in and through
relations that personality is realized; and it can neither
have its origin in, nor consist with, a mere individualism.
The confederacy comports only with an extreme incividualism,-the association of private persons, the accumulation of special interests., to be terminated when these may
dictate or suggest. The nation exists in an organic and
moral relation to its members, and between the nation and
the individual no power of earth can intervene.   The
confederacy is only a formal bond, and the individual has
no more, in the state, an end in correspondence to his
moral being; and it is thus that the word confederate has
become stamped with a certain moral reprobation. The
nation exists in its unity in the divine guidance of the
people. The confederacy allows only the formal unity
which is created in the conjunction of certain men or
associations of men.
Their antithesis appears the more obvious, the more
intimately they are regarded. The confederacy assumes
only the aggregation of separate parties, as individuals or
societies, but allows no principle in which a real unity may
consist, nor the continuity in history of the generations of
men. It is a formal order whose condition is a temporary
expediency, and its limitation is defined in that, and not in
the conditions of an organic and moral being. It is not




THE NATION THE ANTAGONIST OF THE CONFEDERACY. 825
the guidance of the people in its vocation, in the realization of its being in history, but its structure is framed after
its own device, and out of the material which it has heaped
together. It builds of its own brick and mortar - which
it has accumulated, - what it alone can build, although its
brick be as venerable as that upon which Mr. Carlyle has
pronounced his political eulogium, building after its own
schemes in the structure of society a Babel, and the result,
which is not only a recurrent fact but a moral necessity, is
that the work fails of all permanence in history, and the
builders are driven away, or if it be preferred, they go
away with confusion and division.
The antithesis which appears in the national and confederate principle has its manifestation in history. The
confederate principle in its necessary sequence can bring
only division, and unity and order are established only in
the same measure in which it is overcome. The security,
which it has made its single aim, it has failed to obtain;
and in the furtherance of private and special interests it
has been rent and broken by them.  The pages of history
contain everywhere the record of its disaster. The illustration of its course and its consequence appears-as in
these lands also it had its widest construction - in Greece
and in Germany. The termination of the history of Greece
is abrupt, as if the sudden and violent issue of crime. It
was as the confederate spirit came to prevail, in the division of her separate communities, and in the exclusive assumptions and supremacies of these communities, in the
precedence of Athenian, and Spartan, and Theban, and
Macedonian power, that the strength, which in its unity of
spirit had triumphed over the multitudes of Asia, was lost;
and in the dissension of these communities, which preferred
alliance with a foreign power, so entirely was the national
purpose effaced, and in the rivalries and jealousies of private
ambition and devotion to private ends, the life of Greece
was destroyed. The only union sought or allowed was in




326                  THE NATION.
that fatal device, a balance of power, which was always
irregular and disturbed, while separate communities with
their separate interests alternately contended for the supremacy. The disease in the members could be overcome
by no organific force working in the whole, for this was
prevented by the assumption of a merely formal relation.
Then followed a succession of internal wars, interrupted
only by transient intervals of peace.  The greater power
of the confederate principle was then also in those communities, where a system of slavery predominated, as in
Sparta; while in Athens there remained until the close the
memories and hopes of a national life. This has left its expression in some of the noblest political conceptions in literature.  And still it is in Athens that the national life of
Greece is slowly reillumined. But the issue of the confederacy was a disaster from which none were exempt.
The citizens of Atlens themselves were disfranchised.
The separate communities sank into the condition of Roman provinces, and othe ruin involved the whole, and the
subjection of the whole to a foreign power. The termination of the drama has been fitly represented by the historian, when the last great patriotic statesman of Greece
went alone into the temple of Poseidon, to hail and welcome death. The most complete recent illustration of
this principle is in the German Confederation. The assumption of the rights of sovereignty by petty states and
municipalities, each with its claim to independence and
legitimacy, divided the people, and in its resultant weakness left it through centuries the ally or the subject to
some imperial power. The mockery of the power of a
great people was in the construction of the German Bund.
It was the prop of weak and pretentious sovereignties —
mere lords of division at home and agents of imperial powers abroad. It led the people across every frontier as the
antagonist of nations; and France, and Italy, and Denmark, in turn, have felt its assault. It could not protect




THE NATION THE ANTAGONIST OF THE CONFEDERACY. 327
the people from domestic tyranny, nor avert foreign invasion. In the most immediate danger to the people it
could not act; while the Turks were before Vienna, Diet
after Diet was held, but no common action followed.
There are none of the great highways of Germany over
which her own soldiers have not been compelled to march
as the ally of a foreign power, and none of her capitals
over which they have not aided to hoist a foreign flag.
It is only after long humiliation that there comes the
dawning of the unity and freedom of the German nation.
There is alike in ancient and modern history, the evidence
how deadly a foe the confederate spirit has been; how
close its alliance has been with slavery and with the predominance of every selfish interest; how, through the
division and resultant weakness of the people, it has
opened the way to foreign supremacy and to imperialism,
and how long has been the battle which the nation has
had to fight.
The nation attains the realization of its sovereignty and
its freedom only as it strives to overcome this false principle, and yet as its root is in a selfish tendency it is only
at last overcome in the close of the conflict of history.
The confederacy in itself has no permanence, but the evil
principle, the bite of the serpent, remains, and in some
sudden moment it may rise and strike at the life of the
nation. With the people of the United States the conflict
of the nation and the confederacy passed through a long
period of years, until the character of the principle and
purpose in each was to become manifest, and they were to
meet face to face, and over a continent from its centre to
the sea their armies were to be gathered, and in a struggle
of life and death, not only for those who are, but for those
who shall be, the issue was to come forth in the judgment
of Him, with whom are the issues of eternal conflicts.
On the postulate of a confederate principle, it was assumed
that the people constitute a confederate association of sep



828                 THE NATION.
arate political societies, that each of these is sovereign, and
each has a separate, integral and continuous existence,
being associated with the others in a formal agreement for
certain defined ends and the securance of certain interests;
and that from this joint agreement expressed in the stipulations of certain articles formed by each as a party with the
others, there is derived the authority of the government
and the powers of the people. The inference in logic, and
the result in fact, was the attempted secession of one or
several of these societies, when any deemed that it was
justified to itself in the exercise of its sovereignty, and in
the consequent maintenance of its continuous existence, -
in necessary coincidence with the extinction of the organization of the whole, which was regarded as only formal, and
in which the separate societies were combined. There was
assumed for each a sovereign and continuous existence,
and an ultimate authority over its population, who were
primarily constituted as the citizens of each society, and
each could be conceived to exist without the others; but
the relation of the people in and of the whole was formal,
and it could not be conceived apart from the separate societies upon whose existence in their independence and sovereignty and continuous existence it was thus conditioned.
There has been in the history of no people the witness
to a higher unity. The divine guidance of the people has
nowhere had ampler evidence, and in the consciousness of
the people it has been held in a purpose transmitted from
the fathers to the children, in the faith of succeeding generations. The unity of the people has been moulded in
the unity of a history so perfect, that apart from it the succession of events is a discord and not a development. If this
unity be denied, the history holds no significance, and the
people have acted with so long toil and sacrifice in a false
masque, - a poor but fatal comedy of errors.
The foundations were to be laid in a new world, not in
the age of imperialism, when the Roman empire was the




THE NATION THE ANTAGONIST OF THE CONFEDERACY. 329
central power in the world, nor in the age of medievalism,
when the power in the same centre was transferred to
papal ecclesiasticism, but in the age of the coming of the
life of nations. It was the age of national development.
Its gates were opened in the age of that protestantism
which was formed in the struggle and endeavor of nations,
against a universal domination whose capital was Rome.
It was the national age of England, the age of her highest development, the age also of Shakespeare, and Raleigh,
and Bacon, and Milton; in this age there was the beginning of the positive development in the history of the
American people.  There was the inception of the historical unity and historical life of America.
The people, in the colonial period, was formed under one
government - that of Great Britain; and all were constituted under one sovereignty, as they were comprehended
in one colonial system. Through the years preceding the
War of Independence, the colonies, which were the plantations of Great Britain, were in an integral relation to one
power, and subject to one authority. The government
of Great Britain was over and inclusive of the whole.
The formal investiture of the colonies with certain sovereign powers, was confined mainly to the administrative
powers, which are necessary iin the organization of civil
society, that is, the order of the commonwealth.
From England the people was to inherit those elements
which consist with a common relation. There were only
those forces, which tend to the community of men, and
there was mingled with them no element of variance.
There was an inheritance of one language and one literature, and common manners and arts and laws.
The War of Independence, while it cannot be strictly
called a revolution, was in the development in its unity of
the people planted here, and here to unfold its life. The
separation from Great Britain was a single political act;
it was the act of the whole people, and involved the as



330                        THE NATION.
sumption by the whole of the sovereignty, which before
was asserted over the whole by Great Britain.' It was
occasioned by the same single course of events. The people had been subject through their lives to the same fortunes.    Its complaint was of the same grievances, and
it had suffered     the same wrongs and endured the same
humiliation. There was the same purpose animating the
whole, and it advanced toward the same end.             The period
of colonial dependence was succeeded by the independence
of the whole.
The action of the people was naturally, in the first instance, through the existent social forms, but it was none
the less the action of the whole people.         The people acted
necessarily in the organizations in which it stood, - as the
town meeting, the county, the municipality, the commonwealth, -and its action must have            been through these
forms, unless all forms were obliterated in some social devastation; but this action through the extant forms in this
transition, instead of being conclusive of the separate political sovereignty and continuity of each community as an
integral political power, when considered in its political
aspects, is wholly inconsistent with it. 2
1 " The association of the American p'eople took place while they were colonies
of the British empire, and owed allegiance to the British crown." —1 Kent's
Comm. 201.
2 De Tocqueville inferred that the people and freemen of each township constitute the political integer, and that its existence is independent of the collective people of the commonwealth. -Democracy in America, vol. i. pp. 40, 67, 68.
Mr. Bancroft maintains the same position. - History, vol. ii. pp. 59, 60. See
also Hurd's Law of Freedom, etc., vol. i. p. 405. " These views have been expressed by them without sufficient reflection or examination, and are not correct
in principle, nor sustained by our colonial records, nor by any adjudication of our
courts."-Butler, J., in Webster v. Harrington, 32 Connecticut R. 136. The assumption of the town meeting as the integral political power, or the political monad, is described as the merest fiction, and as destitute of foundation in both fact
and law, and this is illustrated by a. wide survey of evidence. The argument is
conclusive against the integral political character of the township; but there is
more apparently to justify the inference of M. De Tocqueville and Mr. Bancroft, that the integral political power is resident in the township, than may be
cited to maintain the same claim for the commonwealth.




THE NATION THE ANTAGONIST OF THE CONFEDERACY. 331
There is in its continuance the unfolding of a still
grander and more imposing unity. The War of Independence, with its years of suffering and devotion and sacrifice, was the war of one people. It was fought from its
opening to its close before the inception of the Constitution,
and with no formal constitution, but they " stood all together, and they marched all together."  They went forth
to battle under one leader, and under him they won a
common victory. The power of the whole was instituted
in one Congress. The language it used in its official acts,
spoke of "' country and America."  The names which the
political power assumed, were the "6 Continental Congress"
and " Continental Army" and " Continental money." The
name " United America" was often repeated. The relation toward other political powers was that always of one
people forming a nation, and the recognition by other nations was not of each community as a separate political
power, but it was the recognition of the people as one nation. It was the organic people forming a nation that sent
forth its ministers, and with it treaties were made and
international relations were established. Thus its ministers
were received by France as the ministers of the United
States, and at the conclusion of the treaty made between
the two governments in 1778, the King of France spoke
to its ministers of "' the two nations."  The authority asserted was of the whole people, and the delegates in the
Revolutionary Congress proclaimed its power "in the name
and by the authority of THE GOOD PEOPLE of these colonies." The Declaration of Independence was the act of
the whole people; it calls the Americans one people, and
its salutation is to them as fellow citizens. There is in
it the assumption of no separate rights, and the record
of no separate wrongs. The Declaration in its conception
transcends the spirit of any of these separate communities,
and was beyond their separate grasp. It was by the whole
people that the war was carried on, and victory was won,




332                  THE NATION.
and peace was established for the people. There was in
these events beyond argument the evidence of the divine
guidance of the people. And the witness to this providential guidance of the people in the realization of the
nation, was to be given by one whose words are more than
those of an isolated individual.  President Washington
said, in his first inaugural to the people, " Every step by
which they have advanced to the character of an independent nation, seems to have been distinguished by some
token of providential agency."
The subsequent circumstance of the deepest significance
is that the people sought to realize its purpose under the
articles of a confederation.  It was the assumption of a
confederate principle, although in the nature of things it
induced inevitable contradictions; thus, while, the separate States are represented as sovereign, they are not so in
reality, but the attributes of political sovereignty are withdrawn from them; then also the articles are called the
Articles of Confederation, but they are also described as
articles of perpetual union; the acts which were then performed under the articles were incongruous with a confederate conception, and thus the Congress of the people
proceeded to enact laws as if invested with positive powers, and thus the great seal of the United States with its
legend of unity was adopted; and treaties were confirmed by the Congress, in which the nation was bound by
obligations to other nations, and the whole people was
held by them; under these articles also, —so far was
the condition removed from an actual sovereignty in the
separate communities, - in the highest issues, and those
which involved the very being of the people, the ultimate determination was with nine of the thirteen communities, and this formal political action was imperative
over the whole. But the fact of the most enduring import
is that these articles of confederation had no continuance;
but after a very brief period of confusion and disaster they




THE NATION THE ANTAGONIST OF THE CONFEDERACY.             333
fell away, partly through their inherent weakness, and
partly because they did not correspond to the real constitution, and could not embody the real spirit and purpose
of the people.1
There was formed by the people a national constitution.
It was ordained and established by the people, and in
the institution of a national government, "We the people
of the United States, -for the United States of America."   It is called " the Constitution," and not, as before,
6" the Articles,"'as in a compact. The end which it places
before it is a national object,-      to provide for the common defense, to promote the general welfare, to secure the
blessings of liberty to ourselves and our posterity." The
ordination of the government is in a national legislature,
whose laws are authority for the whole land; and a national judiciary, to which is referred the subject and administration of public law, and before which the separate
communities in a conflict of rights appear by summons or
appeal; and a national executive vested in one person in
the unity of the personality of the nation. It is the
enumeration of national rights and of national powers.      It
is ignorant of and indifferent to the very names, and the
number and the extent of the separate civil communities
comprehended in it.
The illustration of this history is in the necessary political development of the people. The formal argument in
every phase admits no other conclusion, as in its course
there can be traced no divergent event.
1 President Madison says of the character of the confederation, after describing
the Amphictyonic and Achsean leagues, which he represents as in analogy with
it, " The inevitable result of all was imbecility in the government, discord among
the provinces, foreign influences and indignities, a precarious existence in peace,
and peculiar calamities in war." - The Federalist, No. xx.
President Washington, who held the conception of the organic and moral
being of the nation with a more profound sincerity and grasp of thought than
any American statesman - certainly before President Lincoln - wrote to
John Jay, March 10, 1787, of: "a thirst for power, and the bantling - I had
liked to have said - the monster sovereignty, which has taken such fast hold of
the States individually."




334                 THE NATION.
Firstly, The separate societies or commonwealths have
each of itself no integral historical life, and there is no
separate historical aim which may be apprehended in them.
The whole historical development is of the people of the
United States, and upon the people its work has been
laid. Apart from the people of the United States, and
apart from a relation in and to that, history is ignorant
of these separate communities. They have no separate
ground in history.
Secondly, The object and end toward which the people
has moved, has been the realization of a common end, and
that the end of the being of the nation, the realization of
freedom. The aim has been to place beyond all aggression
the inalienable right of personality, the freedom of conscience and of thought, and to embody in more enduring
institutions the rights of man; and this in the course of
the people has been increasingly apparent. The end was
not the false and negative conception of what is called
freedom, which was to exist only in their relative independence in respect to each other, a freedom of alienation and
division, but there was the unity of a moral aim, and for
this the toil and conflict and sacrifice of years have been
offered and this has been given to the people.    The
immortal words in which Washington was called by the
Continental Congress to the head of the Continental Army
were, "to command all forces raised or to be raised for the
defense of American liberty."
Thirdly, The societies, with the interval of a brief and
most significant period of transition, have existed under a
positive national constitution. It is a constitution which
proceeds from the political people in its unity. The supreme law is the assertion necessarily in its organic character of the sovereign political power. The constitution is
the supreme law. The names of the separate societies are
unknown to it, and there is no recognition of a separate
sovereignty, and no assumption of a divided sovereignty,




THE NATION THE ANTAGONIST OF THE CONFEDERACY. 335
The words are not in it, and it is only a school which
claims the specious pretense of a literal construction, that
reads of State sovereignties between the lines. The form
in which the change or amendment of the Constitution may
be effected, precludes a separate sovereignty in the separate
communities. While it can only be effected in a form which
is established, yet the act is ultimate and the whole is subject to it, but no sovereignty can consist with this ultimate
subjection, whether the conclusion in its procedure be
determined as a political act, by a political majority of one,
or of two thirds.
Fourthly, The physical power, the organized might of
the people, is formed by and in obedience to the authority
of the people as a whole. It is organized as a national
power. And as war is the act of the nation in its entirety, it is also beyond the capacity of a separate society
to declare war or to conclude peace. The military oath,
which every officer registers, is, " That he owes faith and
true allegiance to the United States, and agrees to maintain its freedom, sovereignty, and independence."
Fifthly, The separate societies have no existence each as
a separate society in international relations.  The capacity
to recognize other nations, and to be recognized by them,
to form treaties and enter into the relations defined by
international law with them, is the note or the crucial test
of the sovereignty of a political people, and in its formal
and external relations a positive test, but there is for this
action no capacity in the separate societies, and this power
has no existence in them.
Sixthly, There have been certain of these societies, correspondent in every actual capacity, ald in their character
and organization to the other communities, and invested
with all their powers and immunities, which have been
constituted by the nation, that is, by the people as a whole.
This is the condition of an increasing number of them.
They have been formed by the formal act and enactment




336                  THE NATION.
of the nation, and to assume for these an original and independent existence, and an actual sovereignty, is a contradiction. It places the created above the creator.
Seventhly, These societies are so constituted that citizenship exists in all its rights and powers in the whole, and
the citizens of the United States are the citizens of every
State. It is one political body, to which the members are
individually related. There is no expatriation on passing
from one society to another; and no naturalization is requisite in the change from one section to another, and there is
in no separate society the power for such action. But to
apprehend a State as existent, apart from the people comprehended in it, is an abstraction, and can appear only in
the vision of political speculations.
Eighthly, The separate societies have not the constituent
elements of political power. The rights which appear in a
national sovereignty and the correspondent powers, are not
possessed by them. They have not separately the capacities of an independent political people. Their construction
is in a civil system, and they are without the conditions of
integral political supremacy. Whatever may be the inference of speculations and the course of legal hypotheses, this
is the fact of their condition.
Ninthly, They have no external relation apart from the
United States. It is the latter alone which is manifest in
an external sovereignty. They are constituted in a form
necessary to internal order and administration, and have
none of the indices of power in which a nation appears in
its external sovereignty, maintaining its own relations, and
acknowledging on earth no external control beyond itself.
Tentlly, The separate societies have not the physical
unity which appears in the being of an independent nation.
They have in their existence no conformance to its geographical law. They are defined by no natural and no
historical boundaries, but every natural and historical
boundary is erased in their interrelation. There are none




