第 30 节
作者:公主站记      更新:2021-04-30 17:05      字数:9322
  ht 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 197                                                     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 198                       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 199                                       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 200                       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 statesand if they ever were  severally sovereign states; only a confederation they certainly  arestate 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 201                                                      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 202                                              the fact; we have  ascertained the right。  There is no right in the case separate  from the factonly 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 203 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 exten