James Wilson and the Constitution. The opening address in the official series of events known as the James Wilson memorial. Delivered before the Law Academy of Philadelphia on November 14, 1906

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James Wilson
and The Constitution

THE OPENING ADDRESS

in the official series of events known as

The James Wilson Memorial

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By

BURTON ALVA KONKLE

Secretary of The James Wilson Memorial Committee
Delivered before

The Law Academy of Philadelphia

on November 14, 1906

Published by Order of the Law Academy

1907

SAMUEL W. WOOLFORD, Jr.

JAMES McMULLAN

STANLEY WILLIAMSON

Committee on Address

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INTRODUCTION

At the request of the Committee on Address of the
Law Academy, a few words of preface are written in order
to show the relation of the address which follows to the
ceremonies attendant upon the removal of the remains of
James Wilson, in the Autumn of 1906, from Edenton,
North Carolina, to Philadelphia.

The author, Mr. Konkle, in his many years of inves-
tigation of the sources of American history, grew to
appreciate Wilson, particularly his side as a statesman and a
great leader of the Constitutional Convention. In his addi-
tional researches, he discovered that the body of this emi-
nent Philadelphian lay, unmarked and almost forgotten, in
a Southern State. The thought of placing his remains
beside those of his wife in Christ Church may have
occurred to many in the years which have followed his
death, yet it remained for Mr. Konkle to originate and carry
to a successful conclusion this laudable project.

The James Wilson Memorial Committee, composed of
jurists, lawyers and public officials, was formed, and gen-
eral attention was attracted to the movement by articles
in the public press, and by an address on Wilson delivered
by Mr. Konkle before the Historical Society of Pennsyl-
vania in the spring of 1906. The interest of President
Roosevelt was aroused, and a considerable portion of his
speech at the dedication of the new State Capitol was
devoted to a narration of the public services of Wilson.
The present address before the Law Academy then followed,
and was adopted by the Memorial Committee as one of the
events upon the official program.

The ceremonies in connection with the removal and the
reinterment of the remains were of a most impressive and
solemn character. The body was brought from North
Carolina by the U. S. S. Dubuque, and lay in state in
Independence Hall. It was then taken to Christ Church,
escorted by the First City Troop and followed by Justices
of the Supreme Court of the United States, and many

others prominent in official life. Delegates from numerous
patriotic and legal associations were in the procession. The
Law Academy was represented by a committee consisting
of Carlyle H. Ross, Joseph H. Taulane, John McClintock,
Jr., Stanley Williamson, George J. Edwards, Jr., Samuel
W. Woolford, Jr., James McMullan, Howard H. Yocum,
Francis M. Gumbes, Graham C. Woodward, Theodore L.
Cobaugh, Stanley Folz. In the church appropriate ad-
dresses were delivered by men of national reputation. An
account of the proceedings, and the official texts of the
addresses, were published by Mr. Konkle in the American
Law Register for January, 1907, at the requests of its editor
and the Memorial Committee.

Strange as it may appear, the following address is the
first comprehensive biographical sketch of Wilson. The
author was reluctant to consent to its publication, as he pre-
ferred to confine himself to a full treatment of the subject
in a contemplated production of the life and works of Wil-
son. In honoring the request of the venerable Law
Academy for its publication, he cannot have failed to
remember that the constant demands for systematic instruc-
tion in the law by the students of this society who in the
year 1789 met in one of the rooms of the College of
Philadelphia, undoubtedly led to the Wilson law lectures
the next year, and the establishment of a chair of law in
the latter institution.

The widespread attention now directed to Wilson as
a statesman has brought him hosts of admirers. Many may
rise up to follow in the path which has been made for them,
but the following pages from the pen of one who in his
search for historical truth has pushed his way over untrod-
den fields must always have an especial interest and value.

William MacLean, Jr.,
Penn Square Building.

Philadelphia, Pa.
September 1, 1907.

JAMES WILSON
AND THE CONSTITUTION

On this 14th day of May, a full century and nineteen
years ago, a little group of distinguished Virginians and
Pennsylvanians ascended the steps of the old State House
and gathered in the east room where, a decade before, had
been witnessed the signing of an instrument that had de-
clared free the whole people on the American shore. These
eminent representatives, of the two greatest States created
by that people, were gathered on this May day with great
concern and anxiety, because that short but evenful decade
had taught them that the freedom which they had won was
but the foundation, and in no sense the mighty structure of
nationality itself. There stood the revered general who had
led the fight for freedom and the aged and feeble and not
less famous diplomatist who had urged a vague vision of
that nationality upon his people nearly a quarter of a cen-
tury before. By their side were two men of a younger gen-
eration, to whom both looked with hope for completion of
the mighty work that had scarcely been more than begun.
The younger of these was Madison, who, although but
thirty-six years of age, had been Virginia's most able repre-
sentative in the Continental Congress since about the close of
the Revolution. The other, a man in his prime at forty-five
years, was the most learned and able lawyer in America,
the head of Madison's own profession, the man whom Wash-
ington himself had chosen to teach the law to his favorite
nephew some years before, and the one who had long been
chief counsel for Morris, the financier of the Revolution,
and for France — America's great ally in that conflict.

James Wilson, as he stood in that group, was known
to them to be much more than the most learned and able
lawyer among all who should gather at this convention,
as shall presently appear ; but no more significant knowledge

of him could be held by a body of leaders such as these,
gathering, as they were, from all quarters of the coast, to re-
create the fundamental law. Other things being equal, it
was a fact that would enable the most casual student to pre-
dict with perfect safety a prominence and dominance in its
deliberations, such as only an expert in his field could com-
mand. To whom, indeed, would those men turn for their
soundest counsel in the creation of fundamental law, if not
to the most able and learned student of law on the American
shore?

While the Virginians and Pennsylvanians are discuss-
ing their program with other delegates during the next ten
days while waiting for a quorum, let us take a closer look at
this American, whom the French nobleman, Chastellux,
described in his volumes five years before as "the celebrated
lawyer." In appearance his was a strikingly erect figure,
about six feet in height, with a full face of large features
and large eyes, whose near sight compelled constant use of
glasses, and an appearance of sternness when deeply inter-
ested. His features, as Mr. Wain says in a sketch which is
the chief original source regarding him, were far from dis-
agreeable, and his voice, while powerful, was, in its cadence,
perfectly modulated. While slightly constrained in man-
ner, he was dignified and not ungraceful, with an air of dis-
tinction that, to the radicals, gave him the stamp of aris-
tocracy. The full length portrait of him given in the en-
gravings of Trumbull's "Signing of the Declaration" —
which are known to have been engraved from life — bear out
these descriptions, as does the Montgomery miniature, which
was probably painted in his earlier years. Take him all in
all, as he stood there in that old east room, he was a worthy
product of the best Scotch and American culture and, in
physical appearance, a not unworthy son of the vicinity of
the ancient Pictish capital and University seat, St. Andrews.
His life, thus far, had been spent about equally in
America and Scotland. He was born in the lowlands near

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St. Andrews, on September 14th, 1742, so that his baby-
hood came in the midst of the revolution of 1745. His par-
ents, Mr. Wilson and his wife, Aleson Landale Wilson, had
several children, and, while little is known of the parents,
sufficient is known to determine their high personal charac-
ter, when his mother's letters remind him years later that his
father had given him his education in hopes that he would
devote himself to the ministry of the church and that she
prays for nothing so much as that he be ambitious for godly
things. He was but twelve years old in November, 1757,
when, with nine other boys, he tried for one of the four va-
cant Foundation Bursaries at St. Andrews University, and,
according to their records, he took "fourth place in the order
of merit" and gained one of them. Just how long he studied
there is not known. It is a curious fact, however, that one
Alexander Wilson, a typefounder of St. Andrews and later
of Glasgow, became Professor of Astronomy in Glasgow
University, and that his second son, James, entered the latter
institution in 1757. If this was not James, himself, the only
other entry in their records is that of 1762, when he would
be seventeen years old, and his father, James, a resident of
County Clydesdale, and Douglass Parish — which seems the
more probable, for Mr. Wain definitely states that after
grammar school study and a short period at St. Andrews,
he studied in the Universities of Glasgow and Edinburgh.

