The nation : the foundations of civil order and political life in the United States

Front matter

€u

Class.

Book

CHAPTER I. PAcn The Substance of the Nation ...... 1

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.

CHAPTEK n.

The Nation as Defined in Theories 24

The nation is represented as

1 . A necessary evil.

2. An historical accident.

3. A jural society.

4. An economic society.

CHAPTER m.

The Origin of the Nation as Defined in Theories . 37

It is said that its origin

1 . Is in the development of the family. :^

2. Is in mere force or might.

3. Is in some instinct or emotion of man.

4. Is in the social contract : historical genesis of this theory.

5. Is in popular sovereignty.

CHAPTER IV.

The Origin of the Nation 54

1. The nation is of divine foundation : analogy with the family.

2. The evidence of its origin : —

CONTENTS.

a. In its moral being and personality.

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 ol Mr. Maine — of Mr. Buckle.

CHAPTER VI.

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 aud political rights.

1. Civil rights, a. Of life. 6. Of liberty, c. Of property ; its repre-

sentation in legal formulas of Savigny, of Blackstone ; its 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 Vn.

The Nation the Realization of Preedom .... 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

PAQB

It is the assertion of the self-determination of the people in the

nation as a moral organism.

The realization of Freedom in Rights. a. It is construed in Rights. 6. It is formed in institutions.

On the representation of political freedom in different theories. On the assumption of freedom as existent before the organization of society.

CHAPTER VIII.

The Sovereignty op 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 intei'national relations, by treaty, etc.

4. The right to coin money.

5. The right to eminent domain.

CHAPTER XI.

The Nation and its Normal Powers 171

The legislative, executive, and judicial powers : note on the historical definition of these powers in political science.

Xll CONTENTS.

PAOH

These powers are: a. Organic. b. Coordinate. c. Coexistent.

a. Correlative.

The distinction in these powers.

The defect in the representation of their division : the argument of

" the Federalist."

The relation of these powers to the physical force of the nation : the

military. The declaration of martial law, or the suspension of

the habeas corpus.

a. The legislative department.

b. The executive department.

c. The judicial department.

On the relation of the judiciary to the legislative power : the political province of the judiciary.

CHAPTER XII.

The Nation and its Eepresentative Constitution . , 210

The representative government.

The principle of representation as defined in theories : that the government is formed : a. In the representation of interests. 6. Of families, c. Of numbers, d. Of pi'operties 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 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. XIU

CHAPTER XV.

PAOB

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, h. The commonwealth.

c. The nation : Note on the historical growth of this conception in political science •

Aristotle. Hegel.

The commonwealth is

a. The civil organization : it is defined in the jural relations of so-

ciety.

b. The economic organization : it is defined in the necessaiy rela-

tions of society.

It is constituted in the maintenance of civil rights and civil order. Its procedure is in the common law.

a. The unity of the commonwealth.

b. The scope of the commonwealth.

Its historical growth. Its illustration in the constitution of the 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. 6. The nation is external to the commonwealth.

The commonwealth is the civil corporation. Its formal rights.

The concurrent powers of the nation and the commonwealth.

The law of their relation.

The commonwealth as defined in theories, a. They are vast 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 op the Confedekact . , 321

The confederate principle.

Its definition b^ 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 XVin.

PAca

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 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 histoiy. 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,^ —

" No tribe, nor state, nor home hath he." 1 This imaginary state is drawn by the old counselor, in the Tempest: —

'■'■Gon. — I would by contraries Execute all things; for no kind of traffic Would I admit; no name of magistrate; Letters should not be known; riches, poverty, And use of service, none; contract, succession, Bourn, bound of land, tilth, vineyard, none; No use of metal, corn, or wine, or oil; No occupation; all men idle, all; And women too, but innocent and pure; No sovereignty.

All things in common nature should produce Without sweat or endeavor: treason, felony, Sword, pike, knife, gun, or need of any engine, Would I not have ; but nature should bring forth, 1

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 ; strono^ 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.

"/Se&. — No marrying 'mong his subjects?

"Jni. — None, man; all idle: whores and knaves."

The Tempest, act ii. so. 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 fragmentaiy 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.

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 w^ords 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 appl}dng 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, 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 Aristotle's Politics, bk. i. ch. 2.

R. von I\Iohl, 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, EncyMopadie der StaatsmS' senschaften, p. 17. See also Bluntschli's Geschiehte, p. 616.

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 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 necessaiy 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 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 alw^ays 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 tlie 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.i

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 m its isola-

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.

The nation, therefore, is not something which can be torn down, and then from the old material built up again in other nations. It is planted, it is not made. It is not constructed out of preexisting parts, but is an whole, and the law of Aristotle holds, — the whole is before the parts ; that is, a whole cannot be made of parts, but the whole is predetermined, to which the parts belong, or it is only in the conception of the whole that the parts appear. A sum or aggregate can be composed of separate units, but it is only their mass, and there can be predicated of it neither unity nor growth, nor identity of structure.

The law of an organism defines the relation of the individual to the nation. They who form the organic whole, in their relation to it, and to each other, are its members. Its bond is not formal ; its action is not mechanical. The members are formed in and tlirough it, as they form it, and are not as the wheels in mills, and the shuttles that slide in looms, but the members of a living body. They are affected by it, not as by an external force, acting on component particles, but as by a living spirit working through the whole. The laws of life in the physical body do not act with more unvarying certainty than in the body politic.

The consciousness of this organic relation, is the ground, also, of the normal action of the individual. Hegel says, the mob in a nation is the force which acts without or apart from the organization of the whole. There may thus be an ignorant or a learned mob, a mob of men of fashion or of men of science, but the spirit is the same, and in its severance from the organic people there is the same essential vulgarity. This has an illustration of singular force in one of the political plays of Shakespeare. When Caius Marcius turns to the crowd in Rome and denounces them as the detached and disorganized rabble, in whom there is nothing of the organic unity of the people, the disdain of the Roman is in the words, " Go, get you home, you fragments ! " and those who in the conceit of culture 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 Eoman patrician felt such unmeasured scorn .^