NOTE B.


OF THE SEVERAL FORMS OF GOVERNMENT.


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, possess 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, irresistable, absolute, uncontrollable authority, which by political writers in general, is denominated the SOVEREIGNTY;[3] 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.[4]

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 amendment 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.[5]

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: in savage life, which approaches nearly to that state, government is scarcely perceptible. In the epoch of a national revolution, man is, as it were, again remitted to a state of nature: in this case civil society exists, though the constitution or bond of union be dissolved, and the government or administrative authority of the state be suspended, or annihilated. But this suspension is generally of short duration: and even if an annihilation of the government takes place, it is but momentary: were it otherwise, civil society must perish also.

Even during the suspension, or annihilation of government, the laws of nature and of moral obligation, which are in their nature indissoluble, continue in force in civil society. Hence social rights and obligations, also, are respected, even when there is no government to enforce their observance. This principle, during state convulsions, supplies the absence of regular government: but it cannot long supply its place; government, therefore, either permanent or temporary, results from a state of civilized society.

As the natural end and sole purpose of all civil power is the general good of the whole body, in which the governors, or public functionaries, themselves are necessarily included as a part, so, that civil power alone can be justly assumed, or claimed by any governor, or public functionary, which is delegated to him by the constitution of the state, as necessary, or conducive to the prosperity of the whole body united; what is not so delegated is unjust upon whatever pretence it is assumed. Any contract or consent conveying useless or pernicious powers is invalid, as being founded on an error about the nature of the thing conveyed, and its tendency to the end proposed.[6]

The most natural method of constituting, or continuing civil power must, since the general use of letters, be some deed, or instrument of convention, between those who set about to establish a civil society or state, to serve as an evidence of their common intentions in forming such an association; to limit the powers which they meant to confer upon their public functionaries, and agents: and to prescribe the mode by which those agents shall be from time to time appointed, and the powers confided to them administered.[7] And if it should happen that time and experience may demonstrate that the people have adopted, or consented to a pernicious plan; whose destructive tendency they have discovered; and now see their error; taking that plan to tend to their good, which they find has the most opposite tendency; they are free from its obligation, and may insist upon a new model of polity.[8]

These speculative notions may be regarded as having received the most solemn sanction in the United States of America; the supreme national council of which hath, on the most important occasion, which hath ever occured since the first settlement of these states by the present race of men, declared, "that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to abolish it, and to institute a new government, laying its foundations upon such principles, and organizing its powers in such form, as to them shall seem most "likely to effect their safety and happiness."[9] Such is the language of that congress which dissolved the union between Great Britain and America. Few are the governments of the world, antient or modern, whose foundations have been laid upon these principles. Fraud, usurpation, and conquest have been, generally, substituted in their stead.

When a government is founded upon the voluntary consent, and agreement of a people uniting themselves together for their common benefit, the people, or nation, collectively taken, is free, although the administration of the government should happen to be oppressive, and to a certain degree, even tyrannical; since it is in the power of the people to alter, or abolish it, whenever they shall think proper; and to institute such new government as may seem most likely to effect their safety and happiness. But if the government be founded in fear, constraint, or force, although the administration should happen to be mild, the people, being deprived of the sovereignty, are reduced to a state of civil slavery. Should the administration, in this case, become tyrannical, they are without redress. Submission, punishment, or a successful revolt, are the only alternatives.

It is easy to perceive that a government originally founded upon consent, and compact, may by gradual usurpations on the part of the public functionaries, change its type, altogether, and become a government of force. In this case the people are as completely enslaved as if the original foundations of the government had been laid by conquest.

Thus, the nature of a government, so far as respects the freedom of the people, may be considered as depending upon the nature of the bond of their union. If the bond of union be the voluntary consent of the people, the government may be pronounced to be free; where constraint and fear constitute that bond, the government is no longer the government of the people, and consequently they are enslaved.

And, as the nature of the government, whether free, or the reverse, depends upon the nature of the bond of union, whether it be the effect of a voluntary compact, and consent, or of constraint, and compulsion; so the form of any government, depends altogether upon the manner in which the efficient force, and administrative authority of the state is distributed, and administered. 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: the people in this case are annihilated .... Their regeneration can only be effected by a revolution.