"And what an age was that in the history of Scotland,"
says Frank Gaylord Cook, a Boston lawyer, in his excellent
estimate of Wilson in the September Atlantic for 1889 —
"the latter part of the eighteenth century. Edinburgh was
the resort of that celebrated literary coterie which included,
with others, Hume, Ferguson, Adam Smith, Hugh Blair and
William Robertson. The one last named was principal of
the University, and at the height of his fame and activity
as a theologian and historian; Blair, Regius Professor of
Rhetoric, was delivering those lectures which embody the
literary taste found in the classic pages of Addison, Pope

and Swift; Adam Smith, Professor of Moral Philosophy at
Glasgow, was developing his great system of political
economy." Just how long or when he studied at Edinburgh
is not known, although its records showT that he entered upon
Blair's studies in rhetoric in 1763 and began logic and
ethics under Stevenson and Ferguson, respectively, early in
1765. That he had more notion of the "wealth of nations"
than the ministry is not only proven by his career, but is
suggested in a letter of his last teacher of English, a Thomas
Young, who began giving him instruction in bookkeeping
on June 13, 1765, just before Wilson left for America.
This instructor recalls to his distinguished pupil how he also
tried to instruct him in golf, and "Jamie" beat him on every
round — a proceeding which he observes was of the nature
of prophecy !

In June, 1765, Wilson was in his twenty-third year,
after a long period of the most liberal education. Three
months before, the Stamp Act had been passed and America,
led by the distinguished publicist, Dickinson, of Philadel-
phia, and others, was becoming more and more aroused.
New York was especially aggressive in resistance, and,
young Wilson, borrowing money to enable him to make the
voyage, set sail for that port and was there in abundant time
for the meeting of the Stamp Act Congress in October.
Here came the brilliant John Dickinson from the metropolis
in Pennsylvania — a young man of but thirty-three, whose
discussion of economic and political relations of this question
was even then circulating both here and abroad — the most
able and popular expression on the subject by any American.
Here came McKean, of Delaware, and the Livingstons of
Jersey and New York, and Rutledge, of South Carolina, and
Otis, of Massachusetts — the first real American Congress.
It did not take young Wilson long to decide that he would
settle in the metropolis on the Delaware where the cultured
Dickinson lived ; and, about the time that Franklin was un-
dergoing that dramatic examination in the House of Com-

mons, in February next, 1766, Wilson was in Philadelphia
with highly recommendatory letters to Dr. Richard Peters,
rector of Christ Church, and others.

Dr. Peters secured his introduction as an usher at the
College and Academy on Fourth Street, near Arch, at once,
and in his examination for the post of tutor in Latin in both
institutions, he proved to be "the best classical scholar who
had offered as a tutor in the Latin department of the Col-
lege," says Mr. Wain. His first "chum" in Philadelphia
was a young man of eighteen, recently graduated from the
College, named White, who was addressed in letters by
Wilson thereafter as "Dear Billy," and later in life Bishop
White testified to the strength of this early friendship. At
a spring meeting of the Trustees Mr. Wilson had asked for
the degree of Master of Arts, which that body readily agreed
to "in consideration," says Montgomery, quoting from the
minutes, "of his merit and his having had a regular educa-
tion in the universities of Scotland." It was conferred on
him at the following commencement, and also on "Joseph
Reed, Esq., of Trenton," who was one day to be Governor of
Pennsylvania. One of the students of James Wilson,
Master of Arts and Latin tutor in the Academy, was
Alexander Graydon, who states in his Memoirs that "the
ushers, during the term of my pupilage, a period of four
years, or more, were often changed; and some of them, it
must be admitted, were insignificant enough ; but others were
men of sense and respectability, to whom, on a comparison
with the principal, the management of the school might have
been committed with much advantage. Among these," not
to name more, "was * * Mr. James Wilson * *."

The young instructor in Latin was greatly impressed
by the brilliant Dickinson, who had written the resolutions of
the late Stamp Act Congress which had apparently secured
the repeal of that measure. Although but thirty-four years
of age, Dickinson had had the best culture the colonies
afforded and three years of legal training in the Middle

IO

Temple. Since 1755 — over ten years — he had been in prac-
tice, such as learned leisure like his own cared to undertake.
Four years before he had entered the Assembly and at once
had become the leader of the proprietary party against
Franklin and the popular party, but had virtually become a
leader of all parties in the Stamp Act resistance. He was a
man after Wilson's own heart, and to study law under him
became the young tutor's ambition almost immediately. It
required the intervention of young White and Attorney
(afterwards Judge) Richard Peters, however, and Wilson
was soon so deeply engrossed in his studies that he effected
a loan in Scotland and gave up his tutorship, devoting him-
self assiduously to his studies under Dickinson for two years.
These two scholarly men were not so unequal as a decade's
difference in age might indicate, for what Dickinson gained
in the Middle Temple and his decade of self-culture, was
somewhat balanced by the superior university training of his
pupil and his more severe purposes. For, it did not require
many years to indicate Wilson's equality and final superi-
ority. Wilson meant to make a severe profession of the
law, while Dickinson was the cultured country gentleman
and was soon issuing his celebrated "Farmer's Letters" that
almost instantly became the faint voice of American nation-
ality. Wilson was admitted to the Philadelphia Bar in No-
vember, and the first of the "Farmer's Letters" appeared in
the Pennsylvania Chronicle at the beginning of the follow-
ing month, 1767.

Some time in 1768 — Wilson's twenty-sixth year — when
the Townshend Acts were still irritating America and Penn-
sylvania was negotiating for the great land purchase from
the Indians, he sought a location to begin the practice of law
and first tried Reading. A few months later, however, he
decided upon Carlisle as more advantageous, and, according
to Judge Biddle, who has examined the records of his resi-
dence there more carefully than any one else, he located in
January, 1769, and in April following was admitted to the

II

Supreme Court. There is little record of his practice during
this first year, but there is evidence of some of the most pro-
found and significant study that he ever did. The irritating
Townshend Acts by Parliament had, during this year, so
incensed the colonies that non-importation agreements were
general everywhere. The prevailing opinion in America
was that Parliament had many rights over the colonies, but
not that of taxation. Even Burke admitted the right, and
there was a growing sentiment in Parliament that that body
had all rights over the colonies. Wilson determined to in-
vestigate the subject himself, "with a view and expectation,"
said he in the preface, "of being able to trace some consti-
tutional line between those cases, in which we ought, and
those in which we ought not, to acknowledge the power of
Parliament over us. In the prosecution of his inquiries he
became fully convinced that such a line does not exist; and
that there can be no medium between acknowledging and
denying that power in all cases. Which of these two alter-
natives is most consistent with law, with the principles of
liberty, and with the happiness of the colonies, let the public
determine." "Many will, perhaps, be surprised to see the
legislative authority of the British Parliament over the Colo-
nies denied in every instance. Those, the writer informs,
that, when he began this piece, he would probably have been
surprised at such an opinion himself; for, it was the result,
and not the occasion, of his disquisitions."

