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Under the head of Christian ordinances, Dr. Whewell treats of the Lord's day, the consecration of places of worship, forms of prayer, baptism, the Lord's Supper, marriage and funeral rites, oaths, and the Christian ministry. As a member of the Church of England, he of course decides in favor of forms of public prayer, though he has reinforced the exceedingly jejune argument from authority by few of those obvious collateral considerations, on which, in the absence of express command or institution, the stress of the discussion ought to rest, and on which it is no difficult task to defend the expediency of an established liturgy. He also defends the distinction of orders in the ministry, and the vesting of the exclusive right to ordination in the bishops ; but evidently takes ground with the Evangelical party (so called) in his own church, in that he says not a word of the apostolic succession, and denies the alleged priestly character and office of the Christian ministry.
We pass now to the chapters which treat of Polity. The state is defined to be “a necessary society," existing, “in the order of reasoning,” before the individual, that is, involving conditions of being without which man could not live as man. The state, thus endowed with underived and inherent attributes, is represented not merely as the guaranty, but as the source, of individual rights, and as deriving its own rights not from any social contract or from cession by its individual members, but from an a priori necessity. The state, it is said, cannot be conceived of as divested of these rights; and they are rights sui generis, such as can never in any sense or degree have belonged to individuals, – nay, some of them such as it would be grossly immoral for any individual or body of men, considered apart from that abstraction, the State, to claim and exercise. These rights (in addition to the general rights of government) are " the right to the national territory; the right of war and peace ; the right of capital punishment ; and the right of imposing oaths.” Corresponding to these rights are the obligations of self-preservation, of national defence, of upholding law, and repressing sedition.
Now we are constrained to regard this whole statement as a specimen of special pleading for certain established usages of states, which no recognized moral principles can justify. The author is sufficiently aware that individuals have no right to murder or to plunder their enemies ; he traces no
charter for such privileges either in natural morality or in revelation ; and in order to legitimate them for nations, he is driven to regard the state as a distinct, nondescript personality, devoid of human attributes and responsibleness, half God, half devil. But admitting for a moment this vague abstraction, whence are we to infer its rights or its duties? If it have rights not analogous to those of individuals, and over and above those included in man's intuitive conception of government and of social order, they are rights which cannot be brought to the forum of conscience, or tested by moral principle. How, then, shall it be ascertained that they are rights, and not mere facts ? They are legitimated solely by their existence; for they are not necessary facts, — we can conceive of government and social order as existing independently of them. Are we not, then, on our author's ground, driven to the conclusion, that, in the constitution of the state, “whatever is, is right," and in earlier ages would not the same mode of reasoning have legitimated slavery, despotism, and the slaughter of women and children in time of war ?
The state, so far from being an a priori conception, is an after-growth of society, and may be traced historically from its origin through every stage of its progress. Government is indeed an essential condition of society, and the “virtues of order” are the dictates of natural morality. But in the earliest times, the functions of government were exercised by the father of each separate household, and then by the centre of regard and influence (whether on the score of age or character) in each larger family group. Under this simple organization, men acquired property, both movable and immovable, by individual acts of appropriation, while all was free and there was room for all, and by the proceeds of their own industry ; and this property was secured to the owners, not by virtue of an imagined lease from the family or tribe, or from its head, but by an intuitive sense of the distinction between meum and tuum, which induced every man to respect his neighbour's property, that his own might be respected in turn. As men's mutual transactions grew complicated, and as the collateral branches from the same common stock became too numerous and too widely separated to cherish equal regard for every individual patriarch or leader on merely personal grounds, some more stringent form of government became necessary; and at this epoch men began to resign, whether by express or tacit consent, such portions of their individual rights as were necessary for the mutual protection of the residue. There were certain relations and functions in which a community bad to stand and act unitedly, if at all; and the central authority, under whatever name, was endowed with powers requisite to occupy those relations and discharge those functions. This process took place in different ways, under the control of varying circumstances. Where there was a single individual of overmastering influence and character, he was enabled to avail himself of the exigencies of his associates, so as to usurp the powers that needed to be vested somewhere ; and thus was laid the foundation of the early despotisms. Where there were none or many possessed of these commanding traits, the general voice was more distinctly recognized in the organization of the state ; and the governments thus formed bore and transmitted strongly marked features of freedom. But in both cases, the acquiescence of the people must have been implied in the origin of the state.
