A Review of the Proclamation of President Jackson

Front matter

A

REVIEW OF THE PROCLAMATION

OF

I.

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 Phi 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.

II.

II.

Norfolk, December 31, 1832.

Who constitute that great Corporation and body politic I have called The People, which all in these now United States concur in freely acknowledging as their liege Lord and only earthly sovereign by whose fiat all our governments have been created and endowed, and at whose will they may at any time be rightfully dissolved and annihilated? This is the question, which in my last number I promised to examine in this; and I now will proceed to redeem my pledge.

No American is so ignorant of the history of his own country, as not to know, that prior to the commencement of our Revolution, there did not exist anywhere on this vast continent, such a body politic as The People. Then whoever dwelt in America, was either a savage Indian, or the liege subject of some European Sovereign. None of the various savage Tribes who wandered over the surface of much of this continent, had then ever regarded themselves, or been regarded by any others as constituting a fixed Society acknowledging allegiance to any Sovereign, or as constituting that moral and accountable being called a State. Had any civilized man or set of men presumed, at that time, to assert his or their sovereignty here, the assertion would have been considered by all as sedition and the attempt to maintain it by force, as an overt act of treason against his European master; for all white men in America then claimed to be the loyal subjects of some such Lord.

It is true, that in British America, there existed sundry tracts of country delineated upon the geographical charts as British Colonies, the inhabitants of each of which regions were formed into separate and fixed Societies, whose affairs were regulated by long-established governments, the power of each of which gov was limited by the particular boundaries of its own Colony, their acts having no obligation or force beyond the local limits of such territory. None of these governments, however, exhibited any such body politic as The People, for they all derived their powers, either mediately or immediately, from the British Kings, whose mere agents they ever had been, and then were. Nor were these Societies themselves known by any common name of distinction, but only as the Colony of Virginia, the Colony of Massachusetts Bay, of Canada, of Nova Scotia, and the like; for each of these communities was then separate and distinct, in all things, from every other, the Colonists being connected by no other social or political tie, save that of the allegiance which all acknowledged, not to any People, but to the Crown of Great Britain.

British misrule converted some of these subjects, whose loyalty had once been the highest boast, into sturdy insurgents against the authority they had before delighted to acknowledge; and in triumphant victory they achieved that glorious Revolution, which, under different auspices, might have been branded as a traitorous Rebellion. This Revolution, however, in dissolving the former governments, did not dissolve the former Societies; and years before it was perfected, the Revolt had taken place. No hope could be entertained of ultimate success to this Revolt, unless some new government should be established in the stead of that which had been dissolved, to order and direct proceedings, to sanction acts, to speak and to determine for all its members. But by whom, and for whom, was or could such an Institution as government, be then ordained and established here?

The general answer to this question is obvious. As all government supposes the pre-existence of some established Society, whose affairs it is designed to regulate, and the rules for the Civil conduct of whose members it is required to prescribe, therefore, by none other than some pre-existing and established Society can any government be created or ordained. Even when foreign force is the foundation of government (as is too often the case), still as such force can only be exerted by some established Society over the will of some other Society, or some part of it, when this force is employed with success, the victor Society, while dissolving the former bonds of association of its vanquished antagonists, incorporates them as a part of itself, under whatever conditions it may please to prescribe, and so creates and ordains a government for them. But when the foundation of government is not force, but consent, it would be a paradox to suppose the consent of any others than of those who had the right to consent, that is to say, of the members of that particular pre-existing and established Society for the regulation of whose affairs such government is designed. None then but the pre-existing established Societies in British America, could ordain a government for such Societies, except by force; and the government ordained by any one of these Societies, deriving all its powers from it, could have had no authority except over that Society itself.

When we apply this obvious general conclusion to the facts of the particular case, we must all be at once convinced, that all the primitive governments of the different revolted Colonies of Great Britain must have been ordained and established by the several Societies then existing in the revolted Colonies respectively, and for their own special and particular benefit. Therefore, that none of these governments could have had any other authority than to regulate the affairs of their own creators, and of none others. I say, that these governments must have been so established and so endowed, because at that time there did not exist, nor ever had existed, any such society or community as The People of America, or of the British Colonies in America, or of the revolted British Colonies in America, or under any other name or form, save that of the Colony of Georgia, of South Carolina, etc., etc. Therefore, by these several and distinct communities alone, all our primitive governments must have been, and in point of fact were, ordained and established; and governments being so established, these several communities, their respective authors, thereby assumed to be, and so far as they were severally concerned, became, that great moral and accountable being, a sovereign State, which, having chosen the Democratic form for its government, was known and styled the Commonwealth.

