The king was the head of the kingdom, a constituent part of parliament; he held his power of no one. Within the kingdom he represented no one but himself; was personally accountable to no one for what he might do, in fact he held his office as an absolute right. But after the convention of 1688 this sovereign and king was not the supreme power in the state.

§ 109. Extravagant claim of power at the beginning of the American Revolution. When Mr. Blackstone wrote, he asserts as the prevailing doctrine in England, that whatever the forms of government, "however they began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty, reside. By the sovereignty power is meant the making of laws; for wherever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administration of the government may put upon it” (25).

§ 110. Contrary view in America. The resistance of the American colonies, well begun in 1765, subsequently ripened into an absolute and specific denial of the unwarranted assumption of power by parliament. The consummation which resulted in the Revolution resulted from the attempt by Parliament to exercise the power of legislation over the colonies, in violation of the ancient principles of consent and representation, and the assent to this by the king resulted in such a state of affairs as to justify, according to the idea of the same commentator,

25 1 Blk. Com. 49. See Id. 160.

the right of revolution, of which there were several precedents (26).

If there were earls or lords or knights among the colonists who rebelled, their rank ceased when allegiance was renounced, and by the declaration of the whole that all were equal (27).

The colonists insisted upon two ancient principles, or rather one principle embodying two ideas, as the basis of all law, namely: that no law was of any effect which was passed without the consent of the governed given by the representatives (28).

§ 111. How the people of the United States obtained supreme power. The framers of the Declaration of Independence evidently had in mind the precedent furnished by the convention parliament of 1688-89, which declared the throne vacant (29), of which Blackstone says: Parliament held "that the misconduct of King James amounted to an endeavor to subvert the constitution; and not to an actual subversion or total dissolution of the government, according to the principles of Mr. Locke: which would have reduced the society almost to a state of nature; would have leveled all distinctions of honor, rank, offices and property: would have annihilated the sovereign power, and in consequence have repealed all positive laws; and would have left the people at liberty to have erected a new system of state upon a new foundation of polity" (30).

261 Blk. Com. 211-245. See Wilson's speech in vindication of the colonies, 2 Works, 501.

27 Swift's System of Laws, 27; Jameson, Const. Con., sec. 13.

28 2 Wilson's Works, 507, 508.

29 Inglis v. Trustee, 3 Pet. 158.

801 Blk. Com. 213.

§ 112. When allegiance was renounced all power returned to the people. A very slight change in the words of Blackstone describing the action of the convention parliament of 1688 describes the acts of the convention which framed the Declaration of Independence. They therefore very prudently declared the action of the king to amount to no more than an abdication of government (31), for they declare that the king had repeatedly dissolved representative houses and refused to cause others to be elected, "whereby the legislative powers incapable of annihilation have returned to the people at large for their exercise." They also declared that the king had combined with others (meaning the English parliament) “to subject us to a jurisdiction foreign to our constitution and unacknowledged by our law, giving his assent to their acts of pretended legislation." Then follows a recital of what these pretended acts of legislation were, namely: depriving them of trial by jury, altering fundamentally the forms of government, and then this recital, referring evidently to the declaratory act, "for suspending our own legislature and declaring themselves (parliament) invested with power to legislate for us in all cases whatsoever;" and finally, "he had abdicated government here by declaring us out of his protection and waging war against us."

According to the theory of Blackstone, that there must exist somewhere, in all governments, an absolute despotic power (32), which idea forms a distinctive branch of his definition of law, the colonists, by

31 Id. See Declaration of Independence.

321 Blk. Com. 48, 162.

declaring independence and equality, and that the legislative power had returned to the people, put themselves in identically the position which he described where he says the devolution of power to the people at large includes in it a dissolution of the whole form of government established by that people; reduces all the members to their original state of equality, and, by annihilating the sovereign power, repeals all the positive laws whatsoever (33).

According to the doctrines of political law as they obtained in England, the action of the colonists, as evidenced by the Declaration of Independence, reduced the individuals who inhabited the colonies to a state of nature; for, says Blackstone, "when civil society is once formed, government at the same time results of course, as necessary to preserve and keep that society in order. Unless some superior be constituted whose commands and decisions all the members are bound to obey, they would still remain in a state of nature without any judge upon earth to define their several rights and redress their several wrongs. But as all members which compose this society were naturally equal, it may be asked, in whose hands are the reins of government to be intrusted?" (34).

§ 113. The declaration of equality destroyed personal sovereignty. Here it is that the learned commentator confounds society with government, and very naturally; for with him the parliament is the great body politic, the state, and also the government, and the people are no more, no less, than individual subjects (35).

33 1 Blk. Com. 213.

34 Id. 48, 213.

35 Shar. Blk. 48, 213, notes; 1 Wilson's Works, 270, 271.

It is evident that the framers of the Declaration of Independence did not acquiesce in the view that such acts repealed all their laws; for while they deny the powers of parliament over them upon the ground that they are not represented, and declare that the crown has abdicated the government, they do not admit that their laws are repealed (36).

It was a well known rule that a change in form of government, or in the persons who exercise it, does not repeal existing laws (37).

At the time of the Declaration of Independence the colonists affirmed that they had existing among them what they had brought with them, developed and possessed as their birthright, the common law of England, which they contended was founded upon two ancient pillars-consent and representation (38). Throughout all their subsequent acts and doings they professed to observe the principle that all authority was derived from the people they represented, either expressly given or impliedly ratified (39), thus extending any idea of the supremacy of any person or class over the whole mass or any member thereof, and they did not agree that because there were

30 Society v. New Haven, 8 Wheat. 464; Inglis v. Trustee, 3 Pet. 158. See also Webster's reply to Calhoun; Marshall's argument in Ware v. Hylton, 3 Dall. 232.

37 American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 540; C. & P. Ry. Co. v. McGlinn, 114 U. S. 542-46.

88 The binding force of an act of parliament arises from the idea of representation, and that every citizen is a party to it and consents to it. Middleton v. Crofts, 2 Atk. 654; Matthews v. Burdett, 2 Salk. 673. See also 1 Blk. Com. 234; Swift's System of Laws, p. 27; Inglis v. Trustee, 3 Dall. 158.

39 Ware v. Hylton. 3 Dall. 232. See 2 Wilson's Works, 566.