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Source: Bibliographical Essay: The History of James Wilson's Law Lectures, in 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).
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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BIBLIOGRAPHICAL ESSAY: HISTORY OF JAMES WILSON’S LAW LECTURES by Mark David Hall
When James Wilson wrote and delivered his lectures on law at the College of Philadelphia, he was addressing two audiences. After the introductory lecture, the first audience was the fifteen young men who attended the lectures. The second, and in Wilson’s mind the far more significant audience, was the American republic. One of Wilson’s greatest ambitions was to be remembered as America’s Blackstone. To achieve such fame, he planned to publish his lectures as the definitive treatise on American law. Accordingly, he carefully and neatly penned final versions of the lectures in what eventually numbered fifty-two notebooks.
As Kermit Hall notes in his introduction, James Wilson was unable to publish his lectures. However, his son, Bird, published them in 1804. His edition was the last to take advantage of the notebook manuscripts—until the present edition. In this essay I briefly consider the origins of the law lectures and their publication history. I then compare the notebook manuscripts to the current edition of the lectures, noting significant similarities and differences.
The Original Plan
On July 10, 1790, the Board of Trustees of the College of Philadelphia (now the University of Pennsylvania) debated a motion to create a “law professorship.” At the following meeting, board members Edward Shippen, James Wilson, and Mr. Hare were appointed to a committee “to consider the propriety & utility of establishing a law professorship & to report the duties thereof.” The committee’s report, which was almost certainly drafted by Wilson, was issued on August 14, 1790:
The object of a system of law lectures in this country should be to explain the Constitution of the United States—its principles—its parts—its powers & the distribution & operation of these powers,—to ascertain the merits of that Constitution by comparing it with the Constitutions of other states—with the principles of government, with the rights of men—to point out the spirit, the design & the probable effect of the laws & treaties of the United States—to mark, particularly and distinctly, the rules and decisions of the Federal Courts in matters of both law and practice.
To examine, legally, critically, & historically, the constitutions & laws of the several states in the union—to compare those constitutions and laws one with another and with the general rules of law and government—to investigate the nature, the properties & the extent of that connection which subsists between the general government & and each state severally, & of consequence, between each of those states & each & all of the others.
To illustrate the genesis, the elements, the originals, & the rules of the common law in its theory and in its practice—to trace, as far as possible, that law to its foundations, to the laws and customs of the Normans, the Saxons, the Britons, the ancient Germans, the Romans, and perhaps, in some instances, the Grecians.
Under this head it is to be observed that the common law, in its true extent, includes the law of nations, the civil law, the maritime law, the law of mercantile & the law of each particular country, in all cases in which those laws are particularly applicable.
All the forgoing subjects of discussion should be contrasted with the practice and institutions of other countries—they should be fortified by reasons, by examples, & by authorities. They should be weighed & appreciated by the precepts of natural and revealed laws.
The obvious design of such a plan is to furnish a rational and a useful entertainment to gentlemen of all professions, but particularly to assist in forming the legislator, the magistrate, & the lawyer.
The lectures and exercises may be so arranged and prepared as to suit the different views of those who shall attend them.
After approving the report, the trustees “resolved that a professorship of law be established in this institution, and that a professor be appointed, whose duty it shall be to deliver, annually, in the College, at least twenty four lectures agreeably to the forgoing principles.” On September 7, James Wilson was unanimously elected to be this professor of law. After this date, the minutes contain relatively little about Wilson, who resigned his position on the board upon accepting the professorship, other than to note that the trustees accepted his invitation to the first lecture and voted to grant him (along with Edward Shippen and Francis Hopkinson) a doctorate of law.
On December 15, 1790, James Wilson stood before “the President of the United States, with his lady—also the Vice-President, and both houses of Congress, the President and both houses of the Legislature of Pennsylvania, together with a great number of ladies and gentlemen . . . the whole comprising a most brilliant and respectable audience,” to present the first in a series of lectures on American law. This lecture, which was published as a pamphlet (the only part of the lectures to be published in Wilson’s lifetime), made it clear that Wilson had a grand vision for his lectures. Simply put, he hoped to codify American law, thus gaining a place in history as the American Blackstone.