'1lIE NATION THE ANTAGONIST OF THE CONFEDERACY. 337
of those lines that demark the existence of a separate
people on the earth. In the collision of events, and the
conflict and migration of races, and the crush of the forces
of history, which are mightier in their duration than those
of physical nature, if a separate existence was assumed
they would become in the first shock so changed as to lose
their identity, and history could not recognize them.
But while the argument in its conclusion allows no digression, and has in the records of scarcely any years in
the existence of a people, a parallel in height and fullness, yet an argument is only illustrative, and in the
presence of the being of the people, and in the realization
of history, there is presumption in any argument. The
evidence is in the being of the people, and from its conscious unity there is no appeal, and it allows no inquiry.
If there be not the consciousness of the unity and sovereignty and freedom which subsist in the organic being of
the people, then all argument is empty, and all inquiry is
vain.  The realization of history can be determined by no
political abstractions, and events conform to no individual
preconceptions. Facts do not defer to theories; in the
strong image of the poet, "words are men's daughters,
but God's sons are things."
The principle in which the character and relation of the
separate civil societies are defined, whatever its form, necessarily affects the foundation of society, and is constructive
of its whole process. If there be assumed for each a
necessary and continuous existence, then each is a selfsubsistent power, and then the bond which holds them as
collective, that is, as a combination of certain separate
and self-subsistent societies, is formal, and the principle
in which their relation, is formed must be necessarily the
confederate principle. To maintain then the continuous
union of each with all, and to compel each to persist continuously in connection with another or with all in this
formal relation, would not only be destructive of the sove



338                   THE NATION.
reignty and independence presumed in each, but when
this compulsion was made against its clearly and persistently expressed intent, it would become the institution of
human society in force. It would involve in human society
the maintenance through physical force of a formal order,
and not the existence of an integral or organic and moral
being.
The principle which is the necessary postulate of the
confederacy has been defined clearly, and has been held
strenuously. There was nothing vague in the attempt at
secession, nor in the premise on which it proceeded. It
was the assumption of the sovereignty and independence
and continuous existence of each separate community, and
the act of secession was the necessary sequence as each or
any deemed itself justified to itself by the grievance it bore,
or by the advantage it was to secure. The secessionists
regarded themselves primarily as the citizens of these separate communities, and subject to the ultimate authority
of each, and became confederate in and for the protection
and furtherance of a special interest, which was assumed
as the immediate object.
The confederate principle which was manifest in the
denial of the organic and moral being of the nation, could
appear only as a destructive force. It had its necessary
sequence, as it sought its realization, in an attempt at
the dissolution of the whole.
The conflict of the confederate principle with the nation
has been borne on through all the years of the people.
There are memorials and declarations, and enactments and
proclamations, and judicial decisions and state papers,
which are framed in conformance to the scheme of a confederacy, or formed in the realization of the being of the
nation.1 And still in the devices of parties and the expe1 There is a force often imputed to some textual statement, in which it is so
construed as to compel history, and thus a notion or dogma counter to all reality
may be built upon some political memorial, as the phrase ot a state paper.
There is an illustration of this in the speculations of Mr. Calhoun. An article




THE NATION THE ANTAGONIST OF THE CONFEDERACY. 339
dients of priests, and the forms of legists and the opinions
of jurists, the conflict appears.       The construction of government has sometimes been conceived to exist in a compromise, but the fact has been their inevitable conflict.
As in their conception each involves the negation of the
other, there has been in history their incessant antagonism.
As the nation is formed in its unity in the will of God in
history, and is manifest in the divine guidance of the people, and advances' in      its continuity in the transmission       of
its purpose from     the fathers to the children, in the fulfillment of the vocation of the whole people, and exists in the
realization in its organic and moral being of a moral order
in history, so the confederacy        denies the unity and        conof the Confederation reads, "each State retains its sovereignty, freedom and
independence, and every power, etc.," and thus it is assumed as the reality in
history that each State or society possessed a real sovereignty and independence,
and all the political powers involved in a sovereign and independent political
being. There is then maintained in strict consistency and as the immediate
inference of this postulate, the necessary and continuous existence of each State
or society as a political power, and having all political powers immanent in the
political body. It is on the phrase of a state document that the whole fabric is
constructed, and for all time. - See Calhoun's Works, vol. i. p. 148. The original
sovereignty is not the creation of a legal formula, since it is itself the power which
can affirm its will as law, and thus in France, for instance, at one period, the
most various constitutions, each having the authority of law, succeeded each
other; but it is not presumed that the actual condition changed with each state
document, that appeared, as it was said, so rapidly as to form a periodical literature.
Mr. Hurd says, "Declaring a state of things does not make it. Since no declaration of sovereignty can be more than evidence, it may as such be compared
with other testimony. The declaration of July 4th asserted the colonies to be'free and independent states.' The accompanying declarations of an existing
condition of private persons that'all men are created equal, etc.,' all men have'inalienable rights,' did not determine any private conditions, even though
the state of private persons is the effect, and not like sovereignty, the cause
of law." - Law of Freedom, etc., vol. i. p. 407.
"The possession of sovereignty, being a fact and not an effect of law, what.
ever written memorials of the rightfulness of any national sovereignty may
exist, they can only proceed from itself, and they can only be taken as historical
evidences of its existence; not as law controlling that possession of sovereign
power which they assert. And the authors of these declarations mifst always
be supposed to have the right to substitute others of different term and of equal
juridical authority. There can therefore be no written constitution of government so authoritative in its nature or its expression as to determine the rightful
sovereignty, the rightful holders of that rightful supreme power." - Ibid. vol.
i. p. 396.




340                   THE NATION.
tinuity in the being of the organic people, and assumes
the origin and foundation of society in the convention of
men, and its construction in the combination of separate
interests, and its continuance in the dictation of interests,
it is conditioned in the law of a temporary expediency,
and as a power in the exclusive possession of a class or of
a race, and for the furtherance of separate and specia
ends.
It cannot be too often repeated that the War was not
primarily between freedom and slavery. It was the war
of the nation and the confederacy.
The nation and the confederacy meet at last in mortal
conflict. It is the battle of the nation for life. Confederatism, in its attack upon the nation, is in league with hell.
It severs the children from the fathers. It erases the
sacred memories which are their common heritage: It
passes over violated oaths. It rejects a law of righteousness in the realization of society. It denies the divine
origin of humanity, and the sacred rights it bears in its
divine image. It refuses the foundation of its unity in the
corner-stone, which is the' foundation which is lying."
It forms its alliance with slavery, and that dam got
its brood.  It gathers to itself the pride, the treachery
and infidelity of men, the worship of money, the vulgarity
of fashion, and the distinction of caste. It collects its supporters out of all parties and factions and churches and
sects. It is the conflict of history, the battle of Judoea with
Babylon, which sweeps through all the centuries.  In its
awful significance, it can find but an imperfect expression
in the symbols of human thought. It is but faintly imaged
in the fight of the eagle and the serpent. It may never
wholly cease until the end of history. The confederacy is
the embodiment of the evil spirit, in which there is the
destruction of the being of the nation, the organic and
moral unity and continuity of society, and the subversion of
the whole to selfish ends. It strives to subvert the nation




THE NATION THE ANTAGONIST OF THE CONFEDERACY.        841
to serve its end in the perpetuance of slavery, or the pride
of birth, or hatred of race. It turns from defeat on the
field to cheat men with its lies and its frauds. It retreats
slowly from every hold. There is no people but has felt
the poison of its fangs, and none but has been deceived and
seduced by its sorceries. The nation in the realization of
its being has always to contend with it, and in the subjection or the resistance to it is the sign of weakness or
of power.   The nation is to bear the conflict to the close
of history, as it is to strive for the realization in its moral
fulfillment of the life of humanity, to which every advance
in its history will call it, and of which every new age may
be the revelation, as the days of the Son of Man.
In every age the character and result of the conflict becomes more clear, as its issue is revealed in the judgment
of history.  It is not alone the conflict of ideas, for it is in
another than an intellectual arena, and reaches the very
passion and contradiction of life.  It is not alone the conflict of freedom and slavery, excepting only as freedom  is
realized in the realization of the being of the nation, and
slavery, as divisive or destructive, is to be overcome by it.
It is the nation contending for its unity, which is in God,
and for its continuity, in which the generations from the
fathers to the children bear its holy purpose, and for the
fulfillment in humanity of a law  of righteousness. The
nation was battling for her very being, as she rose to victory, from  the fields of Vicksburg and Gettysburg and
Atlanta, and the lines before Richmond.




CHAPTER      XVIII.
THE NATION THE ANTAGONIST OF THE EMPIRE.
THE nation has its immediate antithesis in the empire.
The nation is formed in the freedom of the people, as an
organic whole, and it comprehends the whole in its action
and end as a moral organism; the law of the empire, or
the imperial principle, is the formation of the order of
society in the subjection of the whole to an individual or
a separate collection of individuals.
In the empire, there is strictly the realization of the
freedom of only one or a few. The -will of the people
has no expression in it, and there is substituted in its stead
the will of an individual, or a class, to whom alone action is
allowed. The government is not of the people, but apart
from the people.  They are the subjects of it, but are not
participants in it, and have no place in its positive determination.  The empire allows no real expression to the
will of the people, but only to an individual or a family or
a class.  Thus its government becomes repressive, and
tends to efface the conscious life and spirit of the people.
The nation is in identity with the people, but the empire
identifies an individual or a class, with the political body.
Its language is always in the phrase of Louis XIV. The
ruler is not regarded simply as a member of the political
body, but is himself the state. There is no law and no
power beyond his individual authority; there is no voice
except his individual proclamation, and no rights beyond
his individual rights. The public good is not the immediate aim, and the common welfare is not an object in itself,




THE NATION THE ANTAGONIST OF THE EMPIRE.      343
nor the well being of the people the end of the whole,
except only as it goes well with him.
The government of the empire. is not in the will of the
organic people, expressed through the organic powers of
the political body, but the sole authority is the private
judgment and the executive act of the imperator. It is a
necessary absolutism, and the law of the empire is concluded in the Roman aphorism, cuod Principi placuit, legis
habet vigorem.
The empire may conform to the physical being of the
state, and has the conditions of an external order, but not
of the development of the nation as a moral order. There
is the action only of an imperial will, and its process is an
imperial edict. There is in the people no evocation of a
moral spirit, and no education of an individual character
in them. The capacity of each is not called forth, and his
powers are not awakened; he is in no immediate relation
to the state; he does not act in the determination of its
course; he cannot realize in it his own purpose, nor strive
for the embodiment in it of his moral aim. The life of
the state is withdrawn from him, and its conduct is secret
from him; he cannot comprehend it, as in his individual
existence he is not comprehended by it. There is thus
no development of the individual personality, no moral life
and spirit in the people.  This appears in China, which is
perhaps in all its aspects the most complete illustration of
the empire. In China, says Hegel, " the ground of
moral action is entirely obliterated.  Such is the fearful
condition of things in regard to responsibility and nonresponsibility; all subjective freedom and moral accountability and concernment in an action is lost sight of." 1
The consequence is seen in the subversion of moral responsibility.  In its criminal code there is no individual
1 Hegel, Philosophie den' Geschzchte, p. 156.
"Die autokratie wird allerdings ausgeschlossen, durch die Representative
verfassung, und durch den Begriff des Staats selbst." —Rofhe, Theologischo
Ethik, vol. ii. p. 126.




844                  THE NATION.
accountability recognized for crime, and there is a confusion of the moral judgment and indifference to moral distinctions.  In its civil system, punishment is not necessarily imposed upon offenders, but is a formal satisfaction
of the law. Thus for instance, one who has committed a
crime to which the penalty of death is affixed, and is condemned, may, and with slight expense almost always can
find one who will suffer the penalty in his stead, and the
law is then satisfied, no regard being had to the exposition of justice, nor in the infliction of punishment, to individual guilt.  Thus also if a resident on a certain street
commits a certain crime, the penalty is imposed on the
street, and all the houses, for instance, are demolished.
There is thus the destruction of the moral life of the people, and there is no consideration of the individual character.  There is thus in the empire no wide and complex
life, and no diversitude in thought and action. There is
nothing of that wealth in art and literature and laws,
which appears when the energies of the people are called
forth with the fresh and free development of the individuality of each. Its life thus has no depth, and its action is
mechanical, and there is only a wide and superficial uniformity. In its best epochs, the empire can present only
a few isolated figures, - the greatness of a solitary individual or a family which are lifted far above the people,
and their greatness is transient. This desolation of the
life and spirit of the people in imperialism is reflected in
some of the darkest pages in history, and where the gloom
is deepened by the greatness of some solitary form or some
line of rulers in its lonely exaltation. The annals of Tacitus disclose the condition in Rome, when the conviction
of individual obligation, and of the authority of law, and of
continuity with the past, and of the relations of men
was lost, and there remained only the sense of subjection
to the will of a single individual which was external to the
people,




THE NATION THE ANTAGONIST OF THE EMPIRE.     345
The tendency in imperialism is not only to undermine
the moral life and spirit of the people, in its immediate
action in the subversion of personality, but also to subvert
it as it is formed in the relations of life. In Rome, the
decay of the family was in immediate connection with the
merging of the nation in the empire.  The object is not
the strengthening of the sacredness of the family relations,
which are in correlation with the nation in its moral being,
but it aims at the solitary grandeur and permanence of a
dynasty.
The empire tends to obliterate, when it cannot identify
with itself, the historical memorials which have gathered
in the history of the people. It seeks to substitute for
them the associations and traditions of a dynasty. The
thought of the people is diverted from its achievements in
the past, and there is inculcated only the sense of dependence upon the existent power.    There is in this condition no  spirit through memory to inform   the mind
of the people. There is nothing also to incite their forethought. In this dependence there is no longer robustness of spirit or moral hardihood; and in the empire the
people are regarded, and through its forms are addressed,
as children.
The progression of the empire is in contrast with the
law of development in the integral unity of the nation.
It tends to increase by aggregation, and its extension is in
its material aggrandizement.  There is no unific force acting from within to shape and determine the whole, but only
the decree of the imperator, which is an external affair.
The sovereignty of the people forming the nation is limited
in its own organic law, and through its subsistence in the
organic whole; but in the assumption of an individual will
as in identity in its domination with the state, there is no
necessary limitation and no restriction to the widest circle,
to which this will may extend its authority. While the
sovereignty of the people in the nation presumes the or



846                  THE NATION.
ganization of the whole people, the organization of the
empire is established in the edict of the imperator. The
pale of the empire is the boundary of the power affirmed
in the imperial decree. The. tendency of imperialism is
thus always to pass the natural and historical boundaries
by which a people is described, and it becomes an accumulation of peoples, and is formed not in an organic relation,
but held by a formal and external bond, which is the imperial decree. This was the career of Rome in the empire.
It did not intend so vast or so remote a conquest; but
losing the consciousness of the moral unity of the nation
in its integral and historical life, and apprehending only a
formal relation in the law or edict of the empire, it was
borne on in the accumulation of peoples and lands under
its authority, until overpowered by the mass it sunk beneath its weight and tumbled in ruins. The same impulse
appears in the course of England in its empire in India.
The limit to its sway is constantly being drawn only to be
erased. Wellington said it was the Indus, but it was long
since passed, to move on to Peshawur and on to Burmah,
and to secure the possession obtained which is held by no
cohesive power, it is still hurried on with alarm at external
aggression. When once the will asserts its own individual
power as a domination in the world, it seems, in the
consequent evil, to be emptied of its own freedom, and it
moves as if impelled by some fate.
The destruction of nations thus may be traced in this
loss of their moral unity and freedom in the transition to
empire.   The decline and fall of Rome appears as it
ceases to be a nation and becomes an empire. Its imperial
power had always certain material attractions, and in its
inception it was not without certain advantages; it instituted a more perfect civil order; it terminated social wars
which had long continued; it brought an immediate security, and there was a check upon the frauds and corruptions
of a praetorial and proconsular administration; it relieved




THE NATION THE ANTAGONIST OF THE EMPIRE. 847
the people from the agitation and concern in public affairs;
but there was the decay of public spirit, and the beginning
of those tendencies which were to effect in their gradual
course the decline in which the acquisitions of the centu
ries of its national development were to perish. The power
which once in its discipline had been irresistible, at last
could defend no section of its territory from the inroad of
a single tribe out of the many once embraced in its conquest. As its public spirit was destroyed, and its marvelous organization was broken, and the energy which had
moulded and pervaded its action was undermined, there was
in imperialism no creative force to renew it, and no recuperative strength to overcome its decay. The same consequence with the advance of imperialism may be seen in
Spain. The record of her imperial dominion underPhilip
II. is told in the proud story of the chronicler of that day;
"he held in Europe the kingdoms of Castile, Aragon,
and Navarre, those of Sicily and Naples, Sardinia, Milan, Roussilon, the Low Countries, the Balearic Islands, and
Franche Comt4; on the western coast of Africa he held
the Canaries, Cape Verde, Oran, Bujiya, and Tunis; in
Asia he held the Philippines, and a part of the Moluccas; in
the new world the vast kingdoms of Peru, Mexico, Chili,
and the provinces conquered in the last years of Charles
V. with Cuba, Hispaniola, and other Islands."  But this
enumeration of so vast an apparent material power is the
preface to disaster, and the beginning in Spain of centuries
of.humiliation. There is a more recent illustration of the
same tendency in imperialism in Austria. In the long roll
of soldiers whom Francis Joseph saluted on the field of
Sadowa, as his faithfil children, there was the German, the
Italian, the Magyar, the Croat, the Slovak, the Pole, the
Rouman; but in this multitudinous mass, there was no organic unity. They were the representatives on the field of
only a vast aggregate of peoples and states, and the bond
which held them was formal, and whether that bond be in




348                  THE NATION.
a confederate compact or an imperial edict, it can have no
unific force.
The empire is formed in the subjection of peoples and
races. It thus embraces those in the state who are isolated
from  the state.  It is a dominion, and is without the
conscious unity and aim of the nation. The nation may
break down the division and antagonism of races, in a moral
order and organism, but this principle is wanting in the
empire, and thus it can only embrace subject races as inferior. It is this which tends always to bring the empire
into alliance with slavery. The government is not formed
in the institution of rights, since no rights are recognized
beyond the imperial will, nor in freedom since only the
will of the imperator is allowed freedom, nor is it in the
protection of the weak and the poor, but it is the sign of
their subjection to the strong. It comprehends the people
not as integral in the state, but as masses and fragments,
and sects and parties and races, and in these conditions
they are subject, and the government is an external affair.
The empire, since it is a government external to the
people, tends to form an external life. The moral strength
and energy of the people is not called forth, and there is
the suppression of their spirit. There is a uniformity of
action, and the people move mechanically, and the government is not a power in which the people acts. It is
thus that the people in the empire are withdrawn from
actual life by amusements, and are to be diverted by shows
and pageants gotten up for them, and having the attraction of an external magnificence.
As in the empire the government is isolated from the
people, the people in their isolation become at length no
longer affected by it. Their lives become independent of
it, and it is powerless to influence their actual condition.
There is thus in the decline of Rome, in the empire, no
fact more sad than that the actual condition of the people
is unchanged under the most brutal and sensual, and the




THE NATION THE ANTAGONIST OF THE EMPIRE,         349
most humane and gentle of rulers. It remains the same
under Aulus Vitellius, and M. Antoninus Aurelius.1
The empire creates a false conception of human power
and human greatness. There is the assertion of power not
in the service of humanity, but in separation from it. In
the elevation of an individual or a class, the distance
between them     and  the people is widened, and there
gathers about the imperial presence a distant grandeur
which removes it from    the common condition of humanity.  The dignity of the empire is sought, not in its moral,
but its material power.     It is estimated in the extent
of its dominion, or the vastness of its possessions, or the
number of its armies, or the strength of its armament.
There may be in the empire, in its immediate inauguration, an apparent advantage; it may enable men to devote
themselves more exclusively to the pursuit of their private affairs and their private ends; it may relieve them
from attention to public duties and the direction of public
events; it may introduce a more regular routine, and
more uniform   method and system     in the public administration; it may display a greater external splendor, and
construct vast works of public utility; there may be a
greater care for the physical condition of the people; but
these may be connected with the degradation of the spirit
of the people, and there are in these no elements of political permanience.   The traces of the possession of England
by the Romans, under the empire, still may be found in the
almost obliterated ruins of the bridges, and roads, and public works, which they constructed; but it was in the coming of a power which sought to awaken the spiritual life
1 There seems, in the fate which instead of freedom is the principle of the
empire, the reflex of the lives of the people in the life of the individual im.
perator. Gibbon says, " Such was the unhappy condition of the Roman emperors,
that whatever might be their conduct, their fate was commonly the same. A
life of pleasure or virtue, of severity or mildness, of indolence or glory, alike led
to an untimely grave, and almost every reign is closed by the same repetition of
treason and murder." - History, etc., vol. i. ch. 12.




