Also this distinct individual personality is manifest in the familiar recognition of national calamities, national prosperity, national blessing, and national thanksgiving; all these being clearly distinguished from what befalls this and that man, or this and that family. Withal there is a national character, as seen by contrast of the English, French, and Spanish peoples, more or less common to the individual citizens, but attributed to the nationality rather than to the man. It is only in a clear recognition of the distinct and unique personality of the State that a full and correct conception can be had of civic interest, of common welfare, and of public obligation.1

§ 135. Let us here give a passing glance at the great variety of duties devolving upon a man because of his membership in a variety of organizations, each involving a special class or series of obligations. First as a member of a family, whose name he bears, he has peculiar obligations to each of

or lie to them, or take unfair advantage of them in any way. Similarly in all its dealings with its own subjects it must be scrupulously and equally just. But this is a natural and not a distinctively Christian obligation. Morality and justice were not created, nor even revealed, by Christ; they existed, and were known to exist, before the giving of the Sermon on the Mount, and would have continued to exist had that discourse never been spoken, or had He who spoke it never appeared among men." — Government and the Sermon on the Mount.

:

1 Much that is here said of the State may be, indeed has been already, said of the family; supra, §§ 118, 119; cf. § 127. It was perhaps the intimate relation of the family and the State that gave rise to the paternal theory As is a father to his children, so is a ruler to his subject. In history, since the patriarchs, we find paternalism affected by kings and magistrates generally. But this is not the doctrine of modern civics. The State is an organization sui generis, not patterned after the family, or any other organized body. See supra, § 109, note.

Furthermore, the theory, promulgated by Rousseau in his famous Du Contrat social, ou Principes du Droit politique, which attributes the origin of the State to a social contract binding in perpetuity, has not survived the French Revolution.

the other members and to the whole.

Then as a member of polite society, as a business man in the market, on change or in professional relations, as one of a club, or company, or association, or church, he enters into many varied relations; and, since obligation is founded on relation, these many varied relations determine, not only a multiplication but also a diversity, in kind and degree, of obligations. No man comprehends life until he is made to see by how many organic filaments he is bound to his fellows; how utterly impossible it is for him to separate his interests and his fortunes from theirs ; in how many ways the welfare of those who are round about him depends upon the working, in due manner and measure, of that part of the organism which he occupies.

With membership in the State, whether as a citizen simply or as an official also, arises another distinct series of obligations, often of a very exacting and absorbing character.1 Upon the sincere discharge of these by rulers and subjects depend the health and strength, the wholesome welfare, of the body politic. No merely perfunctory conduct, no display of avowed patriotism, can replace genuine civic virtue.2

1 The relations and consequent obligations in the family and in the State are alike in this, that they are both involuntary and indissoluble. A man becomes a member by birth, and finds himself already under bonds. Consent is not asked. There is an important sense in which it is true that States "derive their just powers from the consent of the governed” (Declaration of Independence, postulate), and that "all power is vested in, and consequently derived from the people" (Virginia Bill of Rights, § 2); but this does not apply to the individual man. If dissatisfied, he may transfer his allegiance, removing himself and his effects, but this is merely an exchange, and not a dissolution of bonds.

2 It was Horace Walpole, I believe, who said: "Patriotism! the last refuge of a scoundrel."

Oliver Cromwell said to the men of England: "You glory in the ditch which guards your shores, but I tell you that your ditch will not save you, if you do not reform yourselves."

Says the Virginia Bill of Rights, § 15: "No free government, or the blessing of liberty, can be preserved to any people, but by a firm adherence

It is sorrowful to observe that public duties are ordinarily performed from dread of penalty or hope of reward, or perhaps from the higher motive of respect for the law. But in extraordinary junctures, in crises, in war, the service rendered, even when enforced, is often loving service, the compulsory is lost in the voluntary, and the dormant good-will of the people arouses to free and devoted exercise. This loving service of the State is the noble affection of true patriotism.

