The American Republic [70]
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 them- 212 selves 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 sover- 213 eignty 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 214 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 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 sover- 213 eignty 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 214 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