What then is the fact? Are the United States politically one people, nation, state, or republic, or are they simply independent sovereign states united in close and intimate alliance, league, or federation, by a mutual pact or agreement?
Were the people of the United States who ordained and established the written constitution one people, or were they not? If they were not before ordaining and establishing the government, they are not now; for the adoption of the constitution did not and could not make them one.Whether they are one or many is then simply a question of fact, to be decided by the facts in the case, not by the theories of American statesmen, the opinion of jurists, or even by constitutional law itself.The old Articles of Conferation and the later Constitution can serve here only as historical documents.Constitutions and laws presuppose the existence of a national sovereign from which they emanate, and that ordains them, for they are the formal expression of a sovereign will.The nation must exist as an historical fact, prior to the possession or exercise of sovereign power, prior to the existence of written Constitutions and laws of any kind, and its existence must be established before they can be recognized as having any legal force or vitality.
The existence of any nation, as an independent sovereign nation, is a purely historical fact, for its right to exist as such is in the simple fact that it does so exist.A nation de facto is a nation de jure, and when we have ascertained the fact, we have ascertained the right.There is no right in the case separate from the fact--only the fact must be really a fact.A people hitherto a part of another people, or subject to another sovereign, is not in fact a nation, because they have declared themselves independent, and have organized a government, and are engaged in what promises to be a successful struggle for independence.The struggle must be practically over; the former sovereign must have practically abandoned the effort to reduce them to submission, or to bring them back under his authority, and if he continues it, does it as a matter of mere form; the postulant must have proved his ability to maintain civil government, and to fulfil within and without the obligations which attach to every civilized nation, before it can be recognized as an independent sovereign nation; because before it is not a fact that it is a sovereign nation.The prior sovereign, when no longer willing or able to vindicate his right, has lost it, and no one is any longer bound to respect it, for humanity demands not martyrs to lost causes.
This doctrine may seem harsh, and untenable even, to those sickly philanthropists who are always weeping over extinct or oppressed nationalities; but nationality in modern civilization is a fact, not a right antecedent to the fact.The repugnance felt to this assertion arises chiefly from using the word nation sometimes in a strictly political sense, and sometimes in its original sense of tribe, and understanding by it not simply the body politic, but a certain relation of origin, family, kindred, blood, or race.But God has made of one blood, or race, all the nations of men; and, besides, no political rights are founded by the law of nature on relations of blood, kindred, or family.Under the patriarchal or tribal system, and, to some extent, under feudalism, these relations form the basis of government, but they are economical relations rather than civil or political, and, under Christian and modern civilization, are restricted to the household, are domestic relations, and enter not the state or body politic, except by way of reminiscence or abuse.They are protected by the state, but do not found or constitute it.The vicissitudes of time, the revolutions of states and empires, migration, conquest, and intermixture of families and races, have rendered it impracticable, even if it were desirable, to distribute people into nations according to their relations of blood or descent.
There is no civilized nation now existing that has been, developed from a common ancestor this side of Adam, and the most mixed are the most civilized.The nearer a nation approaches to a primitive people of pure unmixed blood, the farther removed it is from civilization.All civilized nations are political nations, and are founded in the fact, not on rights antecedent to the fact.A hundred or more lost nationalities went to form the Roman empire, and who can tell us how many layers of crushed nationalities, superposed one upon another, serve for the foundation of the present French, English, Russian, Austrian, or Spanish nationalities? What other title to independence and sovereignty, than the fact, can you plead in behalf of any European nation? Every one has absorbed and extinguished--no one can say how many--nationalities, that once had as good a right to be as it has, or can have.Whether those nationalities have been justly extinguished or not, is no question for the statesman; it is the secret of Providence.Failure in this world is not always a proof of wrong; nor success, of right.The good is sometimes overborne, and the bad sometimes triumphs; but it is consoling, and even just, to believe that the good oftener triumphs than the bad.
In the political order, the fact, under God, precedes the law.
