A B C D E F G H I J K L M N O P R S T U V W X Z

The American Republic

b >> by O. A. Brownson >> The American Republic




But if the sovereignty persists in the States severally, any
State, saving its faith, may whenever it chooses to do so,
withdraw from the Union, absolve its subjects from all obligation
to the Federal authorities, and make it treason in them to adhere
to the Federal government. Secession is, then, an incontestable
right; not a right held under the constitution or derived from
the convention but a right held prior to it, independently of it,
inherent in the State sovereignty, and inseparable from it. The
State is bound by the constitution of the Union only while she is
in it, and is one of the States united. In ratifying the
constitution she did not part with her sovereignty, or with any
portion of it, any more than France has parted with her
sovereignty, and ceased to be an independent sovereign nation, by
vesting the imperial power in Napoleon III. and his legitimate
heirs male. The principal parts not with his power to his agent,
for the agent is an agent only by virtue of the continued power
of the principal. Napoleon is emperor by the will of the French
people, and governs only by the authority of the French nation,
which is as competent to revoke the powers it has conferred on
him, when it judges proper, as it was to confer them. The Union
exists and governs, if the States are sovereign, only by the will
of the State, and she is as competent to revoke the powers she
has delegated as she was to delegate them. The, Union, as far as
she is concerned, is her creation, and what she is competent to
make she is competent to unmake.

In seceding or withdrawing from the Union a State may act very
unwisely, very much against her own interests and the interests
of the other members of the confederacy; but, if sovereign, she
in doing so only exercises her unquestionable right. The other
members may regret her action, both for her sake and their own,
but they cannot accuse her or her citizens of disloyalty in
seceding, nor of rebellion, if in obedience to her authority they
defend their independence by force of arms against the Union.
Neither she nor they, on the supposition, ever owed allegiance to
the Union. Allegiance is due from the citizen to the sovereign
state, but never from a sovereign state or from its citizens to
any other sovereign state. While the State is in the Union the
citizen owes obedience to the United States, but only because his
State has, in ratifying the Federal constitution, enacted that it
and all laws and treaties made under it shall be law within her
territory. The repeal by the State of the act of ratification
releases the citizen from the obligation even of obedience, and
renders it criminal for him to yield it without her permission.

It avails nothing, on the hypothesis of the sovereignty of the
States as distinguished from that of the United States, to appeal
to the language or provisions of the Federal constitution. That
constitutes the government, not the state or the sovereign. It
is ordained by the sovereign, and if the States were severally
independent and sovereign states, that sovereign is the States
severally, not the States united. The constitution is law for
the citizens of a State only so long as the State remains one of
the United States. No matter, then, how clear and express the
language, or stringent the provisions of the constitution, they
bind only the citizens of the States that enact the constitution.
The written constitution is simply a compact, and obliges only
while the compact is continued by the States, each for itself.
The sovereignty of the United States as a single or political
people must be established before any thing in the constitution
can be adduced as denying the right of secession.

That this doctrine would deprive the General government of all
right to enforce the laws of the Union on a State that secedes,
or the citizens thereof, is no doubt true; that it would weaken
the central power and make the Union a simple voluntary
association of states, no better than a rope of sand, is no less
true; but what then? It is simply saying that a confederation is
inferior to a nation, and that a federal government lacks many of
the advantages of a national government. Confederacies are
always weak in the centre, always lack unity, and are liable to
be dissolved by the influence of local passions, prejudices, and
interests. But if the United States are a confederation of
states or nations, not a single nation or sovereign state, then
there is no remedy.

If the Anglo-American colonies, when their independence of Great
Britain was achieved and acknowledged, were severally sovereign
states, it has never since been in their power to unite and form
a single sovereign state, or to form themselves into one
indivisible sovereign nation. They could unite only by mutual
agreement, which gives only a confederation, in which each
retains its own sovereignty, as two individuals, however closely
united, retain each his own individuality. No sovereignty is of
conventional origin, and none can emerge from the convention that
did not enter it. Either the states are one sovereign people or
they are not. If they are not, it is undoubtedly a great
disadvantage; but a disadvantage that must be accepted, and
submitted to without a murmur.

Whether the United States are one sovereign people or only a
confederation is a question of very grave importance. If they
are only a confederation of states--and if they ever were
severally sovereign states, only a confederation they certainly
are--state secession is an inalienable right, and the government
has had no right to make war on the secessionists as rebels, or
to treat them, when their military power is broken, as traitors,
or disloyal persons. The honor of the government, and of the
people who have sustained it, is then deeply compromised.

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.
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 su6jects. 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.

In the Declaration of Independence they declared themselves
independent states indeed, but not severally independent. The
declaration was not made by the states severally, but by the
states jointly, as the United States. They unitedly declared
their independence; they carried on the war for independence, won
it, and were acknowledged by foreign powers and by the mother
country as the United States, not as severally independent
sovereign states. Severally they have never exercised the full
powers of sovereign states; they have had no flag--symbol of
sovereignty--recognized by foreign powers, have made no foreign
treaties, held no foreign relations, had no commerce foreign or
interstate, coined no money, entered into no alliances or
confederacies with foreign states or with one another, and in
several respects have been more restricted in their powers in the
Union than they were as British colonies.

