“From this short review it will be easy to distinguish between that class of natural rights which man retains after entering into society, and those which he throws into common stock as a member of society. The natural rights which he retains, are all those in which the power to execute is as perfect in the individual as the right itself.—The natural rights which are not retained, are all those in which, though the right is perfect in the individual, the power to execute them is defective: they answer not his purpose—those he deposits in the common stock of society, and takes the arm of society, of which he is a part, in preference and in addition to his own. Society grants him nothing. Every man is a proprietor in society, and draws on the capital as a matter of right.”—“Rights of Man,” 1791, page 30, 31.
[42] “We have now traced Man from a natural individual to a member of society——Civil power, properly considered as such is made up of the aggregate of that class of the natural rights, which become defective in the individual in point of power, and answers not his purpose; but when collected into a focus, becomes competent to the purpose of every one.——Let us now apply those principles to government.——
“Individuals themselves, each in his own personal and sovereign right, entered into a compact with each other, to produce a government; and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.
“A constitution is not a thing in name only, but in fact.—It has not an ideal but a real existence, and wherever it cannot be produced in a visible form, there is none. A constitution is a thing antecedent to a government; and a government is only the creature of a constitution.—A constitution of a country is not the act of its government, but of the people constituting a 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 election, the duration of parliaments, or by what other name such bodies may be called, the powers which the executive part of the government shall have; and, in fine, every thing that relates to the complete organization of a civil government, and the principles on which it shall act, and by which it shall be bound.”—“Rights of Man,” page 35, 36.
“What is a constitution? it is the form of government, delineated by the mighty hand of the people, in which certain first principles or fundamental laws are established. The constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or altered only by the authority that made it.—What are legislatures? creatures of the constitution, they owe their existence to the constitution—they derive their powers from the constitution.—It is their commission, and therefore all their acts must be conformable to it, or else void. The constitution is the work or will of the people themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the legislature in their derivative capacity.”
Judge Patterson’s charge to the Jury in the Wioming case of Vanhorne’s lessee against Dorrance; tried at the circuit-court for the United States, held at Philadelphia, April term, 1795.
[43] Constitutional properties are only, as has been observed at the beginning of this letter, parts in the organization of the contributed rights. As long as those parts preserve the orders assigned to them respectively by the constitution, they may so far be said to be balanced: but, when one part, without being sufficiently checked by the rest, abuses its power to the manifest danger of public happiness, or when the several parts abuse their respective powers so as to involve the commonwealth in the like peril, the people must restore things to that order, from which their functionaries have departed. If the people suffer this living principle of watchfulness and controul to be extinguished among them, they will assuredly not long afterwards experience that of their “temple,” “there shall not be left one stone upon another, that shall not be thrown down.”
[44] When the controuling power is in a constitution, it has the nation for its support, and the natural and the political controuling powers are together. The laws which are enacted by the governments, controul men only as individuals, but the nation, thro’ its constitution controuls the whole government, and has a natural ability to do so. The final controuling power, therefore, and the original constituting power, are one and the same power.—“Rights of Man,” 1792. part 2d, b. 4, page 42.
[45] See late publications against the Federal Constitution.
[46] Blackstone, III. 279