In confirmation of the position, that landed property is not necessarily derived from the state, but may exist prior to the development of a state organization, we might appeal to the existing condition of things among the aborigines of New South Wales. Their tribes have no recognized chiefs ; but the only authority is that exercised by the fathers of separate families, and by the elders of each tribe, through the influence which age and wisdom may give. There is no central source of power, — no authorized and recognized headship or magistracy, - nothing that corresponds to the idea of a sovereign state with underived rights of its own. Yet we have assurance from various independent authorities of the existence of landed property among these people, under the guaranty of their intuitive sense of right. We quote the following from a recent work of Mr. Eyre, for twelve years a resident magistrate in the colony, and the enterprising explorer of a large portion of the Australian continent.
“ As far as my own observation has extended, I have found that particular districts, having a radius, perhaps, of from ten to twenty miles, or, in other cases, varying according to local circumstances, are considered generally as being the property and hunting-grounds of the tribes that frequent them. These districts are again parcelled out among the individual members of
the tribe. Every male has some portion of land of which he can point out the distinct boundaries. These properties are subdivided by a father among his own sons during his lifetime, and descend almost in hereditary succession. A man can dispose of, or barter, his land to others; but a female never inherits, nor has primogeniture among the sons any peculiar rights or advantages.”
Here we have an instance in which property in land, even without occupancy for tillage or for permanent dwellings, is protected by the natural sense of right and order. Should these tribes become civilized, instead of being exterminated, we shall witness the growing up in the midst of each tribe, or group of tribes, of some central organization and seat of power, in which will become vested those protective rights and duties over individual property, which are now left to private good faith and mutual justice.
We would therefore elect " the social contract," as the formula that most nearly embodies the facts connected with the formation of organized governments. Not that a contract in express form was ever made between the members of an infant state ; but in every instance, there must have been an implied mutual understanding tantamount to a contract. And in every instance, men yielded to the central authority certain supposed rights, which it was no longer possible for them to exercise personally without the violent and prolonged disturbance of social order. These supposed rights corresponded to their degree of moral culture. Certain rights (that of way, for instance) over other men's estates had become necessary for the use and enjoyment of one's own estate ; and these were necessarily yielded to the government, in which they will always remain vested, to prevent undue encroachment and unceasing litigation. The right of war was also yielded to the state, not as a matter of divine and necessary right; but because wild, rude men had at first conducted their own quarrels with the arms which nature gave, but could do so no longer, on account of the multitude of confederates that could be readily enlisted on either side. The right of capital punishment was in like manner yielded to the state, because men had from the first exercised the right of private retaliation, even to blood for blood ; but such practices could no longer be continued, without doing perpetual violence to the growing sense of justice and order. In process of time, the right of imposing oaths became vested in the state
Atenance, then, an it ha
(where it belongs, if anywhere), because, from the legitimate or factitious sanctity attached to this ceremony, it was possible for private combinations of men, united by extra-legal oaths, to disturb or outrage the public tranquillity.
According to the view which we have now presented, a state is to be regarded as a body of individuals so combined under the essential principles of social order, and by an organization based upon those principles, as to constitute a political unit, and to act as such for the joint protection of individual rights, and for the maintenance of suitable relations with other political units. The state, then, can have no rights which the people cannot give ; nor can it have a moral code exclusively its own. Political organization cannot make wrong right, or evil good. Men cannot do guiltlessly, in their corporate capacity, deeds which they are forbidden to do singly. The existing rights of a state will, indeed, be determined by the degree of moral culture to which the people have attained; but its real rights must needs be commensurate with the supreme rule of right.
Let us now look separately at the rights claimed for the state by our author. The first is a right to the national territory. It is alleged, that individuals derive their rights to special property in land from the state. We have shown, however, that individual property in land existed prior to any distinct political organization. The state, indeed, regulates the descent and alienation of national property ; but it does this in such a way as to perfect, not to invade, individual rights. If men wish to sell or bequeath their lands, the state prescribes forms by which the will of the seller or testator can take effect without the suspicion of mistake or fraud ; and with reference to the landed property of intestates, it simply carries out the prevalent idea of rightful descent. A state which should depart from this course, and enact laws which obstructed the right of transfer or bequest, or impeded the mode of natural descent most in accordance with the ideas of the nation, would be regarded as chargeable, with the most arrant despotism, even though important public ends were the alleged plea ; but such laws would be within the legitimate scope of a state which had a right to the national territory. The state, indeed, appropriates the land of individuals for public uses ; but this is a power requisite for the perfecting of individual rights ; for what would private