A Review of the Proclamation of President Jackson/VII
VII.
The scene is again shifted and the Proclamation after asserting, and striving in vain to maintain, the doctrines of the new ultra Federal School, that these States never were Sovereign, at last comes down to the Old Federal Faith, that the States, although once Sovereign, are not so now, because, by the Constitution of the United Sates, to use the words of this Proclamation, "they surrendered many of their essential parts of sovereignty," and therefore, "were no longer Sovereign."
I freely admit the truth of this conclusion, if its premises are correct. Nay, I go further even than the author of this Proclamation; for I concede, that if the States have ever surrendered the smallest factional part of their sovereignty, they thereupon ceased to be sovereign; and so far from retaining "their entire sovereignty," they have lost not only all this, but with it their freedom and independence also. Show me, then, the transfer by the States of any portion of their Sovereignty, and I will willingly admit that all of it is lost. Nor do I regard it as worth an effort, to enquire, whether they may have saved in its wreck, any vain and useless bauble, to serve as a memorial of their former condition, in presenting perpetually to their view, the fact, that even this worthless plaything, must now be held under the mere courtesy of another. I care not much either, who the new Sovereign of the States may be, to whom their former Sovereignty had been surrendered. Whether he is the Ox Apis, who they had seen calved in their own fields, fatted in their won pastures, and had then in their own folly consecrated as an Idol; or whether he is the great King, the majority, the necessary and legitimate Sovereign of every "Nation," which has not yet appointed some other Chieftain to rule over it. The privilege of choosing a master, is of no value in my eyes, except that if the States must have one, I should prefer one to many; for I have high authority for the belief, that none can serve two masters at the same time.
But is it true, that these States have ever surrendered any part of their sovereignty?
To answer this question, we must first endeavour to form a correct opinion of what Sovereignty is. Now, what is Sovereignty? Sovereignty is supremacy. A Sovereign, according to the very derivation of the word, is one who is over all, and who, therefore, can have no superior.—Strictly, then, there is no existing Sovereign, but He who made all, who preserves all, and who by His almighty power, may at any time rightfully, annihilate all. When the vanity of human Rulers, appropriated to themselves a name and character, which, of right belong only to their Creator, they tried to preserve all their attributes, although limiting their application to a more narrow sphere.
An earthly Sovereign thus becomes, one who is over all his subjects, who may of right do within his own dominions, all that is physically possible, and which does not contravene the will of his God. Such is human sovereignty, which alone I am now considering.
Founded upon this simple truth, is that great maxim of the public law, which asserts the equality of States; for as all States must have sovereignty, and as sovereignty is supremacy, therefor, all States are equal. From this maxim, do all Treaties derive their obligation; for although these instruments are rarely executed by the Sovereign parties in person, but by their agents duly appointed for that purpose, (whether mediately or immediately matters not,) the acts so ratified, are considered as the acts of the Sovereigns themselves, who being equals, may properly contract, which could not well be if the parties were not equal. Standing on this well established doctrine of the equality of the States, do—"we the People," the only legitimate Sovereign in this land, erect our head, high as the proudest he who sits upon a throne, because we too are sovereign, and like him may rightfully do within our own dominions, all that mortals may.
Having thus shewn what Sovereignty is, and proved the truth of my definition by exhibiting its acknowledged effects, I will endeavor to make this more manifest by contracts, in showing what sovereignty is not. This is necessary, because, it is only be confounding Sovereignty with something else, that any difference has ever arisen, in the determination of the question which I have first proposed.—Sovereignty is not Government. If it was, as all Sovereignty is Supremacy, ever government under the Sun of necessity, would be an absolute and unchecked Despotism; nor could free government exist. But as Sovereignty and Government are not the same, we may readily discern, how it is, that although sovereignty is the same wherever it exists, yet governments are infinitely diversified. Sovereignty, like truth, is an indivisible unit. It may be enjoyed by one, or by many, at the same time, but then all the persons make but on Sovereign, as all the parceners make but one heir. Government being a mere delegation or assumption of power, jurisdiction and authority, each of which subjects are infinitely divisible, may have as many hues as the Chamelion, as many forms as Proteus.
