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It is power or force, applied to a certain object; and the administration of government is the exercise of this power. This power is of different kinds, and exists in different forms or modifications; but in all cases it must be essentially of one of two kinds, either physical or moral; and hence governments are most naturally and properly divided into two classes, those in which the power is essentially physical, and those in which it is essentially moral: the latter is a government of reason in which the "just powers of the government are derived from the consent of the governed," and are exercised in conformity to their will, constitutionally expressed; the former consists of the exertion of actual or physical force in opposition to the will of the governed, and in constraint thereof. It is true that in every form of civil polity, the two qualities here noticed must exist in some degree ; yet the influence of one or the other, predominates and constitutes the principle of the government.

A more just definition of a free government, has not, perhaps, been given, than that by a distinguished American,* namely that it is the substitution of moral for physical force. The principle of government, and the form or frame of it, are not convertible terms, for on the same principle, the structure of the fabric admits of many varieties. In a government, the principle of which is reason, the frame may be extensively varied, and diversified ; but there is a limit beyond which it cannot proceed: hence an absolute monarchy, or aristocracy, is entirely inconsistent with a government of reason, and will only admit of the principle of actual force; such a government must almost necessarily possess a military character, as where the will of one man constitutes the supreme law, it will be in opposition to the will of the governed, and can only be enforced by the terrors of the sword. The frame of government, consists of the arrangement and adjustment of its powers, and the manner in which they are to be exercised. In modern language, this is called a constitution; and emanating directly or indirectly from the people, and in the same manner sanctioned by them, it is an authority above the legislature, or the law-making power, in whatever hands that may be confided, and cannot be abrogated or altered by the legislative power, but on the contrary, is binding upon it, prescribes its limits. and the extent of its authority, and regulates its conduct. The constitutional law, according to the sentiments of all enlightened politicians, at the present day, and the general understanding of the people in this country, constitutes the supreme authority in a state, and is above the reach of the ordinary legislature, and as much binding thereon, as it is on individuals, and instead of their having the power to alter, or in any way vary its provisions, if any law, or act of theirs, is repugnant thereto, it is absolutely void. This may truly be said to be the authority of law, in contradistinction to that of man; the constitutional law is a rule for the state, in its corporate capacity,

*The late Joel Barlow,

and for the governors, as the officers of that corporation, as much as the law of the ordinary legislature is a rule for the people, in their individual capacity. The people in the United States, at the present day, are so familiar with these ideas, and in general entertain such clear and distinct notions, as to the distinction between constitutional law, and that of the ordinary legislature, and have heard so much said about constitutional and unconstitutional laws, it is scarcely recollected, that this doctrine is of recent date, and for which the world is indebted to America: for, if it did not originate in this country, it was here that it was first reduced to practice, exemplified, and its utility and practicability fully established. The ancients had not even a conception of constitutional principles, as they are here understood, and hence the word constitution, as Mr. Jefferson has fully demonstrated, signified the same as statute, law, or ordinance; and these were synonymous and convertible terms, and so used by all former writers on government, both Roman and British. And before the terms of the civil law were introduced into Britain, the corresponding Saxon words bid and set, were used by our Saxon ancestors. It is true that in Great Britain, all classes speak of a constitution, as frequently as is done here; and likewise of certain principles, acts, and historic events, as forming, and being a part of their constitution. They have had their magna charta, their bill of rights; their petition of rights; their conventional Parliaments; acts establishing and regulating the descent of the crown; acts of union; triennial and septennial acts, &c.; by which certain principles are considered as being incorporated into the government, or established in such a manner, as that they are not to be abrogated or altered by Parliament. Yet nevertheless, it is a maxim which is insisted on by `their ablest political writers and jurists, that Parliament is omnipotent, and can do any thing which is not physically or morally impracticable. And it is a clear and just principle, that a subsequent Parliament possesses the same powers as a prior Parliament, and can repeal, abrogate, or qualify their statutes; and even a subsequent act, without containing any express repeal of a former statute, if repugnant thereto, abrogates the prior law, as it is a maxim in the English law, that, Leges posterious priores contrarius abrogant. It is difficult to reconcile the principle of the omnipotence of Parliament with the idea of a constitution, which is not only of higher authority than any act of the legislature, but binding on them, and a rule to regulate their conduct. The notion of the omnipotence of Parliament, supposes that it can annihilate itself, alter the principles on which it is constituted, destroy or alter the co-ordinate branches of government, the executive and judiciary, by vesting their powers in different bodies, modifying and restricting them, as they pleased, or assuming them themselves. It is apparent, that many of these acts would be wholly repugnant to the prevailing opinions, as to the constitution of government in that country; and indeed repugnant to

the idea of fixed principles of government of any kind. The advocates of the British system, must either abandon the principle of the absolute power of Parliament, or relinquish all pretensions to a constitution, or any fixed principles of government.

But it is very evident, that as long as the present form of government exists, Parliament does not possess or exercise absolute authority, for if it did, that form of government would be ipse facto, destroyed; for although the English system does not comprise a constitution, according to American ideas, yet it is a government constituted and administered according to certain ficed principles, which possess an authority and stability, paramount to an act of Parliament. The most important of these, are a separation of the different powers of government, and the confiding of those powers to a distinct and separate magistracy, the extent and limits of these powers, relative to each other, and the principles on which the legislative department is constituted. These principles cannot be altered without changing the form or theory of the government; they must therefore partake of the nature of constitutional law, and constitute the framie or outline of the system of civil polity.

