# A Review of the Proclamation of President Jackson/XI

XI.
Norfolk, January 23, 1833.
In my last number, I endeavored to prove, that by their several ratifications of the Constitution of the United States, the Sovereign States of the Union thereby established, entered into a covenant with each other, to support this Constitution—that for the observance of this covenant, each State pledged its faith to its co-States; and that this faith must be kept by all. I endeavored to prove further, that none could violate the faith plighted by this covenant, save some of the Sovereign parties to it; but that they might do so, either directly, by their own acts or omissions, or indirectly, by adopting as their own the acts or omissions of any others over whom they might lawfully exercise control. I am thus brought to enquire, what is the course that may be rightfully pursued by any State, should its co-States break their faith pledged to it, by doing directly any act in violation of that pledge, or by adopting as theirs, any such net done by others amenable to their authority?
I present the question in this abstract form, purposely; because, I wish to avoid, for the present, the investigation of any other matter not necessarily involved in the enquiry immediately before me.
Hence, instead of stopping to examine, whether any particular act is or is not a violation of the Constitution—or what is or is not the adoption by a State of such an act, when not done directly by itself—or whether the agents by whom the act has been perpetrated are or are not under its control.—I have assumed, that the act done is a violation of the Constitution—that it is done by a State directly, or when done by some other, is adopted by it as its own act—and that the act adopted as its own act, is done by such as are amenable to its authority. Thus the question ​of mere right comes naked before us, and so presented must have a direct answer.
As to the general answer to this question, I had supposed, until recently, that no man could doubt. But as opinions upon this subject very different from mine, have been uttered of late, and form many and high authorities too, although my former confidence in my own opinions is no degree shaken, yet I feel compelled while reasserting them, to endeavor to establish them by arguments, which, but a few weeks since, I should have thought as unnecessary as the attempt to prove any axiomatic truth,—in the case of mere individuals, if a contract is made between them, wherein the performance of one party, is the consideration for the performance of the other. No lawyer, no man, can doubt, that if one of the parties does not comply with such a contract, he has no shadow of right ot ask or to expect the observance of it by the other party. The failure to comply by either, leaves to the other party, the privilege of avoiding and vacating the Contract altogether, or of tendering performance on his part, claiming a compliance from the other party, and if that is then refused, of demanding compensation for any injury sustained by a breach of the agreement.
So too in the case of Nations absolutely independent of each other, if a contract be entered into by them, the failure to comply with any of the provisions of the contract, on the part of either of the high contracting parties, leaves the other at liberty, to vacate and annul the whole contract as to itself; or while affirming a readiness on its part to continue its observance of the obligations, to require of the other part a like compliance.
In illustration of this doctrine, I need but refer to our own practice and to our avowed principles. The act of July 7th, 1798, declared "That the United States are of right freed and exonerated from the stipulations of the20 Treaties, and of the consular convention, heretofore concluded between the United States and France: and that the same shall not henceforth be regarded as legally obligatory upon the government or citizens of the United States." The reason assigned for this declaration, in the preamble of the act itself, is that "these Treaties have been repeatedly violated on the part of the French government."
​But for this fact of violation on the part of France, Congress would have had no authority to enact this Statute; because by the Constitution, these Treaties had been expressly made the supreme law of the land. Therefore, the Statue does not profess to repeal them, by any enactment, but declared simply, that they were no longer obligatory upon us "of right," because they had been previously and repeatedly violated by France. So shewing, conclusively, that the violation of a contract by one of the sovereign parties to it, is sufficient to absolve the other party from all its obligations, if this other party chooses to adopt that course.
Now, surely, no one will contend, that what every individual does, and may of right do, in regard to his contracts; what every sovereign State has done, and has done rightfully, in regard to their agreements; is forbidden to be done by any of these sovereign States, in reference to their covenant with their co-States. It may be denied, as the author of this Proclamation does deny, that any of these States is a sovereign. It may be denied that they have entered into any covenant with each other: or that the Constitution of the United States is such a covenant. It may be denied, that this covenant has ever been broken; or that any State is responsible to any other, for any breach of it. But if all these things he granted (and in the question propounded, they are all assumed,) it follows necessarily, that a violation of the covenant by any of the States, leaves every other States, who is a party to it, the right to vacate the covenant as to itself also.