350                  THE NATION.
and energies of men, and wrought in the common people,
that there was the elements of an enduring strength.
There may be in the empire, also, works of great excellence in literature and art; but these will more often have
had their root in some earlier period of national energy,
and the creative power in all literature and art can appear
only in the development of a native strength.   There
may be, also, a greater civil code, although instituted from
the precedents formed more often in an earlier period;
but this is the condition of the civil corporation, and can
have only the attraction of an external system.
The result of the empire is not always the creation of a
vast or permanent material wealth. It has been said that
the empire creates wealth, although it destroys credit. The
latter certainly follows, since the people cannot ascertain
the intent of the ruler; and the secret course of the government gives rise to distrust and foreboding, and business
enterprise is checked, and men will not risk large undertakings. But the empire does not create wealth. It does
not stimulate human activity, nor incite the thrift and forethought and shrewdness of the people. The people in the
empire are not rich. There is greater inequality of fortune, and wealth becomes useless in the hands of the few,
and the poverty of the mass is in contrast with the vast
riches of a few individuals or families. In Great Britain
the increase of pauperism and the disappearance of the
yeomanry-that is the larger number of proprietors —
has been in proportion to the accumulation of lands in
the possession of a few. In Rome, under the empire, the
nobles and farmers of the revenue were rich, while the
people were poor.   " They fight," said a tribune, "to
maintain the luxury and wealth of others, and they die,
with the title of lords of the earth, without possessing a
single clod to call their own."
The condition of the people in an imperialism is not
one of happiness. In the midst of the external power




THE NATION THE ANTAGONIST OF THE EMPIRE.     351
of imperial Rome, there was in the people no satisfaction
of the spirit. This exists only in the conscious energy, -
the freedom of the people; but in the empire there is the
depression of the spirit. There is no comprehension of a
moral end. The imperial government, if it acts in respect
to the people, acts only in doing what is good for them,
while in the nation the individual is called, in its organic
and moral being, to act in the realization of that which is
in itself good.
There is in the empire the creation of a love of power
for its own sake, and of domination for itself. It is the
view of powers and principalities. The people exist for
the government, and not the government for the people.
The former is not the servitor of the people, but the people
is only its instrument, -  the means for its end.  It is
thus that it is only in its inception, or in certain transient
intervals, that the " empire is peace," and the tendency of
mere power acting itself out is to impel the people into
war.
The influence of imperialism, in the subversion of the
freedom of the individual personality, tends to induce an
impression of fate.  The people when it acts, acts in
an order which is external to it, and mechanically and
blindly, as if impelled by some external power, and not in
the conscious determination of men. There thus arises a
sense of incapacity in the presence of the evils weighing
upon it. There is the want of responsibility in respect to
them, and as the people is excluded from public affairs, the
decay of public conscience follows, and there is no energy
nor effort toward the reform of abuses or the removal of
wrongs. The government, in the destruction of the freedom of the individual person, is led to invade the sphere of
the individual, and to assume the immediate conduct of life,
destroying all individuality, and determining the vocation,
the home, the marriage, the work and rest of men. The
government also tends to become a mere system of police,




352                       THE NATION.
- although as in its civil system its police may be very
highly organized, -     since in its isolation from   the people,
in order that their course may not also become secret from
it, it has to set spies over them, and gradually comes to
regard them    with suspicion and distrust.       There is a tendency also to regulate life by a formal and artificial standard, to introduce some scale of virtues to denote the relative
excellence of deportment, and the reward of virtue is in
some ribbon or prize, and the periods of life, as of marriage,
or rest from  labor in age, are assigned in conformance to
some uniform    and external scheme of notation.       It is thus
in the empire that life becomes superficial and frivolous,
and men     are   diverted with    toys and playthings, as in
China.    Then the order of the state becomes mechanical,
and this is the character of administration in China, with
its competitive examinations, where political trusts and civil
offices are assigned by a graduated scale in a pedantic system.   It is thus also in the empire that there is the absence
of all event in their history, and there is in the people an
apathy, and     in their long   chronological records      only a
monotony.      The tendency of imperialism       has thus always
been, to induce a fatalism.
The nation may exist in some transient period, through
confederate or imperial forms,l but their characteristic, if
1 In Russia there has been, with an imperial form, the advance of the people
in the development of a national life and in freedom; but in its imperfect development the immediate danger to civilization is in the identification of the state,
with the physical power of a race. In France, the imperial policy has been involved with constant contradictions. It established in universal suffrage the
strongest guaranty of the rights of the people, and in. its constitution, says
Bluntschli,' full deference is given to the majesty of the people of France, as the
source of the power of the state, the legislative body is made immediately dependent upon its confidence, and the imperial power derived fiom its will." The
title of the emperor is " par la grace de Dieu et la volente nationale, Empereur
des Francais." Its strength also has been in holding through imperial forms the
conception of the nation, and its disaster has been in its later abandonment of
it, as in its policy in Mexico and in its later course in Italy. In England the
tendency in imperialism is more apparent. Its sympathy, Michelet says, its
"grosses mitgefuhl," was with the confederacy. Its main alliance in this age




THE NATION      THE ANTAGONIST       OF THE EMPIRE.        353
the nation does not fail in its integral organic and moral
power, is the lack of permanence.           The nation has always
to contend with them      and to meet them      sometimes in secret
is with the empire of the Turks, and with an historical fitness, but with no consciousness of its propriety, it received the Sultan at a banquet, at the expense
of the Indian administration, and at a table covered with the plunder of Rajas'
palaces. The influence of imperialism may be traced in the increase in it of
Roman ecclesiasticism, and in its literature not more in the open avowal of its
old men, as Mr. Carlyle and Mr. Ruskin, than in the more than pagan fatalism
of its younger men. It has built an empire in India, whose policy has been to
crush every germ of national spirit in its native populations; and as the national
spirit in England, in the defect of moral strength, has diminished, the power in
India has been held as the power in a race, and that race the English; in its Indian administration it has had no power to overcome caste, since its own government is imbedded in caste; it has degraded the people, and while under
Moghul rule, the highest offices in the arniy and the state were open to them, all
participation in the government has been denied them under English rule; it has
destroyed the physical condition of national well being, in a varied industry,
instead of encouraging this as a securance against famine or accident, as in
Orissa it suppressed the salt manufacture, which had existed for ages, in order
to swell British revenue, and in the single failure of the rice crop, there was nothing for the people to fall back on; in its constitutional formalism it established a
system of civil justice, which a people, before prompt to punish crime, found so
alien that they preferred to submit to crime rather than the infliction of the civil
system; in its own action it found in the superstition of ignorant Sepoys its instrument, with which to send them to meet death; in its contact with a people
from whom has sprung in literature the speculative'hymns of the Vedas, and
the delicate purity of Kalidasas verse, and the subtle metaphysical contemplation
of the-Maha Bahrata, and which in art has filled India with cities of architecture
so imposing; it has not sought to develop the spirit of the people, but to crush
and deface it. Thus under English rule, while it may conceal a real weakness,
there has been an apparent increase in Hinduism, and a more lavish consumption of gold on its idols; and even Mohammedanism has increased under it, but
the latter has come to discern elements of peril, only in the advance of Russia, while England's relation toward it is regarded as one of indifference. In
its foreign policy it left Denmark, when every higher principle would have led
it to sustain it; it might fight for the independence of Belgium, which is more
integral to France than Scotland or Ireland to England, and whose independence, as R. von Miohl says, in its origin is laughable, since this is an outpost for
itself on the continent; it might fight to prevent the independence of Egypt,
since this is on the way to its Indian empire; it opposes a vast work, of continental beneficence, as the Suez Canal, and the most effectual check to the slave
trade, with secret and bitter diplomacy. The measure of reform  in its suffrage may tend to check its imperialism; but its main characteristic is the
incapacity to deal with the evils which it recognizes, in its suffrage, and education, and lease of land, and military organization. There seems to be no consciousness of responsibility in the people for them. The characteristic of.its
policy is the destitution of conscience. "In the eyes of her people," says M.
23




354                     THE NATION.
and again open alliance, and in many disguisements; it is
not on a single field, nor in a single age that the conflict
is over. The close of the history of two of the great nations, in the ancient world, is the warning of the evil.
The life of the nation perished,-in Greece, in the confederacy, in Rome, in the empire.     The nation has always
to contend with the dissolution of a confederate principal,
and the domination of an imperial principal.
De Tocqueville, " that which is most useful to England is always the cause of
justice, and the criterion of justice is to be found in the degree of favor or opposition to English interests."




CHAPTER XIX.
THE NATION THE INTEGRAL ELEMENT IN HISTORY.
THE nation is the integral element in history. It is
as old as history. The phrase which describes " the new
doctrine of nationalities," has scarcely a superficial justification.
The process of history is a development' in the realiza-.on of the moral order of the world.  There is in it an
organic unity and growth, which is the condition of its
continuous life. There is the unity of the divine idea, and
it holds a purpose appearing in and through and uniting
the ages. It is a moral order, and thus it has been said,
"the history of the world cannot be understood apart from
the government of the world."
It is in history as the realization of the-moral order of
the world, that the nation is formed as an integral power.
It is in this that the vocation of the nation is given to it,
as in the fulfilling of its vocation its being as a moral person is realized. This is also implied in the realization of a
moral order, since its condition is in freedom, and there
can be no history in the law and sequence of a physical
necessity. The nation is not then of itself a righteous
power, but the realization of its being through its vocation in a moral order is in righteousness; not only the
law of its being, but the condition of the realization of
its being, is in righteousness. In its necessary being it
moves toward this end. Thus in anarchy and oppression
and violence and crime there is the negation of its being.
Thus, also, in so far as it fails of its end, it passes from history. As history is in the realization of a moral order, in




356                  THE NATION.
the unity of a divine purpose, when the nation ceases to
work in its own vocation in it, and to act as a constructive
power in the harmony of its design, then it no more has a
place in it. It is this constant possibility of evil in the
nation that involves the most real obligation, and is the
incitement to the utmost energy and vigilance, and it is
this which gives solemnity to history.
The continuous process of history is in the nation.
There is formed in it the transition from the vague and
the indefinite to the determinate spirit of a conscious life.
That which lies beyond it has for its characteristic the
undefined.  The life of the nation in its beginning, as in
the individual,' holds the slow awakening of a conscious
aim. It is in the moments of its existence, hidden from
sight, as are the changes in the process of life in every
form. The early incident and circumstance in the life of
the people offer but the faint premonition of its course,
and there is but the dim dawning of that vocation, which
in the retrospect of a fulfilled purpose, rises into clearer
light. But as the indication of its spirit, these events may
be wrought in traditions, or again, in the type they hold,
while in their immediate event of no significance, they
are kept in reverent memory, and are cherished in the
reminiscence of the people. They are often, in the purpose which they prefigure, and through the refraction of
events, invested with a light "which was not on sea or
shore," but become always more clear.in the march of
the people. Then in the advance of its conscious life, it
may be that language has a more unitary and ampler
development; but while language may of itself often indicate the boundary of a people, it is yet only the incident
and not the foundation of its unity. Then tribunals and
institutions of justice, and codes and instruments of law,
are defined and established. There are in its services
and solemnities, in its days and festivals, the memorials
of the greater events in its course.  There is, then, in




THE NATION THE INTEGRAL ELEMENT IN HISTORY. 357
literature and art, the work of its creative power, the
impress of its character and the reflection of its spirit.
There is indeed in each of these, and in all their forms,
— in law and literature and art, —a universal element,
and their excellence is in its more perfect expression, but
this instead of forming an external limitation to the being
of the nation as a moral person, is implied in personality,
and is more manifest in its higher realization. Then law
and literature and art have their continuous development
in the nation, and their conservation in it; it is thus that
one speaks not only of the Greek and Roman mind, its
quality and character, but of the unity apparent through
the polity and literature and art of Greece and Rome.
The nation is formed in the elevation of man above an
animal existence. It is not defined in a merely physical
basis, and in certain physical relations. Its end is not the
satisfaction of physical wants alone, nor is it comprehended in the sequence of physical necessity.  It is as
the course of freedom that it becomes the expression of
a determinate spirit, and the assertion of the dominion of
man over nature. It is in its free spirit that man is raised
from the stupidity of an animal condition. There is the
inspiration of a conscious energy. Thus in Greek and
Roman art there is the expression of the exaltation of
humanity, - a victory which it gains, - which gives to
it its higliest type. In the Greek it is the victory of
the human over the earthly and sensual; and in the Roman it is a moral discipline and virtue, in which there
is the sign of a conquest over the merely unorganized
and undisciplined mass, and it is this in each which gives
a spiritual element to its ideal.
The nation, as it is the power in history, is formed
in the conditions of history. Its course must be one of
conflict and endeavor. Its battle and victory is in no aimless conquest. Its vocation is no indefeasible inheritance.
Its freedom is realized only in its ceaseless work; it does




358                    THE NATION.
not come, as things are let to fare on. Its strength is not
born out of the sky, nor wrought in dreams.   It is indeed
maintained only by eternal vigilance. The nation must
always strive, and it is not here nor now that it can cease
from its labor nor enter its rest. There can be no danger
so great as that in which it shall dream  in any moment
that it is saved, and that its struggle is over, and its conflict is closed. It is with many doubts and many fears, and
with discipline and sacrifice, that it is to work out its salvation.
The nation is the work of God in history. Its unity and
its continuity through the generations is in Him. He is
present with it as with the individual person, and this is
the condition of its being, as a moral person. Its vocation
is from God, and its obligation is only to God,'and its freedom is His gift. The transmitted purpose which it bears
in its vocation, is in the fulfillment of His will. The procession of history is in the life of nations, and in the perfected nation, is the goal of history.
There is before the nation the attainment of the end
of history. It is the constituent power in which history
is borne to its end.  It is to act not only in but for the
order of God. This is apparent in its relations. It is
given to the nation to act in the realization of the individual personality - the formation of human character. The
individual first becomes a person in the nation. The powers of the individual are called forth, in the sphere of its
law and its freedom.   The nation has also to maintain in
conformance to their moral conception all the relations of
life as integral in a moral order.1
It is given to the nation to assert and establish its authority as law. It is a law regulative of the action of the
individual.  This power belongs to no individual, and to
no collection of individuals, but it is in the nation.
1 " Ein kosmopolitisches menschliches Leben, ist eine leere werthlose Abstraction."- Rothe, Anfange der Christlichen Kirche, p. 16.




THE NATION THE INTEGRAL ELEMENT IN HISTORY. 359
It is given to the nation to bear to its issue, the conflict
with slavery. It is not only formed in the determination
of the spirit in its freedom, but it has to contend with the
dominations over men, in the bondage of the world.  To
contend with slavery is the work which through providence
in history has been given to the nation. This is only the
statement of an historical fact; the work has been given
to no individual, and to no special or ecclesiastical association of men, but to the nation.  The nation in the realization of its own being, -in the maintenance of its own
unity and its own life, -is borne on to an inevitable conflict with slavery. It may be for the nation gradually to
overcome it by ameliorating laws and institutions, or in
some sudden moment to meet it in direct conflict, when
slavery aims at its life, and it is only through convulsive
effort that it uproots it in order to live. Yet it is never
utterly removed, but will take root in other fields and in
other forms. The forces in antagonism to the nation it
joins in its alliance. The struggle of Greece was with
slavery as the ally of confederatism, and of Rome with
slavery as the ally of imperialism. The conflict has followed with clearer issue in the new world, and victory has
been given to the nation in its redemptive years.
There is given to the nation no separate and special end,
but its vocation and its work is for humanity. This end is
presumed in its being as a constituent element in and for
the moral order of the world, for the moral order of the
world is the fulfillment of humanity in God. The conception and realization of the life of humanity does not
exclude the being of the nation, as if it was simply external to it, nor as if it was to disappear merged into it.
The nation on the contrary comes forth in the realization of the life of humanity. The life of humanity is not
a restriction, as in some external limitation, to the nation
as a moral person, but its fulfillment is in the nation as a
moral person. It is thus that there is in the nation a con



360                   THE NATION.
stant exclusion of a selfish egoism instead of a construction
of society out of it. It is thus also-as becomes more
apparent in the course of the modern world - that it is
not in the power of men to hold the nation in their own
exclusive possession, nor to have their own way in it, nor
to warp it after their own arbitrary schemes and designs,
nor to identify it with their own selfish and private ends.
It is thus also that it cannot be retained in the exclusive
claim of a family or a race. In its work for humanity,
and its fulfillment in its divine origin and relations, the
nation has been formed in the modern world.  The Turks
appear as a power in identity with a race, but there is apparent the absence of a national being, and there is wanting the organization of law and freedom and rights.
There is, in a certain school, a tendency to refer the
whole course and development of civilization to races, and
to regard separate races in their racial character, as the
integral powers in history. In this assumption the history
of the world is apprehended as consequent not from the
special and physical properties of the soil, the climate, and
the like, but fiom the properties of races.  The development of history is presumed in the institution of the
power and supremacy of a race. The most complete
construction of history is traced through the suggestion of
names in ancient genealogical records, and the most elaborate and far-reaching theories are literally built upon no
other foundation than the scattered bricks of the ruins of
the tower of Babel, in whose hieroglyphies modern philologists decipher the whole course of history, and find the
key that opens all its changes.  The only exodus of nations which it allows, is in the judgment on the dispersion
of the builders, and the only genesis is in the confusion of
their language.  The same tendency appears in the shaping of history, after theories of Aryan spirit and Aryan
life.  There may be in the physical distinction of races
the elements of diversitude, and of an ampler and more




THE NATION THE INTEGRAL ELEMENT IN HISTORY. 361
opulent culture and character, and the physical laws and
properties of races are to be studied and not to be disregarded; but to assert the identity of the nation with a race
is to assume for it a physical foundation, and involves the
denial of its moral unity and moral order. If the utmost
that language and architecture and art and every mode of
culture may indicate, be allowed to racial characteristics,
the conclusion yet remains, which has the universality of a
law, that there may be the widest possible contrast in respect to civilization in the same race, alike in the same
age, or in mainly the same condition of soil and climate
in succeeding ages, and that this contrast will be in exact
proportion to the development of the life of the nation. It
also conversely remains, that in the destruction of the nation there will appear anarchy, violence, slavery, and the
want of a continuity of purpose, that is the extinction of
civilization, whatever be the racial capacities and characteristics of men. The conception also of a power whose
strength is in a race, and whose distinction is in the separation of a race, does not represent the hope which is moving in history, and is in direct antagonism to the historical
course of the modern world. The dream of a vast federation of the Anglo-Saxon race, which recent English publicists have told, in which certain nations were to act and
to subsist, as the defense of the deposit of modern civilization, is an illusion which could only arise with the decay
of national spirit in England.  The project of a federation of the Latin race which the Emperor of the French
may at one time have indulged, which was to embrace two
continents, and to hold in security the same deposit, met
with immediate disaster, and its weakness was apparent as
it came in conflict with the nations.  The attempt to organize as a political power the Slavonic races, becomes a
source of the utmost peril, and not of progress in civilization; and there is nothing in the cry of Panslavism which
will move the spirits of men and inspire the courage of




862                        THE NATION.
armies, as do the words which express the moral being of
the nation,      the cry of " Holy Russia! "       It is the nation
in its organic and moral unity, which acts as a power in
history, and not a race in its special and separate physical character. The fact in correspondence with this has
always been, that the aation has been rent and broken in
its strength   and swept from       the foundation    on which it
alone can subsist, when it has assumed to identify itself
exclusively with a race, or to build upon the distinction of
races. It has no longer a moral foundation, nor a universal
end when it asserts as its ground the rights of a race, and
not the rights     of man; and      the   government which        no
longer recognizes justice as necessary, nor subsists in the
sovereignty and freedom       of the people in a moral organism, but is in identity with a race, is the sign of an expiring civilization.1
The nation is the power on which          is laid the work of
history.    The power has not been           with   the more vast
populations, nor extensive territories, nor long dynasties, but in the nation. The empires lie apart from the
line of the historical development of humanity. It is not
in them   that its purpose is discerned, nor in their years
1 " The thought - that every one, even the least, his welfare, his rights, his
dignity, is the concern of the state - that every one in his own personality is to
be regarded, and protected, and honored, and esteemed, without respect to ancestry, or rank, or race, or gifts, if only he bear the human face and form; this is the
characteristic principle of the age, and its true distinction. This principle is
alien to the earlier ages, and even to the age of the Reformation. It is first in
the modern age, that humanity in its full conception has become an energizing
principle of right and duty, determining the whole order of society." —Stahl,
Philosophie des Rechts, vol. ii. sec. 1, p. 345.
"The inner life of man is manifested in the evolution of society; the love of
the family passes into the love of the state, and the love of the state rises into
the all-embracing love of humanity." - Comte, Politiqze Positive, ii. 14.
Bluntschli, writing simply as the historian of political movements, says of'' nationality and humanity as the two conceptions at once limit and fill each
other. In the earlier ages a national spirit has had an apparent influence in
politics and the formation of the state; but in none has it wrought with the conscious energy of this age. Clearly discerned as the guiding-star of coming
political life appears the highest conception of humanity." -Geschichte des
Allegemn, Statsechts und der Politik, p. 659.




