The nation holds not from the law, but the law holds from the nation.Doubtless the courts of every civilized nation recognize and apply both the law of nature and the law of nations, but only on the ground that they are included, or are presumed to be included, in the national law, or jurisprudence.Doubtless, too, the nation holds from God, under the law of nature, but only by virtue of the fact that it is a nation; and when it is a nation dependent on no other, it holds from God all the rights and powers of any independent sovereign nation.There is no right behind the fact needed to legalize the fact, or to put the nation that is in fact a nation in possession of full national rights.
In the case of a new nation, or people, lately an integral part of another people, or subject to another people@ the right of the prior sovereign must be extinguished indeed, but the extinction of that right is necessary to complete the fact, which otherwise would be only an initial, inchoate fact, not a fait accompli.
But that right ceases when its claimant, willingly or unwillingly, formally or virtually, abandons it; and he does so when he practically abandons the struggle, and shows no ability or intention of soon renewing it with any reasonable prospect of success.
The notion of right, independent of the fact as applied to sovereignty, is founded in error.Empty titles to states and kingdoms are of no validity.The sovereignty is, under God, in the nation and the title and the possession are inseparable.The title of the Palaeologi to the Roman Empire of the East, of the king of Sicily, the king of Sardinia, or the king of Spain--for they are all claimants--to the kingdom of Jerusalem founded by Godfrey and his crusaders, of the Stuarts to the thrones of England, Ireland, and Scotland, or of the Bourbons to the throne of France, are vacated and not worth the parchment on which they are engrossed.The contrary opinion, so generally entertained, belongs to barbarism, not to civilization.It is in modern society a relic of feudalism, which places the state in the government, and makes the government a private estate--a private, and not a public right--a right to govern the public, not a right to govern held from or by the public.
The proprietor may be dispossessed in fact of his estate by violence, by illegal or unjust means, without losing his right, and another may usurp it, occupy it, and possess it in fact without acquiring any right or legal title to it.
The man who holds the legal title has the right to oust him and re-enter upon his estate whenever able to do so.Here, in the economical order, the fact and the right are distinguishable, and the actual occupant may be required to show his title-deeds.Holding sovereignty to be a private estate, the feudal lawyers very properly distinguish between governments de facto and governments de jure, and argue very logically that violent dispossession of a prince does not invalidate his title.But sovereignty, it has been shown, is not in the government, but in the state, and the state is inseparable from the public domain.The people organized and held by the domain or national territory, are under God the sovereign nation, and remain so as long as the nation subsists without subjection to another.The government, as distinguished from the state or nation, has only a delegated authority, governs only by a commission from the nation.The revocation of the commission vacates, its title and extinguishes its rights.The nation is always sovereign, and every organic people fixed to the soil, and actually independent of every other, is a nation.There can then be no independent nation de facto that is not an independent nation de jure, nor de jure that is not de facto.The moment a people cease to be an independent nation in fact, they cease to be sovereign, and the moment they become in fact an independent nation, they are so of right.
Hence in the political order the fact and the right are born and expire together; and when it is proved that a people, are in fact an independent nation, there is no question to be asked as to their right to be such nation.
In the case of the United States there is only the question of fact.If they are in fact one people they are so in right, whatever the opinions and theories of statesmen, or even the decisions of courts; for the courts hold from the national authority, and the theories and opinions of statesmen may be erroneous.Certain it is that the States in the American Union have never existed and acted as severally sovereign states.
Prior to independence, they were colonies under the sovereignty of Great Britain, and since independence they have existed and acted only as states united.The colonists, before separation and independence, were British subjects, and whatever rights the colonies had they held by charter or concession from the British crown.The colonists never pretended to be other than British subjects, and the alleged ground of their complaint against the mother country was not that she had violated their natural rights as men, but their rights as British subjects--rights, as contended by the colonists, secured by the English constitution to all Englishmen or British sujects.The denial to them of these common rights of Englishmen they called tyranny, and they defended themselves in throwing off their allegiance to George III., on the ground that he had, in their regard, become a tyrant, and the tyranny of the prince absolves the subject from his allegiance.