On the contrary, when the constitution is founded in voluntary compact, and consent, and imposes limits to the efficient force of the government, or administrative authority, the people are still the sovereign; the government is the mere creature of their will; and those who administer it are their agents and servants.

From hence it will appear that the nature of any government does not depend upon the checks and balances which may be provided by the constitution, since they respect the form of the government, only; but it depends upon the nature and extent of those powers which the people have reserved to themselves, as the Sovereign; or rather, upon the extent of those, which they have delegated to the government; or, which the government in the course of its administration may have usurped. An usurped government may be no less a government of checks and balances, than a government founded in voluntary consent and compact: witness the government of England, where the parliament according to the theory of their constitution (and not the people,) is the sovereign. The checks and balances of that Government have been the the topic of applause among all those who are opposed alike to the government of the people, or of an absolute monarch. But no people can ever be free, whose government is founded upon the usurpation of their sovereign rights; for by the act of usurpation, the sovereignty is transferred from the people, in whom alone it can legitimately reside, to those who by that act have manifested a determination to oppress them.


SECTION II.

"How the several forms of government we now see in the world at first actually began," says the learned commentator,[10] "is matter of great uncertainty, and has occasioned infinite disputes." The celebrated author of the Rights of Man observes[11] that the origin of all governments may be comprehended under three heads; superstition, power, and the common rights of man. The first were governments of priestcraft, through the medium of oracles; the second being founded in power, the sword assumed the name of a sceptre; the third in compact; each individual in his own personal, and sovereign right entering into the compact, each with the other, to establish a government. A late political writer in England,[12] remarks, that all the governments that now exist in the world, except the United States of America, have been fortuitously formed. They are the produce of chance, not the work of art. They have been altered, impaired, improved, and destroyed by accidental circumstances, beyond the foresight, or control of wisdom. Their parts thrown up against present emergencies, form no systematic whole. These fortuitous governments cannot be supposed to derive their existence from the free consent of the people; they are fruits of internal violence and struggles, between parties contending for the sovereignty; or of fraudulent and gradual usurpations of power by those to whom the people have entrusted the administration of the government, or of successful ambition, aided by the operation and influence of standing armies. A democratic government, however organized, must, on the contrary, be founded in general consent and compact, the most natural and the only legitimate method of constituting or continuing civil power, as was observed elsewhere. It is the great, and, I had almost said, the peculiar happiness of the people of the United States, that their constitutions, respectively, rest upon this foundation.


SECTION III.

The fundamental regulation that determines the manner in which the public authority is to be executed, is what forms the constitution of the state. In this is seen the form by which the nation acts in quality of a body politic: how, and by whom the people ought to be governed, and what are the laws and duties of the governors.[13]

From this definition of a constitution, given us by Vattel, we might reasonably be led to expect, that in every nation not reduced to the unconditional obedience of a despotic prince, there might be found some traces, at least, of the original compact of society, entered into by the people at the first institution of the state. Yet it seems to be the opinion of the learned commentator that such an original compact had perhaps in no instance been expressed in that manner. But it is difficult not to imagine that such an original contract must have been actually entered into, and even, formally expressed, in every state where government hath been established upon the principles of democracy. The various revolutions in the antient states of Greece were often attended with the establishment of that species of government: The original constitution of Venice was a pure democracy; and the constitutions of several of the Swiss cantons partake also, in a great degree, of the same character. Can we conceive such regulations to have been established without being in some degree formally expressed? That the evidences of them have not been handed down to us is not, I apprehend, a sufficient reason for rejecting the opinion that they have had existence. If, therefore, the opinion of the learned commentator be, that there never was an instance in which government had been instituted by voluntary compact, and consent of the people of any state, it would seem that there is room to doubt the correctness of such an opinion. If, on the contrary, the opinion be referred to the primitive act of associating by individuals totally unconnected in society, before, I shall not controvert it any further.