Wilson’s first course of lectures ran for fifty-eight lectures, which went significantly beyond the minimum of twenty-four contemplated by the proposal approved by the College of Philadelphia trustees. These are printed in the first thirteen chapters of the present edition. The second course is printed in the remaining twenty-two chapters of the present edition. Although Wilson clearly intended to publish the lectures, his duties on the Supreme Court and worsening financial condition prevented him from doing so.
Six years after his father’s death in 1798, Bird Wilson, relying on his father’s notebooks, published the first edition of the lectures. In the preface to this work, he claimed not to have altered “the language of the Author,” although he confessed to having divided them into “parts and chapters, according to the subjects.” Subsequent editions of the lectures edited by James De Witt Andrews (1896), Robert G. McCloskey (1967), and the present volume, have relied on Bird’s edition. Although no evidence suggested that Bird grossly distorted his father’s lectures, students of James Wilson obviously want to have confidence in the integrity of the lectures’ texts. Until recently, this has not been possible.
The history of the notebooks containing Wilson’s draft lectures is scanty at best. Prior to 2001, the only record of a scholar being able to see the manuscripts comes from the early 1950s, when Wilson’s biographer Page Smith was able to see them. Smith used them to shed light on questions that Wilson had his students debate, and he mentioned in a footnote that the notebooks were in the possession of “James Alan Montgomery, Jr., of Philadelphia,” that they “contain early drafts of the lectures,” and that a “‘spot check’ of the MSS and the published texts revealed no significant differences.” Smith’s claim allowed Wilson scholars to have some confidence in Bird’s edition, but his admission that he only “spot checked” the lectures remained a cause for concern.
James Montgomery donated the notebooks to the Free Library of Philadelphia in 1968 and 1969. Although the Free Library issued a press release about the notebooks in 1969, they were never listed in the National Union Catalog or elsewhere, and their location remained a mystery to Wilson scholars. Their discovery in 2001 allows scholars to evaluate the accuracy of Bird’s edition of the lectures. In the following sections, I provide an overview of the notebooks and suggest important similarities and differences between them and the printed versions of the lectures.
The James Wilson Notebooks at the Free Library of Philadelphia consist of sixty-nine notebooks. Of these, nine contain early drafts of the lectures, fifty-two contain final versions of the lectures, and eight contain a miscellaneous collection of questions he asked his law students along with their responses, draft grand jury charges, early versions of his “Plan for Improving the United States,” and copies of a few letters. In some places the final versions are heavily edited, with some sections crossed out and other passages clearly added at a later date.
The first eighteen notebooks are roughly paired, with one notebook containing very rough drafts of lectures for every notebook containing the final version. The nine notebooks containing drafts correspond to Wilson’s first thirty-three law lectures, which are reprinted in the first eight chapters of the current edition of Wilson’s lectures (the correspondence between the lecture and chapter numbers is discussed below). In many places they consist of a string of quotations from legal and moral philosophers. Some of these quotes and citations survive in Wilson’s final drafts, but most do not. However, there is often a substantive connection between the quotations and the final lectures.
Scholars have long known that Wilson read and cited authorities such as Thomas Reid, William Blackstone, Francis Hutcheson, Hugo Grotius, Richard Hooker, and Samuel Pufendorf. The drafts of the lectures enable them to trace the influence of each thinker on Wilson’s first thirty-three lectures, lectures that contain some of his most important philosophical work. The drafts are particularly useful as Wilson, following common practice, did not always quote or cite his sources in the final versions of his works. For instance, in his lecture on the law of nature, Wilson quoted an entire paragraph from Thomas Reid’s Essay on Intellectual Power, but neglected to put the passage in quotation marks or provide a citation. Such borrowing might go unnoticed by scholars who are not intimately familiar with Reid, but a scholar who compares the drafts to the final copies could easily discover it.