Colonies are initial or inchoate states, and become complete
states by declaring and winning their independence; and if the
English colonies, now the United States, had separately declared
and won their independence, they would unquestionably have become
separately independent states, each invested by the law of nature
with all the rights and powers of a sovereign nation. But they
did not do this. They declared and won their independence
jointly, and have since existed and exercised sovereignty only as
states united, or the United States, that is, states sovereign in
their union, but not in their separation. This is of itself
decisive of the whole question.

But the colonists have not only never exercised the full powers
of sovereignty save as citizens of states united, therefore as
one people, but they were, so far as a people at all, one people
even before independence. The colonies were all erected and
endowed with their rights and powers by one and the same national
authority, and the colonists were subjects of one and the same
national sovereign. Mr. Quincy Adams, who almost alone among our
prominent statesmen maintains the unity of the colonial people,
adds indeed to their subjection to the same sovereign authority,
community of origin, of language, manners, customs, and law. All
these, except the last, or common law, may exist without national
unity in the modern political sense of the term nation. The
English common law was recognized by the colonial courts, and in
force in all the colonies, not by virtue of colonial legislation,
but by virtue of English authority, as expressed in English
jurisprudence. The colonists were under the Common Law, because
they were Englishmen, and subjects of the English sovereign.
This proves that they were really one people with the English
people, though existing in a state of colonial dependence, and
not a separate people having nothing politically in common with
them but in the accident of having the same royal person for
their king. The union with the mother country was national, not
personal, as was the union existing between England and Hanover,
or that still existing between the empire of Austria, formerly
Germany, and the kingdom of Hungary; and hence the British
parliament claimed, and not illegally, the right to tax the
colonies for the support of the empire, and to bind them in all
cases whatsoever--a claim the colonies themselves admitted in
principle by recognizing and observing the British navigation
laws. The people of the several colonies being really one people
before independence, in the sovereignty of the mother country,
must be so still, unless they have since, by some valid act,
divided themselves or been divided into separate and independent
states.

The king, say the jurists, never dies, and the heralds cry, "The
king is dead! Live the king!" Sovereignty never lapses, is never
in abeyance, and the moment it ceases in one people it is renewed
in another. The British sovereignty ceased in the colonies with
independence, and the American took its place. Did the
sovereignty, which before independence was in Great Britain, pass
from Great Britain to the States severally, or to the States
united? It might have passed to them severally, but did it?
There is no question of law or antecedent right in the case, but
a simple question of fact, and the fact is determined by
determining who it was that assumed it, exercised it, and has
continued to exercise it. As to this there is no doubt. The
sovereignty as a fact has been assumed and exercised by the
United States, the States united, and never by the States
separately or severally. Then as a fact the sovereignty that
before independence was in Great Britain, passed, on independence
to the States united, and reappears in all its vigor in the
United States, the only successor to Great Britain known to or
recognized by the civilized world.

As the colonial people were, though distributed in distinct
colonies, still one people, the people of the United States,
though distributed into distinct and mutually independent States,
are yet one sovereign people, therefore a sovereign state or
nation, and not a simple league or confederacy of nations.

There is no doubt that all the powers exercised by the General
Government, though embracing all foreign relations and all
general interests and relations of all the States, might have
been exercised by it under the authority of a mutual compact of
the several States, and practically the difference between the
compact theory and the national view would be very little, unless
in cases like that of secession. On the supposition that the
American people are one political people, the government would
have the right to treat secession, in the sense in which the
seceders understand it, as rebellion, and to suppress it by
employing all the physical force at its command; but on the
compact theory it would have no such right. But the question now
under discussion turns simply on what has been and is the
historical fact. Before the States could enter into the compact
and delegate sovereign powers to the Union, they must have
severally possessed them. It is historically certain that they
did not possess them before independence; they did not obtain
them by independence, for they did not severally succeed to the
British sovereignty, to which they succeeded only as States
united. When, then, and by what means did they or could they
become severally sovereign States? The United States having
succeeded to the British sovereignty in the Anglo-American
colonies, they came into possession of full national sovereignty,
and have alone held and exercised it ever since independence
became a fact. The States severally succeeding only to the
colonies, never held, and have never been competent to delegate
sovereign powers.

The old Articles of Confederation, it is conceded, were framed on
the assumption that the States are severally sovereign; but the
several States, at the same time, were regarded as forming one
nation, and, though divided into separate States, the people were
regarded as one people. The Legislature of New York, as early as
1782, calls for an essential change In the Articles of
Confederation, as proved to be inadequate to secure the peace,
security, and prosperity of "the nation." All the proceedings
that preceded and led to the call of the convention of 1781 were
based on the assumption that the people of the United States were
one people. The States were called united, not confederated
States, even in the very Articles of Confederation themselves,
and officially the United States were called "the Union." That
the united colonies by independence became united States, and
formed really one and only one people, was in the thought, the
belief, the instinct of the great mass of the people. They acted
as they existed through State as they had previously acted
through colonial organization, for in throwing off the British
authority there was no other organization through which they
could act. The States, or people of the States, severally sent
their delegates to the Congress of the United States, and these
delegates adopted the rule of voting in Congress by States, a
rule that might be revived without detriment to national unity.
Nothing was more natural, then, than that Congress, composed of
delegates elected or appointed by States, should draw up articles
of confederation rather than articles of union, in order, if for
no other reason, to conciliate the smaller States, and to prevent
their jealousy of the larger States such as Virginia,
Massachusetts, and Pennsylvania.

Copyright (c) 2007. famouswriterz.com. All rights reserved.