Its Nature, Gravity, Effects:  In Law and History

John Charlton says it’s a crime rarely heard of, little spoken, widely misunderstood.  Yet it is the gravest of crimes against the common good, the public good and the civil order.

The Definition of Usurpation

The crime of usurpation occurs when any person unlawfully arrogates to himself power or authority, either in the form of an office, elected or appointed, or in powers not due that office.

Merriam-Webster’s On-line dictionary gives a precise definition:

Main Entry: usurp

Pronunciation: \yu̇-ˈsərp also -ˈzərp\

Function: verb

Etymology: Middle English, from Anglo-French usorper, from Latin usurpare to take possession of without legal claim, from usu (abl. of usus use) + rapere to seize — more at rapid

Date: 14th century

transitive verb

1 a : to seize and hold (as office, place, or powers) in possession by force or without right <usurp a throne>
   b : to take or make use of without right <usurped the rights to her life story>
2 : to take the place of by or as if by force : supplant <must not let stock responses based on inherited prejudice usurp careful judgment>
 
intransitive verb : to seize or exercise authority or possession wrongfully

 

The Legal Definition of Usurpation

The dictionary definition is very similar to the definition of the crime of usurpation had in law dictionaries:

The illegal encroachment or assumption of the use of authority, power, or property properly belonging to another; the interruption or disturbance of an individual in his or her right or possession. (West’s Encyclopedia of American Law, edition 2)

In a consistently law-abiding, constitutional nation, as such was the United States, the crime of usurpation was unheard of.  Politicians and officers of state and federal government entered into office lawfully and were severely checked against arrogating to themselves non-constitutional powers.

To understand the nature and gravity of the crime of usurpation, we must consider first the fundamental notions which underlie it.

The Definition of Justice

Usurpation is first of all an act violating justice.  Justice requires, as the Greek philosopher Aristotle teaches, that what is owed to the other be rendered to him (Nicomachean Ethics, Book V, chapter 1).  In both the moral order and the political or civil order, it is law which defines what is just, as Aristotle says: “all lawful acts are in a sense just acts” (ibid.).  This concept of law, as defining what is just, is also the very basis for the Biblical notion of  “the Law”, or “Torah” in the  Old New Testaments.  And this is why this view of law, as defining justice, is the fundamental notion of the legal tradition in Western Civilization.

The End or Purpose of the Government

In his famous treatise on law — which was used by our Founding Fathers to write the U.S. Constitution -- The Law of Nations, the Swiss political philosopher, Emmerich de Vattel, begins his  discussion of the forms of government, and of the kinds of law, upon the more principle consideration of the end or purpose of government:

The end or object of civil society is to procure for the citizens whatever they stand in need of for the necessities, the conveniences, the accommodation of life, and, in general, whatever constitutes happiness, — with the peaceful possession of property, a method of obtaining justice with security, and, finally, a mutual defence against all external violence. (Book I, Chapter II, § 15).

This harkens back to the ancient notions of government taught by Aristotle, who held that government was a necessary evil, on account of the existence together in one society of both just and unjust men.

It follows then, that each state or nation must define the manner in which it will regulate itself, as to obtain these goals.  Vattel explains in Book I, Chapter II:

§ 26. Of public authority.

 

We have seen already that every political society must necessarily establish a public authority to regulate their common affairs, — to prescribe to each individual the conduct he ought to observe with a view to the public welfare, and to possess the means of procuring obedience. This authority essentially belongs to the body of the society; but it may be exercised in a variety of ways; and every society has a right to choose that mode which suits it best.

 

§ 27. What is the constitution of a state.

 

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 in which the nation acts in quality of a body politic, how and by whom the people are to be governed, — and what are the rights and duties of the governors. This constitution is in fact nothing more than the establishment of the order in which a nation proposes to labour in common for obtaining those advantages with a view to which the political society was established.