The American Republic [68]
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 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. 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
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 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. 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