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UNIVERSITY OF CALIFORNIA, SAN DIEGO



3 1822 02686 2193



UNIVERSITY OF CALIFORNIA. SAN DIEGO



3 1822 02686 21



93






g'?^



B V THE SAME A UTHOR.



THE REPUBLIC OF GOD.

^n Itnstitute of STijcologg.

By ELISHA MULFORD, LL. D.
I vol. 8vo, $2.00.



Frotn the Lutherati Observer (^Philadelphia).

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*^* For sale by Booksellers. Sent, post-paid, on receipt of price by
the Publishers,

HOUGHTON, MIFFLIN & CO., Boston. Mass.



THE NATION:



FOUNDATIONS OF CIVIL ORDER AND POLITICAL
LIFE IN THE UNITED STATES.



ELISHA MULFORD, LL. D.








BOSTON:
HOUGHTON, MIFFLIN AND COMPANY.

New York: 11 East Seventeenth Street.

(Cfce fiitoereiDe press, tffambrJDgf.

1899.



Entered according to Act of Congress, in the year 1870, by

E. MULFORD,

In the Clerk's Office of the District Court for the Eastern District of Pennsylvania.



Copyright, 1898,
By Rachel P. Mulfoed.



To THE

MEMORY OF

MY FATHER,

IN THE HOPE THAT HIS FAITH SHALL LIVE IN HIS CHILDREN'S

CHILDREN,

/ DEDICATE THIS WORK.



^



\^



PREFACE.



The purpose of this book is to ascertain and de-
fine the being of the nation in its unity and con-
tinuity. There is moving toward its realization
in national laws and institutions, the necessary
being of the nation itself The nation thus
becomes an object of political knowledge.

It is no abstraction, but in this alone is the
avoidance of abstractions. It avoids, on the one
hand, an empty empiricism, that with the recogni-
tion of no consistent principle makes the nation
only a formal organization, and politics only a suc-
cession of random experiments, hits, and ventures ;
and on the other hand, avoids an abstract idealism,
which, regarding the state also as only a formal
organization, would shape all things after an im-
aginary polity and an abstract design. It is this
conception of the state as involving unity and con-
tinuity which is the condition of political science,
that is to be set forth alike against the political
empiric and the political dogmatist. It is this
alone which can avert the danger which there is
in the application of formal and abstract concep-
tions in politics. It is a logic which is presumed
in politics, — if politics be an object of knowledge.



VI PREFACE.

— but a logic formed in the necessary conception
and manifest in the realization of the nation, not
the barren forms of logic as it is held in the no-
tions of the schools. In this conception that cer-
tainly is to be retained which works well, but polit-
ical science is to apprehend the law and condition
of its working.

The apprehension is of the realization of the
nation in the United States, its substance, its
rights, and its powers, underlying but manifest in
its whole form and organization.

This book had its beginning in a purpose to rep-
resent the nation in its moral being; to assert this
moral being in its true position in politics; but
the aim has been throughout as the conception
widened, to define in their relative and positive
character those principles which are the ground of
political science. I do not believe that the teacher
of ethics can avoid the subject of politics. I do
not believe that there can be a separation of them
in the thought of a people, but ethics will be-
come abstract and formal, — the dry product of
the schools; and pohtics be bereft of all its power
to become at last even a name of reproach. The
book may thus serve to indicate, perhaps, in some
measure the sources of the power of American in-
stitutions in the formation of character.

I have written in the conception that holds
politics itself as a science which is the ground of
political education. In its apprehension of the be-



PREFACE. Vll

ing of the nation, its unity and lavv^s, which form
the condition of science, poUtical history, juris-
prudence, political economy, and social statics, are
separate and subordinate departments; political
history is concerned with the rise and growth of
institutions, and the comparative value of politieal
constitutions; jurisprudence is the science of the
jural law and civil organization ; political economy
is the science of wealth, of the relations of labor
and capital, of the laws of production and ex-
change ; social statics is the science of the laws of
health and population ; international law may be
regarded also as subordinate, since it presumes
the existence of separate nations, and is formed
mainly in the conception in which the nation is
held.

A larger space has been given in some instances
to subjects of special interest in the immediate
condition of affairs, as the jural and the economic
representation of the nation, the relation of nat-
ural and political rights, the distinction of civil
and political rights, the representative principle,
the method and dangers of a representative con-
stitution, and the relation and difference of the
civil and the international state, a particular State,
and the United States.

I have written with an obligation, which 1 am
glad to acknowledge, to the Rev. Mr. Maurice of
London, and to Hegel and Stahl, to Trendelen-
burg and Bluntschli ; while 1 have sought by ref-



Vlii PREFACE.

erence to them to indicate this, it has been hxrger
than mere notes of reference can trace ; and T am
never sure but their words may have mingled un-
awares with my thought ; I shall not regret this if
it may lead any who ma}'^ trace them to traverse
those rich and ample fields, or if it may be an aid
to larger knowledge. This only can be the aim
of the worker; and it is much to contribute to
the knowledge of the people in any form and in
however slight a measure. The saddest of words
are, — the people perish for lack of knowledge.