Although sovereignty and government are distinct, easy separable, and, in modern times, often found separated, yet as the rights of sovereignty and the powers of government may, and for a long time did, co-exist, and in the same persons, the two became confounded; and it is always difficult to remove any error confirmed by long habit. Galileo suffered in a dungeon of the Inquisition, for presuming to demonstrate that the earth revolved around the sun, ad Sidney died on a scaffold as a Traitor, for daring to prove, that government was not of divine origin. It was reserved for American Statesmen to give a practical illustration f the great truths which he taught, by inducing their fellow citizens, while establishing government, to retain their own sovereignty unimpaired, and so to shew, that sovereignty and government were not only separable and distinct, but that they ought not ever to be again united in this land, by any who wish to be free. This is the true American System, which has been but little understood, and therefore has been but imperfectly imitated anywhere else, as yet.
Notwithstanding sovereignty and government are not the same, yet it is readily conceded, that where the rights of sovereignty are admitted to be possessed by any government, there the government becomes the sovereign, and will continue such as long as it enjoys these rights, no matter by what means they may have been acquired.
The first and highest of these rights of sovereignty, nay, that which comprehends all the others, is the right to create a government to regulate the affairs of all the subjects of the sovereign, and to amend, alter, or abolish this government, at its pleasure. Stripped of this right, sovereignty is but a worthless name: but while this right is retained, although the government created by the sovereign's will may be endowed with the plenary Power of a Roman perpetual Dictator, yet as it lives by by the will of its Creator, it would be idle to call such a government a sovereignty.
When I speak of the right to create new, and abolish former governments, as the sure index and test of sovereignty, I do not, of course, refer to force. That may be, and more often has been, employed to destroy, than to preserve, rights of all kinds.
What I mean to assert is simply this: wherever a power exists in any Country, which power is admitted by all of that Country to possess the right of creating, amending, or abolishing the government of that country, this power must be superior to the government created by itself, and is the true and only sovereign of that country. Alterations of government made by such a power, are not properly termed Revolutions.
They exhibit only a change of will on the part of an acknowledged Sovereign; a mere peaceful repeal of some former ordinance, and the enaction of a new one, designed to attain the same great objects, by different, and, as the Sovereign believes, by better and more appropriate means.—Thus, when the King, Lords, and Commons of Great Britain in Parliament assembled, in virtue of the omnipotence or sovereignty of that body, recently altered the foundations of their government, by a mere Statue, the alteration was well termed a Reform, because those who made the change, it was acknowledged on all hands, had the right to make it. So, too, when the King of France, a few years since, granted to his subjects a new form of government, by a charter wherein was defined their rights and his duties, this was not Revolution, but Reform of another kind only; for he who granted this charter, being an acknowledged Sovereign, had the confessed authority so to do. And when these States abrogated the old Articles of Confederation, and established the preset Constitution of the United States, this was not Revolution, but Reform of a kind still different, because, it was conceded by all, that those who made, might of right alter. But when the People of these Colonies shook off their allegiance to their former acknowledged Sovereign, and asserted their freedom and Independence, this was Revolution, and not Reform; for all admitted that this proceeding, however necessary and proper it might be, was not affected in virtue of any right acknowledged by both the sovereign and subjects. Having thus shewn what sovereignty is, and pointed out the sure test, by whcih its existence and abode may always be ascertained, I will now endeavor, by the application of this test, to determine, whether these States have lost any portion of their sovereignty by their adoption of the present Constitution of the United States.—And first, by whom was this Constitution adopted? To this there can be but one answer: it was adopted by the People.—But by what People? The President, in his Proclamation, says: "The People of the United States formed the Constitution, acting through the State Legislatures, in making the compact to meet and discuss its provisions, and acting in separate Conventions when they ratified those provisions."
This statement, although correct in its terms, is yet much too general to be received as a direct and positive answer to my question. Therefore, as I do not wish to take shelter under ambiguities of any kind, I will say, that the present Federal Constitution was not made by the People of the United States, acting as one mass, or "Nation," or by the will of the majority of any such mass: but it was made by the People of the several States, acting as several distinct and independent commonwealths, each in its own separate corporate character, and each binding its own particular minority, by the will of its own particular majority, according to its own established usages, and without regard to the will of any other.
A single well-known historical fact will put this beyond all doubt.—Two of the then Thirteen States, North Carolina and Rhode Island, refused to adopt the Constitution at first, nor did they do so until some time after the government which was thereby created had gone into actual operation in the other eleven States. Yet, although the population of each of these States constituted a ratio to the population of all the States, even less than the ratio of the number of either of these States to the number of all the States, no one conceived, that either of these States could be bound by the will of a great majority of the People of the other States, or by the will of eleven-thirteenths of the States themselves.