But the English constitution, both as to the origin and nature of it, is essentially different from the constitution of the United States, or the individual states. The basis of the English system, is the division, adjustment, and balance of power, between what is called the three estates of the kingdom, consisting of the king, lords, and commons, or king, nobility, and people. Their system, therefore, has for its basis, social distinctions, and recognizes not only the justness and propriety of these distinctions, but also the separate rights and privileges which appertain to these different and artificial classes, into which society is divided, and attempts to maintain and preserve their separate rights and privileges, by a distribution and balance of the powers of government between them. The basis of their system is the inequality, and the basis of ours is the equality, of mankind, in their social character and relations, as well as in their natural rights. Their system is designed to maintain and regulate an unnatural, unequal, and unjust state of social order, and social rights; our system establishes and regulates social order, upon the natural rights of man; and maintains and defends all those rights, which are not incompatible with a state of society.

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The origin, or establishment of the British constitution, and that of the United States, is entirely different, in principle, as well as in fact. Theirs is called a compact between the three estates,' which supposes a contract, or assent, between the king, the nobility, and the people, as to the share in the government, which each possesses. But their history sufficiently shews, that there is no foundation for this in fact, and that it would be much more just to denominate their constitution a compromise, consisting of mutual concessions made by the three estates. It is however, much more correct, and consonant to historic truth, to regard it as the result of concessions extorted

by the people from the crown, and the nobility. From the earliest period of their history, there has been a constant struggle between the king, the nobility, and the people at times, this has broken out into civu wars, and formerly produced almost a constant state of civil commotion. Anciently, the contest was between the barons and the crown. The people, or, as they were then called, the commons, were not represented in Parliament, and had no share in the government, until the year 1265, after which, they increased in strength and importance. At one period, one of these interests has prevailed, and encroached upon, and often nearly crushed the others; at another period, and under a different reign, a different interest, or estate, has predominated, and entrenched on the others. When the sovereign was a man of talents and energy, ambitious, and tyrannical, he stretched the prerogatives of the crown, and encroached on the rights of the nobility and the people; and on the contrary, when the crown has been possessed by a weak man, the nobles or the people have extorted from him certain concessions, which have been denominated privileges. By the collisions of these opposing interests, and their constant acting and re-acting on each other, and by the concessions which have been made, each party has acquired certain rights, which are acknowledged by the other parties; and the possession, enjoyment, and definition of these rights, constitutes certain fixed principles, which form the outlines of their government. The rights of the crown are called prerogatives, those of the people, privileges.

Hence, the English theory of government, consists only of the respective rights of the three estates, and the manner in which they are to be exercised and enjoyed, or, in other words, the power which each possess in the government, and the principles on which it is exercised. To vary the rights or power of either of the estates, is to change the constitution; and the balance of these powers constitutes. the stability of the government, and of the nation.

How different is the constitution of the United States from that of England, as to the origin and source of it,-as well as in its principles? Ours is the act of the people;-it is a solemn declaration of the will of the nation, as to the manner in which it will be governed; it is a delegation, or rather the organization of power, for a specific object, the extent of which is defined, and the manner in which it is to be exercised, prescribed. As it is the act of the people, it pre-supposes the sovereignty residing in them, and from its source, and origin, necessarily possesses an obligation paramount to a law of the legislature, which is only one of the branches of magistracy created by its provisions, and deriving its existence, as well as its authority, from it.

With the exception of the recent republics of South America, that of the United States, is, perhaps, the only existing government which was formally instituted, and established as the act of the nation. As society, even in its simplest forms, cannot exist without some

kind of civil polity, there is no way, that a government could be established at one time, as the act of the nation, without the existing authorities concurring therein, and this they will never do; and hence the adoption of new institutions must be preceded by a revolution, which subverts the authority of a nation, or separates one state from the dominion of another. In either of these events, a nation has the opportunity and privilege of establishing a system of government for itself, and may, if it pleases, "abolish the forms to which it has been accustomed, and provide new guards for its future security."* But if, in either of these cases, a nation proceeds to form and adopt political institutions, it is not to be supposed that they will consider the subject entirely in the abstract, regarding only the principles of freedom, and the maxims of experience, and that they will wholly disregard the "forms to which they have been accustomed." This would be impossible; and if those who may be entrusted to devise and frame a system, were themselves above, and could disregard the influence here spoken of, they would be under the necessity of conforming in a considerable degree, to the opinions, habits, and even the prejudices of the nation. Hence new institutions must contain a certain portion of the spirit and principles of the old.

Such was the condition and the conduct of the American colonies on their separation from Great Britain. They were called on to provide systems for their own security, but they did not disregard the" forms to which they had been accustomed." In many of the colonies little or no change took place, except the abrogation of the dominion of the British sovereign, and those alterations in the forms of administration which that required, by substituting the authority of the state for that of the crown.

In Connecticut and Rhode-Island, no new constitution was adopted; the government was organized and administered under the same forms, and so continued, the former until 1818, and the latter to the present time. Charter governments having been established in these two colonies, giving the people the power of appointing all their officers, the authority of the crown, as it respected the internal administration, had never been but little more than nominal. In the other colonies, the separation from the parent country produced a greater change in their political situation, and they found it necessary to provide new guards for their security, and called conventions and framed constitutions during the agitations of the revolution. The time was inauspicious, in every respect but one; it was calculated to ensure unanimity in favour of the new systems, whatever might be their imperfections, this measure being then regarded as indispensable, and as a part of the means for sustaining the independence and attitude of the country. From these considerations, two consequences followed; the first, that the systems, in the several states, differed from each other, each retaining a greater or less degree of the forms and principles that were already established, and to

* Declaration of Independence.

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