The slight references to the Alabama question I
may say were written before the recent discussion
of the subject, but I have seen no reason to change
them.

The words "nation" and "state" are used as
synonjonous, and a particular State in the United
States is written "State" and is described as a
commonwealth, as the commonwealth of Massa-
chusetts or Virginia.

I have sought, however imperfectly, to give ex-
pression to the thought of the people in the late
war, and that conception of the nation, which they
who were so worthy, held worth living and dying
for. I know how far it falls short of that concep-
tion which went with them to battle and sacrifice ;
yet I would most care to connect, if I may, my
work with theirs, and trust it may be received by
Him, who is the head of all, to whom their service
was done.



CONTENTS.



CHAPTER L

The Sdbstancb of the >(ation . . • • • . 1

The nation

1. Is founded in the nature of man.

2. Is a relationship.

3. Is a continuity.

4. Is an organism.

5. Is a conscious organism.

6. Is A MORAL ORGANISM.

7. Is a moral personality-
Its definition in the history of political science.

CHAPTER n.
The Nation as Defined in Theories . • • • S4

The nation is represented as

1. A necessary evil.

2. An historical accident.

3. A jural society.

4. An economic society.

CHAPTER m.
The Origin op the Nation as Defined in Theories . S7

It is said that its origin

1 . Is in the development of the family.

2. Is in mere force or might.

3. Is in some instinct or emotion of man.

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

5. Is in popular sovereignty.

CHAPTER IV.
Ihb Origin of the Nation 64

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

8. The evidence of its origin : —



CONTENTS.



a. In its moral being and personality.

b. In its government.

e. In its authority and powers.

d. In the facts which indicate the consciousness of ihe people.

e. In the facts which indicate the conscience of the people.



CHAPTER V.
Thb People and the Land J

The interrelation of the people and the land.

1 . The unity of the people.

2. The entirety of the people.

3. The political people.

The influence of the land on the people.

The origin of the nation in local contiguity : theory ol Mr. Maine
— of Mr. Buckle.

CHAPTER VI.

The Nation the Institution of Rights 78

The law of rights.

The distinction of natural and positive rights.

a. Natural rights.

b. Positive rights.

The law of the relation of natural and positive rights.

a. The theory which defines their isolation.

b. The theory which defines their identity.
The distinction of civil and political rights.

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

sentation in legal formulas of Savigny, of Blackstone ; its rep-
resentation in political speculations of Locke, of Considerant,
of Hegel. Criticism of Proudhon. J. Of equality before the law.

2. Political rights. The rights of the political people. The rights

instituted in the nation as a moral organism.
The correspondence of rights and duties.
Rights as defined in legal and political forms.

a. Original and acquired rights.

b. Absolute and relative rights.

c. Eights of persons and things.
The realization of rights in the nation.

CHAPTER Vn.

The Nation the Realization of Freedom ' . . . .108

Freedom, the realization of personality.

The freedom of the people subsists in the nation, in its moral per-
sonality.
The law and condition of political freedom.
The defect in the common definitions of political freedom.
The nation the realization of freedom.
The political order is to conform to the will of the political people.



CONTENTS. 21

PAcn

It is the assertion of the self-determination of the pec pie in the

nation as a moral organism.
The realization of Freedom in Rights.

a. It is construed in Rights.

b. It is formed in institutions.

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

CHAPTER Vm.
The Sovereigntt of the Natios ...... 129

The organic wUl of the people.

The notes of sovereignty, a. Supremacy, b. Authority, c. In-
dependence, d. Unity, e. Majesty.

Its substance, a. It is inalienable, b. It is indivisible, c. It is ir-
responsible to any external authority, d. It is the power in
the political people to determine the form and order of its own
political life.

The sovereignty in law.

Definition of law : The necessary elements in civil and political law :
note on the distinction of public law and private law.

Government.

k

CHAPTER IX.
Thb Nation and its Constitution 144

The twofold character of the constitution, a. The historical consti-
tution, b. The enacted constitution.
The convention.

1. The nation precedes the constitution.

2. The constitution has the form and style of law.

3. The nation may amend the constitution.

4. The nation is to apprehend in the constitution, its conscious

object and aim.

5. The right of revolution.

On the relative and positive character of the political constitution.

CHAPTER X.

The Nation and its Rights of Sovereignty . . . .159

1. The right to self-preservation : the habeas corpus.

2. The right to declare war and to conclude peace.

3. The right to form international relations, by treaty, etc

4. The right to coin money.

5. The right to eminent domain.

CHAPTER XI.
The Nation and its Normal Powers 171

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



Zn CONTENTS.

