2

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if parents themselves are derelict in duty to their children and to society, even the right of parental control must be superseded by the parens patriæ.1 But the maintenance of the family in its moral order is the immediate obligation of the nation, and although it acts in and through the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

1 4 Whart. R. 11.

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 Troilus 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.

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-olkos, the house; (2.) the commonwealth-kuun, the community; and (3.) the state— Tólus, 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 Familie; (2.) the commonwealth, Die Bürgerliche 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.

66

2 Philosophie des Rechts, p. 66. Hegel defines the commonwealth as an 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 commonwealth, 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 Bürgerliche Gesellschaft, in Hegel, may well be described by Rothe as meisterhaft. 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 des 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

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 coöperative 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 power 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.