For it is evident that the foundations of the state or body politic of any nation may have been laid for centuries before the existing constitution, or form of government of such state. In England, the foundation of the state, (such as it has been from the time of the Heptarchy,) is agreed to have been laid by Alfred. And from that period till the union with Scotland, in the days of Queen Anne, the state remained unchanged: but the government during the same period was incessantly changing. Before the conquest it seems to have resembled a moderate, or limited monarchy. From that period it seems to have been, alternately, an absolute monarchy, a feudal aristocracy, an irregular oligarchy, and a government compounded, as at present, of three different estates, alternately, vieing with each other for the superiority, until it has finally settled in the crown. The foundations of the American States were laid in their respective colonial charters: with the revolution they ceased to be colonies, and became independent and sovereign republics, under a democratic form of government. When they became members of a confederacy, united for their mutual defence against a common enemy, they renounced the exercise of a part of their sovereign rights; and in adopting the present constitution of the United States, they have formed a closer, and more intimate union than before; yet still retaining the character of distinct, sovereign, independent states. In all these permutations of their constitutions or forms of government, the states, or body politic of each of the members of the American confederacy, have remained the same, or nearly the same, as before the revolution.

Thus, as has been already mentioned, society may not only exist, though government be dissolved; but the state, or body politic, may remain the same, whilst the government is changeable. Whenever the form of government is fixed, the constitution of the state is said to be established; and this, as has been observed before, may be effected either by fraud, or by force; or by a temporary compromise between contending parties; or, by the general, and voluntary conseconstitutionople. In the two first cases, the constitution is merely constructive, according to the will and pleasure of those who have usurped, and continue to exercise the supreme power. In the third case likewise, it is in general, merely constructive; each party contending for whatever power it hath not expressly yielded up toconstitutionor which it thinks it hath power to resume, or to secure to itself. Where the constitution is established by voluntary, and general consent, the people, and the public functionaries employed by them to administer the government, may be apprised of their several, and respective rights and duties: and the same voluntary, and general consenconstitution -->constitutionry to every change in the constitution, as to its original establishment. The constitution may indeed provide a mode within itself for its amendment; but this very provision is founded in the previous consent of the people, that such a mode shconstitutione the necessity of an immediate presumption of the sovereign power, into their own hands, for the purpose of amending the constitution; but if the government has any agency in proposing, or establishing amendments, whenever that becomes corrupt, the people will probably find the necessity of a resumption of the sovereignty, in order to correct the abuses, and vices of the government.

And herein, I apprehend, consists the only distinction between limited and unlimited governments. If the constitution be founded upon the previous act of the people, the government is limited. If it have any other foundation, it is merely constructive, and the government arrogates to itself the sole right of making such a construction of it, as may suit with its own views, designs, and interests: and when this right can be successfully exercised, the government becomes absolute and despotic. In like manner, if in a limited government the pubconstitutionaries exceed the limits which the constitution prescribes to their powers, every such act is an act of usurpation in the government, and, as such, treason against the sovereignty of the people, which is thus endeavored to be subverted, and transferred to the usurpers.

Inseparably connected with this distinction between limited and unlimited governments, is the responsibility of the public functionaries, and the want of such responsibility. Every delegated authority implies a trust; responsibility follows as the shadow does its substance. But where there is no responsibility, authority is no longer a trust, but an act of usurpation. And every act of usurpation is either an act of treason, or an act of warfare.

Legitimate government, then, can be established only by the voluntary consent of the society, who by mutual compact with each other grant certain specified powers, to such agents as they may from time to time chuse, to administer the government thus established, and their agents are responsible to the society for the manner in which they may discharge the trust delegated to them. The instrument by which the government is thus established, and the powers, or more properly the duties, of the public functionaries and agents, are defined and limited, is the visible constitution of the state. For it has been well observed by the author of the Bights of Man,[14] "that a constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and whenever it cannot be constitutiona visible form there is none. A consticonstitutionthing antecedent to a government, and a government, is only the creature of a constitution. It is not the act of the government but of the people constituting the government. It is the body of elements to which you can refer, and quote article by article; and which contains the principles on which the government shall be established, the manner in which it shall be organized; the powers it shall have; the mode of elections; the duration of the legislative body, &c."[15] Hence every attempt in any government to change the constitutionthe prince