His conclusion was, that the colonies were subject only
to the Crown and in no degree to Parliament. This was a
position in opposition to the British leaders and considerably
in advance of those of the colonies themselves, but based
solidly upon the English Constitution, as we all now know.
"This," says Mr. Cook, in the Atlantic Monthly, "displays
an originality, a penetration, a grasp and a foresight that
places him among the greatest political thinkers of his time.
Rising above the level of contemporary political thought, he
laid bare the absolutist tendency in the ministerial policy,

12

showing that it was both false and dangerous to English
liberty and to the English Constitution. At the same time,
pointing to the history of colonization and the terms of the
colonial charters, he showed what policy would both accord
with legal precedent and promote the prosperity of the em-
pire." "Allegiance to the King," said Wilson on page 21,
"and obedience to the Parliament are founded on very dif-
ferent principles. The former is founded on protection, the
latter on representation. An inattention to this difference
has produced, I apprehend, much uncertainty and confusion
in our ideas concerning the connection, which ought to sub-
sist between Great Britain and the American Colonies."
Besides his own vigorous reasoning he quoted Blackstone,
Burlamaqui, Montesquieu, Bacon, Coke, the reports of Ray-
mond, Salkeld and many others, showing that decisions had
already settled the matter as to Ireland, Jamaica and other
regions, which had their own legislatures. One cannot go
astray in saying that this paper must be considered one of
the first in the constitutional literature of the Revolution, and
it came from the pen of a young lawyer in Carlisle in his
twenty-seventh year. Had it determined English policy at
this period, as it does now, the British flag might — other
things being equal — be floating on both sides of the St.
Lawrence. The paper, however, was not ready for the press
when the non-importation agreements ceased and it was laid
aside in hopes that its counsels would yet prevail in London.
While he was at Reading there were, a half dozen or so
miles distant, some iron works owned by Mr. Bird, whose
name was given to the settlement, Birdsboro, and the young
attorney became interested in his daughter, Miss Rachel.
So that his industry in his early years at Carlisle was no
doubt partly prompted by visions of a home of his own.
Judge Biddle has shown that in 1770 he was taxed, but
without property; in '71, with a lot; in '72, with a lot, two
houses and a cow; in '73, a lot, two houses, a cow and a
negro slave ; and in '74, horses and farms appear ; so that it

13

might safely be predicted that he married about the time he
got the lot in '71, even before the actual facts are known!
The tax receipts may also be supplemented by the informa-
tion that a still more precious possession arrived in 1772, on
September 23d, in the form of a daughter, Mary, the only
one of his children who ever married. His prosperity was
well founded, for out of 817 cases in the Carlisle courts
alone in the five years including and succeeding 1770, At-
torney Wilson appeared in nearly half of them, 346, to be
exact, and it is well known that his practice extended to other
counties and the Supreme Court. In addition to these ex-
ertions, however, he found time, in 1783, to assume a pro-
fessorship of English Literature in the College of Philadel-
phia, although it must have been of the nature of a special
course of lectures at certain intervals, as meager information
regarding them would also indicate; although had not Bos-
ton gone so extensively into operations in tea the following
winter these lectures on the pleasing field of literature might
have been longer lived.

The winter of '73~'74 had hardly passed when Parlia-
ment began to make an example of Boston and carry to the
very limit those vicious conceptions of its power, on which
Wilson thought so profoundly five years before. In June
the Boston port was to be closed; the Quebec Act alarmed
all the colonies; Virginia called a colonial congress; other
States also called them, and Philadelphia was agreed upon;
delegates were chosen everywhere; July 12th a meeting was
called at Carlisle in the Presbyterian Church, and Attorney
Wilson was made Chairman of a Committee of Observation
and Correspondence and also of a delegation to the State
Conference on the following Friday, the 15th; on that day
he was in Philadelphia and was at work on the Convention's
. Committee on Resolutions ; now was the time to bring out
that paper on the Legislative Authority of Parliament; he
took it to the Bradfords, over at the old London Coffee
House, and it was out soon after the 17th of August. His

14

preface to it is not characterized by excitement or hysteria ;
on the contrary, there is the superb poise of the profound
student and statesman. To the public, "the writer submits
his sentiments," it reads, "with that respectful deference to
their judgment which, in all questions affecting them, every
individual should pay." It was a courageous act and bold,
for by it he became liable to trial and severe punishment in
England. It was widely read then and during the first
Continental Congress, which met a few days later, on Sep-
tember 5, at Carpenter's Hall. The over-cautious Assem-
bly, which met five days after Wilson's preface was written,
naturally did not choose him to that Congress. His friend,
Dickinson, however, took great pleasure in dining them at
Fair Hill day by day, for neither was the author of the
"Farmer's Letters" chosen to that Congress. After New
Year's Day, 1775, however, a new provincial convention met
in which Wilson made a powerful plea for Massachusetts'
right to resist any change in her constitution or charter not
agreed to by her legislative body. His speech reminded
those who objected to the revolutionary methods that he was
standing by the spirit, not the forms, of the Constitution.
"Was the convention of the Barons at Running Meade,"
said he, "where the tyranny of John was checked and Magna
Charter was signed authorized by the Forms of the Consti-
tution? Was the Convention-Parliament that recalled
Charles the Second, and restored the monarchy, authorized
by the Forms of the Constitution? Was the convention of
Lords and Commons that placed King William on the
throne, and secured the monarchy and liberty likewise,
authorized by the Forms of the Constitution ? I cannot con-
ceal my emotions of pleasure when I observe that the objec-
tions of our adversaries cannot be urged against us, but in
common with those venerable assemblies, whose proceedings
formed such an accession to British Liberty and British
Renown." And the people followed him, for the Assembly
on May 3d, next, made him Colonel of the Fourth Battalion

15

of Cumberland County Associators, and three days later sent
him with Franklin and Willing to the second Congress
which was to meet on the ioth. Indeed, the events of the
previous month in England had made it impossible to do
otherwise.

Colonel Wilson took his seat in Congress five days later,
just the day before Massachusetts drafted her letter asking
for the counsel of that body. This reached the State House
on June 2, and the committee elected to report on it were
Rutledge, Johnson, Jay, Wilson and Lee, who advised, as
Wilson had already advocated that Massachusetts owed no
allegiance to Parliament, only to the King, and this was fol-
lowed by preparations to aid her in preserving her charter.
He was put on the Finance and Indian Affairs committees,
and was soon in Pittsburg trying to form a treaty that
would overcome the mischief caused by Lord Dunmore.
Here he was occupied much of the rest of the year, although
he was re-elected to Congress in November, and curiously
enough was placed on a committee to consider the protection
of Virginia. Almost immediately, also, he was placed on a
committee to reply to the ministerial proclamation, that on
Naval Prizes, chairman of Indian Trade Relations, and by
the beginning of the year on others, among them, one on the
Forces Necessary to Defend the Whole Country, and also on
an address to all the inhabitants, and the measures for effect-
ing a union with Canada, and conference with General
Washington on that subject. Indeed, he was one of the
leaders in plan of campaign, later the Board of War, and
like committees of the first order, up to June, 1776, when the
Declaration of Independence came up for consideration.

Unfortunately, previous to June 14, the resisting ele-
ments in the Pennsylvania Assembly had absolutely for-
bidden their delegates in Congress to agree to independence,
and Wilson was wise enough to wait and at the same time
secure a removal of that prohibition through his friends
Dickinson, Morris, Smith and others, who drafted the new

i6

instructions, which became effective on June 14. This
course of Wilson's gave the radical element an opportunity
to misrepresent and injure him with the people. On June
20th, Hancock, Jefferson, the Adamses, Morris and other
members of Congress to the number of about a score, issued
a public defense of Wilson from "Congress Chambers."
They stated that "Mr. Wilson, after having stated the
progress of the dispute between Great Britain and the Colo-
nies, declared it to be his opinion that the Colonies would
stand justified before God and the world in declaring
an absolute separation from Great Britain forever; and
that he believed a majority of the people of Pennsylvania
were in favor of independence, but that the sense of the As-
sembly (the only representative body then existing in the
Province) as delivered to him by their instructions, was
against the proposition, that he wished the question to be
postponed, because he had reason to believe the people of
Pennsylvania would soon have an opportunity of expressing
their sentiments upon this point, and he thought the people
ought to have an opportunity given them to signify their
opinion in a regular way upon a matter of such importance —
and because the delegates of other colonies were bound by
instructions to disagree to the proposition, and he thought it
right that the constituents of these delegates should also have
an opportunity of deliberating on said proposition, and com-
municating their opinions thereon to their respective repre-
sentatives in Congress. The question was resumed and de-
bated the day but one after Mr. Wilson delivered these senti-
ments, when the instructions of the Assembly referred to
were altered and new instructions given to the delegates of
Pennsylvania. Mr. Wilson then observed that, being unre-
strained, if the question was put he should vote for it; but
he still wished a determination on it to be postponed for a
short time until the deputies of the people of Pennsylvania
who were to meet should give their explicit opinion upon this
point so important and interesting to themselves and their

17

posterity; and also urged the propriety of postponing the
question for the purpose of giving the constituents of several
colonies an opportunity of removing their respective instruc-
tions, whereby unanimity would probably be obtained."
Wilson knew that the people were divided on the legality of
that Assembly, partly sworn and partly not under oath, but
he also knew that the Provincial Conference which was to
meet on June 18 would call a Constitutional Convention
about whose legality he, at least, would have no question,
but the main point is that this believer in the people wanted
to wait for the people, and, he it was, more than any other
man, who stayed the Declaration until the people themselves
were ready, and during the first week in July was among
those who most heartily and courageously signed that im-
mortal instrument.

