James Wilson argues that it is the people, not the prince, who is superior in matters of legal sovereignty (1790)

James Wilson

In a series of Lectures on Law which James Wilson (1742-1798), one of the first Justices on the Supreme Court, gave in 1790 he dismisses as “absurd and ridiculous” the idea that the monarch is sovereign over the people because he is “superior” in some way:

Had it been the intention of Providence, that some men should govern the rest, without their consent, we should have seen as indisputable marks distinguishing these superiours from those placed under them, as those which distinguish men from the brutes. The remark of Rumbald, in the nonresistance time of Charles the second, evinced propriety as well as wit. He could not conceive that the Almighty intended, that the greatest part of mankind should come into the world with saddles on their backs and bridles in their mouths, and that a few should come ready booted and spurred to ride the rest to death. Still more apposite to our purpose is the saying of him, who declared that he would never subscribe the doctrine of the divine right of princes, till he beheld subjects born with bunches on their backs, like camels, and kings with combs on their heads, like cocks; from which striking marks it might indeed be collected, that the former were designed to labour and to suffer, and the latter, to strut and to crow.

These pretensions to superiority, when viewed from the proper point of sight, appear, indeed, absurd and ridiculous.

The image of some men being born with a saddle on their backs and therefore destined to be ridden by others was a common one in the 17th and 18th centuries. Here we have the jurist James Wilson arguing against the Blackstonian notion that law is made by a sovereign who is “superior,” and therefore has a right to command, and that the people are “inferior” and thus obligated to obey these laws. Wilson wants to know what makes the sovereign superior to the people - is it because he wields superior force? has he been endowed with divine sanction? As there is no physical mark, like a camel’s hump or a cock’s comb, which makes it clear beyond any doubt that the one is superior to the other, Wilson concludes that it is the consent of the people which gives the law its legitimacy. Any other conclusion smacks of the principle of divine right and is dismissed as a “pretension to superiority” which is “absurd and ridiculous.” Wilson also notes the important part played by courtiers, lawyers, statesmen, and philosophers who flatter the sovereign and encourage him in the belief that “his power over his subjects (i)s his rightful and undelegated inheritance.”