St. George Tucker

tucker

 

St. George Tucker’s “View of the Constitution of the United States” was the first extended, systematic commentary on the new constitution after it had been ratified by the people of the several states and amended by the Bill of Rights. Published by a distinguished patriot and jurist in 1803, it was for much of the first half of the nineteenth century an important handbook for American law students, lawyers, judges and statesmen.

Though nearly forgotten since, it remains an important piece of constitu­tional history and a key document of Jeffersonian republicanism. Two sufficient reasons may be given for the neglect of Tucker’s work and related, supportive writings. First, his view of the federal government as a limited, delegated agent of the sovereign people of the several states, and not the judge of the extent of its own powers, was buried by the outcome of the Civil War, the ground having been well-prepared by Joseph Story and Daniel Webster for Abraham Lincoln. Secondly, Tucker’s constitutional writings were appended as essays to a densely annotated edition of Sir William Blackstone’s Commentaries on the Laws of England which he had prepared for the use of American law students, and there­fore have been nearly inaccessible and unnoticed by scholars.

St. George Tucker was born in 1752 in the British colony of Bermuda. The Tuckers were a numerous and talented family, many of whom immigrated to the mainland colonies in North America to make their fortunes. St. George’s broth­er, Thomas Tudor Tucker, made his way to South Carolina, represented that state in the first two Congresses, and was Treasurer of the United States from 1801 till 1828, on appointment of Thomas Jefferson.

St. George reached Virginia in 1771. For a year he studied law at the College of William and Mary as did Jefferson and Marshall, under George Wythe, soon to be a Signer of the Declaration of Independence and chief justice of Virginia. Talented, urbane, and sociable, he had no trouble making his way in the best soci­ety. In 1775, at the age of twenty-three, Tucker was admitted to the bar. In that same year he was present when Patrick Henry made his stirring appeal to liber­ty or death.

Shortly after, he took part in an expedition to Bermuda which gained pos­session of a large quantity of military stores that were of great use to Washington’s army. Like all of the Tuckers, St. George married well, in 1778, to a wealthy widow, Frances (Bland) Randolph, and acquired large estates in Chesterfield County. He also acquired three step-sons, one of them the five-year-old John Randolph, later to be famous as “Randolph of Roanoke.” Their rela­tionship was often tense.

Tucker took an active part in the Revolutionary war. Having been elected colonel of the Chesterfield County militia, he led them to Greene’s army and is said to have distinguished himself at the battle of Guilford Court House. During the Yorktown campaign, serving as a lieutenant colonel of horse and an aide to Governor and General Thomas Nelson, he was wounded.

Tucker’s letters to his wife during his military service, which were published in the Magazine of American History, July and September, 1881, are exhibits of marital felicity and valuable historical source for the last Southern campaign.

After the war his law practice flourished. He was appointed one of the com­mittee to revise the laws of the commonwealth, and served with James Madison and Edmund Randolph as Virginia commissioners to the Annapolis Convention. Tucker’s career as an expounder of the new constitutions of Virginia and of the United States began in 1790 when he succeeded Wythe as professor of law at William and Mary.

Contemplating the necessities of instruction, Tucker decided to use as a text Blackstone’s famous commentaries on the English law. Blackstone (1723-1780) had for the first time brought the great chaotic mass of statutory and common law into a system that could be approached by students. Published in four volumes. 1765-1769, with later editions, his work supplanted the commentaries of Sir Edward Coke (1552-1634) on the fifteenth century treatises of Sir Thomas Littleton, as the premier legal text of the English-speaking world.

Blackstone was indispensable, but for Americans it was also problematic because suffused with the principles of a monarchical and aristocratic state which Americans had recently repudiated. Americans had exhibited to the world con­stitutions in which the people had exercised their sovereign authority to create governments that rested specifically on their consent at an identifiable moment of history, and not long growth of authority and precedent. Such governments were delegates rather than masters of the people, and were limited to those spe­cific powers which the people had given them. And through regular elections or if necessary a drastic reassertion of sovereignty, the people could change their government and their governors.

It was necessary, then, to republicanize Blackstone. This Tucker accom­plished by extensive notes to the body of the work and by writing several dozen essays, the longest of them “View of the Constitution of the United States” and “Of the Constitution of Virginia,” which appeared as appendices in the various volumes of the work (expanding Blackstone’s four volumes to five). This revised, Americanized Blackstone was published at Philadelphia in 1803 and was in wide use thereafter.

