A Review of the Proclamation of President Jackson/I
Norfolk, December 28, 1832.
The recent Proclamation of the President of the United States, in denying the correctness of certain propositions that have ever been held (in Virginia, at least,) as fundamental truths of constitutional law, and by affirming, in the confident language of authority, the propriety and justice of other propositions, which we, of Virginia, have ever regarded as political heresies, seems to demand of some Virginian to review these, his various assertions.
I have waited ever since the Proclamation first appeared, in the hope that some one more disposed and better qualified to perform such a task, would undertake it; but as none such has yet done so, even I will essay its performance. In doing so, my sole object is Truth; the sole means I shall employ for its attainment, will be reason and fair argument; the sole authorities upon which I shall rely, will be the History of our country for my facts, and its Constitution for my principles.
When the occasion that has induced this Proclamation shall have passed away (as pass away it must), the questions raised by the President will still remain.
They have become the property of History. No matter how these questions may be now settled or disposed of, they will still arise hereafter as problems of deep interest in political philosophy, to occupy the anxious reflections of statesmen yet unborn, as they have employed heretofore the solemn meditations of the wisest and best amongst us who are now no more. Seen through the long vista of Time, the meanings of the several personal allusions which darken the surface of this State paper, will not then be understood; the faults of its style will be then concealed by the rust, or ascribed to the prevailing taste of other days; even the spirit in which it is conceived will not be discerned, nor its immediate objects regarded. Under such a light do I now wish to examine it; and, disregarding everything but its doctrines, I propose calmly to inquire: Are these true? I may hereafter, perhaps, institute another inquiry as to the authority of the Chief Magistrate of such a government as that of the United States, to utter ex cathedra any dogmas whatever; and as to the probable effects of such a novel practice in this country, even if it is conceded that the dogmas so proclaimed may be true.
But as this is a matter of minor importance, and in its nature is properly consecutive of the first inquiry, I merely announce it now, to show that I have not overlooked a great question, which, under a different view of this subject than that which I propose to take, would present itself naturally at the very threshold.
As preliminary to the examination of the questions I have stated (which examination may very possibly be drawn out through several numbers), it will be necessary to offer a few brief and very general remarks upon the nature and objects of all governments, and upon some of the peculiar characters of our own.
These will constitute the matter of this number, which is designed as merely introductory of my intended investigation.
No history records, nor any tradition even faintly preserves, the commencement of that struggle between Power and Right, which has continued unceasingly to this day, and must still go on while man is but man.
Founded upon this long experience, is the general truth which so many particular examples illustrate, that whoever is possessed of authority will probably abuse it.
But as in a world compounded of good and evil, Right can never be long preserved, except by Power, the securities of Right must necessarily be confided to the custody of Power, although man is certain that this will be perverted, and often misemployed. It is better to trust the flock to the dog, although we know that he will, and does, worry it, than to leave it defenceless against the insatiable voracity of the devouring wolf.
In yielding to the necessity of committing the preservation of Right to the care of Power, man has always endeavored so to muzzle and shackle Power, as that while its strength might remain unimpaired for the attainment of good, it should be impotent to accomplish any evil.
Free government is the device to attain this desirable end; and the various forms under which such governments have existed throughout all time, are but different inventions to accomplish the same purpose.
Parental affection, the obligations of Religion, the precepts of Education, and the division of authorities, all, all have been tried, in past time, singly, and in every sort of combination which ingenuity could suggest, as checks and limitations of Power; but they were all tried in vain. Power granted to protect Right has always proved unmindful of its charge. Sooner or later it has contrived to rid itself of the shackles imposed upon it; and governors, even when but the creatures and agents of society, have believed themselves born to command it, and have somehow or other become its Lords and its Masters.
Although always disappointed and defeated, yet Patriotism has never relinquished her hope of ultimate success.
In every new state of things, she has presented some new scheme, to remedy the known defects of her former plans, and to prevent their recurrence. For a long time nature herself seemed to oppose these devices, and to present her immutable laws as obstacles not to be overcome by the wisdom of the most enlightened sages. That the People should govern themselves, directly and immediately, was one of the experiments of Antiquity, which experience soon proved to them, could never be applied, with any hope of success, to any territory of wide extent, because it was impossible to gather together the people of such a territory, either as often, or as promptly, as their necessities required; and even if this was possible, their numbers would be too great for useful deliberation. Hence, it was a maxim of one of the wisest of the Greek Philosophers, that extent of territory was incompatible with the existence of a Republican Government. The same Philosopher lived to see a small territory fall an easy prey to the ambition of a more powerful neighbor. Free government, therefore, seemed to be prohibited to mankind.
