n close and intimate alliance, league, or federation, by
a mutual pact or 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 Confederation 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the later Constitution can serve here only as historical documents.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 the fact, we have ascertained the right.
There is no right in the case separate from the fact--only 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 ma