A Review of the Proclamation of President Jackson/X
Norfolk, January 21, 1833.
Although I have contended, that the several States which compose this Union, are Free, Sovereign ad Independent, yet let no one suppose, even for an instant, that in asserting their supremacy, I mean to deduce from thence, their emancipation from any obligation. A State must be constituted by rational and accountable beings; and although but an ideal creation, yet as it can only think and act through its members, it must bear their character.
It so becomes a moral and accountable being itself, bound by every moral obligation which attaches to man as an individual; and even in a higher degree.
I certainly do not concur with the learned author of this Proclamation, in the new precepts of ethics or of public law which he announces therein, when he says, "a binding obligation that has no sanction, may be broken with no other consequence than moral guilt,"—or when he infers from that postulate, that as "a league between independent Nations, generally, has no sanction other than a moral one; or if it should contain a penalty, as there is no common superior, it cannot be enforced." My error (if it is one) proceeds probably, from my utter incapacity to comprehend what is meant by moral guilt, or by a moral sanction. To my dull apprehension, moral guilt appears very like a true falsehood, and by moral sanction I must believe is meant physical morality. I doubt not, however, that all those who can understand what this State paper means, when it speaks of "aggregate character," or of "a nation for certain purposes," will as easily discover what it intends by moral guilt and moral sanction.
Nay, as formerly, we have been taught to understand for possibility of a constructive journey, and of moral Treason, we may expect to hear in some commentary upon this pandeet, of constructive and so unaccountable Representatives, and of the transfer of moral allegiance.
According to my old-fashioned notions of morals and of law, there is no human obligation without a sanction, whether such obligations attach to individuals or to States: nor does the existence of the sanction, depend upon the existence of any common superior to enforce it. To me it seems a solecism, to speak of obligations that do not oblige; and that which obliges the observance of an obligation, is its sanction, be that what it may. Nor would it be less a solecism, to suppose that the sanction of any human obligation, was to be found in the precepts of morality only: for as these precepts constitute mere obligations themselves, one obligation would so become the sanction of another. In such a case, it might probably puzzle the acumen even of those who can comprehend the theory of moral guilt, to decide which was the obligation and which the sanction. And if the existence of some common superior, was necessary to give validity to sanctions, the obligations contracted by States, could never be rightfully enforced by other States, so long as the equality of States is conceded. Yet no man before this author, has ever doubted the existence of such a right.
It would be foreign to my present purpose, to enquire, what is the sanction of national obligations, or by whom, or how, or when, these may be applied and enforced.
I may, perhaps, recur to this subject hereafter. At present, it will be only necessary to say that it is not morality merely, but the law, that gives the sanction of all human obligations which deserve that name. This law must be administered by human agents, who can employ none other than human means.—In the case of individuals it is the municipal law of their country, which gives the sanction of all their perfect obligations. This law is administered by magistrates only: but its sanctions, although declared by them alone, must be enforced when necessary, by the power of mere men. In the case of States, it is the public law of the civilized world which gives the sanction f the obligations of Nations. This law is administered by States alone; and the sanctions declared by it, must be applied and enforced, when necessary, by the physical power of their subjects, who, as in the former case, are mere men. Thus it occurs, that in all cases, the preservation of human Rights, must be entrusted to the hands of human power. But until this guardian becomes his own ward, power and right will not be confounded, any more than the obligation with its sanction, or either with the physical force, that may possibly become necessary to apply the one or to enforce the other.
If a State as a moral being mat contract an obligation, as an accountable being it is obliged to keep its faith, and to observe the promise it has given. Should it refuse to do so, it incurs the guilt of violated faith, and renders itself amenable to the punishment of such guilt, which may then be rightfully inflicted upon it.
By whom, or when, or how, I will hereafter enquire. Whether this sanction prove efficacious or not as a sanction, cannot alter either the guilt or the right. The unknown or fugitive malefactor, who so escapes "unwhipt of Justice," cannot thus convert his crime into what this author would perhaps call moral guilt: nor must the powerful subject, who successfully resists the lawful commands of his Sovereign, and so prevents their execution, flatter himself with the hope, that he is but a moral traitor. The name of the State which violates its faith becomes the by-word of the civilized world. The decree delenda est Carthago will be uttered by that world; and while nations are but the Vice-agents of Him, who delights in Justice, this decree must be executed,—not perhaps in the first, nor yet in the second Punic War, but Carthage must fall, and fall by human means too, for Carthage was faithless.
