no inequalities of rank nor any orders of nobility they were and must remain without laws (40). It must be confessed that they stood as Englishmen never stood before-equals in rank, equals in right.

§ 114. Consent of equals the basis of American law. The inhabitants of the colonies, by declaring that all men were created equal (41), and further declaring that governments must derive their just powers from the governed, placed themselves in a position never occupied by Englishmen nor recognized by the English constitution. The theory adopted by Blackstone, that both government and law were swept away, was not admitted.

401 Wilson's Works, 321.

41 The Declaration is, not that all men are created free and equal, or born free and equal. The Declaration is frequently misquoted. The origin of the principle stated in the Declaration, that "all men are created equal," is frequently accredited to French publicists, and the language ascribed to Thomas Jefferson and his associates who penned the last draft of the document. Prof. Hammond says: "The Declaration beginning with the statement that all men are born free and equal," etc., and adds (in language translated almost literally from the writings of Voltaire) (1 Ham. Blk. 276), thus seeming to credit Voltaire with the invention of the language of the Declaration. An objection to Hammond's statement is that he himself misquotes the words, and it is not easy to see how a translation can be literal-it may be liberal. See 2 Wilson's Works, 507, note.

It is well in such matters to be exact. August 17, 1774, James Wilson, in a speech in vindication of the colonies, said: "All men are by nature equal and free; no one has a right to any authority over another without his consent; all lawful government is founded on the consent of those who are subject to it; such consent was given with a view to insure and to increase the happiness of the government above what they could enjoy in an independent and unconnected state of nature. The consequence is that the happiness of the society is the first law of every government." A comparison of the second clause of the Declaration of Independence with this clause of the address discloses that every essential idea of the former is expressed in the latter, except the right of separation, which it would have been injudicious to have then expressed. See 2 Wilson's Works, 507, 508.

The lawyers of the colonists had imbibed other notions of the nature of law and government. The solution of the problem of self-government involved an examination of that branch of Blackstone's definition of law wherein it is asserted that the "law is a rule prescribed by the supreme power in the state." This is the basis and pith of the whole matter.

In the great case of Chisholm v. Georgia the supreme court went to the very root of this question of sovereignty while commenting upon the principle announced by Blackstone, which at that time obtained sanction from the Crown party in England (43).

Justice Wilson in his opinion says: "This position is only a branch of a much more extended principle upon which a plan of systematic despotism has been lately formed in England and prosecuted with unwearying assiduity and care. Of this plan the author of the Commentaries, if not the introducer, was at least the great supporter. He has been followed in it by writers later and less known; and his doctrines have, both on the other and this side of the Atlantic, been implicitly and generally received by those who neither examined their principles nor their consequences. The principle is that all human law must be prescribed by a superior. This principle I mean not now to examine. Suffice it at present to say that another principle, very different in its nature and operations, forms, in my judgment, the basis of sound and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the

43 This was a new doctrine and was not universally approved.

consent of those whose obedience they require. The sovereign, when traced to his source, must be found in the man" (44).

In his lectures before the Philadelphia Law School in 1791 he had investigated that question with care. He pertinently inquires: "Is it essential to law that inferiority should be involved in the obligation to obey it? Are these distinctions at the root of all legislation?

"If I mistake not, this notion of superiority which is introduced as an essential part in the definition of a law— for we are told that a law always supposes one superior who is to make it-this notion of superiority contains the germ of the divine right" "Despotism by an artful use of 'superiority' in politics, and scepticism by an artful use of 'ideas' in metaphysics, have endeavored -and their endeavors have frequently been attended with too much success-to destroy all true liberty and sound philosophy. By their baneful effects the science of man and the science of government have been poisoned to their very fountains." Professor Hammond says truly: "By these arguments Judge Wilson has shown that Blackstone's definition ranked him, in spite of himself, with the supporters of divine right and absolute power" (45).

§ 115. Legislative power not supreme or absolute. It is in his fifth chapter, the subject of which is "Of Municipal Law," that he eradicates root and branch this heresy in political doctrine. He says: "In regard to this point in the definition, I must beg leave to assign the epithet

44 Chisholm v. Georgia, 2 Dall. 458.

451 Ham. Blk. note 11, p. 112.

'dangerous and unsound.' It is of high import to the liberties of the United States that the seeds of despotism be not permitted to lurk at the roots of our municipal law" (46). He then examines Blackstone's exposition of the legislative power and the powers of parliament, and as to the idea that there is and must somewhere be absolute and despotic power, as implied by this definition, says: "Let us now pause and reflect. After what we see can be done, after what we see has been done (in the United States), in the delegation and distribution of the rights and powers of society, can we subscribe to the doctrine of the Commentaries, that the authority which is legislative must be supreme? Can we consent that this doctrine should form a first principle in our system of municipal law? Certainly not. This definition is not calculated for the meridian of the United States” (47).

Blackstone seems to have omitted to notice the opinion of the judges of England that the binding force of an act of parliament arises from the idea of representation, and that every citizen, as a party to it, consents to it (48).

§ 116. Official power is never allowed as a personal right. Having seen the origin and nature of sovereignty and that its essential attributes are inequality and unlimited power, and noticed that inequality and personal superiority are repudiated by the Declaration of Independence, it remains to inquire whether this society of equals has created or recognized, as inhering in any per

461 Wilson's Works, 159-60.

47 Downs & Bidwell, 182, U. S. 244.

481 Wilson's Works, 160-175; Middleton v. Cross, Atk. 65; Matthews v, Burdette, 2 Salk. 672; 1 Shar. Blk. 147, note.

son, body or class, the other attribute, viz., unlimited power. The first peculiar principle is the republican one, that official power is never exercised as of personal right (49). In England two branches of the legislative body exercised their authority as of individual right; that is, the king, because he was king, had a voice in legislation, and likewise the lords, because they were lords, had a voice, and when they voted or acted they voted or acted for themselves and in their own right and not as representing or acting for any one else. Judicial and executive power were exercised by the king as of right. The only representative body was the Commons, and historically their right in the parliament was originally derived from a command to send representatives to parliament, which ripened into a right by long usage (50). In a democracy, inasmuch as, theoretically, all may participate in legislation, each exercises these rights for himself, and does not delegate anything excepting the executive administration of these democratic laws. In America, by reason of the equality of the citizens, the principle naturally existed, by virtue of their situation, that no individual or body had any right or authority over any one else, and it naturally resulted that no power or authority should be exercised excepting by the consent of the governed and through representatives chosen for that purpose.

§ 117. The people expressly limit their power. They established also another novel principle. Experience had

49 Swift's System of Laws, 27.

50 Id. 26; Webster's Argument in Luther v. Borden, 7 How. 1; 2 Wilson's Works, 573.