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

a. Correlative.
The distinction in these powers.
The defect in the representation of their division: the argument of

" the Federalist."
The relation of these powers to the physical force of the nation : the

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

the hal)eas corpus.

a. The legislative department

b. The executive department.

c. The judicial department.

On the relation of the judiciary to the legislative power : the polit-
ical province of the judiciary.

CHAPTER Xn.
The Nation and its Representative Constitution . . 210

The representative government.

The principle of representation as defined in theories : that the gov-
ernment is formed: a. In the representation of interests, b.
Of families, c. Of numbers, d. Of properties or accidents
attaching to men.

The Republic formed in the representation of persona.

The law of representation.

a. Its historical justification.

b. Its realization of the sovereignty of the people : self-government.

c. Its realization of the nation as a moral organism.
The Republic formed in the Democratic principle.

On various qualifications, a. A property quahfication. 6. A lit-
erary qualification.
On the representation of public opinion.
On the representation of minorities.

CHAPTER XHL

The Nation and its Relation to other Nations . . . S51

The external sovereignty of the nation.

The right of recognition.

The authority and province of international law.

CHAPTER XIV.

The Nation and the Individual 259

The ancient and modem representation.
The laws of their relation and development.
The freedom of the individual.

?n the defect in the representation of individualism in some recent
theories.



CONTENTS. Xlll



CHAPTER XV.

nam
The Nation and the Family 276

The necessary and moral interrelation of the nation and the family.
The obligation of the nation to maintain the moral order of the family.
Note on the representation of the relation of the family and the na-
tion in Shakespeare.

CHAPTER XVI.
The Nation and the Commonavealth 283

The formation of society in, a. The family, b. The commonwealth.

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

Aristotle. Hegel.
The commonweal til is

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

ciety.

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

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

a. The unity of the commonwealth.

b. The scope of the commonwealth.

Its historical growth. Its illustration in the constitution of the Com-
monwealth of Pennsylvania.

The institution of courts. The civil court. The constabulary.

The relation of the nation and the commonwealth.
a. The nation is immanent in the commonwealth.
h. The nation is external to the commonwealth.

The commonwealth is the civil corporation. Its formal rights.

The concurrent powers of the nation and the commonwealth.

The law of their relation.

The commonwealth as defined in theories, a. They are vast corpo-
rations having their origin in some charter and continuing
with certain vested powers, h. They are separate political so-
cieties, each existent in the original sovereignty of an inde-
pendent political power, c. They form an organic whole, in
whose complex political organism the States exist each as
an original integer: theory of Mr. Hurd and Mr. Brownson.

On the distinction of a central government and a local administration.

CHAPTER XVII.
The Nation the Antagonist of the Confederact . .321

The confederate principle.

Its definition by Montesquieu ; hy Freeman.

Its appearance in the formal constitution in an age of political trans-
ition

The conflict of the confederacy with the nation in its organic and
moral unity.

The his&orical conflict in the United States.



XIV CONTENTS.

CHAPTER XVIII.
The Nation the Antagonist op the Emfirb .... 342

The imperial principle.
The law of aggrandizement in the empire.

The subversion of the moral life and development of the people.
The subversion of the freedom of the people : its fatalism.
Its illustration in Sjjain ; in Austria.

The conflict of the empire with the nation in its organic and moral
unity.

The confederate principle in Greece.

The imperial principle in Rome.

CHAPTER XIX.

The Nation the Integral Element in History . . . 355

The vocation of the nation in history : history a development in the

realization of the moral order of the world.
The nation formed in the conditions of history.
The conflict of the nation with slavery.
The conflict of the nation for humanity.

The moral order of the world, the fulfillment of humanity in God.
The church and the nation.
The Protestant principle.
The nation, the Christian nation.

CHAPTER XX.

The Nation the Goal ow EListost • Stt

Conclusion.



THE NATION.



CHAPTER I.

IHE SUBSTANCE OF THE NATION.

The premise of political speculation has been the as-
sumption of the existence of man apart from the state.
It has portrayed an age when the conflict of right and
wrong was unknown : there was in the lives of men no
care, nor toil, nor endeavor ; there was neither chief nor
law, neither soldier nor battle ; there was no judge nor
police, no plaintiff or defendant ; there was neither mar-
riage nor homes ; property was unrecognized, no bound-
aries of land were traced, and the ample gifts of the earth
were held by all in common ; the individual existed in the
fullness of all his powers, while yet, as in the traditional,
and the ancients say derisive, line of Homer,^ —

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

" Gon. — I would by contraries
Execute all things; for no kind of tratEc
Would I admit; no name of magistrate;
Letters should not be known; riches, poverty,
And use of service, none; contract, succession, »

Bourn, bound of land, tilth, vineyard, none;
No use of metal, corn, or wine, or oil;
No occupation; all men idle, all;
And women too, but innocent and pure;
No sovereignty.