Nor did any one ever think, that the will of that portion of the citizens of either of these States who approved the Constitution, and wished to adopt it, was not rightfully overruled and controlled by the will of the majority of their fellow-citizens in these States respectively, although, as I have said, this majority was but a small minority of all the States.
This is decisive to shew, that in adopting the Constitution, the States acted as communities absolutely independent of each other, each binding its own people to adopt or reject, as the constitutional majority of that particular State thought best. Here then is a new and conclusive piece of evidence, to prove, the sovereignty of these States respectively; for none "but a Sovereign," could rightfully have abolished the old government formed by the Articles of Confederation and have established this new government in its stead.
Having shewn by whom this government was created, I will next enquire, by whom it is preserved? The answer to this, is like that given to the former question: this government is preserved only by the agency of the States. Unless the States prescribe the time when, the place where, the manner in which, and the persons by whom, members of the House of Representatives of the United States may be elected, there could be no such Representatives chosen. Unless the States elect them, there could be no Senators of the United States. Unless the States prescribe the mode in which Electors for choosing a President and Vice-President of the United States shall be appointed, neither of these offices could be filled. And without a President to nominate, and Senate to advise, there could be no judges appointed.
But a government without agents to perform either legislative, executive or judicial functions, would be as deformed a monster, as that of which the President has spoken in this Proclamation, a Nation for certain purposes only.
It may be said perhaps, that although some of the States might refuse or omit to pass the laws necessary to give effect to those provisions of the Federal Constitution, which require the appointment of a President and Vice-President, of a Senate and House of Representatives, yet so long as others do so, the government would go on, heedless of the recusant States. I will not stop to enquire whether this is so; for even if it is, it does not vary my argument, the object of which is to shew, that the Federal Government is not preserved by its own means, but solely at the will and by means of the States. Its absolute dependance upon these for its existence, would not be less, if that dependance was upon some, and not upon all: nor would the tenure upon which it holds all its powers, be one whit less precarious, if these powers are held under the will of all the States. In either case, it is a dependant thing, and its dependance for existence is upon the States.
If may be said also, that the faith of the States is pledged, and all their officers are bound by an oath, to support the Constitution of the United States; therefore, it is not fair to reason from a supposition which rests upon a breach of a nation's faith, and the violation of the oaths of its People.
This is all true, but it only proves that for which I am contending, that this Federal Government is preserved solely by the States, who of necessity, are, and must be, the sole judges of what their faith requires; and who could absolve their own citizens from the obligations of this oath, as easily as they did from the obligations of that which pledged their allegiance to the British Crown.—And here let me beg of those who rely upon this argument of pledged faith, to read the last clause of the thirteenth Article of the Old Confederation; and in doing so, to remember the cases of North Carolina and Rhode Island, to which I have before adverted. I beg every Virginian too, to think of his own oath of fidelity, and to settle with his own conscience whether that is abrogated by that to which I have before referred.
Having this shewn, that the Constitution of the United States was established by the will of the several States, and is preserved only by the agency of the several States, I will next enquire by whom it may be altered?
The fifth article of the Constitution itself, answers this question. It will there be seen, that where amendments are proposed by two-thirds of both branches of Congress, or by a Convention called for proposing amendments, in either case, such amendments cannot be valid as parts of the Constitution, until the amendments so proposed shall be "ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress." By this it is obvious, that the States who established and who preserve this Constitution, can alter it; and the only difference between the powers exerted to create and to alter, is merely this, that in the creation, the assent of each State was necessary to make it obligatory upon each; but it may be amended by the concurrence of three-fourths only of the States, and amendments when so ratified, will be obligatory upon all. In this mode it has been four times amended. If, then, these States have created, do preserve, and may at any time (three-fourths of them consenting) alter this Constitution, and this too according to its own provisions, is it not idle to say, that htey are not sovereign, because they have surrendered many of their essential parts of sovereignty by this Instrument? They may have surrendered much of their power, much of their jurisdiction, and many of their rights, by this Instrument; but one right they have not surrendered, certainly, and that is their right to alter this instrument itself, and so cancel by their will, the very act their will created, and by which, it is said, they have deprived themselves of their Sovereignty.
This very right to make and to alter government when made, is Sovereignty. It constitutes the possessor of it the earthly superior of those who are the earthly superiors of all others, and so makes Supremacy in that land where the right is admitted to exist.
I will pursue this examination further, in another number.