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Source: Introduction to the Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 1. Chapter: INTRODUCTION The Reputation of James Wilson
Copyright: The Introduction, Collector’s Foreword, Collector’s Acknowledgments, Annotations, Bibliographical Essay are the copyright of Liberty Fund 2007. The Bibliographical Glossary in volume 2 is reprinted by permission of the copyright holders the President and Fellows of Harvard College 1967.
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The Reputation of James Wilson
James Wilson was a dominant figure in the founding of the American nation, not just in politics and law, but in personal ambition. He had a formidable appetite for fame and wealth matched by a powerful intellect. Wilson was one of only six persons to sign both the Declaration of Independence and the Constitution; only Gouverneur Morris spoke more frequently in the Philadelphia Convention of 1787; and scholars rank Wilson as the second most influential member of that convention, behind only James Madison. Wilson was, in the end, a tragic figure, a founder who understood the future too clearly and pointed to it too directly, both for his own immediate reputation and, as significantly, for his standing among generations to come. These volumes are intended to stimulate new research and analysis of Wilson’s contributions in the ongoing effort to determine accurately his rightful place in the founding era.
Wilson’s writings have always competed for attention against the better known works of the founding generation, notably The Federalist Papers authored by John Jay, James Madison, and Alexander Hamilton. Moreover, scholars have turned repeatedly to the individual writings of Madison, Thomas Jefferson, and John Adams to discern the nature of free institutions. The materials in this volume suggest that Wilson, as the historian Gordon Wood has noted, was one of the most, if not the most, ardent advocates for the people as the sovereign base of the new American constitutional system.
Wilson deserves attention as well because he sketched a genuinely systematic view of the law. His Lectures on Law, while never published in a single volume during his life, were nonetheless intended to make him the American equivalent of Sir Edward Blackstone, the great English legal commentator. The Lectures reflect Wilson’s scholarly approach to matters of public affairs, a quality that set him apart from Thomas Jefferson, Oliver Ellsworth, Edmund Randolph, Tapping Reeve, and George Wythe. Wilson attempted to blend the ideas of liberty and the rule of law with the new idea of popular sovereignty. Moreover, the Lectures stand in marked contrast to Wilson’s contributions as a justice of the Supreme Court. He crafted few opinions while on the high court; in eight years, Wilson produced about twenty total pages of written opinions, a legacy that reflected neither his talent as a lawyer nor his impact on American law. His most important opinion, in Chisholm v. Georgia (1793), was quickly overturned by the ratification of the Eleventh Amendment. In this light his ambitious project to synthesize principles of natural law and popular will in the Lectures stands as his most definitive statement about the character of American law.
The Lectures, there is no doubt, were a serious contribution to the literature of the law that no student of its early national origins can ignore. Wilson deserves high marks for his efforts to reduce and synthesize American law, a particularly difficult task in light of the jumble of colonial legal practices and the traditions of the English common law. What set him apart from his better-known contemporaries was his gift for addressing the law in broad, often bold strokes that encompassed philosophy, psychology, and political theory.
Despite the obvious importance of his contributions, Wilson continues to struggle for attention in comparison with the other founders at least in part because of his personal life. Wilson’s adult life was marked by land-development schemes, a corresponding inability to reconcile his quest for individual wealth with a scrupulous attention to the public interest, and ultimately the distinction of being the only justice of the Supreme Court ever imprisoned for debt. That made Wilson something of a paradox. He was trained in the Scottish Moral Enlightenment tradition of Thomas Reid and Francis Hutcheson, which stressed, among other things, the close relationship among public virtue, moral commitment to the public interest, and respect for the will of the people based on their intrinsic good. This philosophical perspective, however, collided with Wilson’s fabled scramble for wealth, power, and social station. Wilson’s articulated philosophy was based on a relatively optimistic view of human nature; his personal conduct betrayed to his critics a more pessimistic assessment. Madison, who was also schooled in the Scottish Moral Enlightenment, diverged from Wilson by rejecting the latter’s strongly populist impulses and substituting in their place the belief that if men were angels there would be no need for a constitution in the first place. Wilson has been considered a conservative because of his opposition to the Pennsylvania Constitution of 1776, but at the Constitutional Convention of 1787 he was the only founder to argue for “the direct election of the executive, the direct and proportional election of senators, and the principle of ‘one person, one vote.’”
