Posted By David Bozarth on March 13, 2012
Weekly, daily I am amazed by what can be discovered when one investigates history. History is a veritable treasure trove of fascinating gems just waiting for the diligent seeker to uncover. If we, and by we I mean all of us, the People, the politicians, the educators and the judges would simply make the effort to truly learn our corporate history we would be amazed by what we learn.
One of the sources I continually return to is:
BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA.
IN FIVE VOLUMES. WITH AN APPENDIX TO EACH VOLUME, CONTAINING SHORT TRACTS UPON SUCH SUBJECTS AS APPEARED NECESSARY TO FORM A CONNECTED VIEW OF THE LAWS OF VIRGINIA, AS A MEMBER OF THE FEDERAL UNION.
BY ST. GEORGE TUCKER,
PROFESSOR OF LAW, IN THE UNIVERSITY OF WILLIAM AND MARY, AND
ONE OF THE JUDGES OF THE GENERAL COURT IN VIRGINIA.
PUBLISHED BY WILLIAM YOUNG BIRCH, AND ABRAHAM SMALL,
NO. 17, SOUTH SECOND-STREET.
ROBERT CARR, PRINTER.
When reading historic works one soon discovers they were prolific users of words, and short titles are rare. How about this, I’ll abbreviate the title to “Tucker’s Commentaries on Blackstone,” or “Tucker’s Blackstone” for even shorter reference. You can find this document by clicking the last title version. Mr. Tucker served this great land for a number of years. He was admitted to the Bar in 1775, served in the Chesterfield County militia under Nathaniel Greene and was wounded at The Battle of Yorktown during the Revolution, was a member of the Continental Congress, served as a judge in numerous courts including the US District Court system and was a Professor of Law at William and Mary (1800-1804); needless to say a very distinguished individual and patriot. Mr. Tucker is well qualified as a resource, and his Commentaries on Blackstone are exceptional; even if they require a lot of concentration to read.
As I continued to contemplate the items discussed in the previous post, “More Federal Tyranny,” I determined to turn again to the words and teachings of Mr. Tucker for added insight, and without fail a “diamond” of information revealed itself before my eyes. The simple, and yet very complex statement of the Danbury Baptist Association, “…the national government cannot destroy the Laws of each State…,” implies a level of sovereignty for the States which is unknown today. Could Mr. Tucker shed light on this? I hoped so.
I opened up Tucker’s Note A which is comments on a statement made by William Blackstone in Volume 1 of his commentaries, “Sovereignty and Legislature are indeed convertible terms; one cannot subsist without the other.” Little did I know that I was about to be awestruck, amazed and ultimately angered by Mr. Tucker’s comments. In five short paragraphs Tucker would speak with such weight, knowledge and authority that would crush the imbeciles who currently teach Constitutional History and Law in our modern colleges, universities and schools of law. His very first sentence would silence the vast majority of modern proponents of the study of Political Science:
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…
Modern Political Science seeks to establish the links between our form of government, the governments of Europe and finally the governments of ancient Rome and Greece, but here Tucker reveals there are “new lights” which our revolution shined on this complicated, and convoluted science. Later, he reinforces this further with, “…exhibiting a political phenomenon unknown to former ages.” He explains the American form of government is a phenomenon, i.e. “a rare or significant fact”, that cannot be traced to any origin previous in history. Yet, today our educators want to “authoritatively” proclaim that our founders followed the examples of the Roman and Grecian republics. They may have used a singular name, that would be “Senate”, but beyond this there are absolutely no common features to be understood.
I really don’t think I can say it any better than Mr. Tucker, so here are his comments, and as usual I will add bold emphases to highlight the points of interest:
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 hath 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 endeavour to shew, 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, thePEOPLE.
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.
I will simply close, as Tucker does, with his last paragraph which is undoubtedly the most weighty of all:
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.