While its use cannot at this date be quantified, all authorities agree that it was influential. Later American editions of Blackstone followed Tucker’s method and there is evidence of extensive use in Pennsylvania and South Carolina as well as Virginia. And doubtless it was taken westward by young Virginians who immigrated to every new state in the nineteenth century.

Besides his edition of Blackstone, Tucker published several and political pamphlets and articles under pseudonyms, as was customary at the time. These included “Reflections on the Policy and Necessity of Encouraging the Commerce of the Citizens of the United States,” in American Museum, vol. 2 (September 1787). pp. 267-274; Remarks on the Treaty of Amity . . . between Lord Grenville and Mr. Jay (Philadelphia: M. Carey. 1796); Cautionary Hints to Congress, Respecting the Sale of Western Lands, by “Columbus” (Philadelphia: M. Carey. 1796); Letter to a Member of Congress, Respecting the Alien and Sedition Laws, by “Columbus” (Richmond: 1799); Reflections on the Cession of Louisiana to the United States, by “Sylvester” (Washington: printed by Samuel Harrison Smith. 1803); and possibly others. The essays on the common law and on slavery had been printed as pamphlets before they were included by Tucker in his Blackstone.

St. George Tucker was also by avocation a writer of moderately good verse, both patriotic and humorous. These have been collected, with an interesting introduction, in William S. Prince, ed.. The Poems of St. George Tucker of Williamsburg, Virginia. 1752-1827 (New York: Vantage Press. 1977).

In 1803 Tucker became a judge of the highest court in Virginia. In 1813 he was appointed by Madison as the United States district judge for Virginia, an important post in which he had a distinguished career, resigning shortly before his death in 1827. As a jurist, Tucker never wavered from the principles he had set forth earlier as a professor of law.

Tucker established a virtual dynasty of legal and constitutional talent which carried on Jeffersonian principles through successive generations. A son, Henry St. George Tucker (1780-1848), served in the state legislature and the U.S. House of Representatives, was chief justice of Virginia, conducted a successful private law school at Winchester, declined appointment as Attorney General of the United States by President Jackson, became professor of law at the University of Virginia, and published books on natural law, constitutional law, and the laws of Virginia.

Another son, Nathaniel Beverley Tucker (1784-1851), was professor of law at William and Mary and published three novels and a number of works on polit­ical economy and public issues. He is a major figure in the intellectual history of the Old South.

In the next generation, St. George Tucker’s grandsons were equally distin­guished. John Randolph Tucker (1823-1897), son of Henry St. George, was attorney general of Virginia, professor of law at Washington and Lee, counsel in numerous major cases before the United States Supreme Court, served in the U.S. House of Representatives 1875-1887, and published, among other works, The Constitution of the United States (2 vols. 1899). Another son of Henry St. George was Nathaniel Beverley Tucker (1820-1890). He edited an antebellum Washington newspaper, was U.S. consul at Liverpool, and served the Confederate States as an economic agent abroad.

St. George Tucker’s great-grandson Henry St. George Tucker (1853-1932), son of John Randolph Tucker, represented Virginia in the U.S. House of Representatives, 1876-1889 and 1922-1932, carrying on the states rights, pop­ulist, anti-big business tradition of the state and family. He was also professor of law at Washington and Lee, and published Limitations on the Treaty-Making Power under the Constitution of the United States and Woman’s Suffrage by Constitutional Amendment.

Given the massive changes in the extent and distribution of power since the Civil War, and the resulting adjustments in accepted constitutional understand­ings, Tucker’s states rights, limited government principles are likely to seem strange to Americans today, unless it is remembered that they were the prevail­ing ideas of his time and for several generations after.

The Constitution that Tucker explicates is the Constitution that was ratified by the people of the several states. It is to be understood as explicated by the ratifiers, including their reservations, some of which were embodied in the first ten amendments, a further limitation on the delegated powers of the new general government. For the assumption that the meaning and authority of the Constitution is to be found in its ratifiers, and not in the learned discussions of the Framers at Philadelphia, who were after all only drafting a proposal for the people’s consideration. Tucker has the support of Madison himself. (See Madison’s letter to Thomas Ritchie, September 15. 1821.)