Centuries rolled by after the annunciation of this supposed political maxim, and it still continued undenied and undoubted by the learned. At length, Barbarism enveloped the better part of the civilized world, and the torch of Science was extinguished. It is in these dark ages, when the light of Science had ceased to shine upon a benighted world, that the historian first sees a new Star appear, to shed its lustre upon humanity.
Feeble were its rays at first, but they were soon collected by the watchful industry of Patriotism, and their heat then sufficed to rekindle the expired vestal flame of Liberty and Right, which has never since ceased to burn bright and clear. Learning may continue to deplore her losses by the ravages of the Gothic conquerors of the Western Empire, but Freedom finds ample compensation for this loss, in their great invention of Representative Government, and its necessary companion, Trial by Jury.
The present generation is not indebted to their barbarian progenitors for the inestimable blessing of Representative government only. To our Anglo-Saxon ancestors we also owe the invention of written Charters, the best guarantees of Liberty, while those who freely give, or those who bravely exact them, have the wisdom to understand the nature of the grants, and the firmness to preserve their provisions inviolate. Under such Charters, extorted from their Kings by the clear heads and stout hearts of their English ancestors, do their posterity enjoy all of Liberty now felt in Great Britain. To the sensitive jealousy always manifested by that people, at any attempt to violate the conditions of these grants, is the world indebted for the first idea of Constitutional Law, and legal Liberty.
The violation of this Liberty brought one King of Great Britain to the block, to atone with his blood for the crimes he had committed against its sacred guarantees. The attempted violation of this Law, hurled another from his throne, to expiate in exile his intended sins against the charters. Such is the foundation of British liberty, and such the means by which it was, and is still, secured.
When North America was first colonized by Great Britain, our forefathers settled here under the protection of written Charters, in each of which were they assured the full enjoyment of all the rights of free-born British subjects, These rights were trampled upon by the power of the mother country; and we were then too weak to protect them. But time rolled on, and we became stronger. Former submission provoked (as it always does) new aggressions. We first petitioned our Sovereign for relief, but he was deaf to our prayers. We then called upon our fellow-subjects to assist us in obtaining redress and security, but they, too, were heedless of our applications.
They so forced us to appeal to the God of battles, and in independence we wrung from our oppressors that which, had they have granted at first to our just supplications, might possibly have preserved much longer its richest jewel in the British Crown.
The chartered rights of British subjects were ours. Of these rights we had been unjustly deprived. Like our common ancestors, we demanded them in battle, and like them, by battle we obtained them.
Although the acquisition was sealed with some of our best blood, yet all knew it would be of little avail, if not secured by as much of wisdom and of valour as had been evinced in the purchase.
Therefore, to preserve and perpetuate that Liberty which had so been earned, our wisest citizens were assembled to devise a form of government. To these assemblages are we indebted for all our original constitutions, the peculiar characters of some of which charters, it shall be the purpose of my future numbers to display.
At present, I will merely say, that they were all the new inventions of most profound wisdom, designed to embody all that experience had shown to be useful, in any of the institutions of other times, and to apply it to the particular condition of this country then.
The Democratic form had presented the beau ideal of government to many of the wisest of the ancient political philosophers, because, under this form of government, the Rights of the people were guarded by the Power of the people; and it was not to be believed that such Trustees could ever prove false to such a Trust. But experience had taught even these Philosophers, that under such a government, a small State could not defend itself with sufficient vigour against the sudden assault of a more powerful neighbour; and their own a priori reasoning had convinced them, that the principles of a Democracy could not be usefully applied to a wide, extended empire. Gothic knowledge, however, had achieved what Grecian and Roman learning had in vain attempted. In devising Representative government, it had obviated all the objections to a Democracy which antiquity had felt or seen. Hence, a Representative Democracy was everywhere adopted by the sagacity of the American statesmen, as that form of government most approved by the wisdom of the past, and best suited to the particular condition of our country at that time.
The origin of all former governments of this kind (if, indeed, any such had ever been), was hidden by the ignorance of the barbarian people with whom they had existed, or so imperfectly exhibited to modern view, as to enable us only to infer that origin, from the subsequent references to its supposed ancient features.
Most conspicuous amongst these references was that to the ancient positive compacts between the governors and governed, whereby the rights of all were supposed to be expressly declared and consecrated.