THE NATION THE INTEGRAL ELEMENT IN HISTORY. 363
that its continuous design is traced, nor in their conquests
has there appeared the progress of mankind. There has
not been in them the awakening of the spiritual energies
of men. The discovery of all that remains of them, the
colossal fragments of the architecture which they raised,
indicate as their characteristic the representation of animal
existence, and the worship of animal forms. Their spiritual
powers were sunk in an animal condition, with them there
was no Odyssey of the adventure of a moral life, and no
Iliad of march and battle to maintain the relations of a
moral order. Their names, in the monotony of their existence, often owe their preservation to a passing allusion
in the literature of some nation with whom in some moment they were brought in contact, or the bare record of
the dates in their cycles is deciphered in the fading lines
on the broken and scattered stones of their buildings.
Thus in the ancient ages it was not in the vast empires of
the east, as Nineveh and Babylon and Assyria, that there
was the work of history, nor that the development of the
spirit appears, but it was almost alone in three nations, —
in Judsea and Greece and Rome. Their advance was the
progress of civilization. In them was kept the prophecy
of humanity in history, their victory was its moral conquest, and its imperishable renown. In the modern ages
the course of history is in the peoples in whom is the real-,zation of the national being. It is thus in France and in
England. With the unfolding of the ages this becomes
more manifest. The movements of this age apart from it
are incomprehensible, its battles have no significance, and
its crises no decision.  Thus Italy, from weakness and
division in her separate provinces and rival cities, with
the call of a united Italy, is struggling toward a national
unity. Germany, from its narrow communities and sovereignties, each with its pedantic pretensions to legitimacy,
and the trivial forms of its courts, with their orders of
scholars and soldiers, is rising to the unity of the German




864                    THE NATION.
nation; and on the United States was laid the call to that
battle, in which victory through long sacrifice is the manifestation of the unity and being of the nation in the realiization of the freedom of humanity. These events are
indeed the witness borne through the sacrifice of nations,
to the resurrection of the spiritual powers of man, and the
deliverance of the redemptive life.1 They are the dawning
of the new ages of humanity. They who live in them
stand in an Apocalypse.
It is because the nation is formed as a power in history
that in its decay it passes from history.  Its decay is the
dissolution of the moral order and the severance of the
moral relations, in which the individual exists. The outward circumstance may remain the same. There is the
same race or races, the same people who dwell among the
memorials of the toil and sacrifice of their fathers, and the
same land which was their ancient inheritance. The mountains and field and sky are still the same, but in the con
trast with that which has been, they who dwell among them
in the course of physical nature that changes not, are as
those that "'gin to be a'weary o' the sun."  The presence
has vanished in whose light all things were transfigured.
There is no more the glory they have known.     They hold
no more in the strength of a conscious purpose, the hope
of humanity.   This dissolution of the moral being and
unity of the nation, can follow only in the most awful
crime and corruption of a people, and its consequence is
in the most far-reaching disaster. There is in it a consuming of power, and withering of energy, which only
evil can effect. It is only in the denial of the calling,
which has been borne toward its filfillment by the fathers,
and in the consequent degradation of humanity, that the
1 " Whoever does not assume unconditionally the might of goodness in the
world, and its ultimate victory; whoever starts from moral unbelief, not only
cannot lead in human affairs, but must follow with reluctant steps. We live indeed in the kingdoms of the redemption, and no more in the kingdoms of this
world."-Rothe, Theologische Ethik, vol. iii. sec. 2, p. 901.




THE NATION THE INTEGRAL ELEMENT IN HISTORY. 365
nation can perish. There is in it the judgment of history.
The convulsions of the physical world have no correspondence for it; in the words of the Roman statesman,
it is as if "the whole world were to perish, and to tumble
in ruins."' The voice of no prophet, however tremulous with the burden of its sorrow, can express the woe
to come. It is the severance from the generations which
have been, and from the generations which are to be;
it is' a day of woe unto them that are with child, and
there shall be great distress in the land, and wrath upon
this people, and they shall fall by the edge of the sword,
and shall be led away captive into all nations." The doom
falls upon the whole land, and there is none exempt. Judea,
when the life of the nation was dying, and its calling was
forgotten, and its unity broken in the assumption of sects
and the pretension of parties, and it was to reject in its
royal line One who came to it as the eternal King and
Priest and Prophet of humanity, who wept over its Capital at the vision of its approaching desolation, is no
longer a power in history, and the people pass from the
gates of its immortal city, not yet returning again. It is
scattered over the world, and among nations is as no nation. The days come to them as to the stranger, and their
path through distant lands is marked by persecution.
There was in Greece, in the conflict with the multitudes
of the East and their empires, a conscious moral spirit,
which has placed the scene of them among the immortal
battle-fields of the world; but when there succeeded the
contention of her separate communities, in which the life
of the nation perished, the ideal fades from her art, while
there yet remains the versatile and crafty skill, and the
supple cunning of the hand. The character of the people
becomes frivolous, and their purpose vain and empty; they
become traders and tricksters in words, the sophists and
1 "Simile est quodam modo, ac si omnis hic mundus intereat et concidat." -
Cicero, De Republica, iii. 23.




866                      THE NATION.
rhetoricians who wander from city to city, and are led
away as slaves by other peoples to be made their tutors;
their land is converted into a province of a foreign empire, and for centuries they are subject to the dominion
of the Turks.1 The decadence of the national life of
Rome was the beginning of the end of its history. The
figures of noble dignity and severity pass away with her
triumphal processions. The elements of the moral being
of the nation, the unity of organization, the devotion to
public ends, the strength of discipline, the reverence for
law, the sacredness of the family, all perish. The people
are overcome by invaders whom       once two or three legions
could hold in easy subjection; and the land is open to foreign peoples, and shakes with the tread of foreign armies.
The fall of the nation in its influence upon the individual
is reflected through centuries, and the crimes which occasioned it leave their impress upon him. As its maintenance
in its unity and moral being is the highest blessing, and for
those who are to be, so also in its destruction the disaster
sweeps on and embraces them.
While the destruction of the nation can come only in
the issue of the most awful crime, and is manifest in the
judgment of history, it has not in history its final close.
The life whose unity was revealed in sacrifice, does not
wholly perish. There may intervene centuries of humiliation and defeat, and the people be scattered or carried
into distant captivities, but its spirit still lives.  Though it
is overborne by the migrations of races and the vicissi1 Niebuhr says of Greece: " All its ancient institutions, nay its faith itself,
had vanished, and there was nothing to compensate for the loss. The Greeks
possessed no less intelligence, perhaps even more than before; there was more
knowledge, insight, etc. Whatever can be made they did make; but what cannot be made by every one who has diligence and ambition to exert his powers,
such as epic and lyric poetry, these were lacking. Instead of the venerable
tragedies of old, they had comedies. But on the other hand they were further
advanced in the arts and the mechanical skill which belongs to practical life.
Their speculations were more subtle and logical, but there was no more grand
philosophy of nature; they still possessed political cleverness, but we find no
political orators." -- Ancient History, vol. iii. p. 18.




THE NATION THE INTEGRAL ELEMENT IN HISTORY. 367
tudes of empires, yet the type of its being is not effaced.
The faith of the fathers and the hope of the children does
not all fail.  The words of its prophets are not all vain.
There may come in the life of nations the renewal of its
years, and there is manifest in them the power which can
"restore the leaves which the locust has eaten."         There
is the faith that the nation is immortal.     There is in nations the witness to the power of a resurrection.      In some
hour its sleep is broken by the gray of the new dawn, and
its sealed springs are touched again.      This is no allusive
phrase and no vague imagery, drawn from          the sphere of
the spiritual life of the individual, but it is the reality of
history, and its recognition is in the conscious life of nations. There is in this age an increasing testimony to it,
and not only in the later, but in        the  ancient nations.
Judsea through centuries of wandering does not lose her
national character; and the last words of her prophets
spoke of the restoration     of Israel.   In Greece, so long
overborne by a foreign domination, there is yet a sleep that
is full of dreams, and the stirrings of a new energy, and
the broken    signs of a    new   spirit.  The life of Rome
in its historic unity, is yet apparent in the purpose of a
people, and is being renewed in its ancient seats. In the
evidence of history the most utter and isolated individualism, the most exclusive and distant ecclesiasticism, cannot
affirm the extinction of the life of itations.1
The moral order of the world is the fulfillment of humanity in God. This is the development of history.         The
1 " The key to the political movements in Europe is obviously the resurrection
of nationalities." -Mr. Bancroft's Letter, 1867.
The evidence of the power of a resurrection in nations has been stated, not
apparently by any design nor with any reference to a real presence, as the characteristic of the modern world, that is, the world since the manifestation of the
Christ. "All ancient states were short-lived. Once declining they never recovered. Their course was that of a projectile,- a rise, a maximum, a precipitate
descent. Modern nations are long lived, and possess recuperative powers wholly
unknown to antiquity." - Dr. Lieber, Amer. Presb. Rev., 1868.




368                      THE NATION.
realization of the moral is toward a definitely Christian
principle.   This is necessarily implied in the        Christian
principle, as the universal and the immutable, that is the
moral.    As the nation is called to be a power in history, it
is in the realization of its being the Christian nation.      It
is this in its necessary conception.    It has not in its option
the alternative to determine whether it shall be, but yet
shall or shall not be this, but its necessary realization is
the Christian nation. And conversely, as history is in its
development the realization of a moral order, it is only as
the nation acts in and for that order that the nation has
its being in history. It is thus that its freedom has been
wrought in the power of the redemption, and its renewal
in the power of the resurrection. In other words, the only
completion of the state is in the Christian state, and it
is as a power in history, which is the redemptive life of
humanity, that it has its vocation and its destination.1
The nations of the ancient ages, Judea and Greece and
Rome; in their historical calling, held in their ongoing
toward the coming of the Christ, the fulfillment of the
divine purpose. In the new ages, the ages of the Christ
and his coming, the nations have existed in the historical
Christian development. The formative principle of their
life has been derivative from the Life.       The nation conversely, has no realization in the new ages beyond the line
of the historical Christian development. Whatever may
be the preconception of events, or the inference of political theories or speculations, this is the realism of history.
1 "We know nothing of an antithesis between the moral and the political.
The state in which the Christian is to live must be bound by the same divine
will that binds him, and it must have the same for its nature which he recognizes
as his innermost nature." - Schleiermacher, Christliche Sitte, p. 279.
" There is, in concreto, no state corresponding to the conception that can be
conceived, but the Christian state, that is, the state as determined through the
moral principle, which is definitely Christian.
"Christianity is essentially a political principle, and a political power. It is
constructive of the state, and bears in itself the power of forming the state and
of developing it to its full completeness." - Rothe, Theologische Ethik, vol. iii.
sec. 2, p. 968.




THE NATION THE INTEGRAL ELEMENT IN HISTORY. 869
And there has been no people in whom the life revealed
in the Christian development has been implanted, and has
become a living energy, but it has acted as a formative
political principle, and formative of the nation. There
is no fact more significant than that in the same centuries, in the lands in which Mohammedanism has existed,
there has been no national life. It has prevailed among
vast populations, and races who in every racial characteristic were incomparably beyond the rude races of
Northern Europe, and it has had long continued possession of the most varied and fertile territories, but it
has created no nation. Its central and representative
power stands now on the verge of Christendom, a tottering and discordant empire, sustained by other peoples, and
identified with  a race and degenerating into a mere
horde.1 The same absence of a spirit formative of a
national development appears in Buddhism. This has
consisted only with the power of a race or an empire.
Thus cultivated Hindus complain of the want of a power
of political continuity, a power which the continuation of
tradition does not supply. But the absence of a formative
political principle and national life is more apparent in
Mohammedanism, and more significant from its immediate
contact with the historical Christian development.
The ancient nations stood in the prophecy of the coming
of the Christ, the manifestation of the divine origin and
unity and affinity of humanity. It was in the conditions
of a moral life, that is through conflict and sacrifice, that
the later nations came into being, whose calling was in the
coming of Him   of whom the ancient nations held the
prophecy. The church in its unity and its power was the
realization of a spiritual kingdom in the world. Its end
was universal. There was in it the assertion of the divine
origin and relations and destination of humanity. It was
1 See Goldwin Smith, The Empire, pp. 228-225.
24




870                  THE NATION.
in identity with no family afid no race. It was the church
of the people. The spiritual was not the abstract, and
because it was the spiritual it was not therefore the unreal;
but ini it there was the revelation of the real,  the foundation which is lying, and other can no man lay. There
was the manifestation of a spiritual kingdom on the earth,
in the unfolding of the spiritual powers of man. The
church was formed, in the realization of a spiritual kingdom in the world, in the new ages. It was the witness
to the redemption of the spiritual powers of man, from all
that had dominion over them. It was the conflict of the
Christ, the true Lord of man, in whom alone is freedom,
with principalities and powers of evil. The battle of the
church with the empire in the Middle Age was in the endeavor toward the realization of a spiritual kingdom  on
the earth. It was in its spiritual freedom that the nations
were called into being. The germ of their life was hidden
in it. In the redemption of the spirit of man there was
the development of the life of nations. The realization
of freedom was in the individual and in the nation,
the realization of the individual personality, and the moral
personality of the nation.
The power which was central in the world, and proceeding from Rome asserted a universal dominion over all men
and all nations, proclaiming that Cassar is king, and that
humanity is to recognize no other and higher, was to fall
before the power of a spiritual kingdom, in which was the
manifestation of the eternal king, whose coming is the
deliverance of humanity. The church rose over the ruins
of the empire, which had striven to establish a universal
dominion, in the witness to the deliverance of the spiritual
powers of man in the'Christ; in this was the sign of its
conquest.  But it succeeded to claim the dominion in
itself, which it had denied in the empire. It proclaimed
no longer the deliverance of man. Then when it as



THE NATION THE INTEGRAL ELEMENT IN HISTORY.   871
sumed in and for itself the life which was revealed in the
Christ, when it refused to recognize a spiritual life in
men and in nations, it became itself something external.
It was the divine order, in the redemptive process of history, that the spiritual should become manifest as the real.
The realization of the individual personality, and of the
moral personality of the nation, was in the manifest power
of the redemption. The denial of the realization of the
spiritual life and powers of the individual personality
and the moral personality of the nation, apart from the
external order of the church, involved a necessary conflict. The power of Rome in its denial confronted the
realization of the spiritual life of man. It was the church
which assumed to stand in the place of the Christ, and it
denied an immediate relation in the individual and the
nation in their freedom and their life, through the Christ,
to God. It became the contradiction' of the spiritual and
the catholic, itself the unspiritual and the uncatholic. It
asserted in itself a dominion over men, and not their deliverance. The bonds and fetters it forged were so subtle
and strong, that it would seem that the mightiest spiritual
effort of humanity could not break them, and no power in
heaven or earth could rend them.
The conflict in the realization of spiritual freedom, becomes then, the beginning of a new age. The central fact
in the Reformation is the realization of personality, its
freedom, its duties, its rights, in the individual and the nation. It is the conflict of the individual and the nation in
the realization of their being, with the dominion of Rome
as the force of principalities and powers had been wrought
in that to crush human freedom. The witness to the redemption of the world, the sign of the conquest of the
Christ, was not in the church against the world, but it was
in the nations of Christendom in their conflict with the
church. The spiritual conflict was the conflict of the
nations.




372                  THE NATION.
This has its repeated illustration in modern history, and
appears through the complications of its events and the
commingling of its actors, and its record is in pages which
are not yet closed. The nations have been involved in a
conflict with Rome for their integral unity and being. The
struggle has been for their existence, their order, their
freedom. There is none as it has sought to realize its
freedom, that has been exempt from the secret or open
assault of Rome. Its attack has taken on every form, and
there is no weapon however cruel, and no device however
false, which it has not used, and no ally however evil,
which it has not engaged. It has appeared on every field
as the foe of the life and liberties of nations. - The record
is in the earlier as in the later nations, and is crowded with
its evidence.  In Italy no other fact has wider or more
patent illustration. It is there indeed more complex in its
phases, since upon her was bestowed the fatal gift which
wrung from Dante his sad and bitter protest. The
result is summed up in the conclusion of a recent writer,
"The papacy has been the eternal, implacable foe of Italian independence and Italian unity. It never would permit a powerful native kingdom to unite Italy."1 Macchiavelli, who inscribed his "History of Florence " to
Clement VII., says, "all the wars which were brought upon
Italy by the barbarians," - that is, foreigners,- " were
caused mainly by the Popes, and all the barbarians who
overrun Italy were invited in by them. This has kept Italy
in a state of disunion and weakness." In France the conflict appears in varying forms, through century after century. The life of the nation was maintained by none with
a higher purpose, and its powers were guarded by none
with a profounder spirit than by the holiest of her kings,
Louis IX. The edict, in the name of "Louis, by the
Grace of God, King of the French," has been called " the
great charter of independence to the Gallican Church;"
1 Milman's Latin Christianity, vol. i. p. 477.