However, like Chief Justice John Marshall, he also supported the constitutional separation of powers and checks and balances—even suggesting in his Lectures that the Supreme Court could strike down an act of Congress if it violated the Constitution or natural law. Although he lost many battles at the Constitutional Convention, America’s constitutional system has come to closely resemble that advocated by Wilson. Accordingly, the materials in this volume can help us better understand the political and legal ideas underlying the American experiment in constitutional government.
James Wilson was born in 1742 at Carskerdo, Scotland. His father was a farmer who resided in the vicinity of St. Andrews. Despite his modest beginnings, Wilson received a splendid classical education at Culpar grammar school, which enabled him to win a scholarship to the University of St. Andrews in 1757. This education served him well throughout his life, training him in scholarly analysis and simultaneously providing a lifelong intellectual compass. The Scottish Moral Enlightenment and the Common Sense school of philosophy associated with it pervaded these institutions and deeply influenced Wilson.
After completing his studies, Wilson moved to America in the midst of the Stamp Act agitations in 1765. Early the next year, he accepted a position as a Latin tutor and then a lecturer in English Literature at the College of Philadelphia (later part of the University of Pennsylvania), only to abandon it to study law under John Dickinson. On borrowed capital, he also began a lifelong passion—speculating in land. The College awarded him an honorary Master of Arts degree in 1766. In 1768, the year after his admission to the Philadelphia bar, Wilson set up practice at Reading, Pennsylvania. Two years later he moved westward to the Scotch-Irish settlement of Carlisle and built up a broad clientele. The following year he married Rachel Bird, the daughter of a wealthy Berks County landowner, a union that joined her family’s considerable wealth with the young lawyer’s voracious appetite for speculation in land. The marriage produced six children and lasted until 1786, when Rachel Wilson died. Seven years later Wilson married again, to Hannah Gray, half his age and a resident of Boston, who outlived him.
Of Wilson’s children, the best known was his third, Bird, born in 1777. Bird became his father’s favorite, and he alone among the children was permitted to enter his study to read while his father worked. Wilson also took the young boy with him as he went about Philadelphia doing business and conferring on matters of politics and law. In 1792 the fifteen-year-old Bird graduated from the University of Pennsylvania and went on to become one of the chief managers of his father’s gradually collapsing financial empire. Following the elder Wilson’s death, it fell to Bird to arrange for the publication of his father’s Works in 1804, including the Lectures on Law.
While Wilson began his family he also entered the swirl of Revolutionary era politics. In Carlisle in 1774 he assumed the chairmanship of the city’s committee of correspondence, attended the first provincial assembly, and completed preparation of Considerations on the Nature and Extent of the Legislative Authority of the British Parliament. This tract was an early statement challenging British authority; it was also Wilson’s first direct published attack on what became one of his favorite targets, Parliamentary sovereignty. His authorship of the pamphlet established him as a Whig leader, and it is one of the most important documents in this collection.
The next year, voters sent Wilson to the provincial assembly, which in turn sent him to the Continental Congress, where he sat mainly on military and Indian affairs committees. In 1776, bound by the Pennsylvania legislature not to vote for independence, he joined the moderates in Congress, voting for a three-week delay in considering Richard Henry Lee’s resolution of June 7 for independence, what ultimately became in the hands of Thomas Jefferson the Declaration of Independence. Wilson, however, after Pennsylvania freed the state delegates to vote their consciences, switched his vote, and on the July 1 and 2 ballots he voted in favor of and ultimately signed the Declaration of Independence.
At the same time, Wilson strenuously opposed the republican Pennsylvania constitution of 1776. That position proved politically costly, and in 1777 he lost his seat in Congress when his aggressive frontier constituents viewed him as out of step with the fast-moving revolution. Wilson relocated to Annapolis during the winter of 1777–78, subsequently taking up residence in Philadelphia, where he resided for the remainder of his life.
Wilson’s quest for wealth became increasingly apparent. In Philadelphia he emerged as a spokesperson for and leader of conservative republican groups determined to break with the British without fundamentally losing economic control. Despite the dislocations created by the war, Wilson’s economic fortunes blossomed. He became a successful businessman, and the uncertain state created by the conflict served his speculative interest in land well. In June 1779 the French government appointed Wilson its advocate general in the new United States, a post he held until 1781. In this office, Wilson skillfully addressed commercial and maritime matters involving France while defending the Loyalists who opposed the American Revolution. Wilson resigned the post in 1783, however, because the French had failed to honor their agreement to compensate him. Two years later, however, the King of France rewarded him with a lump-sum payment of ten thousand livres.
Wilson’s success in the face of the hardship of others made him a target. Motivated by soaring inflation and food shortages brought on by the war, a mob attacked Wilson’s home in the fall of 1779. He and thirty-five other prominent businessmen were barricaded inside his home at Third and Walnut Streets, a residence that came to be known as Fort Wilson. The fracas proved a turning point for both Wilson’s political fortunes and the conservatives in the city, who gained political traction in the face of casualties. Congress in 1781 selected him to be one of the directors of the Bank of North America, led by Robert Morris. Morris had been not just a client but a fellow investor with Wilson in several speculative land deals. A year later, he was selected to serve again in the Continental Congress, a post that he held until 1787.
The mob violence in Philadelphia also prompted Wilson to adopt an even stronger nationalist position, one that coincided with his self-interest in the success of the Bank of North America. In 1785 the radical elements of the Pennsylvania legislature proposed revoking the bank’s charter. In return for a fee of four hundred dollars, Wilson agreed to write a pamphlet in support of the bank. The bank had established a modicum of fiscal stability during the revolutionary crisis, but as significantly, Wilson was indebted to it for more than thirty thousand dollars in loans. His widely circulated pamphlet, Considerations on the Bank of North America, offered a vision of the powers of the national government that foreshadowed the new Constitution drafted two years later. Wilson insisted that repeal of the Bank’s charter by the Pennsylvania Assembly would be economically foolish.
His position at once aligned him with the conservative elements in Pennsylvania politics and affirmed his strong nationalism. It also was unsuccessful. The Assembly repealed the charter in Pennsylvania; Wilson’s opponents painted him as more interested in his own economic advantage than in the well-being of his fellow citizens. Yet even his sharpest critics stood in awe of the erudition of Considerations and of Wilson’s general intelligence.
The Philadelphia Convention of 1787 and the Ratification of the Constitution
Wilson’s greatest moment in public life came in the Philadelphia Convention of 1787. Wilson was a staunch advocate for separation of powers that included an independent and powerful judiciary, a popularly elected president, and a bicameral legislative branch. He prevailed in his arguments in support of the judiciary, although one of his pet ideas, a Council of Revision, lost not once but three times before the delegates. Wilson’s hope of having a popularly elected president with a three-year term also failed, with the delegates instead adopting an electoral college, which Wilson came to support, and a four-year term. Article I did include a bicameral scheme, as Wilson proposed, but with the Senate selected by state legislators rather than the people.
Wilson also advocated for federalism and the related concept of dual sovereignty. Since the people were the foundation of all government, they could construct as many levels of authority as they wished. Thus, the people could not only establish a national government of enumerated powers but simultaneously lend their support to state governments vested with the traditional police powers of health, safety, morals, and welfare. Ironically, both John C. Calhoun and Abraham Lincoln in the years leading up to the Civil War found in Wilson’s ideas arguments to support either the limited or the perpetual nature of the Union.
Wilson’s colleagues selected him to be one of the six delegates who reported the final document for acceptance, a genuine honor to a person uniformly recognized as one of its chief architects. And Wilson also played a decisive role in the ratification of the Constitution in his important home state. He was the only member of the Pennsylvania state convention of 1787 to ratify the Constitution who had served in the Philadelphia Convention. Following the ratification of the federal constitution in Pennsylvania, Wilson participated in a second state convention to align the state constitution with the new federal document.
The Writings in This Volume: Legal Philosopher and Associate Justice
In 1789 President George Washington appointed Wilson an associate justice of the Supreme Court. At the same time Wilson agreed to give a series of law lectures at the College of Philadelphia. The documents in this collection speak to his role in both.
Wilson used his university position to deliver his Lectures on Law. The Lectures comprise almost seven hundred pages of text; the first was publicly delivered on December 15, 1790. They were long on theory and short on the kinds of blackletter law issues that might be of practical value to students. The Lectures were lectures. They were not finely hewn essays meant to be read rather than spoken. Only about half of them were delivered over the course of two winter terms at the law school, hardly enough time for Wilson to sketch his ambitious vision of American law. At the same time, Wilson was also busy becoming a justice of the Supreme Court and managing his increasingly chaotic business affairs.
The Lectures shed light on Wilson’s philosophy of law, on the relationship of politics to law, on the role of God in the development of law, and thus on the landscape of early America in general. The Lectures are also one of the most notable examples in American thought of the purported link between popular will and moral sense philosophy. While Wilson owed a great deal to the Scottish Moral Enlightenment, he also infused his lectures with ideas drawn from John Locke, insisting that government depended on a voluntary compact that included the right and duty of every citizen to act in ways that conformed to the laws of God and nature. Wilson also agreed with Locke that the consent of the people was essential to create and maintain the state.
Wilson’s Lectures underscore that he objected to the Pennsylvania Constitution of 1776 not because it was too democratic but because it granted too much popular authority to the legislative branch at the expense of the two other branches, the executive and the judicial, which he considered to have a popular base as well. Wilson, in other sections of the Lectures, objected that an all-powerful, single-house legislature threatened to produce “sudden and violent fits of despotism, injustice, and cruelty.” Wilson wanted the broadest possible popular base for the executive and legislative branches at the same time that he insisted that all three branches, including the appointed judiciary, enjoyed coequal status as agents of the people.
That theoretical proposition collided with practical reality in Chisholm v. Georgia (1793), the most important Supreme Court case in which he participated. Wilson insisted that the people could at once support both the federal government and each of the separate states. The plaintiff, a citizen of South Carolina and the executor of a merchant in that state, sued the state of Georgia for the value of clothing supplied by the merchant during the Revolutionary War. Georgia ignored a summons to appear in federal court and asserted that it was a sovereign and independent state immune from any federal lawsuit. Article III section 2 of the Constitution extended the federal judicial power to controversies between “a State and Citizens of another State.” The Court entered a default judgment against Georgia, with four votes cast seriatim by Wilson, John Jay, William Cushing, and John Blair, Jr., and a strong dissent by James Iredell.
Wilson wrote that sovereignty resided in the people of the United States “for the purposes of the Union” and that as to those purposes Georgia was “not a sovereign state.” Georgia stood no higher than any individual; it had to be held to account for the contracts it made, and the place to do so was in the federal courts. The backlash against the decision in general and against the words of Wilson (and Jay) in particular was especially vehement among Anti-Federalists. The result was the speedy ratification in 1795 of the Eleventh Amendment. The new amendment stripped the federal courts of jurisdiction in suits commenced against a state by citizens of another state or another nation. This rebuke of Wilson was particularly poignant since in the constitutional convention he had urged the principle of dual sovereignty. Put to the test on the bench, however, Wilson discovered that his views on the sovereignty of the people had less support than he supposed, at least when that sovereignty trumped state authority.
Wilson’s strident nationalism also led him to oppose the addition of the Bill of Rights to the Constitution. Based on his new concept of the perpetually sovereign people, Wilson confidently proclaimed that the proposed Bill of Rights was neither essential nor necessary. Wilson even argued that the addition of a bill of rights would be dangerous because any enumeration of rights would imply that others were not included.
The Lectures also remind us that Wilson was something of a legal sociologist. For example, he insisted that the will of the people tended to mirror their needs through the law, and he used the jury system to prove this proposition. The jury, according to Wilson, was the most important embodiment of the will of the people in the legal system and an essential safeguard of liberty. Few early Americans, as the Lectures make clear, wrote with greater authority and passion about the jury. Wilson insisted that trial by jury was essential to “just government” and freedom. He, however, was an equally strong critic of jury nullification, the practice by which juries interposed their interpretation of the law in place of that of a judge.
Wilson also covered the subject of equity. He believed that the entire purpose of the legal system was to produce justice; accordingly, the concept of equity was central to the success of the American experiment. Wilson argued that judges should be more than mere voices of precedent; they had also to make certain that what he called “the spirit of the law” was realized. He also warned that judges should not make law. According to Wilson, a judge should take account of “the immediate sentiments of justice” and should implement “principles and rules of genuine policy and natural justice” for the purpose of promoting a true “science of law.” He urged common law judges to apply equitable principles in the interest of “continual progression,” because “equity may well be deemed the conductor of law towards a state of refinement and perfection.”
Wilson emerged as a proponent of law as a tool for the commercial growth of the new nation. If the Republic were to prosper, it would do so based on principles of uniformity and predictability. Once again, he drew on his Scottish experience. America’s economy, like that of Scotland, would prosper to the extent that it embraced principles of international commercial law or, as it was called then, the law of nations.
The connection that Wilson made among common law, natural law, and the law of nations also informed his thinking about judicial review. For his authority, Wilson drew on Lord Coke’s decision in Dr. Bonham’s Case (1610). He also took exception to Blackstone’s view that judges could not defeat the intention of a legislative body, since in the new American scheme the people rather than Parliament were sovereign. Because judges were also agents of the people, those same judges could strike down an unconstitutional law. The people would expect nothing less of them. His version of judicial review was in part text based. Judges, he believed, were required to take the text of the Constitution and lay it alongside the law that was in question. Judges could not simply do what they felt was best. In the Lectures, he went even further. He insisted that any act of a legislature could be subject to the control “arising from natural and revealed law.”
Wilson argued strongly in the Lectures for the importance of federal judicial review. He had insisted in Hayburn’s Case (1792) that the justices should not hear claims made by Revolutionary War pensioners, even though an act of Congress directed that they do so. He and other members of the Court objected because the law required them to perform non-judicial duties, thus violating the principle of separation of powers. The decision also prefigured arguments to come that the Court could declare an act of Congress to be unconstitutional, although it did not do so in this particular instance. He expected the people in whom he so trusted to respond with support, but in practice Wilson consistently underestimated how broad the base of opposition was not only to an active federal judiciary but also to the courts’ exercise of the equity power.
Wilson’s own behavior on and off the bench reminds us of how unworkable his attempt was to establish natural law as a cornerstone of American politics and jurisprudence and to frame a common law of federal crimes. For example, in Henfield’s Case (1793) he attempted to establish the principle of a common law of federal crimes. The jury hearing the case, however, rejected his direct charge that, even though there was no specific statute that Gideon Henfield had violated, the captain of a privateer had nevertheless acted illegally by bringing a captured British ship to Philadelphia.
Disgrace and Death
Wilson’s ambition for high station in life collided with his equally strong quest for material gain. Wilson wanted to be Chief Justice, a position that he believed he had earned for his resolute support of the new national government. Wilson was also vain enough to believe that of the members of the Court, he was the one best versed in the law. Such an ambition was entirely in keeping with his goal of becoming the American Blackstone.
When the Supreme Court came into session in February 1796, President George Washington had to replace Chief Justice John Jay. Wilson seemed a likely possibility, but because of his preoccupation with land and business ventures, Washington ultimately turned to Oliver Ellsworth, a Connecticut Federalist, a member of the Philadelphia Convention, and the principal framer of the Judiciary Act of 1789. Wilson was devastated by being passed over, so much so that he wrote privately of his intentions of resigning.
He simply could not afford to do so. His steadily plummeting financial fortunes made his meager Supreme Court salary all the more important, especially since he was borrowing money to cover failed land speculation at rates as high as thirty percent. Wilson confronted financial ruin and, even more tragically for a judge, arrest and imprisonment. After spending a brief period in a New Jersey jail in July 1797, Wilson fled to Edenton, North Carolina. He was unable to return to the February 1798 term of the Court because his creditors would have had him imprisoned. Among the creditors to whom he owed money was Pierce Butler of South Carolina, who, on learning of Wilson’s presence across the border, demanded payment of the $197,000 owed him, a huge sum for the time. Wilson could not pay; he was again jailed. Ultimately, Butler agreed to the release of the Supreme Court justice, who took up residence in the Horniblow Tavern. In July he was stricken with malaria; on August 21, 1798, he died, financially ruined.
Litigation over Wilson’s extensive estate went on for years. Its disposition included hundreds of thousands of dollars in real property in Pennsylvania and the Gibraltar Iron Works in Bucks County. His estate also included an extensive selection of books on farming, a lifelong passion of Wilson and an echo of his childhood in Scotland. Ultimately, his son, Bird, was able to pay the great bulk of his debts in full.
In the end, the real wealth and fame that Wilson sought eluded him. Literally no one had a good word to say about him. “His death,” wrote Page Smith, “had been a pathetic one without the nobler dimensions of tragedy.” Perhaps even more important, Wilson left this life with a string of claims of serious ethical lapses as a legacy. His land-acquisition programs and personal conduct are subjects well worthy of the attention of modern scholars of the Court and the era.
Wilson did leave a legacy in the law and in his contributions to the creation of the American republic. As Arthur Wilmarth reminds us, he was committed to the idea of public virtue, an unwavering belief in the power of popular sovereignty, and an oddly unrealistic view of human nature. What Wilson wanted was, in the end, not within his or even the nation’s reach: a more perfect society that not only secured the rights of individuals but actually enlarged them through an appointed federal judiciary. Judges were supposed to be agents of human perfection. In some ways Wilson was the first sociologist of American law; his legacy lingers in his admonition to view law as a system of social adaptation.