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The established State occupies a definite territory. It embraces several, perhaps many distinguishable communities usually of one race and language, having common manners, customs and traditions. It consists primarily of the whole body of people, the body politic, including all officers of government; but the term is often, secondarily, limited to the official class, the sovereign body having supreme power held in trust for the common weal, which class, however, is more properly termed the government.1

It is not within the scope of this treatise to discuss the relative merits of different forms of state government, nor to trace the historical evolution of the State through the abuses, turmoils, and civil wars which, because of the imperfect or erroneous views and the selfish ambition of statesmen and rulers, have embarrassed its development. We shall attempt no more than to sketch the essential features of its constitution, and to indicate its exclusively ethical basis, its thorough-going ethical character, and the varieties of moral obligation imposed on its members by its specific and peculiar organization.

§ 131. Governments are distinguished as monarchic, aristocratic or republican, and democratic. Some combine elements of each of these principal forms; as, Great Britain. No exclusive preference can be given to any one form. That is best which best accords with the historical traditions and habits of its subjects, is suitable to their grade of intellectual and ethical culture, and is administered in the interest of the public rather than of the rulers.2

1 When a number of States, whose people as a body come of a common stock, natus, are confederated under a general government, this is properly a Nation; as, the German Nation, especially prior to the unification in 1870, and the nameless Nation formed by the United States. When a number of States of distinct nationality are united under a common government, this is properly an Empire; as, the Roman Empire, and the British Empire.

2 The very best form of government, according to Aristotle, is the aris

Every well-ordered State, whatever be its form of government, has essentially a Constitution, unwritten or written, positively decreed, and loyally observed by its officials and citizens. The Constitution is the fundamental organic law, organizing the body politic. It has three essential features tocracy of intellectual eminence and moral worth, whether these qualities be found, in their highest development, in a few persons, or only in one.

The Virginia Bill of Rights, § 3, says: "Of all the various modes and forms of government, that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of mal-administration."

“A government is to be judged," says Mill, "by its action upon men, and by its action upon things; by what it makes the citizens, and what it does for them; its tendency to improve or deteriorate the people themselves, and the goodness or badness of the work it performs for them, and by means of them.". - Representative Government, p. 43.

1 England has no formally enacted and written Constitution. The government, originally an absolute monarchy, has been reduced to a limited monarchy by Magna Charta and numerous subsequent Acts of Parliament, which stand in lieu of a formal Constitution, and insure to the people republican liberty.

The Constitution of the United States is a written and formally enacted document. Its preamble is: "WE the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America." Thus is declared the multiple end, essentially a duplicate, to protect and to promote welfare. The articles which follow enact the specific means for attaining the end, reciting the functions or duties, with limitations, of the various officers of the government.

In a republican government, whose legitimate procedures are determined ultimately by the will of the majority, the Constitution is an ægis for the minority, shielding it from the caprice of popular whims. In general, it is protective of citizens from the tyranny of magistrates. "The powers must be administered by men in whom, like others, the individual are stronger than the social feelings. And hence, the powers vested in them to prevent injustice and oppression on the part of others, will, if left unguarded, be by them converted into instruments to oppress the rest of the community. That by which this is prevented, by whatever name called, is what is meant by constitution, in its most comprehensive sense, when applied to governmẹnt.” — ÇALHOUN, A Disquisition on Government, p. 7,

arising from the very nature of the State, the legislative, the judicial, the executive. The functions of the three are sometimes embodied in one person; as, an absolute monarch. In many cases they are irregularly distributed to a number of persons; but the historical trend is clearly to separate them as distinct departments intrusted to a distinct personnel; as, in each of the States of our Union, and in the Federal whole. The function of the Legislature is to enact statutory laws within the limits and in pursuance of the organic law, the Constitution. As a necessary corollary it has authority to affix penalties to these laws to insure their observance, and power to lay and collect taxes for the support of the government, and for the execution of its measures.1

The function of the Judiciary is to sit in judgment on the constitutionality of the legislated statutes, to interpret their application, to sanction and decree the penalty for violation. When not otherwise directed by statute, the inferior courts proceed in accord either with the Roman or Civil Law, as in the States of continental Europe, or with the English Common Law, which has been adopted as the basis of jural rights in the United States.2

1 Legislation for the general welfare is to be distinguished from legislation for the welfare of individuals, which is favoritism, or to benefit some distinct social group, which is class legislation. These are illegitimate.