Doubtless the different revolted Colonies might, if they had thought proper, have consented to amalgamate and blend themselves together into one single Society, and then have established any sort of government which they chose for this new community. Had they have done so, we should never have heard of the State of Pennsylvania, or the Commonwealth of Virginia. In that event, none of these former communities would have possessed sovereignty, the essential attribute of a State, for all would have sunk and dwindled into mere municipalities, bodies corporate but not politic, created or permitted to exist, not by their own will, but at the will and pleasure of this other more august being "The Nation" by whatever name that "Nation" might have been pleased to baptise itself. But the patriot Sages of that day did not choose so to do.

Nor was this decision the result of any "State pride," or designed "to find advocates" in any "prejudice," although that prejudice might be "honest." No, it was dictated by that profound and sagacious wisdom which can see the future in the past. These patriot Sages had read, and well knew, that Communities occupying different territories of wide extent, situated under different climates, professing different religions, long governed by different laws, having different manners, habits, customs, occupations, and, of course, many different and conflicting interests, could never be melted down into a single Society, and kept together as such, but by a much stronger power than any which they thought it either safe or prudent to create. Such communities, while separate and distinct, might be well and easily confederated, nay, even united, for many purposes useful to all and essential to some, and still continue to enjoy liberty in peace. But the day which should see them compressed into one Society, to be governed by a single overruling consolidated government, would be the eve of that on which their Freedom must be sacrificed to the power of an interested majority, in the very temple dedicated to its perpetual worship, unless the victim might be saved by arms.

Convinced of this, there was not one Statesman in any of these different Colonies at that day, who even proposed, or who even conceived, so far as we know, the wild and mad project of establishing a single Society, to be composed of all the revolted Colonies, and to be regulated by a consolidated "National" government, stretching itself over all. This conception was the product of an after-day.—How it was treated when it was first presented, I will show at some other time.

Does any one doubt now, whether the first governments established in these now United States, were ordained by the several revolted colonies, each acting as a Sovereign, for itself, and by itself, without any reference to or dependence upon any other colony? Let him consult the history of that day, and he will find that the Revolt was not a simultaneous movement of all these Colonies, but was effected in each by several successive acts performed at different times. Nay, that independent governments had actually been established in several of these colonies, and were in full operation before any declaration of Independence was uttered by them all when assembled in a general Congress. So true is this, that even to this day, it is a matter of amicable contest among several of these different communities, now States, which of them is entitled to the honour of first annulling the Royal Authority within its own domains, and proclaiming itself a patriot Rebel.

Massachusetts claims it and points to the fields of Concord and of Lexington to prove her claim. Virginia claims it, and mentions prior acts of Treason in Arms which she had dared to do. North Carolina claims it and shews her written declaration of Independence, fearlessly promulgated to the world, while some others were yet in doubt which side to take in the struggle to maintain their rights. To Massachusetts and Virginia she might say, your acts of Treason were but Insurrections, for when you performed them you still professed to acknowledge yourselves dependants of the Authority you then resisted in arms; but mine was the first act of glorious Rebellion, for by it I renounced my former allegiance and proclaimed my own Sovereignty.

Does any Virginian sceptic still doubt? I refer him to the date of our first Constitution, to prove that this form of government was ordained and declared by "the Delegates and Representatives of the good People of Virginia" assembled in Convention, before even the date of the declaration of Independence, and long before the signing and promulgation of that act. Referring him also to the language of that Constitution and of its accompanying Declaration of Rights, I ask him to tell me, to whom, after the promulgation of these instruments, did the People of Virginia owe any allegiance?

He will not say, that their allegiance was then due to their former liege Lord the King of Great Britain, for in these acts, after first asserting "that all power is invested in, and consequently derived from the People—that government is, or ought to be, instituted for the common benefit, protection and security of the People—that when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it"—the authors proceed to declare, "that the government of this Country, as formerly exercised under the Crown of Great Britain, was totally dissolved."