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.1

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 expression 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.

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

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 primary

The nation is the institution of rights. 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.

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

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,