With this solemn truth deeply impressed upon my heart, and with this awful example full in my recollection, I will proceed briefly to enquire, whether the Sovereign States who compose this Union, have pledged their faith in regard to it, by the Federal Constitution: to whom that pledge was given: what was the object and extent of the pledge: by whom and how it may be violated: and what are the legitimate effects of such a violation. I will not argue the first question. It would be an insult to every American, to suppose that he ever had doubted, or could now doubt, upon this subject. We all admit, that the States, by their several ratifications of the Constitution of the United States, pledged their faith, and severally promised "that it should be binding upon their people."
To whom was this pledge given? It could not possibly have been given to the government of the United States. This did not exist when these ratifications were had: and the very object of the ratifications was to create it, to preserve it, and to amend it, when the Sovereign parties saw fit to do so.
The Pledge was given by each State to its co-States; was given and received to and by each mutually and reciprocally; the pledge of one being the consideration of the pledge of another. These mutual and reciprocal peldges constituted a valid contract between them all, which, whether it may be more properly called "a league"—"a compact"—or "an agreement"—I willingly leave to the learned author of this Proclamation to decide. Nor is it of the slightest importance to my present purpose, to enquire, whether a Covenant made by a State, with its co-States, having for its object the establishment of government, is more or less solemn, than if the object of the Covenant had been to establish an Alliance, or to do any other act. If it be a Covenant at all, I admit, that the faith of the contracting Sovereign parties is mutually pledged to observe it; and whatever may be the form, or whatever the object of their covenant, Fides sercanda est. No on can reasonably ask more, nor am I disposed to concede less than this,—all for which I contend, is, that the promise was made by every ratifying State, to its co-States, and by no possibility could have been made to a mere potential government, which, at the time of the promise made, had not, and by possibility never might have had, any actual existence. If this is so, the Constitution of the United States, is a covenant between the several sovereign States, by whom it was ratified, to which covenant the government thereby created, is not, nor by any possibility could be a party.
To ascertain what was the object and extent of the pledge, we must look into the instrument itself to which the ratifications of the several sovereigns after. We shall there find, that to attain certain great and enumerated objects, a government was to be ordained and established, endowed with certain enumerated powers, for the attainment of the enumerated objects. Therefore, the faith of the parties was pledged, each to the other; to create such a government, endowed with such powers, to be exerted for such purposes—to continue and maintain this government, in the free exercise of all these powers, while exerted for these objects—and so to support this Constitution. Further than this, it is confidently believed, that no one, at this day, can suppose the faith of the sovereign parties was ever pledged.
So far the way is smooth. But when it is asked, how and by whom the faith plighted by the high contracting parties, in their several ratifications of this their covenant, may be violated? The answer seems, at the first view of the question, to be not so easy. Yet there is nor real difficulty in the way; provided our first approaches to it are all true and sustained; for this answer will be found but a corollary from the former conclusions.
Thus when it is asked, how this covenant may be violated? The general answer, is obviously this: It may be violated, by the refusal or neglect of any of the parties, to do any of the several acts, which they have respectively stipulated, in the covenant, that they would do: or by their doing any of the several acts, which they have respectively stipulated, in teh covenant, that they would not do: and it cannot be violated by them in any other mode. For, while all the parties do and forbear to do, all that by the covenant they have promised to do and to forbear from doing, the performance is co-extensive with the promise, the latter is so fully satisfied, et Fides sercata est.
So, too, when it is asked, by whom may this covenant be violated? The answer is, by some of the parties to it only. If all agree to disregard it, this is no violated, but a mere justifiable change or avoidance of the covenant, by the parties who made it, and who may at any time alter or abolish it at their will.—Nor is it of the slightest consequence, when the parties all concur, whether the change or avoidance of the covenant is effected in the mode therein prescribed or not. For, no one of its parts is more obligatory upon the faith of the parties, than any other; and they have the same right (all agreeing) to abrogate the part prescribing the mode in which alone it may be amended, as to change any other part of the instrument.
The whole is but a promise made by each to all; and all can as rightfully annul the promise of each, made to themselves, as any individual may cancel at his pleasure, a promise made to himself.—Neither is it possible, for any other than a party, to violate any covenant. For if this was possible, the faith of parties would not depend upon their own will and ability, but upon the will of others, over whom they may have no control; and so faith never could be kept.
Strangers, not parties to a covenant, may be their acts, prevent the parties from fulfilling its obligations upon them: but such acts of strangers, constitute no violation of these obligations, for none can violate it, but such as the obligation obliges; and it is absurd to suppose, that it can oblige any others, than the parties, who voluntarily agreed that they would be bound by it. Then, the covenant entered into by each of these States with its co-States, can be violated by none but the sovereign parties to that covenant. If this was not so, the peace of Nations and the faith of States, would hang it upon the will of every incendiary ruffian, who lives as the disgrace of the community of which he may be an unworthy member.