A mighty step was taken. Heretofore Congress had
been fighting Parliament. Now it had severed all relations
to the British crown, and they were an independent people.
Wilson's calm poise, based upon constitutional liberty and
the spirit of the laws, brought him to the top in this crisis,
but it marked him as a power hateful to the radical vision-
aries and enthusiasts who drew their inspiration largely
from the Turgot school, when it was not from any school at
all, and the Constitutional Convention of 1776, which gath-
ered at the State House on July 15th, in the room opposite
Congress Chamber, where James Wilson sat — full of radi-
cals as it was — had no more use for James Wilson than the
Tory Assembly that refused to send him to the First Con-
gress. He looked upon their constitution as a monster of
tyranny in keeping with the proscriptive course under it, and
both not a whit better than the vicious theories and actions
of Parliament. And forthwith began that indiscriminate
condemnation of all who opposed this Constitution. They
were dubbed Tories and many were branded with that name
whose sole crime was that they withstood the tyranny of the
Constitution of '76 and the Assembly as they had that of

i8

Parliament and the King. During the autumn and winter,
while Wilson was one of the busiest men in Congress — one
of its very first leaders, as the Journal abundantly shows —
the storm raged against Wilson and other opponents of the
Constitution. The condition of Pennsylvania was the de-
spair of the whole of the Colonies and the Army. On Feb-
ruary 4, 'yy, the storm burst upon Wilson and the Assembly
did not re-elect him. "You have probably heard," he wrote
St. Clair on the 19th, from Baltimore, where Congress was
then sitting, "that I am removed from the delegation of
Pennsylvania. I retire without disgust; and with the con-
scious reflection of having done my duty to the public and to
the State which I represented. On Tuesday next Congress
will adjourn from this place to Philadelphia." Wilson's
presence was absolutely demanded in Congress, however,
and it is said that General Washington went so far as to en-
treat members of the Assembly to return him, and on the
General's birthday they acquiesced. On March 27, Wilson
wrote his friend St. Clair, "I have resumed my seat in Con-
gress. My reason is, that if at any time I can be useful to
my country, I can at this. Pennsylvania is in the greatest
confusion; perhaps order may at last arise from it."

It is, of course, impossible to enter into the details of
that threatening period in the year 1777. Wilson was made
chairman of the Committee on the Protection of Philadel-
phia, and bore the brunt in most of the important commit-
tees— and what Herculean tasks were theirs in those dark
days ! With the closing in of the British toward Philadel-
phia, the Assembly again vented its wrath on Wilson, and on
September 14th superseded him in Congress by his fellow
Master of Arts of years before, Joseph Reed. Wilson took
to the field as colonel of militia in New Jersey, and after
the fall of Philadelphia he is said to have been for a time
in Annapolis. If so, it was merely a temporary matter, for
in '78, with the evacuation of Philadelphia, he took up his
permanent residence there in a house on the southwest cor-

l9

ner of Third and Walnut Streets, and became a private citi-
zen again, if such activities as his could be called private.
He became a trustee of the College of Philadelphia and took
up the work of the courts again and defended the rights of
those, like Morris and others, who were persecuted as Tories,
merely because they opposed the Constitution of 1776. His
very presence was a rebuke to the proscriptive course of the
State Government and its followers, and they feared his
power as they did that of no other man. During this year
h- appeared in the Chester County election case, later in the
proprietary-property case, and still later in the college resto-
ration case, upholding the spirit of the laws, and in each
instance, with profound insight, exposing the unusual prin-
ciples that were then governing in Pennsylvania, so far as
law and liberty were concerned. The French alliance of the
previous February and the army's victories gave practical
assurance that the success of the Revolution was only a
matter of time, and Wilson was already meditating on plans
of reconstruction in all walks of life. Early in '79 the
French government sought his services to guide her legal
relations in this confederation chaos. He commanded the
highest prices of any lawyer, and when he stated them and
the French objected to them, he offered his services free of
cost out of regard to France's friendship to his country.
Later he was presented a "princely sum." He wasn't sim-
ply a lawyer in these cases, but a constructor ; he mapped out
a full consular system for France in America — in short he
was doing as far-reaching things out of Congress as ever
he did with: ,t. During 1779 he and others organized the
Republican Society. During '79 it was, too, that he began
actively takin0 up the development of the country, not only
in Pennsylvania and other States of the East, but in the
vast new territories of the West, over which the States were
quarreling but which was bound to become National domain.
He was an owner of the combined Illinois and Oubache
Land Companies, and later became their attorney and presi-

20

dent, and from this time until his death it is doubtful if there
was a greater individual land owner in America. Two
years later he owned 300 shares in the Indiana Land Com-
pany, whose bounds covered a good part of two great States,
and ran up to "the Chicagou or Garlick River," and gave a
name to the Hoosier State years later. Within a dozen
years or so he had sold a half million acres to the Holland
Land Company and bought over 4,000,000 acres scattered in
all parts of the South from the Potomac and Ohio to the
western boundary at the "Great River." His papers show
that he was not merely a speculator, but, as he put it to cer-
tain Dutch capitalists, proposed to develop our need with
their abundance of men and money. He outlined to them a
plan of immigration and development imperial in its scope.
He had the bold vision of the men of 1861 who planned the
great Pacific railroad. He established mills and factories
and around one of them in Northampton County grew up a
settlement called Wilsonville.

But of course all of this was not done in 1779, but that
potent spirit and outlook was there in '79, and when affairs
went wrong in Pennsylvania it was liable to be charged to
Wilson and Morris. The depreciation of the currency and
the various panicky conditions of that year culminated in
October, on the 4th day thereof, in a mob of militia starting
out to find some of the personal causes, as they believed, of
all their woe, and Wilson's friends, hearing of it, went down
to Third and Walnut to help protect him. Fortunately, the
skirmish that followed, and which has been so vividly de-
scribed by the late Frederick D. Stone, was stopped by Presi-
dent Reed and the City Troop, with slight loss of life, but
the event gave the residence the title of "Fort Wilson," and
some years later he left it and located among the distin-
guished mansions on Market Street, in the region of Sixth.

In the wretched financial situation of 1780 Wilson,
Morris and others conceived a banking company to finance
the army, Morris subscribing £10,000 and Wilson heading

21

the £5000 list, Congress hailing their patriotism with joy.
This led to Morris heading the financial side of the confede-
ration, and Wilson's papers show that from that time for-
ward he was both legal constructor and defender of the
Bank of Pennsylvania and the great Bank of North
America which were their instruments, and was Morris's
constant legal counselor. It was at this time that General
Washington wanted his nephew, Bushrod, to study law with
Wilson, whose fee was higher than that of any other lawyer,
in consequence of which young Bushrod wanted his uncle to
try some one else, but the General wanted Wilson, and paid
the fee, as the young man afterwards described the affair, in
his old age. And this banking aid of the army converted
the masses in Pennsylvania from enmity to loyalty to Wil-
son, and late in 1782 he was sent back to Congress to aid in
bringing order out of chaos ; not only so, but with the aid of
the Republican Society which he was active in organizing to
reform the vicious Constitution of '76, three years before,
this banking movement brought Wilson's party into increas-
ing control of the State government. In its prospectus,
attributed to him, they said : "While we oppose tyranny
from a foreign power, we should think ourselves lost to
every sense of duty and of shame were we tamely to acqui-
esce in a system of government which, in our opinion, will
introduce the same monster, so destructive of humanity,
among ourselves. Such a system we conceive the Constitu-
tion framed by the late convention to be." But Wilson was
wise, and not long after his return to Congress his party
were masters of the Assembly and he was studying the sci-
ence of government daily. It was at this time, in 1782, that
Marquis de Chastellux, a member of the French Academy
and a Major General under Rochambeau, wrote of a visit
with Wilson, "a celebrated lawyer," said he, "and an author
of several pamphlets on the present affairs. He has in his
library all our best authors on public law and jurisprudence;
the works of President Montesquieu and of Chancellor

22

d'Aquessau hold the first rank among- them, and he makes
them his daily study." The translator adds in a foot-note
that Wilson "is making a fortune rapidly in the profession
of the law at Philadelphia," and is "a man of real abilities,
and Mr. Morris's intimate friend and coadjutor in his
aristocratic plans."

