this step was taken," says he, "constituted the actual government of the nation, at the time;"* that is, while they were yet dependent colonies! "It severed the political connexion between the people of this country and the people of England, and at once erected the different colonies into free and independent States."+ Thus, the colonies formed "one nation" before their separation from Great Britain, and afterwards became "free and independent States." Or, in other words, the nation preceded the States; an opinion for which Mr. Lincoln has been most unconscionably laughed at. This opinion is still more explicitly advanced by Mr. Curtis, in another portion of his history. "The fact," says he, "that these local or State governments were not formed until a Union of the people of the different colonies for national purposes had already taken place, and until the national power had authorized and recommended their establishment, is of great importance in the Constitutional history of our country; for it shows that no colony, acting separately for itself, dissolved its own allegiance to the British crown, but that this allegiance was dissolved by the supreme authority of the people of all the colonies," &c., &c.‡ This fact, which is deemed of so much importance in the constitutional bistory of this country, happens, as we have seen, to be a fiction; and a fiction, too, in direct conflict with the well-known fact, that Virginia declared her own separate independence. But if, by the Declaration of Independence, the colonies became "free and independent States," how could that act have moulded them into one sovereign political_community, or nation? This is one of the mysteries, which I am glad it is not incumbent on me to solve. Was the Declaration of Independence itself necessarily, or ex vi termini, a declaration of independence, and, at the same time, one of subjection to a higher authority? If we *Vol. i, p. 51. ‡ Vol. i, pp. 89, 40. † Ibid. may adopt Mr. Curtis as a guide, we must answer this question in the affirmative. For, says he, although the colonies were thereby "erected into free and independent States," "the people of the country became henceforth the rightful sovereign of the country; they became united in a national corporate capacity, as one people; they could thereafter enter into treaties and contract alliances with foreign nations, could levy war and conclude peace, and do all other acts pertaining to the exercise of a national sovereignty.' If so, then of course they could ordain Constitutions and enact laws; they could set up, or pull down, or modify the parts, called States, as if they were counties, or mere districts of people. For such is the power of one sovereign State, or nation, over its various members. But, unfortunately for this bold assertion, Mr. Curtis himself tells us, on the very next page of his work, that "on the same day on which the committee for preparing the Declaration of Independence was appointed, another committee, consisting of a member from each colony, was directed to prepare and digest the form of a confederation to be entered into between these colonies," that is, after they should become free and independent States. "This com mittee, he continues, "reported a draft of Articles of Confederation on the 12th of July, &c." These Articles were discussed, postponed, resumed, amended, and, finally, adopted. Now whence resulted the powers conferred by these Articles of Confederation? Were they not granted by the "free and independent States"? Most assuredly they were; no one has ever had the hardihood to deny so plain a fact, except by implication. But if all the powers of the new "national government," as it is called by Mr. Curtis, were granted by "free and independent States," each acting for itself, as every one acknowledges it to * Vol. i, p. 52. have done; then for what conceivable purpose has he conjured up the phantom of a pre-existing national sovereignty of the whole people of the country? It is certain, that this phantom has been completely laid by Mr. Curtis himself. The whole elaborate illusion, which it has cost him so much pains to get up, is thus dispelled by a plain, simple and unpremeditated statement of unquestionable facts, by the author himself. "The parties to this instrument," says he, referring to the Articles of Confederation, "were free, sovereign and independent political communities, each possessing within itself all the powers of legislation and government over its own citizens, which any political society can possess. But, by this instrument, these several States became united for certain purposes."*✶ Surely, all this must have been absent from the mind of Mr. Curtis, when he spoke of the people of the several States as having been previously merged into one absolutely sovereign political community. But it seems to be requiring too much to expect a Massachusetts politician to remember any thing he may have said on any preceding page of his work. Nor is this all. For it is also conceded that the States, which were "free, sovereign and independent political communities" before they adopted the Articles of Confederation, retained the same prerogatives, or attributes, after that event. "The Articles," says he, "declared,-as would indeed be implied, in such circumstances, without any express declaration,—that each State retained its sovereignty, freedom, and independence." It was, then, in this condition of "free, sovereign, and independent political communities," that the States passed from the old to the new Articles of union, or severally agreed to the compact of the Constitution. Why, then, conjure up shadows and phantoms of a national unity only to dispel them? The cause of secession only demands the fact, that the States, * Vol. i, p. 148. +Ibid. as "free, sovereign, and independent political communities," formed and entered into the new "Articles of Union;" and this fact is conceded both by Story and Curtis. Much of the inconsistency and contradiction in the views above examined, is due to the ambiguities of the word people, and the utter confusion of its loose, floating significations, with its technical or scientific sense. We sometimes pronounce a people one, because they have a common origin, or a common language, or a common religion, or even because they inhabit the same portion of the globe. Thus, we speak of "the people of Europe," or "the people of America," without intending to convey the idea that they are a people in the political sense of the term. When we say, however, that "the people are sovereign," we use the word in a more restricted sense. We then speak of the people in the political or technical sense of the term. This includes only the qualified voters of the community, or those by whom Constitutions may be ordained, and re-modelled. For no other persons participate in the exercise of the sovereign power. Women and minors are excluded, as well as some other classes, even in our American States. It is in this limited sense of the word, that the people are said to make compacts, or Constitutions and laws, either by themselves or by their agents. If Mr. Justice Story had borne this in mind, he might have saved himself from all his criticisms on the doctrine of a social contract based on the ground that "infants, minors, married women, persons insane, and many others,"* take no part in the formation of civil societies, or in the creation of constitutions and governments. No one includes such persons in the idea of a people, when these * Vol. i., Book iii., chap. iii., page 296. are said to be sovereign. Hence, his "limitations and qualifications" of the doctrine in question, have exclusively arisen from his own misapprehension. Something more than a mere natural person is necessary to constitute one of "the people," one of the multitudinous sovereignty of an American State. "The idea of a people," says Burke, evidently using the term in its restricted or political sense, "is the idea of a corporation; it is wholly artificial, and made, like all other legal fictions, by common agreement."* That is, says he, "in a rude state of nature, there is no such thing as one people. A number of men, in themselves, can have no collective capacity." Or, in other words, something more than a number of men is necessary to make a people, or State. It must be agreed and settled, as to who shall take part in the exercise of political power, ere constitutions and laws may be ordained or remodelled by them. But in vain did Burke, and Hobbes, and other writers on the philosophy of politics, endeavor to "fix, with some degree of distinctness, an idea of what we mean when we say, the PEOPLE."† Their labors seem to have been lost upon the politicians of the Massachusetts school; and, in some instances, at least, they appear to have only cast their pearls before swine. For one of the great lights of that school kindles into a blaze of fiery indignation against Mr. Burke, for simply advancing the incontestable truth, that what we call a PEOPLE is, in the political sense of the word, the result of an agreement or mutual understanding of a community of persons. "O, that mine enemy had said it!" the admirers of Mr. Burke may well exclaim," cries this great light of Massachusetts. "O, that some scoffing Voltaire, some impious Rousseau had uttered it! Had uttered it? Rousseau did utter the same thing, &c."‡ This is true. For widely as Edmund Burke and Rousseau + Ibid. * Appeal from the New to the Old Whigs. |