A Review of the Proclamation of President Jackson/VIII
VIII.
One obvious error pervades every part of this Proclamation wherein its author speaks of Sovereignty. Confounding sovereignty with government, and graduating the powers of government according to some fanciful scale, he infers, that whoever may possess what he considers the great powers of government, must be Sovereign; and that such as have not these powers, are not Sovereign. Hence he concludes, that as the States, by the Federal Constitution, have granted away "the right to make Treaties—declare war—levy taxes—and to exercise exclusive Judicial and Legislative Powers"—they are no longer Sovereign; but that "the allegiance of their Citizens, was transferred, in the first instance, to the government of the United States."—And he asks in triumph, "How, then, can that State be said to be Sovereign and independent, whose Citizens owe obedience to laws not made by it, and whose magistrates are sworn to disregard those laws, when they come in conflict with those passed by another?"
This can scarcely be called sophistry, it is palpable mistake, produced by ignorance of the great characteristic difference between two subjects totally distinct from each other, by which ignorance the author is frequently lead to confound them.—If he would but have paused a moment, to ask himself a few plain questions, his own answers to them would have prevented him from falling into any such errors. Is any government within these States, whether general or particular, whether State or Federal, created by its own will? If it is, such government must certainly be Sovereign, for none other than a Sovereign can create government. But if it is not, then it is as certainly the creation of the will of some other; and its Creator must continue to be the superior of its creature, unless in the act of creation, or at some other time, it has transferred to the Creature, the right to preserve itself, in opposition to the will of the Creator; in which case also, the creature may become a Sovereing.
Now does any government, of any kind, within these States, enjoy the right to preserve itself against the will of its creators? There is no one to be found, as yet at least, so profligate as to affirm this, although it is apparent, that there are some, who would try to prove by argument what they dare not assert as fact; and who at some time or other, will probably offer to establish such a right, "ultimate ratione." Then, if none of our governments are created by their own will, or can be preserved by their own will, when that is in opposition to the will of those by whom they were created, there is no semblance of truth in the position, that any of them are Sovereign: because, they too, are all of them compelled to acknowledge a Superior. And the argument which would infer sovereignty in one, from the want of it in another, must be unsound, unless it can be shewn, that of two falsehoods one must be true.
"The right to make Treaties," etc., is not a more direct emanation of sovereignty, than the right to punish crimes, to prescribe the modes in which alone property may be acquired and held, to create Corporations (whether for Banking or any other purpose), and the like. If the exclusive possession of the former powers, prove Sovereignty in the general government, the exclusive possession of the latter powers, which are equally necessary and important, would prove Sovereignty in the particular governments; and we should then see the case of two Sovereigns—of "Two Kings of Brentford." But as such a conception has never been entertained, except in the imagination of a humorous dramatist desirous to divert by a ludicrous exhibition, I presume grave Statesmen would not resort to such authority, to prove the verity of their theories.—Because there cannot be two Sovereigns in one Country at the same time, however, it does not follow, that there is no Sovereign there. In denying Polytheism, no man affirms Atheism, simply because both are falsehoods. Nor in denying that all or any of the governments within these States are Sovereign, does any one affirm, that there is no Sovereignty here. Sovereignty must abide in every State, or it cannot be a State. It abides in this country as perfectly as it does in Russia, or in Turkey, not in the general or particular governments, however, but in the People; and who The People are, I have already shewn.
This Sovereign People might, if they pleased, have exerted directly all the powers which, in the exercise of their Sovereign will, they have seen fit to delegate to others. If they had done so, we should have had a pure Democracy, where, as in a pure Despotism, the Sovereignty and the government are united.
But they did not choose to do so; and thought it wiser to establish a Representative Democracy. It results from the very nature of this form of government, that the Sovereignty remains with the People, while the government is in the magistracy, their Representatives, agents, and servants. Grouping all these magistrates into two great classes, of Federal and States agents, the Sovereign People have said to one of these classes, as assign to you the duty of making treaties for us, etc. To the other class they have said, we assign to you the duty of punishing crimes committed against us.
In assigning these different duties to their different agents, however, the Sovereign People neither impair their own Sovereignty, nor create one of those classes of magistrates superior to the other; because, they are all but servants, acting in virtue of the power which each derives from their common master, and for his benefit. Nor is it possible to institute any comparison between the powers granted to these different classes of agents, in order to determine, in that way, which is the higher; because, things totally unlike cannot be compared. Is the power to prescribe in what way alone property may be acquired, held, or transmitted, greater or less, than the power to make Treaties? Is the power to preserve or take away liberty greater, or less, than the power to declare war? Is the power to forfeit life greater, or less, than the power to levy duties and imposts? If we pursue this scheme a little further, and descending from the two groups of Federal and State agents, examine the constituent parts of each of them, the subject will become more plain. Thus, the Sovereign People, in their different charters, or laws for the government of their representative agents, say to their Legislative servants, in either class, you shall make laws for us upon certain subjects; to their Judicial servants, you shall judge and decide for the parties before you, how these laws so made apply to their cases respectively; and to their Executive servants, you shall execute these laws and judgments. Each constituent portion of either class is so made the co-ordinate of and distinct from every other constituent portion of that class, not dependant for its powers upon any of the other portions, but upon the common superior of all, the Sovereign People. Now, it is as easy to conceive, how two or twenty governments may be made co-ordinates of each other, as to conceive how three or more co-ordinate departments of the same government may be made so.