Beginning roughly at Wilson’s thirty-fourth lecture (chapter nine in the current edition), there are no notebooks that are used solely for drafting lectures. It is possible that such notebooks existed but were lost. All of the remaining notebooks with final versions of the lectures, however, contain at least some of James Wilson’s editing marks, and some are extensively edited, which suggests that he abandoned his practice of creating a very rough draft of the lectures. Certainly it would be less necessary for him to do so as he moved from the more philosophical lectures to those involving more mundane issues of law. Nevertheless, the editorial changes to the final notebooks are revealing.
The Final Drafts
Fifty-two of the notebooks in the Free Library’s collection contain the final drafts of the law lectures. Most of these are in Wilson’s hand, although a small percentage of them are in a far neater script that is clearly not his. Page Smith speculated, and he was probably correct, that James had Bird write out some of the final lectures. In any case, the neat handwriting always correlates with rough drafts, so there is no question that anyone other than James Wilson is the author of the final draft of the law lectures.
The final drafts reveal that Bird Wilson was, in many respects, a faithful editor. Even though Bird’s introduction suggests that he rearranged some of the lectures, and even though the lectures do not follow exactly the plan laid out by Wilson in his first lecture, Bird did not rearrange any of his father’s lectures. He did, however, combine many of them. Throughout the notebooks Wilson numbered the lectures as he intended to deliver them. He labeled what Bird has as his first chapter “Introductory,” and then offered what Bird has as chapter two in three lectures, clearly marked “L1,” L2,” and “L3.” These labels continue through the first course of lectures, running, with some gaps, from “Introductory” to “L58.” The lectures are reprinted in exactly the order they were delivered in the first thirteen chapters of Bird’s edition. Wilson began labeling the second course of lectures in a similar manner, but he stopped doing so with “L7” (which covers the first two and a half chapters of the second part of Bird’s edition).
Bird published the lectures in the order in which they were delivered, and he was faithful to the substance of the original text. He rarely altered his father’s prose, eliminated passages, elaborated on them, or inaccurately transcribed handwriting, although I found examples of all these things. In most instances these departures are not significant, but several are noteworthy. For example, in notebook 15, Wilson clearly crossed out the majority of a paragraph dealing with factions. Bird Wilson ignored this and included it anyway. The paragraph, which begins “How easily is the esprit du corps generated” and ends with “application of esprit du corps!” emphasizes the ease with which factions are formed and the powerful conflicts in which they engage. Wilson may have changed his mind about the truth of the passage, or, more likely, he decided that he did not want to emphasize the point. Whatever his reasoning, Wilson scholars should be aware that he did not intend the passage to be included in the published version of the lectures.
Conversely, Bird left out the last two sentences in Wilson’s final draft of his last lecture. These sentences, which would have followed “Pennsylvania,” read: “To man and to Society the Subject is truly important. We took a general view of it in Prospect, before we entered upon Particulars: Now let us turn and take a retrospective Survey of the Ground, which we have passed.” These sentences show that Wilson considered his lectures to be complete (with the exception of the “retrospective,” which he presumably did not compose, unless it is his “History of Property,” discussed below). This finding is significant because Wilson’s lectures are sometimes described as “unfinished” or “abandoned.” It is the case that Wilson did not deliver them all, and they certainly become sketchy toward the end of the lecture series, but these sentences indicate that Wilson had, in fact, covered the ground that he intended to cover in his lectures.
