第 31 节
作者:公主站记      更新:2021-04-30 17:05      字数:9321
  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。
  204 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 extinguishedno one  can say how manynationalities; 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。
  205 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 206              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 Spainfor  they are all claimantsto 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 estatea private;  and not a public righta 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。 207                                                    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 208                                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 209                                                    natural rights  as men; but their rights as British subjectsrights; 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 flagsymbol of  sovereigntyrecognized 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 re… 210           spects 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