Nor can the exercise by a State, of this right of declaring a broken covenant no longer obligatory upon itself or its Citizens, be ascribed, with any propriety, to the high and indefeasible right of Revolution, which abides with every people. This last is a mere individual right, it stands upon the great maxim, salus populi est suprema lex. It is the right of self-defence, which man cannot alienate, although he may forbear to exert it. This high right rides over all other whatever they may be. It claims to legitimatize the dethronement of Sovereigns, the severance of Empires, the dissolution of ancient Societies, the breach of allegiance, and even of faith itself. But the right of declaring a covenant broken by one of the parties no longer obligatory upon another, is the very reverse of all this. It constitutes the ​foundation of all society, to secure it all governments of all kinds were instituted, and upon its preservation depends sovereignty itself. Upon it rests the efficacy even of this holy right of Revolution; for unless man can confide in his fellow, resistance of power would be vain; nor can any one confide in another, if their mutual pledges may be broken by one and remain obligatory upon the other, against his will.
The assertion by a State, of this right of declaring a broken covenant no longer obligatory upon itself or its people, does not necessarily produce any other effect, than their absolution from all the obligations formerly imposed upon them by the covenant while it subsisted as such. It leaves them, in the same plight as to the matter of the covenant, in which they were before it was entered into; int he same predicament in which they would have been if it had never existed.
The covenant, as to the party making such a declaration, becomes a mere nullity, without even any moral obligation upon that party, who, in declaring its exemption from all the former obligations of the covenant, so abandons thereafter, all shadow of claim to any privilege, right or benefit, to which, it might have been entitled under it.
The assertion, involves no breach of faith on the part of the State declaring the covenant broken by the other parties—so far from it, it affirms a breach of faith by them; and, as in the case of France, it so justifies the act of declaring its absolution from obligations already violated by others. It disturbs no relations subsisting between any other independent of itself, but leaves to them, the full and free exercise of all the rights and privileges which the party vacating the covenant has claimed and exerted for itself alone.
If they are so content to abide by the broken covenant still, they are free to do so, whether they think it has been violated or not.
If they choose to follow the example set, they have the same right to do so, as was exercised by those who set the example.
To the Moralist, or the Jurist, or the Publicist, these well-settled propositions need no illustration by any example. To others, I will give only one, found in our own history. The thirteenth of the old Articles of Confederation, declared, that "the ​Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the Legislature of every State." Yet did eleven only of the thirteen States, in opposition to the will of the two others, alter that solemn Covenant by the present Constitution of the United States; and according to the provisions of this latter Instrument, nine States only might have done so, as to themselves, as legitimately, as did the eleven.
From whence was such a power, which all concede to have been rightfully exercised, derived?
Certainly not from the Articles of Confederation themselves, for by this very article, the consent of "every State" was necessary, to make any alteration whatever in that instrument, nor from the fact that nine States then constituted a majority of all the States. If so, seven States would have been sufficient; and moreover, the old Articles of Confederation might have been put into operation in the year 1778, when they were agreed to by a majority of the States, three years before they went into actual operation by the agreement of all the States.—The power was derived in this way. The old Articles of Confederation had been violated in various modes, by the refusal or neglect of several of the States, to comply with the requisitions and recommendations of Congress, made in pursuance of that Covenant. These repeated violations of it, had given every party to it, the perfect right to declare that it was no longer obligatory upon them. But although this was their clear right, prudence and policy dictated, that they should not exert this right, until they had provided a substitute for the old Covenant; and until this substitute should have received the concurrence of at least nine of the States. This being done, their right of vacating the old instrument, which had been perfect before, was then prudently exercised. So that this very Federal Constitution, grows out of the conceded right of a State, to declare the obligations of a covenant no longer obligatory upon itself, when that covenant has been broken by other parties to it.
It must not be said, that the Articles of Confederation were the act of the State legislatures, and the new Constitution the act of ​the people of the several States; and that the latter abrogated the former, because it proceeded from a superior power. The people of the several States, by a very long acquiescence, had adopted the Articles of Confederation as their own act. Under these Articles many Treaties had been concluded, many other engagements had been entered into, war had been carried on, and peace made, in their name, and with their approbation. All these, were acts, that could only have been done by acknowledged agents and Representatives of the Sovereignty, which, as has been shewn, then abided in the people of the several States, in their corporate character of States, and was specially reserved to them as such in this instrument.
Therefore, the change of this covenant, made in a manner directly in opposition to one of its provisions, and against the will of some of the parties, cannot be justified upon this ground, but must be referred to the other. If so referred, the reason of that provision of the present Constitution, which confined its operation "to the States ratifying the same," even after it might be ratified by nine States, is obvious. The old Covenant being annulled, the States were remitted to their former condition, and could not then be bound by any new covenant to which they were not parties.