Here it may be asked, may no the government of the United States, or of any State, or of any Department of either of these governments, nay, may not any mere individual violate the Constitution of the United States? Doubtless, each of them may do so; and in so doing, would be guilty of a very wicked act, which, generally, would draw down upon the agent or agents, the consequences of a sanction, they might then probably discover was not a mere "moral sanction," although the act might be done, even by this would-be Sovereign, the government of the United States itself, which, if a Sovereign, could acknowledge no superior. But a violation of the Constitution of the United States, whether perpetrated by their government, or by anybody else except a Sovereign State, is not, of itself, any breach of the covenant for the observance of which the faith of the high contracting parties to that Covenant is mutually pledged to each other; and this for the reason before given, that none but the parties can violate a covenant; and that neither the government, nor any individual, is a party to that Covenant. When the Spanish Intendant at New Orleans, in contravention of the 22d Article of our Treaty with Spain, deprived the Citizens of the United States of the right of deposite in the port of that City, this was no breach of the faith of Spain; because when she was informed of the act done by her officer under color of her authority, she disavowed it as having been done in virtue of any such authority given by her. So, too, when upon a more recent occasion, a military officer of the United States, acting in contravention of many of the Articles of the same Treaty with Spain, entered her territory with the armed force under his command, seized upon her fortresses, slaughtered her subjects, and annulled her Sovereign powers; even this act constituted no breach of faith of the United States.
Because, they too, when informed of these acts, done by their officer, under color of their authority, disavowed them all, as having been done by him in pursuance of any power given by them to him for these purposes.
In either case, the misdeeds of these agents, although not breaches of the plighted faith of their respective Sovereigns, because unauthorized and disavowed by them, yet being done under color of their authority, bound these Sovereigns severally, to make reparation and compensation for the wrongs and injuries suffered; and in either case, such reparation and compensation was demanded and given.
Although it is true, that the covenant formed between any State and its co-States, cannot be violated by any other than by some of the sovereign parties to that Covenant, so as to make the violation of it a breach of their pledged faith, yet while man has free will, he may and often does commit wrongs, and crimes, and sins, which may threaten a breach of his Sovereign's faith.
To prevent this, every person, whether natural or Corporate, in every country, unless he be a bandit, or an outlaw, is forced to become the subject of some Sovereign, who in exchange for the protection it is bound to afford, and the responsibility it is compelled to bear for the acts of its subjects, is entitled to their obedience and allegiance. Hence, all in this country are the subjects of some Sovereign State, or amenable to the authority of the government of the United States, which government is itself amenable to the authority of the Sovereign States, its creators and preservers, and who whenever they may see fit, can rightfully become its destroyers.
If, then, that government, or these States, are notified of an act done in violation of the covenant which the States have all pledged their faith to support and preserve, by any of those dependent upon their authority, it is their sacred and solemn duty, to disavow the act done as having been done in virtue of their authority, to take effectual steps to prevent the repetition of such an abuse, and it if may be properly required, to make reparation for any injuries that may have been sustained form what has been done under color of their power. If any State when so notified and appealed to, refuses or neglects to do these things, it thereby adopts the act done as its own act, and assumed upon itself all the consequences.
In a country regulated as are the United States, the necessity for such a solemn appeal from one sovereign State to its co-States, must be very rare indeed. The acute moral sense of our people, they vigor of our laws, the division of our powers, the accountability of all our magistrates, the policy of our governments, whether Federal or State, all constitute so many different checks and preventives against the occurrence of any event that could justify or require any such step. It is possible, however, nay has actually occurred more than once; and therefore, while treating of the mere theory of this our government, which theory although exposed to very many practical objections (applicable not to the government, but to its administration), is more perfect than anything the wit of man has ever produced, I must pursue it to all its consequences. I am so led to the enquiry, what may rightfully take place, should any State, after notifying its co-States of a violation of the covenant perpetrated by any of those who are amenable to their authority, meet from them with a refusal to redress the evil complained of, or should see this their solemn appeal treated with neglect.
The first consequence is obvious, every State so refusing or neglecting, thereby adopts the act or omission complained of by its co-State, as its own act. It affirms thereby, that the act or omission done, or suffered by its agents, or subjects, has been done either by its order, under its permission, or with its approbation; and that it is willing to take upon itself all the legitimate effects of the act or omission, be these what they may.
What then is the next consequence? the high and solemn importance of this question, is a sufficient apology for me in postponing its examination to another number.