The Revolution was over. Wilson was forty years old
only. He was made Brigadier-General of militia in Penn-
sylvania to aid in putting it on a sound basis. He was made
leading counsel to defend Pennsylvania's claims to her
northern territory against Connecticut in a special court at
Trenton, and succeeded. He was a member of Congress
from '83 to '87, except in '84, when the land companies'
claims, in which he was interested, were before it : but he
attended only at times of special importance. Congress
was proving its organic inefficiency. Its proceedings at this
time require very thin volumes. Strong men were busy re-
storing the wreck of the long war. A new population was
pouring into the vast land of opportunity. The war which
held the people together as Americans had closed, to relax
the tie and make them citizens of bickering- States. The
confederation was powerless. The loosened tie of nation-
ality was as an oppressive nightmare to the most thoughtful.
As commerce was resumed trade relations became chaotic
and exasperating. Attempts were repeatedly made to se-
cure uniformity, regulation and revenue by vesting in Con-
gress powers of establishing impost duties, but in vain.
Finally, in January, '86, Virginia began agitation for a trade
convention of the States, but even she did not send out her
call until July. It was during this agitation that, on April
14, one of the great sorrows of his life came to James Wil-
son in the loss of his wife, a bereavement all the more
pathetic since it left a family of six children, the oldest of
which was but fourteen and the youngest an infant. It was
over seven years after the mound was made in Christ
Church yard before he found himself ready to fill that

23

vacancy in his home. Thus it was that James Wilson was
in the midst of a deep sorrow when representatives of five
States met in the trade convention at Annapolis on Septem-
ber ii, 1786, when two young men from Virginia and New
York were influential in recommending that a fuller and
more serious convention be held at Philadelphia on the sec-
ond Monday of May, next following, at the State House,
to consider serious defects in what they called "the Federal
Government."

During the winter of '86-7 a few choice spirits grasped
the national idea in a vague form, and the momentous
project drew from all the States their soundest and broadest
men to the Philadelphia State House square like a magnet.
McMaster has happily described them to us. During the
ten days from May 14 a quorum had gathered, and on May
30, after five days of deliberation, the Gazette gave as its
earnest conviction that "Perhaps no age or country ever saw
more wisdom, patriotism and probity united in a single As-
sembly than we now behold in the convention of the States."
And after three months the same journal again affirmed
that "Such a body of enlightened and honest men perhaps
never before met for political purposes in any country upon
the face of the earth" — a judgment that time has only
tended to confirm and reiterate with even more positive con-
viction. If ever a body of men in the history of the world
was worthy to be called a school of constructive political
and governmental science, that body was this convention in
the old east room of the State House. They were not mere
adapters of historical and political writers like Montesquieu ;
they were scientific creators, thinking through the problem
themselves in a new field. Some came to it from the
soldier's or citizen's point of view ; some came from the con-
structive statesman's viewpoint or that of the practical stu-
dent of politics; but, fortunately for them and for us, one
came to it from the experience of the most learned student
of history and law, and as a scientist in politics. James

24

Wilson "was above all a political scientist," says A. C. Mc-
Laughlin, the distinguished historian of Ann Arbor and
Carnegie Institution, in a scholarly estimate of him in the
Political Science Quarterly for March, 1897 — probably the
ablest estimate of Wilson yet written; "he had grasped
firmly the teachings of the past so far as they disclosed the
nature and organization of the State and the safest prin-
ciples of judicious government. He was a student of his-
tory, and his study had brought him organized knowledge.
He was not a master of the art of politics, but he knew with
scientific accuracy the fundamentals of statecraft. He was
suited, above all else, to share in the building of a new State
and to labor as the architect of a new government."

The operation of the convention was amusingly like any
one of multitudes of gatherings for organization so charac-
teristic of Americans. The Virginians presented some reso-
lutions embodying some of the main points of what they
thought ought to be carried, and others tried an actual draft
of a new Constitution. Some, with nervous anxiety and
timidity, wanted the old articles of confederation amended.
Wilson was more concerned with the settlement of some
great principles than details and mechanism; not as a the-
orist, either, but as "the most learned civilian," as Bancroft
calls him, with his conclusions based on scientific deduc-
tions. His great principles, like the decalogue, have now
become commonplaces to us from long familiarity, but they
were absolutely novel to his followers and the history of the
past. Let us see what some of them were : He believed
the American people were a Nation, not a union of States;
that they had become free collectively, not individually, and
should form a government that should be an exact transcript
of their society. In consequence, he believed supremely in the
people — trusted them absolutely, more than the convention
itself did, or more than his times did. We are not yet
abreast of him in his trust in the people, although we are
rapidly growing in that direction. Consequently he was

25

there not to consider the old articles at all, but to create a
National government, resting, not upon States, although
fully recognizing them, but on the people directly. He was
the first to clearly conceive our great modern idea of local,
State and National government, each being the creature of
the people, responsible to them, and resting on them. Not
even Madison, whom Bancroft calls "the most careful states-
man in the convention," grasped the idea as Wilson did, and
the evidence of general confusion on this point in the minds
of this body reveals, more than anything else, the century in
which they lived, and the peculiar modernity of the views
of Wilson. This was the secret of the first great struggle of
the convention, and, indeed, of every struggle of great mo-
ment during the entire sittings of that body. This it was
which was the most characteristic product of this distin-
guished body.

Montesquieu and others had long observed the scientific
nature of distinctly separate executive, legislative and judi-
ciary branches and checks and balances in government, as
illustrated in some degree in the British Constitution. There
was not much objection to this idea, but even in this matter
Wilson was easily the most influential in determining the
nature of each. He it was who insisted on the single execu-
tive elected by electors of the people. He was on the com-
mittee which itself practically created the judiciary depart-
ment. But his great principle came to the surface in the
greatest crisis, the climax of the convention, when he applied
it to the legislative branch, which the best thought of the
day had practically settled should be bi-cameral — namely,
that both houses of Congress should be responsible to the
people and elected by them. No question precipitated a
crisis so nearly an approach to rupture as this, which was
forced upon the convention by the small States and sup-
ported by those localists who failed to grasp Wilson's idea
that the State was as safe as the Nation, since both were the
people's permanent creation and possession. Wilson pro-

26

posed the election of both houses by the people and suc-
ceeded with the Lower House, but finally yielded to Madi-
son's "carefulness" in surrendering the election of the Sen-
ate to the States. Wilson always felt this an anomaly in
government, and no student of constitutional development
can read the attitude of the people toward this question to-
day and not be startled to see how fast they are traveling
toward Wilson's principles. Wilson, however, accepted the
compromise with loyalty, but always was apprehensive of
the ideas of State sovereignty that it carried with it as con-
taining a future struggle and indicating where the line of
cleavage would appear.