This example well illustrates, what a priori reasoning had established, that a covenant broken by one party, may by any other party be rightfully declared, no longer obligatory upon itself, and so practically annulled, as to itself, by the party making this declaration.—If this was not so in the case of States, who can foresee the consequences? Two States agree to exchange different portions of their territories: may one of them retain that which it has agreed to give, and rightfully demand of the other the delivery of what was the equivalent? Commercial advantages are given by one, as the consideration of like advantages to be received by itself: Is one bound to give, and not entitled to receive? It seems monstrous to affirm these things; but yet such are the inevitable consequences of the proposition, that a broken covenant is still obligatory, upon the faith of the party by whom it has not been violated.—It will not do to say, that a party injured by a breach of a covenant, may rightfully enforce performance from the other.
​This is true only "where the innocent party is desirous to continue the obligations of the covenant, but does not apply where he is content to take the other remedy, of declaring the broken covenant no longer obligatory upon him. Either mode of redress may be rightfully resorted to by the injured party, and his policy or discretion must decide which he will adopt: but he cannot rightfully take both. If this was not so, the question of mere right, would necessarily be converted into one of brute force, and right and power would become the same. The conclusion from these premises is, that when a covenant entered into between a State and its co-States is violated by any of the parties to that Covenant, any State may of right declare the Covenant broken, and so no longer obligatory upon itself. In this view of the subject it is of no moment, whether the government of the United States be considered as a party to the covenant or not, because, if the government is a party, then the principle applies in terms; and if not a party, but only the agent of the parties who approve and sanction its acts, the act of violating the Constitution, becomes by adoption the act of all the principals who approve, and sanction it, and so the same consequence follows, in either case. This right of a State, to declare a Covenant broken by some of the other parties no longer obligatory upon itself, when one of the objects of the broken covenant is "to form a more perfect Union," is the right of Secession, neither more nor less.
He who denies this right, must contend, that a majority of the States, containing a majority of the People, may break this Constitution at their will, and that the minority of the States and People, is bound in good faith, and of right, still to observe it on their part. For if an unconstitutional law be once passed, the Sedition law for example, it can never be repealed without the concurrence of both Houses of Congress, that is to say, without the concurrence of a majority of the States in the Senate, and of a majority of the People in the House of Representatives.
Nay, this is not all, for no amendment of the Constitution can be made to redress the grievance, however great that may be; for if seven only of these States refuse to ratify the amendment, the other Seventeen not constituting three fourths of all the States, cannot make the amendment valid. There remains then ​no relief, for an oppressed minority however great that may be, however cruel and unrighteous and wanton maybe the oppression, but to appeal to the God of battles, and to assert their rights in arms.
And was it for this our forefathers fought and bled? was it for this that the wisest and best were convened, to frame and adopt a Constitution stuffed with checks and limitations of power in every line? Who ever wanted any guaranty of the right of Revolution? That exists always; it is inherent in and inalienable by man. Compact neither gives nor can take it away. Free government, is but a device to prevent the necessity of recurring to this natural right. The Constitution of the United States, in separating the Sovereignty from the government, making government rest upon a Covenant between the Sovereign States themselves, to which covenant the government created by it, is no party, but a mere agent of the parties, and in thus constituting each party the judge of the observance of this covenant, with the right of declaring it no longer obligatory upon itself when broken directly or indirectly by any other party, was a proud monument of human wisdom. Rob it of these qualities, and it becomes a simple institution, by which all power is transferred to the majority, who may rule the minority according to the unchecked will of the majority, without accountability to any other than itself—the thread-bare garment of ancient days, long since cast off, because it was always found worthless to shelter right against power.—Nay, so sure as effects follow their causes, must a hard military despotism speedily succeed to such a government, in such a Country as this.
I will close this number with this remark. Wherever the object of the covenant is to establish union or association for any purpose, between different parties, designing to preserve their separate existence under the Covenant after it is made, Secession is one of the remedies that may always be resorted to by any of these parties, for a breach of this covenant by any other: and is nothing more than a declaration of that fact. In 1788, eleven States seceded from the Union, established by the old Articles of Confederation, and established the present Constitution for all States who might choose to ratify the same. In 1798, the United ​States seceded from the alliance established by their Treaty with France. In either case, the act proceeded from the same cause. In neither case, did this act produce any other consequence than it was designed to produce by those who adopted it; a mere dissolution of the former bond of union, or association as to themselves. Nor in any case, can any other consequence rightfully result from it, on the part of the State declaring its secession, although it is possible that other effects may flow from the course of the other party. These effects shall constitute the subject of my next number.