THE NATION THE INTEGRAL ELEMENT IN HISTORY. 373
and in its course, it has been said of it that, " seized by the
Parliaments, defended, interpreted, extended by the lawyers, it becaime the barrier against which the encroachments of the ecclesiastical power were destined to break;
nor was it swept away until a stronger barrier had arisen
in the unlimited power of the French crown." The issue
was never more clear than in the long drawn battle of
Boniface and Philip the Fair. It has been continued by
her Crown and Parliaments and Courts; it has suffered
interruption neither in monarchical nor republican epochs;
it underlay the prolonged controversy of the canon and the
civil lawyers; it was to justify the language of a philosophic historian, - " the Gallican liberties are the standing
anti-Pope."  In England, the conflict of Rome with the
nation, through all her better centuries, has been borne
in the front of her battles. It has summoned her Kings
and people to the field more often than any other cause.
The strife of the Tudor age, which made the mightiest
of her kings, Henry VIII., " the only supreme head in
earth of the Church of England," and the wars of the fifteenth and sixteenth centuries, whatever the immediate
form they took, were the battle of the nations against the
universal domination of Rome, and in them the nations
were contending for their very being and freedom. The
wars of the Low Countries, of Elizabeth, and of William
of Orange, which, so frequently renewed, closed for at
least one epoch on the field of Blenheim, involved this for
their actual issue. The alliance of Rome against the nations was with imperialism. It is with that her power has
combined, and she has wielded that to crush nations. It
is thus that she found her instrument in Philip II., in
Louis XIV., in Napoleon III. As Spain, in her imperial
age, sought to fasten the domination of Rome upon the
nations, in her swift decline the fetters she strove to rivet
upon them were drawn more closely upon her, and France
has fortified within and against herself the power she went




874                        THE NATION.
to Italy to sustain. It is this conflict which has never been
absent from     the thought of the greater modern statesmen,
as William of Orange and Cromwell.1 In Germany the conflict has been more apparent with the German nation. The
work of Luther was the awakening of a national spirit.
The power of the Electors was his constant support. The
issue is continued in the most recent events.            The alliance
of Rome with imperialism         in Austria has been        always in
antagonism     to  the   unity   of   Germany      and   its freedom.
The battle of Sadowa was the triumph of Protestantism,
the triumph of the German nation, the Germany of Luther and Hegel.        Its immediate result was the widest disaster to Rome.
In every nation where Rome has a vestige of authority,
the conflict appears. The irreconcilable hostility of Rome
to the being of nations has never had more open avowal
than in this century.2       In Italy it is still the unceasing antagonist to the nation. It does not acknowledge the existence of the nation       of Italy, and recruits an       army out of
1 " The conservation of that,' namely', our national being, is first to be viewed
with respect to those that seek to undo it, and so make it not to be."  " Whatever could serve the glory of God and the interests of his people, they see more
eminently in this nation than in all the nations in the world; this is the common
ground of the common enmity entertained against the prosperity of our nation,
against the very being of it. All the honest interests, all the interests of Protestants in Germany, Denmark, etc.,' are the same as yours. Therefore the danger is from the common enemy abroad, who is the head of the Papal interest."
- Cromwell's Letters and Speeches, vol. iii. p. 150.
2 In the Encyclical of December 6, 1864, Pius claims the exemption of the
clergy from the authority of secular tribunals, and asserts a divine sanction in
"refusing to permit their cases to be subject to the judgment of the latter." The
traditions of ecclesiastical supremacy are not forgotten for one moment, and it is
asserted that "rulers are subject to the jurisdiction of the church," and even
that "in the state, internal municipal laws are involved in the same subjection.".The necessary antagonism to modern civilization is indicated, and the syllabus
in its close deems it a fatal error, that " Romanus Pontifex potest ac debet cum
progressu, cunm liberalismo, et cuml recenti civilitate sese reconciliare, et componere." -Pii, P. P. IX., Syllab., December 6, 1864.
Milman, in his conclusion on the condition of the Latin Church, says: "The
clergy in general, there were noble exceptions, were first the subjects of the
Pope, then the subjects of the temporal sovereign." - History of Latin Christian.
ity, vol. viii. p. 158.




THE NATION THE INTEGRAL ELEMENT IN HISTORY. 375
all-lands, and its drum beats the roll-call of a motley
crowd, and oilce more, in alliance with imperialism and
with foreign soldiers, its flag is borne before them to battle
with the people of Italy. In America, with some eminent
individual exceptions, the influence of Rome was with
confederatism, and while it is not clear whether- the act
was in her spiritual or temporal capacity, nor what guise
was worn, Rome was the only power to recognize the confederacy.  In Mexico and the South American Republics,
it is the unceasing foe of their unity and freedom. In
every sphere of diplomacy its emissaries are engaged, and
its policy seeks supremacy.   It is the so-called clerical
party in these unhappy and disordered states, that is always in league with secession; there is no power that
works so secretly through municipalities and provinces,
and in combinations with factions and parties, to subvert
the whole to its own ends. It is the foe in all to their
progress and education and order and freedom.
This antagonism of Roman ecclesiasticism to the nation
is involved in its necessary postulate. The domination it
has assumed, its authority, its scope, cannot consist with
the realization of moral freedom. The Reformation was in
the realization of freedom.  There was in Protestant history the development of a positive principle. It was not
a merely negative movement, only the protest against certain errors and abuses, but there was the manifestation of
moral freedom, -the positive realization of personality in
the individual and the nation,l-the life, the being of
each as existent in its origin in God, and in its unity and
continuity derivative only from God. The great postulate
of Protestantism is the assertion of the immediate relation
of the human spirit to the Christ, and between the human
soul and Him, there can stand neither priest nor book.  It
1 "The principle of moral individualism stamps the movement with its characteristic impress.
" It was the reality of moral freedom in Christ, that more than all else gave
triumph to thetReformation." - Tulloch, Leaders of the Reformation, p. 135.




876                  THE NATION.
is the assertion in the life of humanity in history, not of a
formal but a real theocracy, - the divine order of the
world in the Christendom of nations.
This antagonism is necessary also in the assumption of
Roman ecclesiasticism, since it denies to the individual and
to the nation a real and integral moral being, - the realization of a divine vocation in the moral order of the world
- which is not formulated through it. The individual and
the nation apart from the church, are regarded as in identity with the world, - only the kingdoms of this world, -
and the church will concede to them, therefore, no spiritual
life or powers, no real freedom, no fulfillment of a divine
vocation, in conscious obedience to a divine will. It assumes the working of the divine energy, and the fulfillment of the divine purpose in itself alone, and in the individual and the nation only as formulated through it, and
the moral - that is in its definite Christian realization, the
moral order of history, apart from itself is unreal, only the
legal, the unspiritual condition of man. It assumes that
in and through itself alone the redemptive life is formed,
and in it alone is manifest the power of the redemption
and the power of the resurrection. It alone is built upon
"the foundation which is lying;" and itself external, all
which is external to it, is a baseless structure. It alone
stands in the living and eternal will, and that only has a
real and a moral continuity which is formed in it. It will
not concede that in the individual and the nation as separate from itself, there is wrought the work of righteousness
on the earth. Therefore when Protestantism  asserts that
the nation has the condition of its being in righteousness,
and in righteousness alone its strength and exaltation, and
that its unity and continuity is only in the will of One,
who will establish righteousness on the earth, and its freedom in the obedience to that will, and its being and responsibilities in an immediate relation to that, -these
truths Roman ecclesiasticism, in its primary assumption,
denies and discards.




THE NATION THE INTEGRAL ELEMENT IN HISTORY.             377
The inevitable character of this antagonism       in Roman
ecclesiasticism appears also in the fact that it will not concede a real and immediate relation in the individual or the
nation to God, -    to God as manifest in the Christ, -     nor
that their life and personality are immediately and.only
derivative  from   Him.     The life of the individual, the
moral life as definitely Christian, it asserts to be mediated
and formulated in it, and that the nation is only the province of physical forces, the combination of material interests, a secular kingdom, in whose course there is only what
it calls a phenomenal morality.1 It will not admit the
divine guidance of the people in its history, and holding
the light only in itself, it discerns not the presence which
goes before the march of the people. It does not allow in
the nation a means or agency of actual good, nor that it
derives its wisdom    and courage and understanding only
from God, nor that its obligation is to no other power on
earth, but only to Him. It will not admit in it a vocation,
whose duty cannot be transferred to another.          In its assumption, the nation is not a power in the realization        of
the divine kingdom in the world, but in its origin and end
is in alienation from it, -  only a kingdom of this world.
The church, in this conception, comes to regard the
being, the unity and the freedom of the nation with indifference, when it is not its avowed antagonist. The
nation is regarded at the most as only formal and abstract,
and existent in indifference to right and wrong, and the
church is not to stoop to what it represents as the secular
1 " The Catholic confession, although sharing the Christian name with the
Protestant, does not concede to the state an inherent justice and morality -a
concession which in the Protestant principle is fundamental. This severance
of the political morality, which is necessary to the being of the state from its
natural connection, is characteristic of that religion, since it does not recognize
justice and righteousness as something integral and substantial. But thus isolated and torn away from their inner centre, the sanctuary of conscience which
is their last refuge, and the still retreat where religion has its abode, the principles and institutions of political legislation are destitute of a real unity in the
same measure in which they are compelled to remain abstract and undefined."
- Hegel, Philosophie der Geschichte, p. 64.




378                          THE NATION.
aims in    the life of humanity.        In its view, the unity and
continuity of the nation in which the fathers are turned
to the children and the children to the fathers, the authority  of government and         the   reverence    for law, and      the
punishment of crime on the earth, and the triumph over
oppression, over principalities and powers which have held
dominion over men, involve no immediate and divine obligation.    The aim      of the statesman      is no longer the conformance of legislation to a divine law of righteousness,
and the end of the state is no longer the fulfillment of' an
order which he did not create, but whose principle he is to
obey.     The faith of the people, the fulfillment of its work
through all the trials of its years, the very devotion and
sacrifice   of its children, the wisdom         and   courage    of its
leaders, have no real moral significance, but are only the
continuance of a sacrilegious course, the circumstance of a
profane history.1
1 This is also the attitude of many of the sects, and the conclusion of their
logic, when it does not avoid its premise. A recent writer says: "The secular
career of man is a violation of sacred obligations and of a divinely established
order. In reference to the divine idea and intent, it is a sacrilege - well denominated profane- the history of the world as the opposite and antagonist of the
church, only the ordinary workings of the human mind, and such products as
are confessedly in its competence to originate, etc."  Then the construction of
the Nicene formula is described in its parallel, in the steculum necessary to it,
"As long a time as was required for pagan Rome to conquer and subjugate the
Italian tribes, and to lay the foundations of a nationality that was to last a millennium in its own particular form; as long a time as was required for the thorough mixing and fusion of British, Saxon, and Norman elements into that modern national character which in the Englishman and Anglo-American is perhaps
destined to mould and rule the future, more than even Rome has the past."
Theni the parallel of the Nicene formula is continued. " The one is metaphysical,
the other is political and relates to the rise and formation of merely secular sovereignties, exceedingly impressive to the natural mind and dazzling to the carnal
eye; these metaphysical victories secured a correct faith, etc." - Shedd's History
of Christian Doctrine, vol. i. p. 18, p. 374. This is the conception, in which, in
the consistent and necessary sequence of its premise, national life is apprehended.
It is evident that the character of the appeal to the eye is consequent upon
the content of the object; but there has never been in the life of nations an
immediate appeal to the carnal eye to compare with that made in the centuries
included in this parallel, by the visible church.
There is the assumDtion in this description also of the apprehension of truth




THE NATION      THE INTEGRAL ELEMENT IN           HISTORY.     379
There is a so-called catholic church, beyond the pale
of Rome, which assumes the same. If a nation is struggling for its unity and being against forces of division
and dissolution, it is a subject of no moral concernment.
The life    of the   nation    and the sacred      obligations of its
citizenship, which so inspire common men that they will
die for them, and pass those gates of holy and willing sacrifice with   the sacrament of the nation upon their lips, it
regards only with moral indifference. If a people in a
great crisis are redeemed from slavery, it sees not the
glory of their deliverance. It heeds not the roll of the
waves parted by the right hand            of Majesty on      high, but
asks only that it still may catch the murmur of waters,
breaking on the shores of ancient wrong. It repeats its
protest against sedition, conspiracy, and rebellion, but to
their reality its conscience is dead.         It asks in    the litany
of human hopes and sorrows, for the unity of all nations,
but for those who hold the unity of the nation as a divine
only as a proposition. It is represented in its scientific precision as an- abstract
formula, and the contrast is with the real conflict of history. The analogy in
the centuries of the construction of this formula may have another presentation.
This metaphysical speculation never had more exclusive control of the thoughts
of men, nor more regard for its scientific precision than in the city of Constantine, under Heraclius, in the beginning of the seventh century. It passed on to
the controversy as to the two wills; but the impressiveness of its themes did not
affect the lives of men. It was the sign of the division of the schools, it separated society in the avenues of fashion, it started the mob and tumult in the
streets, it was the signal of parties in miserable circus-fights; but it awakened
no moral energy. It was apprehended only as a dogma -an abstraction -and
with no reference to the actual condition of men. It was a strife only measured
by the scientific accuracy of terms, in which a dogma was held. It was then
that their foundations on which they built -the foundations of a system, but
not of a living Person whose Will had been revealed to men-were shaken
by the coming of a conqueror, as a voice from the desert. It has been said
by an historical writer, " his words and deeds carried out the moral of the previous history. Mohammed proclaimed an actual God, to men who were disputing
concerning his nature and attributes. Mohammed affirmed that there was an
actual will, before which the will of man must bow down. It was a tremendous
proclamation. Philosophy shrinks and shrivels before it. All ethical speculations are concluded by the one maxim, - that God's commands are to be obeyed;
all metaphysical speculations are silenced by the shout of a host, "He is, and
we are sent to establish his authority over the earth."




380                  THE NATION.
gift, it is silent and offers only the drowsy opiates of
this world that drug the spirits of men. Its hierarchy
will not soil itself with these common aims, although St.
Peter could ask with longing for the time of the restoration of Israel, and St. John could trace in the historical
order of the nation, the symbols of eternal things, and St.
Paul could dwell upon its historical events as the sacraments of the divine presence, and the voices of Prophets
have been lifted in exultation at the nation's deliverance,
or burdened with its sorrow since the world began. It
wearies of the symbols of the prophetic office when the
reality is gone. It concerns itself with a ritual and processions, but they are no longer the ritual, nor the processions of a people. It finds no longer a significance in the
name of Protestant, since it has no place in the great process of Protestant history.
Whether the United States will be involved in an immediate conflict with Rome, lies in her future. While
there are noble, but still few exceptions, her unity and
education and freedom will meet in Roman catholicism, it
may be a guarded and often concealed, but an unceasing
antagonist. Those who see in the course of the Christian
centuries only the development of a dogma, and regard
Protestantism as an intellectual conflict, can find no ground
of apprehension.  M. Guizot turns from speculations on
the essence of Christianity, to advocate a confederacy
in Italy, and the maintenance of the temporal power of
the Popes; but to those for whom the conflict of so many
centuries has a deeper reality, the ecclesiasticism of Rome
bears another character.  Milton was the statesman of a
greater age, and was a wider scholar, and of fairer sympathies, but for him it was " the old red dragon."  It was
to be met by the nation in a struggle of life and death.
And the nation will not maintain its unity or its being if
it meet it only as a material force. The church will not
give place to an atheistic state, nor to a material civiliza



THE NATION     THE INTEGRAL ELEMENT IN          HISTORY.     381
tion. The end of history is not attained, and the destination of humanity is not realized in that.
The nation     can   meet the forces with which         it has to
contend only as it realizes its own moral being, and recognizes its origin and end in God. If it be held in a merely
material conception, it can bring no         strength   to the real
battle of history, where moral forces contend.              If it be
regarded as only formal, it will be broken by that held in
a subtler bond. The nation is called to a conflict in every
age, where the result does not depend upon the strength
of its chariots, nor the swiftness of its horses. It is to contend with weapons wrought not alone in earthly forges —
it is to go forth clothed with celestial armor, and of celestial temper. It is to fulfill a divine calling. It is to keep
a holy purpose. It is to enter the battle for righteousness and    freedom.      It is to   contend    through     suffering
and sacrifice, with     faith  in the redemption      of humanity,
for the rights of humanity, -rights given             to it by Him
whose image it bears.
NOTE.- The morality of a people, and so also its politics, will always correspond to its actual theology, and will be but the sequence of that. The assertion
that men are saved, not by faith in a divine person, but by faith'in a dogma or a
system of dogmas, induces a formalism, which is reflected in politics, in the
notion that a political form or dogma will save the nation. Thus we are told
as before by the theological doctors, now by the political doctrinaires, not that
the people are saved by faith in God and his righteousness, but that the only
safety is in the constitution, inclusive of a certain scientific formula, defining
the correct relation of the states.
The discussion as to the formal recognition of God in the written or enacted
constitution has scarcely a better ground. In the historical or providential -
the real and unwritten constitution, - it is the very condition of the being of the
nation. But the written or enacted constitution defines only the formal organization, and relations of the powers of the state, and then also it is an
instrument of law, and subject to amendment, etc., and the divine recognition
might be required with the same propriety in every legislative enactment.




CHAPTER XX.
THE NATION THE BEGINNING AND GOAL OF HISTORY,
THE aim of political science is the presentation of the
nation, as it is in its necessary conception. Its object is
to define it in that unity and law which alone is the condition of science. This necessitates an inner and critical
justification of its representation.
The nation is organic, and has therefore the unity of an
organism, and in its continuity persists in and through the
generations of men; it is a moral organism, it is formed
of persons in the relations in which there is the realization
of personality, it is not limited to the necessary sequence
of a physical development, but transcends a merely physical condition, and in it there is the realization of freedom
and the manifestation of rights; it consists in the moral
order of the world, and its vocation is in the fulfillment of
the divine purpose in humanity in history.
The nation as it exists in its necessary conception, is the
Christian nation.
The Book which illustrates from the beginning of history the divine purpose, and the divine order in the world,
has been and is the book of the life of nations. It is not
a book.which belongs to the childhood of the race and outgrown is to be left with stories and pictures to children; it
is not a book of abstractions, to be shaped in the systems
of schools; it does not hold the life of nations in indifference, as do the hierarchs of ancient and modern religions,
to find their sanctity in their external isolation. It contains in the order of history from its beginning to its close,
the revelation of the origin and unity of the nation, and




THE BEGINNING      AND    GOAL OF HISTORY.             383
the law of its being. It is the record of the revelation
through history of the divine economy. It is not to construe the polity of one age, but of the ages. There is the
unfolding    of principles which       are  deeper than      a formal
order and a formal organization.           They are not concluded
in  the   transient and local.       In  the   succession    of events
they do not become isolated, and in the changes of time
they do not become obsolete.           They are the revelation        of
an authority which no tyrant can suspend, and no anarchy
subvert.1
This has its clearest assertion from       those who have been
called to their work      in the foundations of nations; it has
been, in the crises of nations, their strength and their stay,
and its words have wrought with the power of a divine inspiration in the spirit of the people.         There is in the liter1 There is much that is suggestive in the comparison of tlose great contemporaries- Spinoza and Hobbes; and it has been often traced, and in many ways;
but it is in no respect more significant than in the consideration which they give
in their political'writings to the Hebrew Scriptures. In their political inquiry,
neither of them can avoid the fact- of the wide and continuous influence of the
Hebrew Scriptures upon politics, and each sets honestly to work to account for
it, and to ascertain some principle of reconciliation between them and their own
theories. There is reflected in each the thought of schools and sects in this age,
who hold their names in distrust.
The result of their attempt to reconcile their political conceptions with the
Hebrew'Scriptures, is stated by a recent historian of philosophy: "All the ingenuity and courageous dogmatism of Hobbes, could not hinder him fiom appearing awkward and sophistical when he tried to reconcile his theory of s6ciety
and of government, with that which represents God as constituting the family;
God-as forming the people whom He had delivered from bondage into a nation;
God as himself governing it, whatever subordinate instruments -priests, kings,
prophets - He employs; God as preparing them for the manifestation of a divine
kingdom, wherein men should be governed by a Father, be united to each other
in a Mediator, by an in-dwelling Spirit.
" Spinoza is still more embarrassed, precisely because he has more sense of a
divine economy, and is less able to divest himself of early associations. The
strange dream of a people, persuaded by their law-giver to regard God as their
King, and to bind themselves under a covenant to Him, has to be maintained
under all difficulties that he may show how peculiar the Hebrew state was, how
little it can be a model for other states, and yet what lessons it may teach them
respecting the dangers of monarchical, still more of priestly or prophetical usurpation. Having once got rid of the primary idea of the Jewish state, he could
have no difficulty whatever in disjoining its history from the history of all other
nations." -Maurice, History of Mlodern Philosophy, p. 410.




