it is called virtue; if viewed in the form of the universal, as a directive rule, winning over and persuading the individual will, it is moral obligation. The two are but different sides or aspects of the same thing.

There are, as the Scholastics have it, three degrees in the dynamic evolution of being-ens, suppositum, hypostasis: thing, individual, person. Man alone, is a person, and capable of right (subjectum juris, rechtsfähig). He alone possesses the faculty of recognising, and willing the creative thought of his being, of discerning the law of virtue, under which he is born, and of working for his true perfection, which is ethical. He alone is free, according to Aristotle's definition of freedom, for he alone exists for himself and not for another; he alone is selfdetermined and an end to himself. It is, I say, from the ground of his personality that his rights and their correlative duties spring up. And all his rights are but aspects of his first aboriginal right to belong to himself, to develop his personality. Objectively considered, they all spring from Righta great, rational, organic whole, embracing and harmonising all particular rights; independent of human volition; known perfectly only to the Absolute and Eternal, in whom it is ever conceived, ever realised an ideal, but most actual. It is, as Bluntschli observes-I shall have to return to that point presently" this law of nature and reason which

furnishes the foundation and limits of historical formulated law."1

As a person, then, man has rights-rights which attach to human nature, and may, therefore, properly be called natural. But only in society is personality realised and developed. The human "I" requires for its explication the human "Thou." Personality means not only rights, but rights recognised and allowed. Green well points out that a right is, "on the one hand, a claim of the individual arising out of his rational nature, to the free exercise of some faculty; on the other, a concession of that claim by society, a power given by it to the individual of putting the claim in force." Civil society, as we saw in the last chapter, is man's natural state. The very concept of the person implies intercourse with others, implies reciprocal rights. Of these reciprocal rights positive law is the guarantee and the shield. But what is positive law?

All law, according to the dictum of Aquinas cited in the first chapter, is a function of Reason. Human law, properly considered, is not what Mirabeau called it, "a caprice": it is the rational or ethical will-the two adjectives mean the same -of the commonwealth; or, to quote the wellknown dictum of Kant, "the expression of the reason (Vernunft) common to all." It is the recogni

1 Politik, p. 31. Cicero calls it, very happily, "ipsa naturæ ratio, quæ est lex divina et humana.”—De Officiis, lib. iii., c. 6.

Works, vol. ii., p. 450.

tion and sanction by the State of a portion of that system of correlative rights and duties which Reason itself reveals. It is, in strictness, not made, but apprehended and declared and enforced by man. Heraclitus, two thousand years ago, summed the matter up: "All human laws receive their life from the One Divine Law "-the Law of Nature and Reason. And so Aquinas: "A human law bears the character of law so far as it is in conformity with right reason: and, in that point of view, it is manifestly derived from the Eternal Law. But inasmuch as any human law recedes from reason, it is called a wicked law; and to that extent it bears not the character of law, but rather of an act of violence." Or, as he elsewhere puts it,' "Laws enacted by men are either just or unjust. If they are just, they have a binding force in the court of conscience from the Eternal Law, whence

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they are derived.

Unjust laws are not binding in the court of conscience, except, perhaps, for the avoiding of scandal and turmoil.” 3

Let us pursue further our inquiry regarding the nature and attributes of the State. We saw in

1 Summa Theologica. 1, 2, q. 93, a. 3, ad. 2. 2 Ibid. q. 96, a. 4.

On this subject Bluntschli writes, "Das Gesetz ist seinem Wesen nach der Ausdruck und die Offenbarung des natürlichen Rechtes und nicht ein willkürliches Product. Auch das ungerechte Gesetz ist, so lange es in aüsserer Kraft besteht, von den unter geordneten Organen des Staates als ein gültiges zu handhaben."Allgemeines Staatsrecht, p. 140.

the last chapter that it arises from the nature of man, of which the tendency to live in civil society is part and parcel. And, in view of that tendency, we may say that the State is a natural entity. But that tendency is not realised by blind unconscious growth, as of the plant. It is realised by the human will. A man may cut himself off from society and still live, say as a religious recluse, a human life. A branch cut off from a tree perishes. The law of the body politic is other than the law of the vegetable world. It is in virtue of human volition that the State is a polity, or political entity; but it is more than a political entity. It is a fellowship of persons—that is, of moral beings for moral ends. The necessities of existence force men into polities. But the end of civil societies is not mere existence. It is existence in accordance with man's highest and distinctive attribute-Reason. And so Aristotle insists that the State was formed that men might live, but exists that they may live nobly: γιγνομένη μὲν οὖν τοῦ ζῆν ἕνεκεν οὖσα δὲ τοῦ εὖ ζῆν. The State is the realised order of Right, as the Germans say, die realisirte Rechtsordnung. It is an ethical entity. And as the organic manifestation of the personality of a people, it may properly be called an organism or a person. It is an organism, for it is, in the words of Bluntschli, "a great body, capable of taking up into itself the feelings and thoughts of a people, of

uttering them in laws, and of realising them in

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facts." It is a person, for rights and duties, the distinctive notes of personality, attach to it.

Such, then, is the State. And, being such, its end is den Rechtszustand zu schaffen und zu sichern —that is, to define, maintain, amplify, and secure its own rights and the rights of its subjects. Let us consider this a little in detail. And we will begin with the lower order of rights; the rights of individual persons.

Until a century ago, it was well-nigh forgotten, throughout the greater part of the Continent of Europe, that such rights exist. In the New Monarchy, which had arisen on the ruins of medieval liberties, the old doctrine succinctly formulated by Aquinas, that "the king exists for the people," was contemptuously rejected. It was held that the people exist for the king, whose "right divine to govern wrong" was the favourite theme of a servile clergy. The Parliamentary assemblies, which throughout the Middle Ages had served as the guarantees of individual right were suppressed, or turned into mere machinery for the registration of the royal will. Louis the Fourteenth's doctrine, L'Etat, c'est moi, was accepted as the first principle in politics, and was the germ of what Lamennais has well called "that terrible disease of Royalism," which, little by little, ate out all the forces of society. The

1 Allegemeine Staatslehre, p. 22.