These were the great questions in which Wilson's coun-
sel loomed high in the minds of the convention. He did not
take so much interest in working out the minor problems.
In the matter of check on legislation, he wanted the Execu-
tive and Judiciary to both have a negative on the passage of
laws, anticipating Marshall and the modern practice of the
judiciary's power to determine a law's constitutionality.
He wanted the constitutionality determined before
its passage so far as possible. With characteristic
logic he applied his combined principles of nation-
alism and democracy to the end. There is nothing
more modern than his defence of the rights of the
Western settlements to equality. :'The majority of the peo-
ple," said he, on the very day that Congress passed the great
ordinance of 1787, creating the Northwest Territory, "the
majority of the people, wherever found, ought in all ques-
tions to govern the minority. If the interior country shall
acquire this majority, it will not only have the right, but
will avail itself of it, whether we will or no." One other
point may be noticed as characteristic, namely, his insistence
that the finished Constitution should be submitted to the
people in convention, and not to the State legislatures, a
proposal that prevailed. With these points, and others,
settled, Wilson was, of course, placed on the committee to

27

draft them into constitutional form, and the Historical So-
ciety of Pennsylvania now has among its treasures two suc-
cessive drafts of that instrument in committee in his own
hand.

The convention rose on September 17th, and about ten
days later Congress had referred the new instrument to the
people's conventions of the several States. The objectors
both within and without the convention, especially the latter
in Pennsylvania, at once tried to arouse alarms, and at the
request of many eminent citizens Wilson, whom Washing-
ton then characterized as "as able, candid and honest a mem-
ber as was in the convention," addressed a mass meeting at
the State House on October 6th, replying to the false insinu-
ations : On the omission of a bill of rights, he stated the
great difference between State and National constitutions.
"In the former case," said he, "everything which is not re-
served is given, but in the latter the reverse of the proposi-
tion prevails, and everything which is not given is reserved."
To the objection that trial by jury was not provided for, he
said it was impossible to provide for it other than to trust
the court regulations to the people's representatives in Con-
gress. To those who objected to the toleration of a stand-
ing army, he showed that the confederation already pro-
vided for it and no nation on earth was without one. To the
fear of an aristocracy in the Senate, he showed that the Sen-
ate was helpless without the consent of their representa-
tives and their chief executive ; besides, said he, "the Senate
is a necessary compromise — for my part, my admiration can
only be equaled by my astonishment, in beholding so perfect
a system formed from such heterogeneous materials." To
the objectors that it was designed to reduce the States to
mere corporations, he showed that a President could not be
elected except there be a State legislature ; there could be
no Senate except there be a State legislature ; and the
House itself could not exist without the State legislature,
for it was to be elected in the same way as the most numer-

28

ous branch of the State body. To objectors to the power of
direct taxation, he predicted that the great revenue of the
nation would always be by impost duties, but emergencies
required the power to preserve the credit of the Union — a
point the Pennsylvanians were quick to understand just
then. He finally closed with reflections on opposition that
must be expected, and that it was a human instrument,
although with the seeds of reformation within itself. "I
will confess," said he, "that I am not a blind admirer of this
plan of government, and that there are some parts of it
which, if my wish prevailed, would certainly have been
altered. But, when I reflect how widely men differ in their
opinions, and that every man (and the observation applies
likewise to every State) has an equal pretension to assert
his own, I am satisfied that anything nearer to perfection
could not have been accomplished. Regarding it, then, in
every point of view, and with a candid and disinterested
mind, I am bold to assert that it is the best form of govern-
ment which has ever been offered to the world."1 This
speech was printed in the Gazette, and Washington and
others secured its reprint in Virginia and New York.

By the 7th of December Delaware had ratified the Con-
stitution, while Pennsylvania was considering it, only be-
cause the minority in the Assembly tried to block reference
to the people by absenting themselves. As but two were
needed, however, they were captured, and on the third Tues-
day in November a convention was considering Wilson's
presentation of the matter and ratified the Constitution five
days after Delaware. This presentation attracted attention
in both Europe and America years afterwards. It is im-
possible to treat it fully here. "Government, indeed," said
he, "taken as a science, may yet be considered in its infancy."
Again, "America presents the first instance of a people as-
sembled to weigh deliberately and calmly, and to decide
leisurely and precisely, upon the form of government by

1 Italics by the author.

29

which they will bind themselves and their posterity." In
showing that the great law of representation, the vital
principle of government, was even in the British Constitu-
tion, "confined," as he said, "to a narrow corner," he added,
"the world has left to America the glory and happiness of
forming a government where representation shall at once
supply the basis and cement of the superstructure." On the
location of supreme authority, he showed that, unlike
Britain, where it lies in Parliament, in America it did not
even reside in constitutions, although that was nearer the
fact, for here, "in truth, it remains and flourishes with the
people." "That the supreme power, therefore, should be
vested in the people is, in my judgment, the great panacea of
human politics." "But," said he, in closing, "when we take
an extensive and accurate view of the streams of power that
appear through this great and comprehensive plan, when we
contemplate the variety of their directions, the force and
dignity of their currents, when we behold them intersecting,
embracing and surrounding the vast possessions and inter-
ests of the continent, and when we see them distributing on
all hands beauty, energy and riches, still, however numerous
and wide their courses, however diversified and remote the
blessings they define, we shall be able to trace them all to one
great and noble source, the People."

It was in this discussion that, on October 26, '87 (not
'88, as Bryce has it; that was the year of publication), Wil-
son said : "To control the power and conduct of the Leg-
islature, by an overruling Constitution, was an improve-
ment in the science and practice of government, reserved to
the American States." This idea seemed not to be under-
stood in Britain. "The British Constitution is just what
the Parliament pleases." "The first statesman who re-
marked this," says Bryce, "seems to have been James Wil-
son," "one of the luminaries of the time to whom" "subse-
quent generations of Americans have failed to do full jus-
tice." His speeches "display an amplitude and profundity

30

of view in matters of constitutional theory which place him
in the front rank of the political thinkers of his age." It
was in this discussion that he said, in one of his closing ap-
peals : "By adopting this system we shall probably lay a
foundation for erecting temples of liberty in every part of
the earth. It has been thought by many that on the success
of the struggle America has made for freedom will depend
the exertions of the brave and enlightened of other nations.
The advantages resulting from this system will not be con-
fined to the United States ; it will draw from Europe many
worthy characters, who pant for the enjoyment of freedom.
It will induce princes, in order to preserve their subjects, to
restore to them a portion of that liberty of which they have
for so many ages been deprived. It will be subservient to
the great designs of Providence, with regard to this globe,
in the multiplication of mankind, their improvement in
knowledge and their advancement in happiness." It was in
connection with the consideration of this great presentation
by Wilson that Justice Harlan, of our Supreme Court, re-
ferred to them as having been characterized as "the most
comprehensive and luminous commentaries on the Constitu-
tion that have come down from that period ;" that no one of
that body who made this instrument, "the wisest assemblage
of public servants that ever convened at any time in the his-
tory of the world," no one of them was "wiser than James
Wilson," who was "in the highest and best sense a great
lawyer" and "a master in the science of government." It
is in a similar consideration, too, that Bancroft refers to "the
technical knowledge, the comprehensive grasp and the force
of argument of this great man."