884                   THE NATION.
ature of the world no other expression of the ground and
being of the nation, as it is found here in the beginning
of history; — no other expression of the glory and honor
of the nation as it is unfolded here in the goal of history.
Its words have been kept,"As better teaching,
The solid rules of civil government,
In their majestic, unaffected style,
Than all the oratory of Greece and Rome;
In them is plainest taught and easiest learnt,
What makes a nation happy and keeps it so,
What ruins kingdoms and lays cities flat."
There has been no more constant recognition of its
political principle than is repeated in the writings of the
fathers and founders of the republic. In their confession
of the divine presence and the divine guidance, there is an
accordance as of the psalms of a nation. The recognition
of the origin and continuity of the nation in God, is repeated in the inaugurals of the earlier Presidents. It is
not the utterance of empty phrases in some indifferent moment, it is spoken in the hour of the assumption of the
most sacred trust, the imposition of the most sacred obligation. The words of its great citizen Franklin, which reach
to the foundations of political thought, in the most critical
hour, in the Convention of the Representatives of the people for the formation of the constitution, were, " We have
been answered in the sacred writings, that' except the
Lord build the house, they labor in vain that build it.' I
firmly believe this; and I also firmly believe this, that
without his concurring aid, we shall succeed in this political building no better than the builders of Babel. We
shall be divided by our little partial local interests; our
projects will be confounded; and we ourselves shall become
a reproach and a by-word down to future ages." 1 President Washington said in his first inaugural, "No people
can be bound to adore the hand which conducts the affairs
1 The Convention, June 28, 1787.




THE BEGINNING AND GOAL OF HISTORY.               385
of men more than the people of the United States.",1
There is no language deeper in its analogy than that of
President Jefferson at the close of his inaugural, "I shall
need, too, the favor of that Being, in whose hands we all
are, who led our fathers as Israel of old from their native
land, and planted them in a country flowing with all the
comforts and the necessaries of life; who has covered our
infancy with his providence, and our riper years with his
wisdom and power, and to whose goodness I ask you to
join in supplications with me."2       The last inaugural of
President Lincoln was the unbroken expression of the spirit
of these Scriptures, and its whole thought was gathered up
in their words, in the recognition of one who will establish
righteousness on the earth, " whose judgments are righteous and just."3 And if there be in the beginning of
nations a prescience, the words on the lips of the Pilgrims
were not of a state formed in the poor figment of the social
contract, nor a condition in which there was merely a negative freedom where conscience was released from all obligation, but they were of a life in which these principles
become a living power.4
There   is, however, a preconception in        two   opposite
forms, each of which, while recognizing in these Scriptures
the representation of the nation, limits it in its principle
and its end.
1 President Washington's Inaugural, April 30, 1789.
2 President Jefferson's Inaugural, March 4, 1805.
3 President Lincoln's Inauzgural, March 4, 1864.
4 See Lectures by members of the Massachusetts Historical Society, 1869.
The Aims and Purposes of the Founders of the Massachusetts Colony, by Rev
George E. Ellis, pp. 50, 55, 63. This statement of the object of the founders of
Massachusetts has a singular historical value. It is the true Puritan tradition,
and beyond the empty theories of freedom and law and the state, which a later
age sought to assume as historical in its stead. The law of suffrage, however
defective its form, had a true and consistent principle. The expression of Winthrop was, " The civil state must be raised out of the churches." This also
could not consist with a negative or formal conception of freedom, and Winthrop
always condemns such a conception.
25




386                  THE NATION.
It is said, in the one form, that Judmea was a theocracy,
and then the inference is drawn that, by this fact, it is
isolated from other nations, and for them has no immediate
significance. The word theocracy, in this connection, is
traced from Josephus, a Jew of an imperial age, and if it
represents the isolation of one nation from another in the
divine government of the world, or the exclusion of any
nation from the universal law manifested in that government, then it is the assumption against which the prophets
constantly contended.
And the principles in which Judmea is formed, are represented as the universal and immutable laws which are
the condition of the life of a nation. If it had not a divine
origin and unity, if there had not been in it the presence of an invisible King, it would then have been the
exception, and its course the singular circumstance, the
abnormal condition in history.
It is said, however, that the divine vocation of the people, and the foundation of the nation in a righteous Will
which was manifest in Jtdclea, is limited to the past, to the
prophetical ages, but with the coming of the Christ, in
whom,those ages are fulfilled, it ceases to be real. There
is no more a divine presence and guidance of the people,
nor the foundation of its unity in a righteous Will, nor
the condition of the being of the nation in righteousness.
Then in the later manifestation the divine power is further
removed. Judoea was a nation called and chosen in history, but in the fuller years there are none. The end is
changed from the beginning, that history is to be read as
the letters in the Hebrew books. But the Christ is represented in his coming as the only King, and as nearer to
humanity than in the earlier ages, and as revealing in his
own life the foundation of its eternal relationships. The
Christ is called the only King, the Deliverer, in obedience
to whom the freedom of the individual and the nation consists. And as there has been in nations the recognition




THE BEGINNING AND GOAL OF HISTORY.       387
of the Christ as the King, there has been the formation
of a national life, and the unity in which alone the divisions of races are overcome; and as the nations have
rejected the Christ as the King, no more a power in his
Kingdom, they have passed from history.
It is because Judmea was a real theocracy that it is not
detached from the government and history of the world,
and its record is of worth for every nation, and the presence of which it is the witness is not more distant but
nearer than of old, - the Christ is the King from whose
authority no nation is excluded. But it is allowed that, in
a certain conception, the Christ is the King, and then the
conception is assumed to be one to which the nation may
give no further heed. It is held as an abstraction, and
withdrawn from the actual lives of men and nations. It is
referred to the province of the dogmatist and the ecclesiast,
and is presumed no longer to concern the man of affairs;
the statesman may recognize it only as in some rhetorical
phrase, he strengthens his appeal in conformance to popular impressions not yet worn out; the journalist is to cismiss it as belonging to the dream of the mystic, but having
no relation to events as the days go by; the economist;
apprehending the nation only as the commonwealth, may
insist upon a sustained indifference to it, as alone consistent in politics, until there comes some crisis, when the
maxims of economy are unheeded, and the craft of parties
is confounded, and the systems of theorists and the devices
of legists are burned as stubble in the flames that try all
things.
The nation is constituted not in a formal but a real
theocracy, and there is nothing more to be considered in
certain phases of modern thought than the negation of the
real theocratic idea in connection with the avowal of its
abstract postulate and abstract conclusion. It eliminates
the whole content of the Gospels in their constant representation of the Christ as the King, while deferring to. its
abstract conception.




388                       THE NATION.
If further it be assumed that Judaa, in the recognition
and presence of the divine King, becomes the anomaly in
history, this is controverted by the fact that it is a nation.1
This is its historical condition, whatever may be the drift
of historical abstractions.    The laws of the life of nations
are illustrated in it, but it is not exempt from them
There is no presentation of the formulas of political sci
ence, in the construction of a system, but there is the
being of the nation in history. There is no formal organ
ization defined in necessary correspondence to the nation
but it exists in its identity under the lawgiver, the judges,
the kings; and the peril, which is always near, is that the
people will lose the consciousness of the unity and con
tinuity of the nation in its invisible king, and apprehend it
only as a formal and external organization.
In the opposite form to this, —in which the representation of Judsea as a theocracy has been made the premise of
its detachment in history, - its representation as a nation
is made the premise of the same conclusion.
It is admitted that Judaea was a nation, but there is the
conception of the nation as only in identity with an exclusive form or principle, and the denial of its universality.
The   nation   is regarded as formed only in a separative
1 " The true spiritual life of the world commenced in the chosen people. He
who denies this would seem to deny not a theory of inspiration, but a great and
manifest fact of history. But the spiritual life commenced under an earthly
mould of national life, similar in all respects, political, social, and literary, to
those of other races. The Jewish nation, in short, was a nation and not a miracle. Had it been a miracle, it might have shown forth the power of God, like
the stars in Heaven, but it would have been nothing to the rest of mankind, nor
could its spiritual life have helped to awaken theirs." - Goldwin Smith, The
Bible on Slavery, etc., p. 5.
Spinoza represents the position of Judsea as isolated in history. The second
inquiry in the introduction to the Tractatus Theologico Politicus is, "Why the
Hebrews were called and chosen of God?" to which the answer is, " When I
saw that this meant nothing more than that God gave them a certain spot of the
earth, where they might dwell securely and commodiously, I learned that the
laws revealed to Moses by God, were nothing but the laws of the special Hebrew
empire, and therefore that none except the Hebrews were bound to receive
them; nay, that even they were not bound by them, except so long as their
empire in Palestine lasted."




THE BEGINNING AND GOAL OF HISTORY.      389
principle. It is the local and transient, and is a subject
of concernment to a certain people, and therefore of no
further concernment. It is only the special circumstance
of history, and is comprehended in the special characteristics of a people.
But it is, as containing the revelation of the being of
the nation-it is as national, that the Hebrew Scriptures
are of worth to every nation. If they represented the
being of the nation with indifference, or as simply a formal
organization, then they would have no immediate worth
for this or for any nation. It is because they reveal the
foundation of the unity and continuity of the first nation
in history, that they may become also the book of the last.
Mr. Lowell speaks of the mind of Cromwell in certain
higher moments, as " working free from Judaic trammels."
But in the age to which Cromwell was called, in the battle
with unrighteousness in the land and with the allied
imperialism  and ecclesiasticism of which Spain was the
front, it was not trammels which were forged for him in
the Old Testament which he knew so well, and had studied
as none of England's kings before or since.   Would
a knowledge of what is described as Aryan civilization
have been a substitute for the record of that national life,
so deep and so intense and linked to the Throne of God,
and finding its unity in Him? There have been those
whose thouglt was without " these trammels " - Julian,
with a fair and catholic culture, whose aim was an intellectual imperialism, into which all nations were to be
merged, as their images and divinities were to be gathered
in one hall;- Spinoza, whose ideal of the state was, that
" it should leave the philosophers free to think;"Goethe, as the courtier at a little principality, who complained that "' in the state, no one was willing to live and
enjoy, every one wanted to be ruling; "- would Cromwell, working still in the type of his own individuality, have
found. in the riddance of "Judaic trammels," with these,




390                      THE NATION.
elements of freedom?    If we study the mind of Cromwell,
every element of strength was wrought in the faith in
which   these words become an inspiration.        There    was
another-his secretary —in the same work, who knew
these Hebrew Scriptures not as a boy but as a man knows,
but in that type of strength and freedom which is only of
more worth if it have traces also of an Hellenic spirit,
"the Samson Agonistes," still so perfect an expression of
undying faith in the triumph of the nation over all its enemies, -is there the restraint of old trammels, -the defect
of Milton's freedom?      They may not always have separated that which in the earthly vesture of the nation is
local and transient, from its real being, but there have
been few   holding a conception so clear.    It is not as men
enter into the consciousness of the spirit of the nation that
their march is trammelled and their fetters are forged.     It
is with the free that we are free.   There has been no nation but as the mind enters more deeply into its spirit it
is imbued with larger freedom.     It was not in the Judaic,
nor the Roman, nor the Hellenic life, that there was the
forging of bonds for men.    Thus there is a value for a people, in the study of the literature and art of Greece and
Rome, beyond the study of the style and thought of their
several poets and historians. It is the contact with the life
of the nation which transcends the life of the individual,
and is deeper than any separate work in literature and art.
This representation of Judaic or Roman or Hellenic trammels has its source in the assumption of a negative notion
of freedom.1
1 The Bible has been removed from the course of study in universities, and then
from academies, and has no place, corresponding simply as a history and literature, to the history and literature of Greece and Rome. A well-known missionary
in Syria, a recent graduate of Yale College, said to me, that scarcely any scholars
left their schools in Syria, but with a more thorough knowledge of the Bible than
the larger number of the recent graduates of Yale College. This omission of its
study is partly the result of the principle which has referred it exclusively to the
sphere of the dogmatist and the ecclesiast. The one regards it primarily as a
system of dogmas and a collection of isolated proof-texts detached to sustain




THE BEGINNING AND        GOAL OF HISTORY.             891
There is the record in these Scriptures of the realization
of history of the family and the nation. There is the revelation not of a system, but of the divine order in the world.
The nation has its own place and vocation in history.
It is as with the individual; the life of none is the same in
its outward form and condition, and yet the life of each has
the same origin, and is subject to the same law             of moral
action.    There is thus a work for one nation which is not
for another, and there is a field of outward circumstance
which is the occasion for specific laws and regulations;
there is a conduct of affairs which        concerns it alone, and
them; and thus it becomes restricted to the schools in which these systems are
taught and to their exposition on Sundays; while the other regards it primarily
as the record of an ecclesiastical institution, and open only to the knowledge and
understanding of a corporation of priests, and requiring the guidance of ecclesiasts for its explanation, and in connection with a ritualism, to be kept in its special
sanctity. It is thus removed from its place in the education of the people, and
left to the doctor and the priest. It has no place corresponding to that given
it by the great masters of thought, in the greater periods of universities, from
William of Occam to Hegel. It might be better to study it with the commentary of Spinoza and Hobbes, than to avoid it altogether. The recent tendency
is not simply to give their fair place to the physical sciences in their great development, but to exclude the study also of the literature of Greece and Rome;
the positivism of science in the revelation of the physical world, is preferred
to the positivism of history in the revelation of the moral world, the dynamic is
before the divine. For one who makes the phenomenal process of nature and
the mind of man as involved in that process, the only object of study and of
thought, these Jewish Scriptures can have little value. And since their dates
are not always consistent, and their chronology indicates that it has been hopelessly tampered with, what is their value for those whose census is taken in the
year 1870? There is also no effort to convey information as to the authorship of
the separate documents, and the situation of the writers, and the various questions of the utmost consequence to the critical art of the grammarian. And to those
who maintain in a superficial empiricism the only principle in which the state is
formed, they must be but a very disjointed collection of documents, containing
the record of the migration and fortunes of a very inferior race, who were separated from other races by a narrow and exclusive prejudice, and who have
contributed nothing to the questions which are alone prominent - the so-called
freedom of trade arnd the progress of political enlightenment in the combination
of wealth and labor, and who in superstitious and theological cycles, holding
through poverty and captivity their faith in a calling in history from an invisible
King, and their ultimate triumph, refused through every sacrifice wholly to merge
themselves into the empires around them, and thereby failed to obtain the vast
wealth which the traditions of these empires indicate, and of which the ruins of
their buildings and walls bear the trace,




892                 THE NATION.
there is a development in the ages in which it is formed;
in each age it has to contend with evils which are peculiar
to it, and as it rises out of a condition in which slavery and
violence and the worship of animal forms everywhere
prevail, it is through its own conscious struggle and
endeavor.
There is in the divine order the calling and founding
of the family. It is the unfolding of the relations of father
and brother and son. There is a careful tracing of their
descent in the simple succession of names. There are the
lives of those who lived as their fathers, and were
married, and had sons and daughters, and dying were
gathered to their fathers. Even the sins which mainly
are described in the book of the Genesis, are those in
which there is a violation of the moral unity and order of
the family.
There is then the record of the calling and founding of
the nation. It has its foundation in God, it subsists in the
I am-the everlasting Will. The revelation of God, in
the calling of the people, is as the God of their fathers.
The words which the leader, who was to go forth in the
beginning of their history, was to say to the people, were
those in which was the revelation of the Name in which
the nation stood,- "Behold, when I come unto the children of Israel, and shall say unto them The God of your
fathers hath sent me unto you, and they shall say to
me What is his name? what shall [ say unto them? And
God said unto Moses, I AM THAT I AM, and he said Thus
shalt thou say unto the children of Israel, I AM hath sent
me unto you." 1 The calling of the people was from God,
the nation is formed in no transient and no external circumstance, but in the Eternal, the I AM. It subsists in no
compact of men, but in the everlasting Will.
It was in this iname they were to confront the tyranny which was over them, and in it they were to stand
1 Exodus iii. 13, 14,




THE BEGINING AND GOAL OF HISTORY.       393
against all the tyrannies of the world. God was revealed
as the Deliverer. It was the redemption of the people;
their freedom was a divine gift. The words of triumph
were, "I will rid you out of their bondage, and I will
redeem you with a stretched out arm, and with great judgments." The words which are repeated beyond all other
memorials are, "Thou shalt- remember that thou wast a
bondman in Egypt, and the Lord thy God redeemed thee
thence."  The rest of the nation was in peace and freedom, and the goal toward which time was to bear them,
was the sabbatical year, the year of jubilee, in which they
were to "proclaim liberty throughout the land, and to all
the inhabitants thereof." 1
The succeeding event which is most impressive in their
history, and that came in the most solemn circumstance
of nature, was the witness to those elements, which can
never be separated in the being of the people in a moral
order. There was at Sinai, in the giving of the law and
the gathering of the people, says Ewald, a twofold significance: there was the witness to the sacredness of the law
and the sacredness of the people, - it was an holy law and
Go an holy nation."
The commandments presume the existence of the nation,
as they proceed to define its institutes in a moral order, as
the institutes of labor and rest, of property, of marriage.
But the people is to remember in its law'the living presence, the divine Deliverer. The preamble to the law,
which may never rightly be separated from it, is the declaration of their freedom as a divine gift; their freedom is in
identity with law and can never become the license in
which man is separated from God.
The land which the people were to possess was given to
them  from  God, and was appointed for them. They
were to hold it as an inheritance. Yet they were to learn
that its possession alone was not the condition of national
1 Leviticus xxv. 10.