Whether such compacts had at first any other than a presumed existence, was a matter which, however interesting to the Antiquarian, was of little concern to the Patriot. Time had stamped the presumption (if it was such) with the authenticity of Truth; and in all his references to them, the sagacious statesman of ancient days regarded them as the solemn expressed assurances of the rights of the governed, to be guarded by them with all vigilance, and sealed anew, if necessary, with their best blood—Nolumus leges Angliœ mutari quæ hucus que usitatæ sunt et approbatæ, was the language of British freemen, who, trusting to their own vigour to maintain them, preferred to hold their rights under the customs of a time beyond which the memory of man runneth not, rather than to expose them to the cavil and artifice of insidious construction. Hence, all the instruments of British legislation designed to secure rights to the People, from the great charter of Runnymede, to the last act of Parliament which established the House of Brunswick on the throne by the free voice of the people of Great Britain, all are but declaratory Laws, not professing to give what the people had not before, but merely to assure rights which had been theirs in all time past.
The wisdom of this example, although duly appreciated here, could not be imitated exactly in our country; but it taught a lesson which American Patriots improved. The monarchy of England was of an origin so ancient, as to defy any search for its primitive foundations. The prerogatives of the Crown and the privileges of the People both rested upon the same base, immemorial usage. All the declarations of what these were and ever had been, (no matter how such declarations were obtained,) proceeded from an existing and acknowledged sovereign, seeming at least to limit its own power by declaring it. But the American assertion of Independence, in dissolving our connection with the government of the mother country, left us no substitute for that, and so imposed upon us the necessity of establishing a new government for ourselves. A government thus created, could have no powers derivable from custom: could have no authorities but such as should be bestowed upon it in terms, by its creators. While these creators, in the very fact of establishing a new government for themselves, thereby asserted and manifested their pre-existing Right to do so. Hence, it resulted, and from necessity too, that while all the Powers of all our governments are derivative and temporary, the Rights of those who created these governments are self-existent and eternal.
Therefore, in each of these United States, the People by whom all our governments were created and established, are the only legitimate Sovereign. Governors and Magistrates of all sorts, are but the agents and servants of these their creators, appointed to attain the good of the People, by the exercise of the powers and authorities granted to them for that purpose by the People, and responsible to the People for the manner in which all these duties have been performed or neglected. In the relations between such a Sovereign and such its agents, the idea of a compact of any kind, can find no place. In governments whose powers rest upon force, the victor sovereign may grant to its vanquished subjects, rights and immunities, which being designed for the benefit of the grantees, constitute a limit upon the authority of the grantor in being irrevocable. Such grants may well be termed compacts between the granting Sovereign and his accepting subjects, solemn agreements which neither party may of right alter, without the consent of the other. So too, in governments of unknown antiquity, according to the theory of whose unwritten law the governors are omnipotent, even if this vast power be derived not from force but from consent, this very consent constitutes a solemn compact.
In this country, however, none of whose governments have been established by force; where the origin of all is the creation of but yesterday, governors can filch no Power, or the governed lose any Right in the gloomy obscurity and uncertainty of antiquity. Here everything is clear as was the light of that blessed day on which was proclaimed the sacred truths, that here the People are the only Sovereign of the People; that here magistrates of all sorts are but the agents and servants of this Sovereign, called into being by its fiat, solely for its own benefit, deriving all their authority from its grants, which grants are revocable at the pleasure of the grantors, because intended solely for their own good. But the idea of a compact, lawfully revocable at the will of one of the parties, would be a legal paradox, not less absurd than the moral absurdity of a compact between a creator and his mere creature formed for the Creator's own use.
It results from all this, that whatever of truth there may be in the theory of the political Philosophers of the old world, which considers government there as a compact between the governors and the governed, no such theory can be true here.
None of our governments can ever be considered as such contracts.
They are mere revocable procurations, simple delegations of limited and temporary authority, executed by the Sovereign People to their attornies, which agents are thereby authorized and required by their constituents, to accomplish certain purposes, by certain defined means, the constituents thereby allowing and confirming whatsoever shall be done by their attornies, under this power, and in pursuance of its authorities, but nothing else.—Here governors can derive no power jure divino, for they are known to be the mere creatures of man's will, and designed for his use. Here they can claim no omnipotent authority, for the People created them, and the creator must be superior to his creature.
Here every legitimate power exercised by governors must be derived from grant, and when so derived, it is of course defined and limited.
Here the People gave all that is given, may take away at their pleasure all that they have given, and we all unite in calling down blessings upon that Sovereign People.
But who is this mighty and blessed and Sovereign People, tho authors and preservers of the most stupendous work of human invention for the security and perpetuation of the liberty of man?
The answer to this enquiry shall constitute the subject of my next number.