The present speaker seldom deals in historical esti-
mates, but prefers rather to lay before his readers the ma-
terial upon which to base their own. The greatness of
James Wilson, however, so well attested as it has been by
many an authority, leads him to offer one in this instance
with great confidence. What Thomas Jefferson was to the

3i

Declaration of Independence, what John Paul Jones was to
the Navy, and George Washington to the Army; what
Robert Morris was to the finance of the Revolution, and
Franklin to its diplomacy, that, in the fullest measure,
James Wilson was to the Constitution of the United States.
By July 4, '88, eight other States had joined Delaware
and Pennsylvania in ratifying the Constitution, and the
whole land was ablaze with enthusiasm. Philadelphia
streets were in brilliant array with procession, and the river
was gay with ten vessels decorated to represent the ten
States. And who but James Wilson should voice the re-
joicing in a public address? He met the occasion with like
spirit, interpreting and illuminating their great symbolical
procession, in which Justices of the Supreme Court were not
ashamed to sit in state in sections of the pageantry emblem-
atic of the great new fundamental law. Near the close of his
address, he exclaimed : "I do not believe that the Constitu-
tion was the offspring of inspiration, but I am perfectly
satisfied that the union of the States, in its form and adop-
tion, is as much the work of Divine Providence as any of
the miracles recorded in the Old and New Testaments were
the effect of a Divine power. 'Tis done ! We have become
a nation. America has ceased to be the only power in the
world that has derived no benefit from her declaration of
independence." Two days before this event, the old Con-
gress provided for the election under the new government
in January, '89, and by April 30th the Executive and Legis-
lative branches of National Government were instituted.
During the summer the matter of the Supreme Court occu-
pied President Washington's most serious consideration.
As Carson has shown in his history of that court, Wilson
was thought of among some of the leading men for the
Chief Justiceship, but as the President wished the Minister
to France, Mr. Jefferson, to be Secretary of State, when
Mr. Jay, of New York, was practically in that latter office
under the old Congress, there was abundant reason for giv-

32

ing Mr. Jay the highest judicial place. On the 29th of
September a commission as Justice was issued to Mr. Wil-
son, and the following day Washington wrote him that he
was placing on this bench "the Chief Pillar upon which our
government must rest," to use his own words, "such men
as I conceive would give dignity and lustre to our national
character," and counted on Wilson's love of country and
general welfare to make his acceptance of the office certain.
Five days later Wilson took the oath of office at the hands
of the Mayor of Philadelphia, Samuel Powell, and on the
1 8th of October Justice Wilson reported his acceptance and
legal qualification to the President.

Scarcely more than a month later, namely, on Novem-
ber 24th, he was sitting as a member of the State Constitu-
tional Convention, which had been provided for almost im-
mediately after the new National Government began to exist
at New York, and was now able to displace the hated Con-
stitution of '76 with one based upon the same principles as
the new National one. This was Wilson's last constitu-
tional work, and it was no easy task, for almost a year passed
before the convention adjourned. With characteristic vigor
he devoted himself to the vital parts of the instrument, and
his argument on the last day of '89 against Mr. Lewis's plan
to have the Senate elected by electors, as in Maryland, was
the climax in the convention. "By this plan," said he, "I
am now called upon to delegate this trust" — of personally
choosing representatives, a trust whose magnitude he had
just described — "delegate this trust in a manner, and to
transfer it to a distance, which I have never experienced be-
fore. I am called upon, not to appoint legislators of my
own choice, but to empower others to appoint whomsoever
they shall think proper, to be legislators over me, and over
those nearest to me in the different relations of life. I am
called upon to do this not only for myself, but for thousands
of my constituents, who have confided to me their interests
and rights in this convention. I am called upon to do this

33

for my constituents and for myself, for the avowed purpose
of introducing a choice, different from that which they or I
would make. I say different, because if the people and the
electors would choose the same Senators, there cannot be
even a shadow of pretence for acting by the nugatory inter-
vention of electors." This powerful address was again in
line with Wilson's great trust in the people, and they must
have beheld, with amusement, at their own expense, this
man whom they were accustomed to dub an "aristocrat"
enacting this role. The result is well known — Wilson gave
another constitution the stamp of democracy. It may be
added that the original address is also among the treasures
of the Historical Society of Pennsylvania.

His attendance on the convention was interrupted a
month later by the first meeting of the National Supreme
Court in the Exchange Building in New York, but only for
a brief period. He wrent on his first circuit in the spring.
During the summer vacation, however, another interesting
event demanded his public services in the metropolis and
capital of the new Nation. A brilliant and learned young
member of the convention, Charles Smith, also a lawyer,
the favorite son of the Provost of the College of Philadel-
phia, and prompted possibly by his ambitious father, con-
ceived the idea of instituting a law school in that institution,
and applied to the trustees. Messrs. Shippen and Hare and
Justice Wilson were made a committee to- consider the mat-
ter, and it was determined that the college ought, by all
means, to enter upon the proper exposition of the new
fundamental law in both State and Nation, in this seat of
learning at the State and National Capital. Here was un-
doubtedly a great opportunity for a much needed exposition
and defence of the new sources of law in State and Nation,
and it was so instantly recognized that no one was so fit to
be the American Blackstone and timely official expounder
of the constitutions at the National metropolis and capital
as Justice Wilson himself. Young Smith was apparently

34

not even considered. It was late in the year, however, be-
fore the lectures were ready {i. e. 1790) — about the time the
new State Constitution went into effect. It was on Wed-
nesday at 6 o'clock, the close of the mid-winter day of De-
cember 15th, that the President and other National and
State officers of the government buildings at Sixth and
Chestnut Streets, went over to Fourth Street, below Arch,
and gathered on the main floor of the assembly room of
the college, while other attendants, citizens and students,
filled the gallery, and wives and sisters were much in evi-
dence. Indeed, the distinguished political scientist had to
confess that this was the first "fair audience" he ever ad-
dressed.

With characteristic vigor and instinct for essentials,
if not impatience of detail, he showed the necessity for a new
outlook on law; the fundamentals were now so different
from other countries. The Inns of Court must be replaced
by University provision for law as both a general and pro-
fessional study. The British Constitution and law must
hereafter be studied and used with great caution, as not only
different, but vitally inferior to the American. Writers on
British law, like Blackstone, must be studied with great
caution, and he gives marked attention to the nature of the
warning, namely, that they did not merely not appreciate
the great principle that the source of power is in the people,
but some speak ambiguously about it as a basis of constitu-
tional law, and some flatly deny it, as does Blackstone him-
self. "The Fate of sovereignty," said Wilson, "has been
similar to that of the Nile. Always magnificent, always in-
teresting to Mankind, it has become alternately their Bless-
ing and their Curse. Its origin has often been attempted to
be traced. The Great and the Wise have embarked in the
Undertaking; though seldom, it must be owned, with a
Spirit of just Enquiry; or in the direction which leads to
important discovery. The Source of Sovereignty was still
concealed beyond some impenetrable mystery, and, because

35

it was concealed, Philosophers and Politicians, in this in-
stance, gravely taught what, in the other, the Poet had
fondly fabled, that it must be something more than human.
It was impiously asserted to be divine. Lately, the Enquiry
has been recommenced with a different Spirit, and in a new-
Direction; and, although the Discovery of Nothing was
very astonishing, yet the discovery of something very use-
ful and true has been the Result. The dread and redoubt-
able SOVEREIGN, when traced to his ultimate and gen-
uine Source, has been found, as he ought to have been
found, in the free and independent MAN. This Truth, so
simple and natural, and yet so neglected or despised, may be
appreciated as the first and fundamental Principle in the
Science of Government."

He was to deliver twenty-four lectures a year, and by
the time his first course was finished, in the spring of 1791,
a still more formidable undertaking appeared on the horizon.
That there was a great need for an authoritative digest of
State laws under the new Constitution was believed by all
who had to do with government. It is doubtful if any one
would realize it more quickly than Wilson, and did he but
realize it, it would be wholly in keeping with his courageous
attempts to secure great results, if he took measures to
secure this result. Indeed, there are some indications that
point to a probability that he, more than any one else, felt
the need of a digest of and commentaries on both State and
National law, and felt an honorable desire to provide them
himself, under proper authority. At any rate, on March
5th, the State House of Representatives passed a resolution
providing that Wilson be appointed to do it for the State
and be instructed to draw on the treasurer for a specific
amount for expenses. It went to the Senate and that body
asked for a Committee of Conference. The House ap-
pointed a Committee who insisted that the Senate Committee
put the points of conference in writing, and the Senate Com-
mittee refused, intimating that the course of the House

