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PolWritV2_1251-1300.indd 1264 2/23/12 2:28 PM [75} }AMES WILSON 1742-1798 On Municipal Law PHILADELPHIA, 1804 Born in Scotland in 1742, James Wilson came to America in q66; was a member of the Pennsylvania convention in 1775, as well as the Continental Congress; one of the most influential members of the Constitutional Convention in q87; and an associate justice of the United States Supreme Court when he died, in 1798. For a man of such brilliance (he was the first professor of law at the College of Philadelphia-later the University of Pennsylvania), and such importance to our founding, Wilson is little known by the general public and little read by academics. One of the most ardent advocates of popular sovereignty throughout his life, although generally known as a conservative, Wilson here argues a strong case for the doctrine of government based upon consent. This doctrine was implicit in American political theory for over a century and a half by the time he wrote, but few attempted to proceed analytically on the subject as Wilson does here. In r8o4 Bird Wilson directed the publication of The Works of James Wilson by Lorenzo Press. Its contents were a comprehensive and detailed discussion of politics. Only Chapter V of the more-than-850-page volume is reproduced here, as it is the most representative of his life's work and the best discussion of consent by an American during the era. This particular piece was originally published some ten years before being published in the volume of collected works. The r804 version is used here. OF MUNICIPAL LAW I now proceed to the consideration of municipal law-that rule, by which a state or nation is governed. It is thus defined by the learned PolWritV2_1251-1300.indd 1265 2/23/12 2:28 PM [ 1265 J )AMES WILSON 1742-1798 Author of the Commentaries on the Laws of England. "A rule of civil conduct, prescribed by the supreme power of the state, commanding what is right and prohibiting what is wrong. "a In my observations upon Sir William Blackstone's definition of law in general, I did him the justice to mention, that he was not the first, and that he has not been the last, who has defined law upon the same principles, or upon principles similar, and equally dangerous. Here it is my duty to mention, and, in one respect, I am happy in mentioning, that he was the first, though, I must add, he has not been the last, who has defined municipal law, as applied to the law of England, upon principles, to which I must beg leave to assign the epithets, dangerous and unsound. It is of high import to the liberties of the United States, that the seeds of despotism be not permirred to lurk at the roots of our municipal law. If they shall be suffered to remain there, they will, at some period or another, spring up and produce abundance of pestiferous fruit. Let us, therefore, examine, fully and minutely, the extent, the grounds, the derivation, and the consequences of the abovementioned definition. "Legislature," we are told, "is the greatest act of superiority, that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are, indeed, convertible terms; one cannot subsist without the other. "b "There must be in every government , however it began, or by whatsover right it subsists, a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty reside." "By sovereign 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 on. For it is at any time in the option of the legislature to alter that form and administration, by a new edict or rule, and to put the execution of the laws into whatever hands it pleases: and all the [r69] other powers of the state must obey the legislative power in the execution of their several functions, or else the constitution is at an end."c "In the British parliament, is lodged the sovereignty of the British constitution." d ' 1. Bl. Com. 44· h r. Bl. Com. 46. ' Id. 48. 49· drd. s!. [3.128.199.88] Project MUSE (2024-04-19 08:02...

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