states has since been completed, and in which, as we shall hereafter endeavor to show, the sovereignty of the people, and the responsibility of their servants are principles fundamentally, and unequivocally, established; in which the powers of the several branches of government are defined, and the excess of them, as well in the legislature, as in the other branches, finds limits, which cannot be transgressed without offending against that greater power from whom all authority, among us, is derived; to wit, the PEOPLE.
To illustrate this by an example. By the constitution of the United States, the solemn and original compact here referred to, being the act of the people, and by them declared to be the supreme law of the land, the legislative powers thereby granted; are vested in a congress, to consist of a senate and house of representatives. As these powers, on the one hand, are extended to certain objects, as to lay and collect taxes, duties, &c. so on the other they are clearly limited and restrained; as that no tax or duty shall be laid on articles exported from any state … nor any preference given by any regulation of commerce or revenue to the ports of one state over those of another, &c. These, and several others, are objects to which the power of the legislature does not extend; and should congress be so unwise as to pass an act contrary to these restrictions, the other powers of the state are not bound to obey the legislative power in the execution of their several functions, as our author expresses it: but the very reverse is their duty, being sworn to support the constitution, which unless they do in opposition to such encroachments, the constitution would indeed be at an end.
Here then we must resort to a distinction which the institution and nature of our government has introduced into the western hemisphere; which, however, can only obtain in governments where power is not usurped but delegated, and where authority is a trust and not a right … nor can it ever be truly ascertained where there is not a written constitution to resort to. A distinction, nevertheless, which certainly does exist between the indefinite and unlimited power of the people, in whom the sovereignty of these states, ultimately, substantially, and unquestionably resides, and the definite powers of the congress and state legislatures, which are severally limited to certain and determinate objects, being no more than emanations from the former, where, and where only, that legislative essence which constitutes sovereignty can be found.
This was Tucker’s Appendix B to volume 1 of his edition of Blackstone’s Commentaries. Tucker considered it a necessary introduction to his lengthy treatment, in the next two appendices, of the constitutions of Virginia and of the United States. His strongest point of insistence is on the necessity for governmental power to be restrained within specifically delegated limits. Of course, it is this emphasis on the limitations, rather than the uses, of power that separated the Jeffersonian Republicans from the Federalists. “But, if the efficient force or administrative authority be, altogether, unlimited; as if it extends so far as to change the constitution, itself, the government, whatever be its form, is absolute and despotic. …” By Tucker’s definition, the modern federal government, particularly in its judicial branch, qualifies as despotic. For Tucker, as for Calhoun, society, or the “body politic,” takes precedence always over the government, or state. And for Tucker, unlike Lincoln, the people may resume their sovereignty at any time. The discussion is most of all, perhaps, an answer to those Federalists, like John Adams and Alexander Hamilton, who emphasized the evils of democracy and the need for it to be restrained. Tucker’s arguments about the failings of “aristocracy” can be seen as a reply to the Federalist philosophers and also perhaps as a prophecy of later times. And Tucker’s long explanation of the characteristics and virtues of “confederate governments,” such as the United States, though strange to modern ears, represents a predominant American understanding of his own time and long after.
THE CONCISE MANNER in which the commentator, has treated of the several forms of government, seems to require that the subject should be somewhat further considered: this has been attempted in the following pages; in the course of which the student will meet with considerable extracts from the writings of Mr. Locke, and other authors, who have copiously treated the subject; of which an epitome, only, is here offered for the use of those who may not possess the means of better information.
PRELIMINARY REMARKS.
A nation or state is a body politic, or a society of men united together to promote their mutual safety, and advantage, by means of their union.
From the very design, that induces them to form a society that has its common interests, and ought to act in concert, it is necessary that there should be established a public authority, to order and direct what ought to be done, by each, in relation to the end of the association.
This political authority, is by some writers denominated the sovereignty;1 but, for reasons which will be hereafter explained, I prefer calling it the government, or administrative authority of the state, to which each citizen, subjects himself by the very act of association, for the purpose of establishing a civil society.
All men being by nature equal, in respect to their rights, no man nor set of men, can have any natural, or inherent right, to rule over the rest.
This right cannot be acquired by conquest, for the few, are, in a state of nature, unable to subdue the many.
Were it ever possible that the few could triumph over the many, the power thus acquired, can not be transmissible by inheritance, since it may fall into hands incapable of maintaining it.
The right of governing can, therefore, be acquired only by, consent, originally; and this consent must be that of at least a majority of the people.2
Since no person possesses any inherent right to govern, or rule over the rest; and since the few cannot possess, naturally power enough to subdue the many; the majority of the people, and, much more the whole body, posses all the powers, which any society, state, or nation, possesses in relation to its own immediate concerns.
This power which every independent state or nation, (however constituted, or by whatever name distinguished, whether it be called an empire, kingdom, or republic and whether the government be in its form a monarchy, aristocracy, or democracy, or a mixture or corruption of all them,) possesses in relation to its own immediate concerns, is unlimited, and unlimitable, so long as the nation or state retains its independence; there being no power upon earth, whilst that remains, which can control, or direct the operations, or will, of the state in those respects.
This unlimitable power, is that supreme, irresistible, absolute, uncontrollable authority, which by political writers in general, is denominated the SOVEREIGNTY; and which is by most of them, supposed to be vested in the government, or administrative authority, of the state: but, which, we contend, resides only in the people; is inherent in them; and unalienable from them.3
Except in very small states, where the government is administered by the people themselves, in person, the exercise of the sovereign power is confined to the establishment of the constitution of the state or the amendments of its defects, or to the correction of the abuses of the government.
The constitution of a state is, properly, that instrument by which the government, or administrative authority of the state, is created: its powers defined, their extent limited; the duties of the public functionaries prescribed; and the principles, according to which the government is to be administered, delineated.4
The GOVERNMENT or administrative authority of the state, is that portion only of the sovereignty, which is by the constitution entrusted to the public functionaries: these are the agents and servants of the people.
Legitimate government