Bird Wilson was a good editor, but he did consistently change his father’s text in three ways. First, and least significant, he often combined short paragraphs into longer ones, but his combinations almost always make sense and never alter the meaning of the text. Second, he did not capitalize many of the words that his father capitalized. In many cases Bird’s changes conform to modern usage, but there are occasions that might lead a careful reader of the text to wonder why James did not follow eighteenth-century (and in some cases contemporary) practices. For instance, James capitalized, but Bird’s edition of the lectures often does not capitalize, words like “Revelation,” “Scripture,” and “Christian.” Similarly, Bird sometimes, but not always, capitalized words that are clearly referring to God, such as “Author” and “Observer.” Conversely, Bird capitalized each letter of “MAN” on page 583 of the lecture, whereas Wilson had merely capitalized and underlined the word, as he did for the words “subject” and “author,” which immediately follow it. Such editorial choices leave a text that might suggest intellectual influences that the original text does not.
The third major change Bird consistently made is that he did not emphasize many of the words his father did. From a modern perspective, James Wilson underlined far too many words. Bird reduced the number of words that are emphasized, but his edition, like the current one, does emphasize some words, usually by italicizing them. For instance, in the very first paragraph of his “Introductory” lecture, Wilson underlined the following words: “this,” “first,” “fair,” “brilliant,” “Whole,” “very respectable,” “Politeness,” and “Brilliancy,” whereas the Bird edition only italicizes “fair” (and, note, does not capitalize “Whole,” “Politeness,” and “Brilliancy”). These changes are not particularly significant, and they arguably make the text easier to read for the modern reader.
In some cases, however, Bird’s deletion of emphasis might be significant. For instance, in his discussion of the difference between public and private liberty, Wilson wrote that public liberty is well secured, but that “the most formidable Enemy to private Liberty, is, at this Moment, the Law of the Land.” This emphasis went well beyond his usual practice of underlining individual words (and, in fact, “private” and “Law” are underlined twice). The current edition, following Bird’s, merely puts “private” in italics.
Even with the exceptions just noted, it is fair to say that Bird Wilson did a reasonable job reproducing his father’s lectures largely as he wrote them. Nevertheless, he understandably did not include material that his father wanted eliminated or indicate last-minute changes or additions. These changes, however, shed light on the development of Wilson’s ideas and his thought process.
Virtually all of the notebooks contain ninety pages. Wilson wrote on every other page, so that every page of text faces a blank page. He numbered the pages he planned to write on, but not the blank pages. This method left room for him to go back and edit the text by crossing out material he wanted to eliminate and placing material that he wanted to add on the blank page across from where he wanted it (he indicated where it should go with a variety of editorial marks). In many notebooks, Wilson only crossed out and/or added a few words, phrases, or sentences. Occasionally, however, he added page after page of new text, or crossed out large portions of the existing text.
As might be expected, many of Wilson’s changes are simply matters of style. Many crossed-out sentences are extraneous, and much of the added material simply covers more thoroughly particular areas of law. Occasionally, however, changes are intriguing. For instance, in describing the nature of the federal union, Wilson originally wrote: “Let us turn our most scrutinizing attention to the Situation in which, on the Principles of that System, the States, and the People of the States, composing the American Union stand with Regard to one another. . . .” He then crossed out “of the States,” which leaves the sentence, by my transcription, as: “Let us turn our most scrutinizing attention to the Situation in which, on the Principles of that System, the States, and the People composing the American Union, stand with Regard to one another. . . .” In Bird’s edition, however, the sentence reads, “Let us turn our most scrutinizing attention to the situation in which, on the principles of that system, the states and the people, composing the American union, stand with regard to one another. . . .” It is likely that the first version of the sentence placed too much emphasis on the centrality of the states for Wilson. Accordingly, he altered it to emphasize the role of both the states and the American people in America’s federal system. Some of this clarity is lost, however, by Bird’s version of the sentence.
