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 The years and what they bring, are withdrawn from the gaze of conventions as well as of men.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 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

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maintain. 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.

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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. sec. 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, suprema 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

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.1 The nation

1 Rothe says, "Every war which is morally justifiable, is a national war." Theologische Ethik, vol. iii. sec. 2, p. 958.