of making law, even in things indifferent, was derived, according to this theory. "And when it is showed unto him by the order of a prince, or of any other secondary governor that hath power to set a law upon his subjects, then it is called the law of man, though originally it be the law of God. For laws made by man, that hath received thereto power of God, be made by God." (Doctor and Student, Dial. I. ch. 1, p. 4, ed. 1874.)

This was clear enough to our American forefathers, who reasoned on these topics with a skill and force, born of their intense practical interest in them, and who could not forget that if this theory were true, all law in the United States would still be derived from the commands of the British parliament, and of George III. (See Wilson's Lectures on Law, vol. 1, pp. 89, 91, and note 11, page 112.)

But B. could not, consistently with his political beliefs, accept the doctrine of divine right as the basis of the state's power to command in things morally indifferent. He had to seek some other source of the laws which prohibited things not mala in se. Here he seems to be open to criticism for lack of precision and certainty in his views. He falls back on compact, without apparently perceiving the inconsistency between this doctrine and his definition: an inconsistency of which his first American critic Wilson has made effective use, showing that B.'s definition ranked him in spite of himself with the supporters of divine right and absolute power. (See passages quoted in note 11, page 112, from Wilson's Works, vol. 1, pp. 65, 85.)

The theory of social contract must be described in a separate note. It need only be pointed out here that it was the only one at the time upon which any but an original thinker (as B. certainly was not on these subjects) could rely for support against the claim of divine right to legislate in an earthly sovereign. While B.

rejects the notion of compact as a historical fact, he still holds that "the original contract of society in nature and reason must always be understood and implied in the very act of associating together." And in various passages of the work, where his own views come out more clearly than they perhaps do in this formal dissertation on the nature of law, he dwells on the element of consent in custom, and the identity of custom and common law, in a way that shows he would have held this theory more clearly had he discussed only human laws. (See for example Book 1, pp. 74, 194; Book 4, p. 8, etc.) And thus it happened that while he was criticised in America as a supporter of divine right, he was attacked in England for his supposed belief in the social contract. (Fragment on Government, ch. 1, 22 3647. In Bentham's Works, ed. by Bowring, vol. 1, pp. 268-271.)

(11) This, then, is the general signification of law, a rule of conduct dictated by some superior being, page 39.

The early American jurists, by unanimous consent, reject the notion that law is necessarily the command of a superior.

Judge Swift in his System (published 1795, vol. 1, p. 5) says: "Law in the limited sense in which we are to consider it in the course of our disquisitions, is the rule of human conduct in a state of society. But in its most extended sense, it may be defined to be a rule of action, applicable to animate and inanimate nature, and comprehending all the general principles of action that are established in the system of the universe." In another place (p. 37) he says: "Civil law, then, may be defined to be a rule of human action, adopted by mankind in a state of society, or prescribed by the supreme power of the government." The force of the last clause may be inferred from the subsequent remark (p. 39): "The definition of Blackstone is confined to statute law

only, because it will comprehend those laws only which are prescribed by the supreme power of the state."

Tucker in his famed edition of the Commentaries (1803) shows clearly the same opinion by the emphasis which he lays on popular sovereignty, and the derivative, limited power of the legislature under our written constitutions: and by the frequent reiteration of the fact that all government is founded on consent and compact.

"In governments whose original foundations cannot be traced to the certain and undeniable criterion of an original written compact, whose forms as well as principles are subject to perpetual variation from the usurpations of the strong, or the concessions of the weak; where tradition supplies the place of written evidence; where every new construction is in fact a new edict; and where the foundation of power hath been transferred immemorially from the people to the usurpers of their natural rights, our author's reasoning on this subject will not easily be controverted. But the American Revolution has formed a new epoch in the history of civil institutions, by reducing to practice what, before, had been supposed to exist only in the visionary speculations of theoretical writers. The world

for the first time since the annals of its inhabitants began, saw an original written compact formed by the free and deliberate voices of individuals disposed to unite in the same social bonds; thus exhibiting a phenomenon unknown to former ages."

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'Here, then, we must resort to a distinction which the institution and nature of our government has introduced into the Western Hemisphere; which, however, can only obtain in governments where power is not usurped but delegated, and where authority is a trust and not a right, . . . . nor can it ever be truly ascertained where there is not a written constitution to resort to." (Appendix A. pp. 3-6.)

"The right of governing can therefore be acquired only by consent, originally; and this consent must be that of at least a majority of the people." (Appendix A. p. 8.)

But it is in the Lectures on Law of Judge Wilson, the first course of instruction delivered to a class of law students in America, in the winter of 1790-91, at Philadelphia, that we find the most explicit and thorough discussion of the question. It is hardly creditable to the bar, and still less to the law schools of this country, that Blackstone's definition should have held its place unchanged and even uncriticised for more than a century, while this able and convincing argument against it has been left in oblivion.

"A superior! Let us make a solemn pause. Can there be no law without a superior? 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?

"There is a law, indeed, which flows from the Supreme Being, a law more distinguished by the goodness than by the power of its all-gracious author. But there are laws also that are human: and does it follow, that in these a character of superiority is inseparably attached to him who makes them; and that a character of inferiority is in the same manner inseparably attached to him for whom they are made? What is this superiority? Who is this superior? By whom is he constituted? Whence is his superiority derived?"

"How is this superior constituted by human authority? How far does his superiority extend? Over whom is it exercised? Can any person or power, appointed by human authority, be superior to those by whom he is appointed, and so form a necessary and essential part in the definition of law?

"On these questions, a profound, I will not say a suspicious silence is observed. By the author of the

Commentaries, this superior is announced in a very questionable shape. We can neither teli who he is nor whence he comes. 'When society is once formed, government results of course,' I use the words of the Commentary (1 Com. 48), 'as necessary to preserve and to 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 as in a state of nature, without any judge upon earth to define their several rights, and to redress their several wrongs. But as all the members of society are naturally equal, it may be asked' --- what question may be asked? The most natural question that occurs to me is, how is that superior without whom there can be no law, without whom there can be no judge upon earth, how is this superior to be constituted? This is the question, which, on this occasion, I would expect to see proposed: this is the question to which I would expect to hear an answer. But how suddenly is the scene shifted! Instead of the awful sign of superiority, to which our view was just now directed, the mild emblems of confidence make their appearance. The person announced was a dread superior; but the person introduced is an humble trustee. For, to proceed, 'it may be asked in whose hands are the reins of government to be trusted?'

"I very well know how 'a society once formed' constitute a trustee; but I am yet to learn, and the commentator has not yet informed me, how this society can constitute this superior. Locke somewhere says that 'no one can confer more power on another than he possesses himself.""

"The question recurs, how is this superior constituted by human authority? Is he constituted by a law? If he is, that law, at least, must be made without a superior; for by that law the superior is constituted. If there can be no law without a superior, then the in