36

Committee was unconstitutional in the matter of the treas-
ury. Wilson was accustomed to see legislative personnel
and action change, and he undertook the work, with the hope
that the Senate would be brought around in due time. At
any rate, on August 24th, he reported progress to the
House, and this shows that he was so full of a realization of
what ought to be done for both the State and Nation in sim-
plifying the literary medium of law that he was willing to
take all needful risks to bring it about. During that autumn
of '91 he and President Washington had an interview on
the subject of a similar digest of National law, and on the
last day of the year he enclosed the President a copy of his
letter to the House on the State digest, and another on the
National one. Some of this latter communication is very
striking. He said that the difficult and delicate line of
authority between State and Nation must be run, and it
could be done with peculiar advantage in connection with
Pennsylvania, for, said he : "With an express and avowed
reference to the Constitution of the United States that of
Pennsylvania has been sedulously framed. It is probable,
therefore, that the Directions, which the line above men-
tioned ought to take, may be traced with a satisfactory
degree of Clearness as well as Precision; and that neither
Vacancies nor Interferences will be found between the Limits
of the two Jurisdictions." He desires to do both and gives
his reasons : "In the formation of both constitutions, that
of the United States and that of Pennsylvania, I took a
faithful and assiduous Part. So far, therefore, as my Abili-
ties can reach, I may be supposed to know their Principles
and their connections ; and the various relations and depend-
encies, which their Principles and Connections ought to
produce in the different parts of legislation. In the study
and in the practice, too, of law, and systematic politics, I
have been engaged for a time considerably long, and on a
scale considerably extensive. I am already employed in
executing one part of the great plan. If I can command a

37

tolerable share of success in that part, I can command an
equal share in the other also. Nay, I believe that both parts
can be executed together better than either part can be
executed separately." It is peculiarly interesting to know
that Washington submitted the matter to his Attorney-Gen-
eral, Edmond Randolph, and that gentleman took two sit-
tings to writing the President, of whose attitude he was not
quite sure, one of the most adroit epistles to secure negative
action that ever was produced.

It is a curious coincidence, and significant, that a Senate
and a distinguished Southerner should have aided in pre-
venting Wilson, the advocate of the people and of nation-
ality, from becoming our American Blackstone and becom-
ing the official literary interpreter: of our constitutions.
Whether he would ever have finished the work alone, as he
attempted to do for awhile, at least, cannot be known, nor
need we, his posterity, demand that he do a greater work
than the mighty work that he did do. Possibly it required
a half century and a civil war to realize Wilson's great
teachings regarding the Constitution — possibly it will re-
quire even more than the century that has already passed to
do so. With the failure of these projects came the merging
of the college and university when his second course of law
lectures was but partially finished; and, although the new
institution called him to the chair, he felt his mission accom-
plished, and thereafter devoted himself to the work of the
Supreme Court and his private affairs.

Wilson was now in his fiftieth year. The story of the
work of the Supreme Court during the period he sat upon its
bench has been well told by Carson in his history of that
body. Here, as elsewhere, Wilson stood on the principles
of nationality and the sovereignty of the citizen. It was not
long after the period just described that the most notable de-
cision of his service was made, when one was rendered early
in 1793 in the celebrated case of Chisholm vs. Georgia, when
Justice Wilson struck the keynote of the question early in

38

the deliberations of the court by saying that the problem
"may, perhaps, be ultimately resolved into one no less radi-
cal than this : 'Do the people of the United States form a
nation ?' " And such, indeed, the problem was, and it was
decided in the affirmative, although to undo a specific feature
of the decision the Eleventh Amendment was at once passed.
"The principles of the decision," says D. O. Kellogg in a
suggestive sketch of Wilson in Lip pine ott's for February,
1899, "have long since overridden the amendment; for,
while we cannot directly sue a sovereign State, the lawyers,
forced by the exigencies of a decent equity, have provided
for suing officers of government whose costs and penalties
the State, and even the United States, now freely pay
out of the taxes. I am persuaded," continued Mr. Kellogg,
"that James Wilson was on the short cut to a better and an
ultimate solution of this problem of political jurisprudence,
so vital to the future of democracy." And, says Mr. Car-
son, also: "The importance of the decision, however, re-
mained. * * * The doctrine cf an indissoluble Union,
though not in terms declared, was in its elements contained
in this decision, which proved of priceless value in deter-
mining, at the very outset of our National career, the true
character of our government."1

It was soon after this that Justice Wilson met Miss
Hannah Grey, of Boston, who made such an impression
upon him that on June 20, '93, he wrote her a proposal of
marriage (the letter is now in the possession of Mr. Gratz,
of this city), which was accepted, and the union soon fol-
lowed. It was shortly before this that his discussion of the
Constitution was published in London as commentaries, and
also that General St. Clair wrote that he understood that he
(Wilson) was now "as rich as a Jew." His private opera-

'Jefferson tells of a pasquinade published at the time of the
trouble with the French over Citizen Genet, in which Washington
and Wilson were represented as suffering decapitation in the
French manner because of their attitude toward that general sub-
ject.

39

tions in land and in industrial affairs were, indeed, on a scale
like those of his friend, Morris. It was two years after this
date that he made that stupendous purchase of Southern
lands referred to — as lands were the great field of invest-
ment in those days as industrials are in our own. Two
years more and the severe symptoms of the panic began.
In '96 it became evident that Morris was about to fail, and,
as is often the case, an insignificant and vitriolic creditor
precipitated the attack on that great financier, who, finally,
on February 15, .'98, according to the strikingly logical legal
proposition of that day, that if a man got in debt the way for
him to be enabled to pay it was to lock him up so he couldn't
do so — according to this law, the great financier of the
Revolution was imprisoned in the old Prune Street jail.
The attack on Wilson and others began in '97, about the.
same time, but after Morris's incarceration certain creditors
began to threaten him. He was at this time out on his col-
league, Justice Iredell's, circuit in North Carolina, his head-
quarters being the latter's home in Edenton. Even there
the debtor's law prevailed, and Wilson was arrested on a
debt which, said he, "was originally none of mine." The
terrible crash, to his high spirit, proved too heavy a burden,
and his health broke under it, causing those who made the
attack to reconsider their action. "His mind," said Mrs.
Wilson, in a letter to Wilson's son, on September 1st, after
his death three days before, on the 28th ultimo, "had been
in such a state for the last six months, harassed and per-
plexed, that it was more than he could possibly bear, and
brought on a violent nervous fever. I never knew of his
arrest till since his death, and now can account for many
things he said in his delirium," for he was not sensible for
five minutes at a time during his long illness, which finally
developed into strangury, which caused his death.

Justice Iredell, a brother-in-law of Governor Johnston,
had hastened home, and arrived just before his death. By
this time Wilson's affairs were in absolute wreck, and his

640619A

40

son, Bird, a young lawyer barely of age, was left to bear
the family responsibilities. To remove the remains of the
great jurist and statesman so far was out of the question.
Governor Johnston's beautiful country seat, on the banks of
the Albemarle, with its tiny, evergreen-marked family
burial lot, opened its hospitable gates, and all that re-
mained of this great lover of the people was deposited in its
soil, and that, too, in a manner which seemed to say :
"Here, as in a receptacle, he shall lie, in the company of our
own distinguished dead, until the people of Pennsylvania
and the United States, who owe him so great a debt of
gratitude, shall, in some other century, know his great
legacy of liberty and law, and come to give him adequate
burial." And that time has come, and the people of our
State and Nation, before the leaves of autumn are all fallen,
are to bring the remains of this great man to rest in state
in our National Hall of Liberty and Law awhile, and then
find an abiding place in the dust of Christ Church beside
those of the bride of his youth. And I do furthermore
profoundly believe that the people of Pennsylvania will
erect to his memory, near the shadow of the statue of Penn
himself, an image that will say daily to her people that here
was one of the greatest friends of their liberties. And I
may say even more, and on a basis which, if I were now at
liberty to reveal it, would warrant an equally serious belief,
that I am confident before a half-dozen years shall pass, the
visitor at our National capital may pause before a heroic
figure, strikingly erect and having in his hands a scroll, with
"Constitution" embossed thereon, and, if it shall be inquired
by whom it was erected, I know not what will be the reply,
but I know what, by all the laws of gratitude, should be;
and I hope the inquirer may be directed for answer to these
words emblazoned on the pedestal's base : "We, the People
of the United States."