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 can therefore be derived only from the voluntary grant of the people, and exercised for their benefit.
The sovereignty, though always potentially existing in the people of every independent nation, or state, is in most of them, usurped by, and confounded with, the government. Hence in England it is said to be vested in the parliament: in France, before the revolution, and still, in Spain, Russia, Turkey and other absolute monarchies, in the crown, or monarch; in Venice, until the late conquest of that state, in the doge, and senate, &c.
As the sovereign power hath no limits to its authority, so hath the government of a state no rights, but such as are purely derivative, and limited; the union of the SOVEREIGNTY of a state with the GOVERNMENT, constitutes a state of USURPATION and absolute TYRANNY, over the PEOPLE.
In the United States of America the people have retained the sovereignty in their own hands: they have in each state distributed the government, or administrative authority of the state, into two distinct branches, internal, and external; the former of these, they have confided, with some few exceptions, to the state government; the latter to the federal government.
Since the union of the sovereignty with the government, constitutes a state of absolute power, or tyranny, over the people, every attempt to effect such an union is treason against the sovereignty, in the actors; and every extension of the administrative authority beyond its just constitutional limits, is absolutely an act of usurpation in the government, of that sovereignty, which the people have reserved to themselves.
These few preliminary remarks will be somewhat enlarged upon in the sequel.
SECTION I.
Government, considered as the administrative authority of a state, or body politic, may, in general, be regarded as coeval with civil society, itself: Since the agreement or contract by which each individual may be supposed to have agreed with all the rest, that they should unite into one society or body, to be governed in all their common interests, by common consent, would probably be immediately followed by the decree, or designation, made by the whole people, of the form or plan of power, which is what we now understand by the constitution of the state; as also of the persons, to whom the administration of those powers should, in the first instance be confided. Considered in this light, government and civil society may be regarded as, generally, inseparable; the one ordinarily resulting from the other: but this is not universally the case: man in a state of nature hath no governor but himself: