The American Republic: Its Constitution, Tendencies, and Destiny

by Orestes Augustus Brownson

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 subjects. 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.