394                   THE NATION.
life, that their national being was not the resultant of
physical circumstance. The unity of the nation was in no
visible bond, and was determined by no confine of land
and sea.  Their unity and continuity was in God, in the
revelation which He made to them, " I am the God of thy
fathers."
There is in no literature so deep an expression of the
existence of the nation as an heritage to be transmitted
from the fathers to the children, but the fulfillment of the
divine righteousness is always made the condition of the
permanence of the people in the land.
The education of the people through the centuries of
their moral and political advancement, was in the knowledge of the relation in which they stood to the visible and
the invisible world. They were learning in their national
wars and trials, and through all changes and crises, to look
to a Being who was not made in the likeness of things in
the heaven above or in the earth beneath, and to know
Him as their Law-giver and Deliverer and Judge.
The unity of the nation was not defined in any special
or temporal limitation. It was not limited to its existent
occupants; it was not shut up to " this bank and shoal of
time." The nation was not, as in the false civilizations
around it, defined in a merely physical condition. It was
not as those whose course was only that of a civil corporation, associated by some external fear, or to obtain an
individual and common external security, or to promote
external interests in pleasure or possession.  That was
the character of the material civilizations around them,
and if the nation was to lose itself in that, it was the
destruction of its life. It could not continue merely as
the civil commonwealth; if it had no aim beyond that, its
vocation as a nation was gone and it was undone. In
all its history it was in contrast to the surrounding civilizations. The condition, against the evil of which it was
the witness. began with the purpose " Go to, let us build




TIE BEGINNING AND GOAL OF HISTORY.       395
a city," and the unity it opposed was that determined in
the measure of the city walls, as if the origin of society
was in fear and distrust, and the end was an external
security through the division of men.  The nation was
formed in the relationships of life, and in the recognition
of a relation to an invisible one; it did not exist simply
as an accumulation of men and in the construction of
an external order.  The circumstance of its beginning
was not with the "building of a city," but on the wide
and open plains, and in the journeying through the sea
and the wilderness.   It was only after struggle, and
through trials and vicissitudes, in which there was the
recognition of laws, and the institutions of order, and the
common organization of the people, with noble memories,
and with far hopes for their children, that they came to
build a city. Then the memorials of the people were
gathered in it. Yet their unity was not in it, nor dependent upon it. The nation lived although its walls
were leveled to the ground, and the stones of its temple
were scattered and broken.
The life of the nation was through a course of moral
conflict and endeavor. It was not as in the civilization of
the Philistine-an animal existence, with faith only in
visible things and sunk in the worship of animal forms. It
was through unceasing wrestling with evil that its advance
lay. It was not formed in moral indifference. The awful
gates of the mountains were open before it, and through
them its journey led. It was tried in great crises. " The
Lord hath taken you and brought you forth out of the iron
furnace."
The national progress is one in which laws and institutions are acquired; there is the organization of justice,
and the form for its administration. Justice is to be executed.  "Judges and officers shalt thou make in all thy
gates, which the Lord thy God giveth thee, throughout
thy tribes: and they shall judge the people with just




896                  THE NATION.
judgment. Thou shalt not wrest judgment; thou shalt
not respect persons, neither take a gift: for a gift doth
blind the eyes of the wise, and pervert the words of the
righteous."l The maintenance of justice is necessary to
their continuance in the land.
The universality of law is affirmed- the requisition of
all men to a judgment by the law, and the equality of all
men before the law. It is repeated from page to page,
and there is warning against its denial, and the peril
of its forgetfulness. "One law shall be to him that is
home-born, and to the stranger that sojourneth among
you." 2 "One ordinance shall be for you of the congregation, and also for the stranger that sojourneth with you,
-an ordinance forever in your generations; as ye are,
so shall the stranger be before the Lord."3  "Judge
righteously between every man and his brother and the
stranger that is with him. Ye shall not respect persons
in judgment; ye shall hear the small as well as the
great; ye shall not be afraid of the face of man, for the
judgment is God's." 4 The words of the greatest of its
kings, in his farewell to the people, are, "The rock of
Israel spake to me,-he that ruleth over men must be
just, ruling in the fear of God."5  There is a singular
beauty, among sentences of lofty severity, in the imagery
in which the equity of the Judge is portrayed; his judgment must be clear as the light, " as a morning without
clouds," and yet, " as the tender grass, springing out of
the earth, by clear shining after rain."
The law is represented not as abstract, but as the manifestation of a righteous will, and therefore it is a power
which will not conform to the arbitrary schemes, nor subserve the arbitrary aims, of men. It is the affirmation of
t righteous will against the self-willed powers which would
rend society. It can be severed by no individual caprice
1 Deuteronomy xvi. 18, 19.  2 Exodus xii. 49.  8 Numbers xv. 15
4 Deuteronomy i. 16, 17.  6 Samuel xxiii. 3, 4.




THE BEGINNING AND GOAL OF HISTORY.       897
or individual interest.  The ruler is not above the law,
but is the minister of the law to maintain it unswervingly,
and is " to keep the words of this law, and these statutes
to do them, that his heart be not lifted up above his
brethren, and that he turn not aside from the commandment to the right hand or to the left." 1
The people in its organization was separated into communities or tribes; but there was one tribe dispersed
through the whole as the witness of its unity. Its existence was the witness that the strength of each stood in its
relation to the whole, and the strength of the whole in its
relation to an eternal King. It was arelationship. It
was only in the denial that the unity of the nation was
in the living and eternal Will, that they could be separated
from God, and therefore from each other. The unity of
the nation was not formal, that it should find in society an
external limitation in any organization. It was formed as an
organic whole. Aaron was chosen as the helper of Moses.
There is the guidance, the care and love which is
revealed to nations often in the darkest hours, and in
apparent defeat, through the providential history of the
people. There were the memorials of the renewal of the
nation's faith when it was assailed by foes without and
within. "I did bear you on eagle's wings;" and again,
"in the wilderness thou hast seen how the Lord thy God
did bear thee, as a man doth bear his son, in all the way
that ye went, until ye came unto this place."
The nation is inclusive of the whole people in its divine
foundation and its divine end. There is no difference of
wealth, or race, or physical condition, that can be made
the ground of exclusion from it. There is none in it that
can be isolated from the privileges and the duties of the
covenant in which it is formed. "Ye stand this day, all
of you, before the Lord your God; your captains of your
tribes, your elders, and your officers, with all the men of
1 Deuteronomy xvii. 19, 20.




398                  THE NATION.
Israel; your little ones, your wives, and the stranger that
is in thy camp; from the hewer of thy wood unto the
drawer of thy water; that thou shouldest enter into covenant with the Lord thy God, and into his oath which the
Lord thy God maketh to thee this day, for a people to
himself, and that he may be unto thee a God, as he hath
said unto thee, and as he hath sworn unto thy Fathers,to Abraham, to Isaac, and to Jacob." 1
The nation was to maintain a divine calling, which was
manifest through all its history. It had a work which was
its own and which it could not transfer nor abandon. If
it betrayed the purpose to which it was called, it was no
longer to have place in the power of history, but its name
was to become a name of scorn, a proverb and a by-word
among men, and it was to meet with shame and contempt.
It was not to be diverted from a moral purpose by a
lower object, nor to apprehend its end in the mere accumulation of material wealth, nor in the satisfaction of a
physical existence. There was the most solemn warning
against the gathering of wealth and possession for its own
sake, and against the forgetfulness that it was the gift of
God and involved duties and obligations.1 The moral obligation which was manifest in the calling of the nation,
was to be maintained in its, immeasurable supremacy, as
beyond the acquisition of wealth, and to be guarded that
it should not be lost in some selfish end. "The graven
images of their gods shall ye burn with fire; ye shall not
desire the silver or the gold that is on them." 2
The nation was formed in the conditions of a moral life,
and there were powers to be employed and energies to be
unfolded.  Its freedom  was wrought through a divine
deliverance, but as in the nature of freedom, it was not
in the mere apathy and passivity of the spirit, it was not
1 Deuteronomy xxix. 10, 13.
Milton says of Deuteronomy xxviii.: " A chapter which should be read again
and again by those who have the direction of political affairs." — Treatise on
Christian Doctrine, etc., ch. xvii.
2 Deuteronomy viii. 11, 18.




THE BEGINNING AND GOAL OF HISTORY.     399
the invitation to repose. It came with the opening of the
waves of the sea and the long march, and as men were
bidden to "flee by night and by day."  Their Passover
was to be eaten by men with their loins girded and their
staff in their hands, - "ye shall eat it in haste."
Since their course was a moral discipline, every diversion
from it was to bring divine judgments upon them, as they
had come upon the peoples around them, and these judgments were not in their separation from other peoples but
in the manifestation of a universal law. In the forgetfulness of their vocation the doom which had come upon these
corrupt communities was to come upon them. "And it
shall be if thou do at all forget the Lord thy God, and walk
after other gods, and worship them and serve them, I testify against you this day that ye shall surely perish. As
the nations which the Lord destroyeth before your face, so
shall ye perish, because ye would not be obedient unto the
voice of the Lord your God."
The progress of the nation through its own vocation is
in the realization of a moral being and order. As it has
its own work in its own place and age, there are institutions and regulations especially adapted to it which are
transient and local. It is formed in the life of the spirit,
and is not to be merely the exposition of a system of unchanging laws and regulations. It is thus that there are
laws and regulations which are moulded in the measure of
the development of the nation, and thus it is said that
Moses gave them certain forms and regulations for the
"hardness of their hearts;" - not for their wickedness,
which only judgment can follow, but for their rude and
obdurate condition. And everywhere there was violence
and slavery and rapine and war, and private revenge, and
there were evils which were the special characteristic of
the age. These were not the institutions of the nation,
but they prevailed everywhere on the earth, they were the
wickedness in which the world lieth. Thus slavery was




400                 THE NATION.
not the creation of the law of the nation, but already exo
isted, and the laws and institutions of the nation tended to
ameliorate its condition, and ultimately to abolish it. Thus
also war and private revenge were not the institutions of
the nation, but the nation in its own being was in conflict
with them, and its normal process tended to their removal.
The nation was called out of a condition of slavery into
freedom. It might not, since it was formed in the conditions of history, remove these evils in one moment, but
its whole course, its institutions and its order, tend to their
mitigation and ultimate extirpation.  Thus against wild
and unchecked private revenge, it opens cities of asylum,
and to a system of slavery it places as a terminus the sabbatical year, which is hailed as the year of jubilee, and
while they are called to battle, and confess One who is
with them in the battle, that they shall not turn nor be
affrighted at their enemies, yet they look forward to the
time when there shall be "peace in all their borders."
There is in the progress of the nation the ampler recognition of its calling. It was to bear witness to a divine
King and Deliverer and Judge, against those who would
subject the spirit of man to the things which are seen. It
was to bear witness to a righteous Will, which would establish righteousness on the earth, against those who assumed
only a momentary and transient will, or the self-will of
men. It was to bear witness to Him and his righteousness
against those who corrupted society, those who took bribes,
those who removed landmarks. The nation was the witness that these could not have their own way on earth,
that there was a righteous Will which would regard them.
And if the people were in complicity with these, the judgments. they had uttered against others were to fall upon
themselves. There was then for them a plague of fire and
a plague of blood; that two-handed engine at the door,
which smites once and smites no more.
The nation is formed as a moral person. The elements




THE BEGINNING AND GOAL OF HISTORY.       401
of the deepest personal being are ascribed to it, and there
is no personal quality but is demanded of it. The condition of the moral judgment pronounced against it is in its
being as a moral person. It exists in the working out of
a divine vocation and a divine election in history. Its conscience is not the reflection of a law of expediency, a mere
empiric graduated by expectations of profit and loss, but
the voice of very God speaking to the nation in and
through its history. Its work in righteousness was not in
the conformance to an abstract law, but in the fulfillment
of a living, a righteous and eternal Will.
The nation is represented as a moral person. It is declared to be a holy nation. It is called of God; it is called
to be holy as He is holy. In view of the evils in the land,
to call it a holy nation may seem most unreal. The imbecility of the ruler of a people, the fraud and betrayal
introduced into the election of a ruler by a people, the subjection of the individual conscience to the ends of parties and
sects, the prevalence of corruption and bribery and robbery
among rulers and legislatures, may seem often to bring a
doubt of the reality of a divine government on the earth,
and to contradict the assertion that the nation is a moral
being, and is formed in a divine relation. There is no
concealment of the evils spreading through the land by
those in whom this assertion is clearest. It is said that
"there is no truth and mercy or knowledge of God in the
land; by swearing and lying and killing and stealing and
committing adultery, they break out; it is like people like
priest, and the prophets are with them; the king is glad
with their wickedness, the king is a drunkard." 1 The
prophet who had declared this condition, yet could declare
that the nation existed in a relation to a divine King, and
it was this which made the revolt and the corruption of the
land so fearful. In its sin there was the violation of the
law of its life, the contradiction of its being. It had been
1 Hosea iv. 1, 2; viii. 3.
26




402                      THE NATION.
called a holy nation. It was bound by holy bonds in a divine relationship. It was brought into a holy estate. In
the relationship in which it exists, there is the revelation
of its true being and the witness to its unity. The representation which is the sign of its relation to its divine
Lord, illustrates the nature and the effect of the sins of the
nation, the root of its crimes and the result. They are
denounced as the adulteries and the whoredoms of the
people. There is the violation of the bond in which its
relation is defined. It was the faith that the nation was
a holy body, and that it was constituted in a holy relationship, that was the strength and stay of the prophets in
the darkest hours. In its analogy with all human relationships, the prophet who gave expression to the divine relation of the nation, was one who was to learn in his own
life the truth which was his rest in the evils of the age;
when his own house was made desolate, he could not forget that it was a holy bond which bound him to her whose
crime was the contradiction of the relation which still in
its nature was sacred, and the memory of the past and the
existent relation to his children, remained as the evidence
to him   of this; in   this there was the reconciliation of
the words which he could utter in the deepening wickedness of the land. The strength of the nation was always
in the faith that it was a holy body, that it was formed in
a holy relation, that in its very being it was in conflict
with the corruption and crime and violence that filled the
earth.1 The peril was always in its forgetting or denying
1 See Maurice, Prophets and Kings, pp. 196-230.
"These bonds might be regarded as artificial and imaginary; they would be
regarded so the moment the nation had become incapable of counting anything
as real that was not visible; the moment it had passed into an utterly idolatrous condition of mind. But their reality would be proved by the gradual dissolution of all other bonds; by the growing tendency in the members of the
nation to deny that they stood in any relation to each other; by the practice of
the majority assuming that each man lived for himself; by the strength and
popularity of doctrines which justified that practice; by facts which showed
that those who treated the divine covenant as a fiction became themselves the
sport of every fiction." -Maurice, Prophets and Kings, p. 205.




THE BEGINNING AND GOAL OF HISTORY.      408
this, or seeking its end in some merely material advancement, in which it could no longer contend with the evil in
the world. It was the fact that it was a holy nation, that
was the source at once of the hopes and the warnings of
the prophets. And in evil days, and the most disastrous
periods, and in the most utter corruption, when bribes were
taken by those in power, and unjust judgments were rendered, and fraud and oppression and violence filled the
land, in the character of the judgments pronounced upon
the nation, its nature is revealed. In the awful light of
the moral judgments which fill the burden of the prophets, there is alike the manifestation of its real being, and of
its eternal relationship, and its divine estate, and its ancestral honors, and the glory it had known, as well as its
weakness and pollution and shame.
The course of the nation in history was not itself without illustration of the foes which threaten its destruction. In a later age it was endangered and at last it was
divided by secession.  The crisis is represented as the
consummation of a wickedness which had been increasing
in the land; and when the event actually followed, it was
but the external manifestation of the sin to which the people had yielded a dominion over themselves. It was in
its action and its result the culmination of great crimes.
It was when the people had lost their faith in an invisible
king, and had sunk into an idolatrous condition of mind.
It was when the consciousness of the unity of the nation
and its continuity in God had become utterly obliterated.
Then its disseverment came from God; the real unity and
continuity of the nation in God was already no longer
acknowledged, but in its stead only the artificial bond of a
formal organization, and there remained only faith in visible things, and the idolatrous condition which is its sequence. There was no longer the consciousness of the
divine guidance of the nation and its divine vocation in
history, and a living relation in it of the fathers to the




404                   THE NATION.
children; and the actual secession was then only the outcoming of the actual moral dissolution of the people. The
continuance of an external order and decorum might only
conceal, while there was no effort to overcome, the internal
corruption and the evil consuming all within. But the issue
of the event is manifest in the most awful judgments of
history. The record is borne on with the heavy burden
of the sorrows of the people through all the centuries.
There came, as the spirit of secession disclosed its consequences, the loss of all consciousness of a relation to the
past, and of the unity and continuity which was in the
divine will. The leader whose personal ambition was
foremost in the secession, and through whom it was effected, was always referred to in the long refrain, which
is repeated by the prophets from year to year, " Jeroboam
who made Israel to sin;" and of succeeding kings it is
said, "he walked in the way of Jeroboam and of his sin,
wherewith he made Israel to sin."  The narrative of those
who seceded is one of rapid and of deepening degradation,
checked by no higher purpose and stayed by no regenerative power. It closes at last in their overthrow and utter
destruction. Their idolatry becomes more gross as they
sink into a merely animal condition, and as in the empires
around them, there is only the recognition and worship of
the animal world. Their leader made images of gold,
saying, "It is too much for you to go up to Jerusalem: behold thy gods, O Israel, which brought thee up out of the
land of Egypt." 1 In the judgment which comes, they are
themselves divided and swept utterly away. The most
fearful imagery lifts the veil, which falls, not to be lifted
again. " The Lord shall smite Israel, as a reed is shaken
in the water, and he shall root up Israel out of this good
land, which he gave to their fathers, and shall scatter them
beyond the river. And he shall give Israel up, because of
the sins of Jeroboam, who did sin and who made Israel to
1 1 Kings xii. 28.




THE BEGINNING AND GOAL OF HISTORY,       405
sin." 1 The result of the secession has the deepest historical significance. There were associated in the secession
ten tribes, and only one tribe remained, but the nation itself
was not therefore utterly to perish. Its historical work
is continued in the one tribe that remained of all the people, and the vocation of the nation and the divine covenant with the fathers in which the nation stood was fulfilled with it. In it there is the unfolding through the
advancing years of the purpose of the nation in the world,
and in it alone there is maintained an unbroken relation
with the past and the future, in the greatness of their ancestral memories and their immortal hopes.  Although its
life as a people is never again to be what it might have
been, yet with it is the history of the people fulfilled. The
record of the seceding tribes is one of uncertainty and of
gloom deepening in its intensity, until at last they are
hidden from sight and pass into outer darkness, beyond
the line in which is the development of history.  Their
steps are gradually obliterated, and there is at last no
vestige left. The search for them is a vain and idle inquiry, and becomes the fool's errand of history.  To the
darkness that overtakes them there is no uplifting.
The immediate result of the spirit which led to the separation of the people, appears in the formation of confederacies. It is the working of a confederate spirit. It is
the sequence of secession, and involved in the evil which
had led to the dissolution of the whole.2  The wars which
follow  are unrelenting and conducted with a hostility
which allows no ground of reconciliation. These wars are
to settle no question of boundaries, nor are they for the
adjustment of interests which had been held in common,
but the aim of each is the utter extinction of the other.
They engage for this object the aid of enemies, with whom
the nation had contended in all its greater epochs. They
seek the intervention of foreign powers, and league themI 1 Kings xiv. 15,16.         2 2 Kings xvii. 22, 23.




406                      THE NATION.
selves with foreign kings. The treasures of the temple,
which was a witness to their unity, are plundered to hire
the aid of foreign mercenaries. In these confederacies the
seceding tribes are lost, and their record is ended with the
words thrice repeated, "The        Lord  removed    them   out
of his sight," and it is only said of them, " He delivered
them into the hands of the spoilers, for they walked in the
sins of Jeroboam, which he did; they departed not from
them, until the Lord removed Israel from out of his sight,
as he had said by all his servants, the prophets." 1      Yet
on to the close - and there is scarcely any event of deeper
pathos, -  the witness that the foundation of the unity of
the nation was not in self-will and a self-seeking spirit, but
in sacrifice, is continued; wherever the true altar is built,
it is still always of' twelve stones, according to the number of the tribes of the sons of Jacob." 2
The nation is represented as formed in a divine relation.
It is not constituted in the distinction of a race, nor in
that is there the comprehension of its unity and its aim.
In its development it is not determined by a racial law.
The glory of its history is not the pride of a race. There
were events of the most impressive circumstance in their
beginning, to attest that the nation was not born of the
flesh, that it was not comprehended in a physical relation
to a certain ancestry, and that its continuance was not defined in a certain line of physical descent.      The warning not to identify the nation and its rights and privileges
1 1 Kings xviii. 31, 33.
2 " The confederacy of the Samaritans with the Syrians against Judah, was encountered by the confederacy of Judah with Assyria, against Israel. It was no
mere border war. Each sought the extermination of the other. These confederacies denoted the spirit at the root of all the crimes, which the Prophet had
deplored and denounced.
" The present scheme of Samaria to extinguish its rival even at the cost of
giving an ascendency to the uncircumcised king of Damascus, showed clearly
enough that the last link of brotherhood was broken, because the last feeling of
the divine calling which had made them a nation was gone." - Maurice, Preophets
and Kings, p. 249.