2 Except in Louisiana, where the Napoleonic Code, a modification of the Justinian, is recognized. For Roman or Civil Law, see supra, § 47, note. The English or Common Law, lex non scripta, derives its authority from long usage or established custom, and has been immemorially received and recognized by the English tribunals. The historical source of this system cannot be traced. The origin of the Common Law, says Lord Hale, is as undiscoverable as the head of the Nile; which is true historically, but philosophically its origin in human rights is easily discerned. Its settled rules and principles have not been authoritatively codified; they are found only in the records of courts, and reports of juridical decisions. Statute Law, lex scripta, is a body of laws or rules of action prescribed or enacted by the legislative power, providing for specific and exceptive cases, and promulgated and recorded in writing.

The function of the Executive is to enforce the laws and carry out the measures enacted by the Legislature. The execution of laws respecting crime, and of those respecting property rights, is intrusted to the inferior courts with their police and prison auxiliaries, backed by the superior courts, and by the chief executive, be he governor, or president, or king. Measures for the public weal, as the coinage of money, the care and disbursement of the public funds, the system of public education, the postal system, the improvement of harbors and waterways, the making of treaties, and many others, are carried into effect by this branch of the government. Also the chief executive is commander in chief of the army and navy, wherewith to insure domestic tranquillity, and the common defense against foreign aggression, invasion, or other form of trespass.1

§ 132. Now be it observed that the State is a complete, authoritative and powerful organization. Its foundation is on human rights, its superstructure is a fortress against trespass, a lodgment of justice, an abode of public duty and patriotic service. The structure is not new; for the human race, so long as it has existed, has been busied in building, remodeling, repairing, improving, and maintaining in different forms, through all the vicissitudes of history, this eminently ethical institution.

1"What constitutes a State?

Not high-raised battlement or labored mound,
Thick wall or moated gate;

Not cities proud with spires and turrets crowned;
Not bays and broad-armed ports,

Where, laughing at the storm, rich navies ride;
Nor starred and spangled courts,

Where low-browed baseness wafts perfume to pride.
No; men, high-minded men,

With powers as far above dull brutes endued

In forest, brake, or den,

As brutes excel cold rocks and brambles rude;

Men, who their duties know,

And know their rights, and, knowing, dare maintain."

-SIR WILLIAM JONES,

Recalling the definition of an organism, that each member is at once means and end for every other, and the whole for each and each for the whole, we observe: first, that each citizen in his action as such, as in voting, or paying a tax, or serving on a jury or in the army, and likewise each officer of any department in exercising his special function, is thereby expending energy as a means for the profit, directly or remotely, of every other individual member of the State; secondly, that in so far as each member is profited thereby, he is an end; thirdly, that the whole as a systematized means finds its end in guarding and promoting the liberty, privileges, rights and property of each individual member separately taken; and fourthly, that it is the function of each officer and citizen to become a means whereby to maintain the integrity and efficiency of the State in all its departments as an end. In ancient times this last relation was emphasized, the people are for the State; as in the Roman Constitution, and in the Spartan Constitution so greatly admired by Aristotle. In modern times the reverse relation is emphasized, the State is for the people; as in the Virginia Bill of Rights, which has been generally accepted as their Magna Charta by the United States.1 The right relation, however, between the governing and the governed is one of constant reciprocity. The mutual obligations are dissimilar, but in delicate and admirable equipoise.2

Moreover, in observing that the ends in every view are the preventing of trespass and the promoting of welfare, it is evident that the raison d'être of the organization, and its informing element is strictly ethical. It would be easy to

1 See supra, § 82, note; and infra, § 146, note.

2 A mere allusion may be permitted to the famous old Roman fable of "The Belly and the Members," as told by Menenius Agrippa in the early days of the city. Livy, ii, 32. The analogy illustrates a profound truth; hence an effective and long-lived story. But see supra, § 109, note,

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