Bird seldom made a mistake transcribing his father’s editorial changes, but the editorial changes themselves are often revealing. For instance, in a discussion of checks and balances, Wilson originally wrote that “The General Assembly of Pennsylvania is entrusted with the legislative Power of the Commonwealth,” but that this power is subject to checks by the executive and that it is “subject to another given degree of control by the judicial department, whenever the laws, though in fact passed, are found to be contradictory to the constitution.” Wilson then altered the first sentence to read: “The Congress is entrusted with the legislative Power of the United States.” Wilson may have made this change to emphasize to his audience that the Supreme Court has the ability to strike down an act of Congress, a controversial proposition at the time.
These relatively small changes in Wilson’s final drafts show that the notebooks can shed light on Wilson’s work. As well, there are a variety of longer passages that may interest students of the founding. For instance, Wilson crossed out a lengthy paragraph in which he argued that societies should be judged by how they treat women. Scholars interested in his epistemological views may want to read the long passage on the importance of affections, or the sentence in a longer passage borrowed from Thomas Reid, that he deleted. Similarly, Wilson quoted and then eliminated a long passage from Locke’s Essay Concerning Human Understanding toward the end of his lectures. And, as one might expect, Wilson struck out numerous passages on legal or political matters, such as an abstract discussion on the importance of an energetic executive or a more specific examination of cabinet officials.
The final drafts of Wilson’s law lectures are contained in notebooks labeled “Introductory” and then 1–49. Interestingly, there is a notebook labeled “50” which contains Wilson’s unfinished “On the History of Property,” which was published by Bird Wilson, James Andrews, and Robert McCloskey, as the first document in their collections of “Miscellaneous Papers” following the end of the law lectures. Given its placement, it is possible that Wilson intended the piece to be the beginning of his “retrospective Survey of the Ground” covered in the law lectures (promised in the very last sentence of his law lectures that was deleted by Bird), rather than a separate document. Like the lectures, Wilson’s draft is faithfully reproduced in Bird’s edition (with the sort of exceptions noted earlier).
The remaining eight notebooks in the Free Library’s collection are not numbered, but are labeled roughly according to content. They include: “Questions No. 1 Digest,” “Questions No. 2,” “Questions No. 3, charge [?],” “Questions No. 4, Digest,” “Letters concerning the Digest and Charge No. 4 and Letters to P.U.S.,” “Improvements,” “Improvements of the U.S.,” “Charge Number 7.” Some of the material in these notebooks has been published before, notably the three grand jury charges, the final drafts of Wilson’s proposal for writing legal digests, and his plan for improving the United States. Much of the rest of the material in these notebooks, however, has never been published.
The notebooks labeled “Questions” contain questions posed by Wilson to his law students and his summaries of their answers. Page Smith discussed these questions and answers in his biography of Wilson, and he noted that many of the questions were preceded by brief lectures. These lectures, many of which are five to seven notebook pages long, have never been published. In some cases their contents are not particularly interesting, or they overlap with material covered in the published lectures. In other instances, such as his brief lecture preceding the question “Whether the Produce of the Land is to be commended as the sole Source of Wealth and Revenue of a Nation; and whether, supposing it to be so, it would, upon that Supposition, be proper or prudent to impose Restraints on Manufactures or Trade?” may provide insight into his economic views. Given the prominence of many of his students, their recorded answers may be of interest to students of the early republic as well.
It is well known that Wilson was a land speculator, but less well known are his plans for facilitating the development of western land. One of the most ambitious of these plans was laid out in his essay “On the Improvement and Settlement of Lands in the United States.” A very rough draft of this essay, along with a variety of financial calculations, can be found in his notebook labeled “Improvements.” A far more detailed plan is found in the notebook “Improvements of the U.S.” Like the final drafts of the law lectures, the draft of his “Improvements” essay, and his letters to the Pennsylvania Assembly and George Washington regarding his legal digest, contain editorial changes that will interest Wilson scholars.
The James Wilson Notebooks at the Free Library of Philadelphia contain valuable information that careful students of Wilson will want to consult. On balance, however, the notebooks reveal that Bird Wilson was a good editor, and that his edition of the lectures, which are republished here, accurately reflects his father’s final intent.