Both cases pre-suppose a superior to all, by which alone such co-ordination can be established: for if any one of the classes, or of the Departments of either, should undertake to establish a co-ordinate of itself, the very fact of such a creation would shew superiority in the one and subordination in the other.
Then, if the author of this Proclamation, wishes to prove the want of Sovereignty in the State governments, by shewing that they cannot exercise certain great powers of government, he might save himself much trouble, for his conclusion is a truism. None of these government are now, or ever were, Sovereign. But it is equally a truism, or if not, his own argument must prove it, at least to himself, that neither is the government of the United States Sovereign; because that, too,w ants many of the most important powers of government. It is idle, however, to ask in reference to the States themselves, "how can that State be sovereign and independent, whose citizens owe obedience to laws not made by it?" Because, in a Representative Democracy, no law ever was made by the State itself, but by its Legislative agents; and if these agents exist in both of its two government, State and Federal, the law made by such agents, is as much made by itself, in the one case as in the other. In either case, a question may arise, whether the law so made is in pursuance of the authority given by the sovereign People to their Legislative agents, to make laws; and if it is once conceded, that the act is not in pursuance of this authority, then no man can doubt, that such an act, whether done by State or Federal Legislative agents, is an act of mere usurpation, and is not law, although it may profess to be so, and wear all the forms of law.
The author of this Proclamation, labours under another strange hallucination, when he imagines, that he magistrates of the different States "are sworn to disregard their laws, when they come in conflict with the laws passed by another." No such oath is, and I feel very confident, ever will be required of them. It is true, that they are all sworn to support the Constitution of the United States, and equally true that this Constitution declares, that the laws made "in pursuance thereof," shall be the supreme laws of the land, anything in the Constitution or laws of any State, to the contrary notwithstanding. But to make the laws of the United States the supreme law of the land, they must be in pursuance of the Constitution: therefore, if the laws made by the Federal Legislative agents, are not made in pursuance of that Constitution which the State magistrates have sworn to support, these magistrates not only may, but must, if they regard the obligations of this oath, declare such unauthorized acts not to be law, and proceed to execute all the Constitutional laws of the State, which may be found in conflict with such pretended and usurped authority.
I acknowledge that I was startled by the boldness of another assertion, put forth in this Proclamation, and shocked at the moral tarpitude, which it wantonly imputed to me and to thousands of others, some of whom, while dwelling upon this earth were ever regarded not only as wise, but as being what is far better, pure of heart as mortals may be. It says, in speaking of the States, that "the allegiance of their citizens was transferred in the first instance, to the government of the United States."
I am now so old, that it would be vain for me to attempt to recollect, how often in teh course of a long life, I have been required to give assurance of my fidelity to my native State. But this I know well, that I never gave this pledge of my faith reluctantly, or with any mental reservation whatever. I always meant to relinquish and renounce, what in that oath, I said I would "relinquish and renounce the character of subject or Citizen of any Prince or other state whatever." I always intended to abjure what in that oath, I did "abjure all allegiance which might be claimed of me by any such prince or other state."
I always meant to be what I then swore I would be, "faithful and true to the Commonwealth of Virginia so long as I continued a citizen thereof."
Is it possible, that in giving these repeated pledges, I Was forsworn; and that in calling my Maker to witness the sincerity and singleness of purpose of what I regarded as a sacred promise, I was but invoking his wrath upon my false heart, and devoting my immortal soul to everlasting perdition? Has my country been so cruel and so base to one who wished to be dutiful, as to transfer his allegiance to another, and then to steal from his strong attachment to her, an abjuration of the very allegiance which she had transferred, and a solemn assurance of the continuation of that fidelity to her, which she had already relinquished and renounced? It cannot be. The Commonwealth of Virginia could never trifle thus and so meanly and wantonly too, with her faithful people. If they have been led into error by her, it is because she was first deceived.