§ 136. What is the justification of legal punishment? What is the ground on which rests the acknowledged right of society organized as a State to deprive a member offending against its laws of his property, his liberty, his life? What is the warrant? This grave question has been variously answered. It is the right of the stronger, the combined force of many against one, the right of might, say some. It is the right of vengeance, of revenge for injury, transferred from the sufferer to the more capable and effective State, say others. Yet others say, in lofty words, the dignity and authority of the law must be vindicated; the broken law must have its integrity restored, must be made whole again, rendered holy, sanctified, reconsecrated in the eyes of all before whom it has been violated, and this is the end of penalty. Let us seek firmer ground, some more rational justification.1

to justice, moderation, temperance, frugality, and virtue, and by a frequent recurrence to fundamental principles."

1 That might gives right, that whatever a man can he may rightly do, take, hold, enforce, is the brutal maxim of barbarians. There is a sense, however, in which might confers right. What one cannot do is not duty; but, the condition of ability supplied, many things, within the limit of trespass, thereby become duties with their correlative rights. Noblesse oblige.

In unorganized society, says Lotze, each man avenges his wrongs with all his might; but this is inadequate, either as insufficient or excessive. Hence organized society takes from him the right of private vengeance, undertaking

At the beginning of this treatise it was pointed out as a familiar fact in history that men are exceedingly tenacious of their rights, defending their claims with great pertinacity. This is obviously the ultimate explanation of most quarrels between individual men, of suits and prosecutions before the courts, of contests between states or nations leading to internecine wars. Evidently by the common judgment of men every one has a right to defend a right.

This judgment is clearly correct. For, if we once more fix discriminating attention on the primary, necessary, and universal notion of a right, we discern, implied in its exclusive ownership, this addendum to the original conception, a right to defend a right. Whatever possession is truly my own, I may retain and use, I may protect it from all damage, especially from trespass, I have a right, indeed am bound, to defend it against all comers. Evidently the right and obligation to defend my right is an essential implication in the demand for maintenance of moral order. Again, of my possessions I am steward and guardian, they are trusts. A neglect to conserve and defend, within limits, a trust, is an indirect trespass upon all who have a claim upon me for its keeping and using. An attempted or threatened trespass upon my life, liberty or property, is to be resisted, else I myself become a trespasser. Thus defense is not a mere contingent privilege, but a necessary obligation.1

Further, the obligation to defend a right implies a reciprocal loss of right in the aggressor. By becoming a trespasser he forfeits in some corresponding degree his right to liberty, in extreme cases even to life. One attempting assassination, to avenge him in due measure. This is legal punishment. § 52; cf. § 13 (3). Also cf. Butler, Sermons viii and ix. But revenge is essentially wrong. Can such wrong become right by transference? Civil law nowhere recognizes that its penalties are retributive. Whatever is righteous in vengeance is reserved to a higher tribunal.

1 See supra, § 85.

See Pract. Phil.,

or arson, or burglary, is killed, if this be the only preventive means, by his intended victim, with regret, with sorrow indeed, but without compunction. In the right of defense lies the warrant for interference in the liberty of a trespasser, which interference is not, therefore, itself a trespass.

§ 137. In an unrestrained intercourse of men, with their various abilities physical and mental, and with the varied opportunities afforded by wealth and station, the stronger trespass upon the weaker. An oppressor may perhaps console himself with the brute maxim that might makes right, but the oppressed is not thereby relieved and quieted. Besides, impelled by selfish interests, men combine in couples, or squads, or large bands, and thus accumulate force to overcome the weaker. To inhibit such predicament society is organized into a State, constituted by a combining majority; which organization is not oppressive but rather protective of the minority, the organic law becoming its shield, a defensive weapon, against popular caprice. The body politic employs agents, empowered by general consensus, to frame, apply and enforce particular laws in accord with the general purpose.1

To accomplish the chief end of its existence, the protection of its subjects in their rightful liberty, the government must, as far as practicable, defend, both at large and in detail, the original and acquired rights of individual men, of trade firms, of legalized corporations, of all subordinate com

Yet

1 The historical origin of States has rarely perhaps been just thus. many a clan, or tribe, or people has organized, on a patriarchal or on a military basis, for defense of common and private rights from aggression of similar bodies, as well as for conquest. More often, it may be, States have arisen from the skillful and selfish handling of the strong, seeking to enlarge and perpetuate their power. While the progress of civilization has failed to enlighten many, others have been gradually modified to approximate at least the form and intent indicated. Our discussion, however, is not concerning historical origin, but of the ground on which the ideal State, the State as it ought to be, is justified in exercising punitive powers.