Tucker, then, does not stand in awe of the Federalist Papers. He recognizes them as special pleadings for the Constitution before ratification and amendment. He finds some things in them admirable, particularly the defence of an inde­pendent judiciary, but he quotes them most often in support of the limited nature of the new government. Though Tucker is well read in political philosophy, he does not need a long historical exposition of ideas to explain the Constitution. It is for him generally clear and specific—self-evident to those who ratified it. That does not mean that he cannot call upon Justinian, Grotius, Puffendorf, Vattel, Montesquieu, Locke, Rousseau, or other more nearly contemporary writers as needed.

Tucker is the exponent of Jeffersonian republicanism, or what has been called “South Atlantic republicanism,” in contrast to the commercial republicanism of New England which has been taken to be the true form of American phi­losophy since the Civil War.

The political background is significant. The Constitution had been ratified by Virginia and New York reluctantly (and by North Carolina and Rhode Island not at all) with reservations and the understanding that amendments would be made. Twelve such amendments were proposed by the First Congress and ten of them swiftly ratified. This “Bill of Rights” was to reassert the limited nature of the new government’s powers and their dependence solely upon the delegation of the people of the sovereign states.

Hardly had the government gotten underway than the largely Northern polit­ical faction gathered under Hamilton and Adams launched an initiative to stretch those powers as far as they would go, and make light of the limits. Much of this expansion represented a desire to use the government in mercantilist ways—a national bank, a funded national debt, a commercial treaty with Great Britain. All policies which profited the commercial classes of the North and were burden­some to the immense free-trade agricultural empire of the South.

Into this conflict burst the French Revolution. The great ideas of revolution and reaction that tore Europe apart did not go unnoticed in the New World, which had just had its own “revolution,” whose leaders were well aware of the power of ideas. The relation of American neutral commerce to the belligerent powers was a vexing practical issue. The ideological heat from Europe intensified intra-American conflict.

Thus, the puritan clergy of New England denounced Jefferson as a Jacobin atheist who would set up the guillotine and undermine the moral foundations of society. The real conflict, perhaps, was cultural—the highly ordered, communal society of New England where most of life was to be regimented under leaders of proper principle—and the more easy-going laissez-faire life of the South. It is a curious fact that the bourgeois leaders of the North had visions of eminent uprisings of Jacobin mobs, and supported policies to stifle dissent, such as the Sedition and Alien Laws—while the aristocratic leaders of the South declared for the people and for policies of liberality. While Jefferson rested at ease among his two hundred slaves, John Adams barricaded himself in his Philadelphia mansion against the expected attack of the revolutionary mob. These differences in culture were expressed in political styles. John Adams rode to his inauguration in a coach with white horses, insisted on being addressed as “His Excellency,” and demanded strictest social protocol. The genuine aristocrat Jefferson walked to his inaugural with the Virginia militia, established the order of pell-mell at leisurely White House functions, and sent his messages unostentatiously to Congress in writing rather than going in person.

If the Federalists called their opponents Jacobins, the Jeffersonians could reply that the Federalists were dangerously imbued with “monarchical” tenden­cies. They did not really trust the people, giving only lip service to republican­ism, but wanted a government of large, even unlimited authority. Both Hamilton and Adams had expressed themselves to be devoted admirers of the British con­stitution, to which they attributed most of what was valuable in the American constitutions.

Tucker spends a good deal of effort drawing contrasts between the British and American constitutions, to the credit of the latter. Most of the admired British principles he considers to be imaginary rationalizations for quite different reali­ties. This is his response to those who he felt over-stressed the British inheri­tance. What Americans had deliberately created was superior to what had mere­ly evolved in a system that did not honor the sovereignty of the people.

In 1798 the Federalist Congress passed and Adams signed the Alien and Sedition acts. The Alien law allowed the president to deport any non-citizen he deemed undesirable. No judicial proceeding was involved. For Tucker and other Jeffersonians this was assumption by the federal legislature and executive of powers not delegated and, as well, a violation of the separation of powers since it gave the president authority that belonged properly to the judiciary.

Even worse was the Sedition law which provided for criminal prosecution in federal courts of persons deemed to have made publications that tended to bring the officers of the federal government into disrepute. Several conspicuous prosecutions were made. Tellingly, the Congress that passed the act designed it to expire on the date they would leave office—in case their opponents got control.

For Jeffersonians like Tucker the Sedition law was a violation of individual liberties, an assumption of power that had never been delegated to any part of the government (they had, after all, just ratified the Tenth Amendment), an invasion of state rights, and an obvious attempt to put down political opposition and crit­icism of those in power.