Tell me then, any of you who deceived her, you who assisted in the formation and the adoption of any instrument that has transferred your allegiance to another, and afterwards took this oath of abjuration and fidelity to yourselves, were you for-sworn in doing so? I answer for you all, for those who are dead, as well as for those who survive, that you were not, and for you as well as for myself, I throw back this foul charge upon us all, come it from what quarter it may. Let the author of this Proclamation blunder as he may, in reciting our past political history—let him involve himself in whatever absurdities and inconsistencies he lists, in seeking to establish his new theory—let him reason as erroneously as he pleases, as to the powers and authorities of his government—all this may be pardoned. But when he assails the faith of States, and seeks to falsify the truth of their people, he touches subjects, upon which no man living should even sportively descant, because they involve relations far above his wisdom, even if that was much greater than it is.
The Commonwealth of Virginia has never transferred the allegiance of her citizens, to the government of the United States, either in the first instance," or at any other time. She claims it of them all now, as strongly as she did on the 29th of June, 1776, when she first demanded it, and at any and at every other time since: nor can any man living point to the act or instrument by which she has ever surrendered it. Not one word of any such transfer is seen, or ought to be expected to appear in the declaration of Independence. Not one word of any such transfer is found in the Articles of Confederation; so far from it, that instrument directly repudiates any such notion in the strong and emphatic words which it employs. Not one word of such a transfer is to be met with in the Constitution of the United States, which in all its provisions, addresses itself to the People, not as the people of the United States, but as the people of the several States, the obedience of which people to the legitimate mandates of the government thereby created, is claimed, only because such obedience has been promised, in their behalf, by their respective Sovereigns, the States, in their several ratifications of that Instrument. Nor have the citizens of any State ever taken, or been required to take, any oath of allegiance to the United States, or to their government; for Congress could find no authority for doing so, in the Constitution, and therefore have never presumed to prescribe any such oath. It is true, many swear to support the Constitution of the United States, but there is no more of incompatibility between the obligations of this oath, and those of their oath of allegiance to a State, than there is between the latter, and the obligations of the oath administered to any witness in a Court of Justice. The oaths relate to different subjects; and in swearing to support the Constitution of the United States, the party taking the oath, but reaffirms his fidelity to his State, which has chosen to adopt this Constitution as its supreme law, and so made it a part of its own code.
But Congress may punish Treason against the United States, and the Proclamation says, "Treason is an offence against Sovereignty, and Sovereignty must reside with the power to punish it." Let me here remark, that the power to punish Treason, is not cited to prove, the transfer by the States of the allegiance of their Citizens to the government of the United States. The author knew very well, that even the acknowledged subjects of any foreign power, might be punished for an act of Treason, just as properly, as the subjects of the Sovereign of the country within which the Treason was committed. In this respect, therefore, citizens and aliens stand upon the same footing. The power to punish Treason is referred to merely to show, that the government possessing this power must be Sovereign, because "Treason is an offence against Sovereignty." Now with all due respect for the legal learning of the author of this State paper, I will take the liberty of suggesting to him, that in this country at least Treason is no more an offence against Sovereignty, than any other crime that may be committed within our dominions; and certainly not more than sedition, mutiny, or any other of that great class of offences, which strike at the existence of subordination by manifesting a contempt for the authority of government. All crimes which threaten to disturb the peace and good order of society (as they all do) are offences against the government of that society, and against the dignity of the Sovereign by which such government has been ordained, for the special purpose of preserving this peace and good order. To say then, that Treason is an offence against sovereignty, is only to affirm that Treason is a crime. But when this author adds, that "sovereignty must reside with the power to punish Treason," or any other crime, he says what no constitutional lawyer can admit; because if it was true, it would prove that every government in the world is a Sovereign, since one of the great objects in all government, is to punish crimes, and Treason is usually put at the head of these, for in the eyes of the governments which classify offences, the greatest is that which manifests contempt of themselves.
Suppose it was admitted however, that Treason is an offence against sovereignty, and that sovereignty must reside with the power to punish it, the learned author of this Proclamation cannot surely mean to assert, that the hangman who has the power to execute a traitor, or the judge who pronounces the sentence of death, and therein gives to the hangman his authority to execute it or even the Legislature who passed the law inflicting this punishment, and directing the Judge to apply it, are all or any of them Sovereigns. He must admit that they are all, each in his appropriate sphere, but the agents and delegates of that high power, which by its constitution, has said to its legislative servants, Do you declare the punishment of Treason, to its Judicial servants, do you declare upon whom this punishment must justly fall, and to its Executive servant, the humble hangman, do you execute that which in this behalf, you may be required to execute, by my Judges. Now who is that great power, in whose name, and by whose authority alone, all these things may be done, rightfully? Certainly not the government of the United States, but the People who made that government, and by its Organic law delegated to all these their respective agents, the authorities I have stated. Then if Treason be an offence against Sovereignty, it is an offence against the People who constitute the Sovereignty; and the power to punish it, is their power, although in the exertion of this power, they may call for the action of a common hangman. We are so brought back to the former question, which I have before answered, who are the People?
This number is already drawn out to a much greater length than I intended, and must now be closed, but the subject is much too important to be dropped at this point; I will therefore continue it hereafter.