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



2 THE NATION.

But this scene, as it is traced in political speculation,
soon closed, its course was interrupted and disturbed ,
the impulses of men arousing, brought them in collision ;
strong desires came to clash with each other ; there was
the necessity for toil, and the lives of men were harassed
with care ; there was division, and distrust was provoked;
then some power was required to maintain the imperiled
security, to punish fraud and restrain violence ; and thus
the state came into being ; its origin was in necessity, and
its form was that of a repressive force in the institution
of an external order.

The same premise, in the assumption of the contrasted
picture, has represented the primitive condition as char-
acterized by every evil. It was a constant warfare ; fear
and self-interest directed human action ; the grasp of
avarice brooked no limit ; hatred was the habitude of
men ; tumult and violence alone prevailed. Then it is
conceived that the state came into being, as an evil also,
but slighter and sooner to be borne than those which ex-
isted apart from it, and as before in the form of a repress-
ive force.

These imaginary pictures divest man of the actual cir-
cumstance and the actual relations of life. They are only
abstractions. There is no trace of the natural man, and of
the primitive age which they portray. They are assumed
as the necessary material out of which to construct the

Of its own kind, all foison, all abundance,
To feed my innocent people.

">Se6. — No marrying 'mong his subjects?

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

The Tempest, act ii. bc. 1.

In contrast to this, Shakespeare has represented the actual condition of man
•part from society, in the Caliban. This condition is not ascertained from the
fragmentarj' traces of savage life, for in the lowest stage of the actual condition
of man, there is the recognition of some relations, some principles of associ.
ation, and some authority, in the will of a chief or the sanction of custom. Th«
most exact representation of this condition is thus in some assumed character
as the Caliban.



THE SUBSTANCE OF THE NATION. 8

artificial systems of political schools. The}* have no
foundation in the nature, or in the history of man.

The position of Aristotle is the necessary postulate of
political science, — " Man is by nature a political being."
The elements of the nation are in his nature, and its prog-
ress is in the development of his nature. The earHes*.
and the widest records of his existence disclose a conditioi-
in which there is the recognition of some common relation^
and men appear as dependent upon each other, and a.
seeking association with each other ; they make sacrifice.
for it, and accept obHgations in it.

The nation has its foundations laid in the nature of
man. It is the nonnal condition of human existence.
There is in it, as the organization of liuman society, the
manifestation of human nature. The nature of man, apart
from the nation, is unfulfilled ; and in the individual, in his
isolation, the destination of humanity is unrealized ; the
old w^ords are verified, unus homo, nullus homo.

The nation, therefore, is not to be regarded as an arti-
fice which man has devised, nor as an expedient suggested
by circumstance, to secure certain special and temporary
ends. It has other crround and other elements. It is
often described as a contrivance of human skill, and gov-
ernment as the cunning or clumsy device for the accom-
plishment of certain objects in certain transient periods.
A recent writer, identifying government with the nation,
says it is " a machine for applying certain principles," etc. ;
but even as an illustration, this conveys a misconception.
The machine, when it is made, is apart from the maker,
and complete in itself, and separate from the power which
impels it ; but the nation never exists as a complete
construction, and always is in identity with the people.
The nation, moreover, cannot be moved as a machine, but
has in itself thought and will and power to do or not to
^o, and capacity to suffer or rejoice. The naticm e-^lsts,



4 THE NATION.

only as men are lifted out of a meclianical existence ; in it
there is the assertion of their determination, and their free
endeavor. And man does not owe the conception of tlie
nation to the genius of an individual, nor is it the in-
vention of a separate age. The highest ingenuity could
not have compassed it, and it is not to be counted among
the achievements of human wisdom. The machine a.so
wears out, with time and use, when another is made in its
stead ; but it is not thus with states, and there is no law of
physical necessity which thus limits them.

This representation of the nation as a mechanism — the
work of human craftsmen — is the root of the confusion
Avhich appears in the definition of man's savage or rude
condition as the " natural state," and the emergence from
it into civilization, as the " artificial state." It is the dis-
tinction, on the assumption of which so many social schemes
and such vast social theories of natural and artificial society
have been built. The law of Aristotle has here its appli-
cation in political science, — " The nature of that which
is, is to be ascertained from its mature condition ; " not
in its germ, nor yet in its decay, but in its fullness and its
perfectness do we discern the true nature of a thing ;
or, what every being is in its perfect condition, that cer-
tainly is the nature of that being.^

1 Aristotle's Politics, bk. i. ch. 2.

R. von Mohl, in one of his later works, represents the state as only one
vi the successive spheres of human life which he enumerates as the sphere



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