The Jeffersonian response was the series of reports and resolutions that came out of the legislatures of Kentucky and Virginia from 1798 to 1800, written by Jefferson and Madison. These reasserted that the federal government was of spe­cific, limited, and delegated powers. It was the agent of the sovereign people of the states and not the proper judge of its own limits. When those limits were egregiously overstepped, it was the right and duty of the states to interpose their authority and render such usurpations null and void.

The conflict of federal versus state power remained theoretical and potential while the issues were settled by normal political process. Jefferson and his party triumphed in 1800 and remained in power for a quarter of a century (during which New England states asserted similar rights in protest of commercial and military policies). There was no showdown, but for Tucker and many others, for several generations, the “Principles of 1798” remained a primary text of consti­tutional discourse.

Tucker takes for granted the option of secession. If the Constitution draw s its authority from the consent of the sovereign, the people of the several states, then the sovereign may withdraw that consent (not something to be done lightly, of course). The people’s consent to the Constitution is not a one-time event, bind­ing them ever after to be obedient to the government. Its withdrawal remains always an option against a government over-stepping its bounds, in the nature of the Constitution itself and in the right of revolution affirmed by the Declaration of Independence.

One of Tucker’s principal concerns as a legal and political thinker is to affirm the standing of the judiciary as an independent and coequal power with the legislature and executive. This is an American accomplishment to be supported in state and federal governments both. For him the judiciary is the realm where individuals may seek relief from the oppressions of the government. Its power and independence are thus essential.

But by no means does this encroach upon the even more fundamental feder­al principle. It is the duty of the federal courts to restrain the other branches of the federal government, not to make policy and certainly not to invade the rights of the states. The jurisdiction of the federal courts is rightly limited to the dele­gated sphere of federal power and carries no imprimatur of supremacy over the state courts and their jurisdictions.

But Tucker sensed the potential for just such extensions of power, something which he and other Jeffersonian jurists were committed to resist. This is reflect­ed in his serious attention to the question of the common law and its application to federal jurisprudence. To infuse the common law into federal jurisprudence would potentially give the federal courts power over every question in society. This was the path taken, successfully, by Justice Joseph Story in both teaching and decree, and which laid the groundwork for the judicial supremacy of the twentieth century. For Tucker there was a clear answer. The common law was infused into American law because each of the colonies had adopted such parts of it as were relevant or expedient. Each state was different in this respect and each the judge of its own business. But the federal judiciary was created by the people with specific, limited delegated powers. It was not among those powers to evolve or assume legal principles from some other source. The Constitution and the laws themselves were plain enough, and unlike the common law, rested upon the consent of the people.

The states rights idea is conventionally dismissed as a rationalized defence of minority interests, particularly in regard to slavery in the antebellum South. This makes Tucker’s writing on slavery particularly interesting. In 1796 he pub­lished a pamphlet proposing a plan of gradual emancipation for Virginia, and included the same as an appendix to his Blackstone. His reasoning and propos­als came to naught, but they show what it was still possible to consider and dis­cuss in the South in Tucker’s time. This was, of course, before the rise of mili­tant abolitionism in the North, and the question was strictly one for Virginians to decide.

Tucker can be seen as prophetic in a number of ways. For instance, one of the chief defects or dangers he finds in the Constitution has to do with the pres­ident, and especially his powers in foreign affairs and the military. He would have preferred to have the House of Representatives as well as the President and Senate approve treaties. He understands that it will be potentially in the power of a president to bring on war by creating a situation in which the required declara­tion by Congress would be no more than an after-the-fact recognition.

Tucker remains a valuable expositor of early American republicanism, well worth the attention of any who wish to understand the origins of our system, both in regard to the Constitution and in regard to the larger idea of republican gov­ernment which underlies it. Scattered through his disquisitions are many gems of quotable aphorism, as when he comments that a prosperous government and a prosperous people are not necessarily the same thing. Perhaps his thinking is most concisely distilled in this statement: “It is the due [external] restraint and not the moderation of rulers that constitutes a state of liberty; as the power to oppress, though never exercised, does a state of slavery.”

About Clyde Wilson

Clyde Wilson is a distinguished Professor Emeritus of History at the University of South Carolina where he was the editor of the multivolume The Papers of John C. Calhoun. He is the M.E. Bradford Distinguished Chair at the Abbeville Institute. He is the author or editor of over thirty books and published over 600 articles, essays and reviews and is co-publisher of www.shotwellpublishing.com, a source  for unreconstructed Southern books. More from Clyde Wilson

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