with Notes of Reference (1803)
St. George Tucker
Of Sovereignty and Legislature
1. Blackstone’s Com. page 46. “Sovereignty and Legislature are indeed convertible terms; one cannot subsist without the other.”
THE generality of expression in this passage might lead those who have not considered with attention the new lights which the American revolution has spread over the science of politics, to conclude with the learned commentator, that, “By the sovereign power, is meant the making of laws; and wherever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administration of justice may put on. It being at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases: and all the other powers of the state must obey the legislative power in the execution of their several functions or else the constitution is at an end.”1
Before we yield our full assent to this conclusion, we must advert to a fact, probably truly stated by the learned author at the time he wrote; “That the original written compact of society had, perhaps, in no instance, been ever formally expressed, at the first institution of a state.”2
In governments whose original foundations cannot be traced to the certain and undeniable criterion of an original written compact whose forms as well as principles are subject to perpetual variation from the usurpations of the strong, or the concessions of the weak; where tradition supplies the place of written evidence; where every new construction is in fact a new edict; and where the fountain of power has been immemorially transferred from the people, to the usurpers of their natural rights, our author’s reasoning on this subject will not easily be controverted. But the American revolution has formed a new epoch in the history of civil institutions, by reducing to practice, what, before, had been supposed to exist only in the visionary speculations of theoretical writers. The world, for the first time since the annals of its inhabitants began, saw an original written compact formed by the free and deliberate voices of individuals disposed to unite in the same social bonds; thus exhibiting a political phenomenon unknown to former ages. This memorable precedent was soon followed by the far greater number of the states in the union, and led the way to that instrument, by which the union of the confederated 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, etc.3 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, etc.4 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.5
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.
1. Blackstone’s Commentaries, p. 49.
2. Ibid. 47.
3. C. U. S. Art. 1. § 8
4. C. U. S. Art. 1. § 9.
5. The following letter from the judges of the federal district court of Pennsylvania, to the president of the United States, may serve to illustrate the principle here contended for:
|Sir, to you it officially belongs to “take care that the laws” of the United States “be faithfully executed.” Before you, therefore, we think it our duty to lay the sentiments, which on a late painful occasion, governed us, with regard to an act passed by the legislature of the Union.|
|The people of the United States have vested in Congress all legislative powers “granted in the constitution.”|
|They have vested in one supreme court, and in such inferior courts as the congress shall establish, “the judicial power of the United States”|
|It is worthy of remark, that in congress the whole legislative power of the United States is not vested: an important part of that power was exercised by the people themselves when they “ordained and established the constitution.”|
|“This constitution” is “the supreme law of the land.” This supreme law “all judicial officers of the United States are bound, by oath or affirmation, to support.”|
|It is a principle, important to freedom, that, in government, the judicial should be distinct from, and independent of, the legislative department. To this important principle, the people of the United States, in forming their constitution, have manifested the highest regard.|
|They have placed their judicial power, not in congress, but in “courts.” They have ordained that the “judges” of those courts shall hold their offices “during good behavior;” and that “during their continuance in office, their salaries shall not be diminished.”|
|Congress have lately passed an act, “to regulate” (among other things) “the claims of invalid pensions.”|
|Upon due consideration, we have been unanimously of opinion, that, under this act, the circuit court, held for the Pennsylvania district, could not proceed |
|1. Because the business directed by this act, is not of a judicial nature; it forms no part of the power, vested by the constitution, in the courts of the United States: the circuit court must consequently have proceeded without constitutional authority.|
|2. Because, if upon that business, the court had proceeded, it’s judgments (for it’s opinions are it’s judgments) might, under the same act, have been revised and controlled by the legislature, and by an officer in the executive department, such revision and control we deemed radically inconsistent with the independence of that judicial power which is vested in the courts: and consequently, with that important principle, which is so strictly observed by the constitution of the United States.|
|These, Sir, are the reasons of our conduct. Be assured that, though it became necessary, it was far from being pleasant. To be obliged to act contrary either to the obvious directions of congress, or to a constitutional principle, in our judgment, equally obvious, excited feelings in us, which we hope never to experience again.|
|Signed, James Wilson, John Blair, Richard Peters. Philadelphia, April 18th, 1792.|
American Museum, Vol. 12. Part 2d. Appendix, 2d page, 7,8. See also the letter from the judges of the federal district court of New York, to the president of the United States on the same subject, dated April 10th, 1792, and signed, by John Jay, chief justice of the United States, William Cushing, one of the associate judges of the supreme court, and James Duane, judge of the district court.