taught them by many examples (51) that legislative power by the many or the few might be abused, and the declaration that the legislative power had returned to the people at large, coupled with those just mentioned, namely, that government derived its powers from consent, and that men were equal, resulted in a situation which is well expressed in the preamble to the constitution of Massachusetts (52), wherein the people of that state acknowledge the goodness of Providence in affording them an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit and solemn compact with each other, and of forming a new constitution of civil government for themselves and their posterity, in which, after explicitly declaring the rights of the citizens of the commonwealth, they declare that they establish it to "the end that it might be a government of laws and not of men” (53).

§ 118. All legislative power is limited. In America there are recognized two distinct branches of legislative power (54). The one political, exercised originally, in the formation of the United States constitution, by the electors as the immediate representatives of the people, and now habitually exercised in assemblages which have become familiar in the states under the name of constitutional conventions, and properly so, because they are confined in their actions to the enactment of fundamental or

51 See a great many cited in arguing and deciding Stockdale v. Hansard, 9 Ad. & El. 1; s. c., 36 E. C. L. R. I.

52 1780.

53 Mass. Const. 1780; Marbury v. Madison, 1 Cranch, 137.

54 Cooley's Blk. (3d ed.) 161. This subject will be more fully treated in connection with the legislative power.

political legislation (55). The other, the ordinary legislation exercised by congress or the general assemblages existing in all the states-always exercised by representatives chosen by the electors (56). None of the legisla tures have any power to make changes in the constitution. In England a constitutional convention was unknown (except the revolutionary bodies unwarranted by the constitution) (57). Parliament possessed and exercised all legislative power. In America only the people can make changes in the constitution. The people of the United States have made provision for amendments proposed to them by congress or devised by themselves at a constitutional convention, though in all cases the legislative assemblies must be consulted, while the people of the states usually act in the latter mode. When the people make a constitution they are acting politically; they are agreeing upon fundamental laws for the purpose of limiting the exercise of authority; and it is settled law that they can and have set limits upon the extent and mode of law-making even by themselves.

The new principle which pervades all of their acts, viz., that no power shall be exercised as of personal right, but officially as a trust (58), resulted in an entirely new application of the old idea of representation, and put a new aspect upon the doctrine of consent very different from the old idea. It was the voluntary consent of equals, not the submission of subjects.

55 See Grimkie's Argument, State v. Hunt, 2 Hill (S. C.), 16.

56 U. S. Const., arts. I and V.

57 See Jameson on Const. Conv., § 8.

58 2 Dall. 472 (Jay, J.).

They did not cast off old principles and disregard ancient landmarks. The liberty of our fathers was not the license of anarchy, but the liberty of law (59). Long before the constitution, James Wilson in the Pennsylvania

59 Cooley's Principles, 23; Dodge v. Woolsey, 18 How. 331. "The clearest and most concise analysis of the general features of our political system may be found in the celebrated argument of the eminent statesman and great constitutional lawyer, Mr. Webster, in the case of Luther v. Borden, 7 How. 1, in the supreme court of the United States, which arose out of what is known as the 'Dorr Rebellion.' He said in substance that the only source of political power is in the people; that they are sovereign, that is to say, the aggregate community, the accumulated will of the people, is sovereign, but that it is not the sovereignty which acts in the daily exercise of sovereign power. The people cannot act daily as the people. They must establish a government, invest it with so much of the sovereign power as the case requires, and this sovereign power being delegated and placed in the hands of the government becomes what is familiarly called the state. The next principle is that, as the exercise of legislative power and the other powers of the government immediately by the people themselves is impracticable, they must be exercised by representatives of the people. The basis of this representation is suffrage. The right to choose representatives is every elector's part in the exercise of sovereign power. To have a voice in it, if he has the proper qualifications, is the portion of political power belonging to every elector. That is the beginning. That is the mode in which power emanates from its source and enters into the hands of conventions, legislatures, courts of law, and the chair of the executive. Suffrage is the delegation of the power of an individual to some agent. Then follow two other great principles of the American system. The first one is that the right of suffrage shall be guarded, protected and secured against force and against fraud; and the second is that its exercise shall be prescribed by previous law,that every man entitled to vote may vote; that his vote may be sent forward and counted, so that he may exercise his part of sovereignty in common with his fellow-citizens. There is another principle equally true, that the people often limit themselves, and set bounds to their own power, to secure the institutions which they have established against the sudden impulses of mere majorities, and also that they may limit themselves by their constitutions in regard to the qualifications of the electors and the qualifications of the elected. Webster's Works, vol. 6, pp. 221-227, cited by the court with approval in In re Duncan, 139 U. S. 461. See Vanhorne's Lessee v. Dorrance, 2 Dall. 308." State v. Cunningham, 81 Wis. 440, 497, 498.

convention asserted that "the law is the common standard by which the excesses of prerogative as well as the excesses of liberty are to be regulated and conformed," plainly indicating that they understood both that power and liberty might have excesses, and were to be regulated. The formation and existence of state governments ever since the Declaration of Independence were based upon voluntary consent (60).

§ 119. The natural right of revolution is recognized. There is inherent in the people a justifiable right (a sovereignty, if one chooses so to term it) to abolish or alter the existing form of government whenever it is found inadequate to the purposes intended. It ought not to be denied by us, having been asserted by our forefathers and exercised by them. But it is quite as frequently forgotten that this is nothing more or less than a justification for the exercise of revolution. A minority may as justifiably rebel as a majority; indeed, the colonists were not a majority of King George's subjects (61).

§ 120. The original consent required was individual consent. All fellow-subjects among the colonists who so desired were allowed to retain their allegiance to the king (62). But when it is said that government is established by consent, the question arises, By the consent of whom? The consent of the people as a body or the consent of the individuals? It is an axiom in American law that government derives all its just powers from the con

60 Ware v. Hylton, 3 Dall, 232.

61 Jameson, Const. Con., § 239; State v. Hunt, 1 Hill (S. C.), 172; Bliss on Sov., p. 143; Luther v. Borden, 7 How. 1.

621 Shar. Blk. 47, Note.

sent of the governed (63), and not from the submission of subjects to a government promulgated by a supreme power. As a political fact, as a practical fact, as a legal fact, the consent involved is the consent of the individual; and this established the supreme law and made it obligatory upon each and all. How was consent given? Judge Sharswood says: "It is to be remarked that in the freest nations, even in the republics which compose the United States, the consent of the entire body of the people has never been expressly obtained." "The people" comprise all of the men, women and children of every age and class, but they were not one people in the same sense until the constitution was adopted. A certain number of men have assumed to act in the name of all the community (64).

This doctrine of consent as a political doctrine is not acquiesced in by all of our prominent politicians. As a matter of course the doctrine receives support from the so-called Socialists, and is also acquiesced in by Democrats. On the other hand there are a certain class very indefinitely described as Imperialists, who repudiate the idea of consent as having any efficacious operation in American or English law (65).

For example, Senator Platt of Connecticut has said that governments derive their just powers from the consent of some of the governed. So distinguished a scholar

63 Fed., No. 40. The Declaration of Independence asserts it. 64 Ware v. Hylton, 3 Dall. 232.

65 The great difficulty of discussing such political views is the indefinite meaning of such words as socialist, democrat, imperialist. etc., but as here used these words are confined to men who also profess to believe in an efficient constitutional system of government.