THE BEGINNING AND GOAL OF HISTORY.       407
with a physical succession, stands in awful solemnity in
their history, as if in its clear outline wrought in the strong
lines of some sculpture, against the stillness of the desert,
when the only one in the line of its physical descent, the
child of the bondwoman, went forth into the solitude. It
was not the child of the flesh, but the child of the promise that was the inheritor of the national covenant. Those
whose distinction was only that of a race, were to pass into
a merely tribal condition, as the Ishmaelite. In the assumption of its precedent in a racial character, the nation
was severed from its divine foundation. Then Abraham
and not God was regarded as the founder of the nation.1
In the assumption of its foundation in a physical condition,
and its unity and continuity in a physical basis, it became
as the heathen around them, and had no other ground
than they. The nation was formed in the divine covenant;
its conception was lost in that ethnic claim. Thus their
first great statesman made the pride of race and the distinction of physical descent, the object of scorn, and gave
expression to it in indelible forms in the service of the
people. They were bidden to bring gifts of the fruits of
the earth to the altar, with the words, " a Syrian ready to
perish was my father."2    There can be. scarcely any
measure for the contempt in these words, when a Jew,
representing the nation as formed only in a physical condition, is described as a Syrian, and his great ancestor as
one "ready to perish." And by all the prophets this pride
is denounced, and in the larger humanity of its later ages,
there is the ampler expression of the worth of a man.
There is the assertion that in assuming a national foundation in the possession of certain racial powers, and claiming
it through a pedigree to Abraham, there is the rejection
of the divine relation in which the nation subsists. It
is a journeying with one who is driven into the solitude
1 See Maurice, Prophets and Kings, p. 309.
2 Deuteronomy xxvi. 5.




408                  THE NATION.
of the desert, and there is no promise beyond. The denunciation of this claim is sometimes repeated, as if in it
there was the loss of all which the nation in the fulfillment
of its promise could bring, and its end was to be realized by
those who were aliens from the house of Israel,-"' Doubtless God is our Father, though Abraham be ignorant of us,
and Israel acknowledge us not."  And when, as the national spirit was decaying, the pride of race became more
and more exalted, the last of its prophets was to say to
them  in the streets of their cities, "God out of these
stones can raise up children unto Abraham."
The nation is represented from its beginning, as in its
being, in contrast to a false and material condition. It is
the conflict of the nation with the spirit which would build
a Babel upon the earth. It is a society which is of divine
institution, and formed in its unity and continuity in a
divine relation, and in the realization of relations in humanity, in contrast with a condition in which fear and
self-interest and ill-will are the prevailing motives in the
combination of men, which is constituted in the confederation of separate interests, and for the pursuance of
selfish ends, to subserve only the pleasure or the possession of men. It is the battle borne on through the centuries of a society which is formed in the recognition of a
divine vocation, and of a law of righteousness and freedom, with the forces of dissolution. It is the great battle of humanity with all that oppresses and degrades it,
-the battle of Judsea with Babylon.    The one apprehends humanity as it is in the divine image, and its rights
and its sacredness which society is to realize; the other
assumes in humanity an existence only in the physical
course of nature, and would stamp upon it the image
of a Babylonian spirit. The one is the life of the nation,
which can only build on the divine foundation; the other
would build of its own materials, the brick and mortar
which it has gathered, a city which will reach from the




THE BEGINNING AND GOAL OF HISTORY.       409
earth to the heavens. It is this with which the nation has
to contend in every age, -the spirit which, confessing
only a material bond, will bring men at last to worship
that.
The formation of the nation in its moral being and
order, is the source of the sacredness which attaches
always to the land and the capital, and the public memorials and the great events in the history of the people.
Their sacredness was derivative from their association with
the nation; but the latter was not conditioned upon them.
The land was sacred, but they were constituted as a nation
before they entered into the possession of it; and there
was promised to the nation a permanence beyond that of
the mountains and the hills. The events in their national
history were the witness of the divine presence, the sacraments of the Lord of Hosts. The capital was the holy
city, and yet it was not until far on in their history that it
was built, and they were to learn that the foundation of
the nation was not in the stones which they had laid, and
that its unity was not defined in city walls. The work of
history was to be wrought in the advance of the nation,
and its triumph was in the exultant anthem, " Open ye the
gates, that the righteous nation which keepeth the truth
may enter in."   The nation persisted through all the
vicissitudes of time. The hope of the Prophets was that
it was immortal. It was sustained through conquest and
captivity. There were those who kept its ancient truth,
when they were driven to the secret heights of its mountains, and its life did not wholly perish in oppression, or in
the interruption of its government, or the destruction of
the city, or the leading away of the people into strange
lands. There was still in the most evil days a remnant left.
Through changes, in which the whole external fabric and
the institution of its government was destroyed, there continued the being of the nation. Its life was beyond the external and the formal constitution, and was not conditioned




410                   THE NATION.
upon that. It was the spirit of Pharisaism, - and it was
originally a political Pharisaism, which holding in identity
the moral and the legal, attached a sacredness only to the
latter, - the letter of the law, - and conceived the life of
the nation as conditioned upon that.
The process which sought its conclusion through the
synthesis of political science and the formal definitions of
politics, comprehends no representation of the nation as it
is found in the record of the first nation.  The terms of a
formal method are poor and empty before its realism. A
writer, who may be taken to represent recent phases in
political thought, has described the influence in politics of
what he calls " the sentiment of nationality." 1  The analysis of the nature and effect of the " sentiment of nationality," offers no guide to the interpretation of history in
the past or in the present age. There is in this ancient
record the presentation of the being of the nation in its
origin and its realization in the life of humanity. There
is the manifestation of the nation, not as the resultant of
individual desire or emotion, nor as comprehended in the
definitions of a formal science or in the forms of law, but
as in its realization in history.
The law and the principle which are presented are universal. They are held in no restrictive conception as in
the notion of the ecclesiast, but are sustained in a universal
conception.' The prophets hold in them the interpretation
of all history. They allow no other, but apply these to
every people, and in their light alone they judge the widest
sweep in their political horizon.  The supremacy of their
principles is presumed in their universal character. They
are declared to be universal, and to show the ground of the
life of every nation.2
1 J. S. Mill's Representative Government, ch. xvi. on "Nationality."
2 Jeremiah viii. 7, 10.
There is no form and no external order for the nation which is divinely given
as alone valid. It is sometimes said that since the Christ is represented as a King,




THE BEGINNING AND        GOAL OF HISTORY.             411
The nation in its historical life and calling moved toward
the coming of Him       in whom     there was the manifestation
of the real- the divine life of humanity. The work of
Judsea and Greece and Rome had its unity in the Christ,
who is the centre of history.        The title written of Him      in
his perfected sacrifice, was the King of the Jews, and the
words to which history was to bear witness in the ancient
nations, were written      in Hebrew, and Greek, and Latin.
And as the life of the first nations was, so also shall that
of the last nations be. As it was toward his coming that
the nations of the ancient world moved, so toward              Him,
and still in his coming, do all the nations move.
and his power in the world as a kingdom, that therefore the form of a monarchy
is to be universal, and again from certain expressions in the Prophets, especially
in Jeremiah, that the authority is to be that of an elective magistrate, as in a
Republic; but the lesson constantly repeated is not of the special validity of an
exact and prescribed form, but that the form-is moulded by the age and by the
spirit of the people, and the nation persists through changes in its external order
and administration, and its continuity is maintained through them but is not
conditioned upon them.
On the universal application of the representation in the Old Testament, and
its relation to the character of the individual, Mr. Maurice says: "I apprehend
that we shall learn some day that the call to individual repentance and the
promise of individual reformation, has been feeble at one time, productive of
turbulent violent transitory effects at another, because it has not been part of a
call to national repentance, because it has not been connected with a promise
of national reformation."
" We must speak again the ancient language, that God has made a covenant
with the nation; if we would have an inward repentance, which will really
bring us back to God; which will turn the hearts of the fathers to the children,
and the children to the fathers; which will go down to the roots of our life,
changing it fiom a self-seeking life into a life of humility, and love, and cheerful
obedience, which will bear fruit upward, giving nobleness to our policy, and literature, and art; to the daily routine of what we shall no more dare to call our
secular existence."-Prophets and Kings, p. 404.
Mr. Disraeli says, - and this is presented as a principle of universal application
in the life of nations, and not in the definition of a racial law, and it is not the
language of a mystic or an itinerant thinker, but a statesman who has embodied
his thought in the real process of the state, " It may be observed that the decline and disasters in modern communities, have generally been relative to their
degree of sedition against the Semitic principle. England, notwithstanding her
deficient and meagre theology, has always remembered Zion. The, great
transatlantic Republic is intensely.Semitic, and has prospered accordingly.
This sacred principle alone has consolidated the mighty empire of all the
Russias." —Life of Bentinck, p. 81.




412                  THE NATION.
The relation of the Hebrew and the Christian nation is
not one of difference, but of development. It has its condition in the higher and ampler revelation. The one was
governed by an invisible ruler, and moved toward his coming; the other is governed by a ruler who has manifested
himself to the world, and is coming in the world. The
one looked with faith toward his coming; the other looks
to Him as to one whose power has been revealed on the
earth and in its redemption. The one was subject to an
external authority,-the " Thus saith " of the divine word;
the other is subject to a law which is manifested in the
spirit, it is written in the minds and in the hearts of men.
The body has become a temple of the spirit. The word is
uttered not from heaven above, but is nigh unto men and
on their lips. The work is to be the fulfillment of the law
of the Christ Who is the only and the actual head of the
state.
There is always a tendency to return to the Jewish or
Grecian, or Latin form, but it is in the denial of the real
presence of the Christ,-the rejection of the only and
the actual King. In this reaction the nation loses its
spiritual power, it is merged in a mere formalism, and is
no longer in a living relation to a living and eternal Will.
The law by which the nation is judged, is the lawwhich
the Christ has revealed in his humanity. In Him the divine
unity and the divine relations of humanity are revealed.
He has shared the life of man, - the life of every man. In
Him humanity is manifested in that infinite sacredness
which it has in the divine and eternal image. It is only
as the nation recognizes the law of humanity which He
has revealed that it attains the realization of its being.
It is only as the nation acknowledges in history the infinite
worth of humanity which He has manifested, that it can
become a power in history, which is but the realization of
the divine redemption which He has wrought.1
1 Matthew xxv. 32, 45.




THE BEGINNING AND GOAL OF HISTORY.       413
The crises of the progress of nations in the deliverance
of humanity, are described in the sign of his power, -
they are the days of the Son of Man, who is revealed as
the eternal conqueror. In the overthrow of the tyrannies
which have oppressed and degraded men, and of the lies
and frauds by which nations have been deceived, and in
the rising of new hopes, and the unfolding of new energies, there is the advent of the Christ, — the coming of
the Son of Man.
The only foundation then upon which man can build in
the life of the individual or of society, is'in Him; "other
foundation can no man lay than that which is lying." It
is in the law which is revealed in the Christ that the solidarity of human society is manifested. It is formed in no
selfish principle. It becomes evident that no man liveth
for himself. Each is the minister of the whole. In the
profound words of M. Comte, it is seen that "6 to live for
others," is but another form "of living by others."  The
paradox is verified, he that loseth his life shall find it. The
foundation is that which the builders rejected. The.corner-stone is not in slavery, but in Him who died on this
earth as a slave, that He might redeem all. It is the power
which is manifested in sacrifice, and the law of service is
the law of power. It is the mightier power, and " on
whomsoever this rock shall fall it shall grind him to powder."
The nation is lifted above the divisions and distinctions
of race. There is the assertion of the physical unity of
humanity, and of the divine determination in the times of
the existence and the bounds of the dwelling of nations.1
And the people that comes to believe that there is a purpose in the ages, will watch the "' signs of the times," for
the attainment of the purpose which is given them, and
In the faith that their boundaries in the fulfillment of their
vocation are divinely appointed, they will guard them wello
1 Acts xvii. 26.




414                  THE NATION.
The nation is formed as a power on the earth. It is
invested with power of God; its authority is conveyed
through no intermediate hands, but is given of God. It
is clothed with his majesty on the earth. It is ordained
of God to do his service. It is 0oE  t &aKovos.1
The realization of the redemptive purpose in history is
represented under a political form. The Christ is a King,
and the realization of his redemptive work is a kingdom.
The type expressive of his power is drawn from the political life of man. But there is in this only the assumption
of the political form which had attained the most nearly to
a universality in history. The divine power has, in the
Christ in this form, only its earthly representation. It is
the power of one who, in his own divine and eternal being,
is the only source of power.
The end toward which the nations in the earlier ages
moved, and toward which all the nations move, —the centre
of history, -is the Christ. The revelation is in a Person.
The manifestation which kings and prophets waited for,
and which all the types and traditions of the hope and
longing in history foreshadowed, is in the divine Person.
The revelation is not in a divine system, nor a divine form,
nor a divine idea. In the divine relationship, which is
manifested in the Father and the Son and the Spirit,
there is the foundation of humanity and the realization of
the human personality. In the Christ there is the manifestation of the divine origin and relations of humanity,
and the eternal life which is given to it; in Him it
overcomes the evil of the world, and is victorious over
death, and in the power of the resurrection is risen with
Him, and as.cending with Him, is glorified with' Him in
the glory which He had with the Father before the world
was. Its life is still only in the realization of personality,
-in the obedience to his will, in the doing of his work,
after the law which He in his own person has revealed.
1 Romans xii. 5.




THE BEGINNING AND GOAL OF HISTORY.         415
In this only there is the reconciliation of freedom and law,
the law of the spirit, the law which is laid in personality;
in this only does personality subsist in those relations
which are necessary to its being; in this only there is the
unity, without the contradiction, of humanity and personality. Therefore the nation, as it has its end in the moral
realization of the life of humanity, is to regard each individual person also as an end, for there is for each the infinite
sacredness which is revealed in the Christ, - the Life of
humanity.   The Christ who is declared to be the head
of humanity "is the head of every man."    In the Christ,
there is the unity and foundation of humanity in its divine
origin, and the realization of personality is in its redemptive life.
In the Christ there is the revelation of the divine life of
humanity. It is held in no abstract and formal conception as the evolution of a logical sequence; it is held in
no vague and empty conception, as in an unhistorical
existence; it is the resultant of no numerical estimate;
it is no indefinite and unlimited being in which the consciousness of the individual is lost; but there is the revelation of humanity in its realization in personality, in its
divine relations. In the Christ as the Prophet, and Priest,
and King, there is alone the source of the prophetic, and
priestly and kingly powers in humanity. The comprehension of humanity in an isolated individualism is false and
unreal. It is the source only of an evil egoism. It is the
lord of division.
It is only as the nation has for its end the fulfillment in
its moral being of the life of humanity, that it has its realization in history. It is in its work alone, in the fulfillment
of the will of the Christ, that it becomes a power in the
realization of his redemption, which is the life of history,
and in which humanity alone has the foundation of its
unity. The work which is for humanity, in its simplest
and widest form, is the work for and of the Christ; he




416                 THE NATION.
has himself declared his very oneness with humanity, as
the law by which the nation is to be judged.1
The nation is to work in the realization on the earth of
his kingdom, who is the only and the eternal King. It
becomes then no more the kingdom of this world, but the
Kingdom of Him whose reign is of eternal truth, —the
reign in which, in the realization of personality, there is
the freedom of man. Its advance is only in his advent, its
destination is toward Him. Its new ages are the days of
the coming of the Son of Man.  Its freedom is only in his
redemptive strength. It is no more the life of the first
man, of the earth earthy.
The nation in the last as in the first age, has still the
source of its strength only in its relation to its divine Lord.
The danger is still in the denial or forgetfulness, in a material existence, of this relation. The representation of the
sins of Judaea, in their principle and their effect, is that of
the sins of every nation. In the violation of the divine relation in which the" nation is formed, and the rejection of its
covenant, the sins of the nation are denounced as its adulteries.2
The conflict of the nation is still borne on to the close
of history in the antagonism to a false civilization. It is the
conflict with a material civilization which would build on
the earth a Babylon. It is as the nation yields to the spirit
of a Babylon that there is the loss of its freedom and its
moral being. It is described as one who is enchanted and
demented and besotted and deceived, as " drunk of the
wine of the wrath of her fornication."  It is only as it contends against this spirit that it becomes a power in the
moral life of history, that it follows with the armies of Him,
who "in righteousness doth judge and make war."     In
Him the victory whose sign of conquest is the coming of
the Son of Man,- the victory of humanity, - is assured.
The imagery illustrative of the most actual condition, por1 Matthew xxiii. 45.           2 Revelation xviii. 3.




THE BEGINNING AND GOAL OF HISTORY.       417
trays the downfall of Babylon in the battles of the centuries.
It is described as invested with the circumstance of a false
and material civilization, "the great city that glorified
herself and lived deliciously," that saith,'I sit a queen,
and shall see no sorrow," that was " clothed in fine linen
and purple and scarlet, and decked with gold and precious
stones and pearls," but in its doom "with violence shall
that city be thrown down," for " by thy sorceries were all
nations deceived."  It is no distant city, so dim and unreal
as only to be wrought in spectral imagery, and no imaginary strife, as if fought by phantom armies, and no war of
ideas in some intellectual field. It is the reality of history,
it is "a city whose merchants were the great men of the
earth," and in its overthrow " the company in ships and
sailors, and as many as trade by sea, stood afar off, and
cried when they saw the smoke of its burning, saying,'what city is like unto this great city.'  The language
which denotes its character, presents no type of individual
passion or action, no ideal state, no mystic city of the soul,
but it is the type of an inhuman, a material civilization.
The victory over it is in the deliverance of humanity, and
yet in the description of those who fall upon its battle-field,
there is only one word to indicate the moral character of
the battle fought, - " there is the flesh of kings and the
flesh of captains and the flesh of mighty men, and the flesh
of horses and of them that sat on them, and the flesh of
all men, both free and bond;" and in the schedule of trade
which is given with such detail, as if to compel attention
to its real character, there is only one word to indicate its
moral condition, -' the merchandise of gold and silver,
and precious stones, and of pearls, and fine linen, and purple, and silk, and scarlet, and all thyine wood, and all manner of vessels of ivory, and all manner of vessels of most
precious stones, and of brass, and iron, and marble, and cinnamon, and odours, and ointments, and frankincense, and
wine, and oil, and fine flour, and wheat, and beasts, and
27




418                   THE NATION.
sheep, and horses, and chariots, and slaves and souls of
men. I
The goal of history is in the fulfillment of the highest
political ideal. It is the holy city; it is the new Jerusalem, the end of the toil and conflict of humanity.  There
is the manifestation of God as the centre of the moral universe.  Of that vision it is written in the book which of
all others has the voice of anthems and the swell of liturgies, -and amid the confusions of sects and opposing ecclesiasticisms the words are as those of peace, -"I saw
no temple there."   There is the unity of the universe
which has been revealed in the eternal sacrifice, -" the
glory of God doth lighten it, and the Lamb is the light
thereof." It is toward it that the nations move in the
fulfillment of the life of humanity. It is written of the
holy city, "they shall bear the glory and honor of the
nations into it." 2
The conflict of the ages of humanity is closed. The
battle is ended in eternal triumph. The humiliation has
passed into the glorification of the Son of Man, and in that
eternal relationship with the Father and the Spirit there is
for humanity the realization of that glory which He, who is
the Son of God, had before the world was.
The nation is to work as one whose achievement passes
beyond time, whose glory and honor are borne into the
eternal city. It is not here that it may look for its perfect
rest. It has an immortal life. It is no more a kingdom
of this world, but it is formed in the realization of the
redemptive kingdom of the Christ.  The leaders and the
prophets of the people can only repeat the ancient lesson,
"He is come,'and unto Him shall the gathering of the
people be."
1 Revelation xviii,             2 Revelation xxi. 26.