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Full text of "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 


in the official series of events known as 

The James Wilson Memorial 




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 





Committee on Address 

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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. 


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 

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 show T 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 


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 


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, 


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 


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 


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 


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 

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 


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 


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 


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- 

l 9 

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 takin 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- 


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 


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 


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 


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 

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 


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 


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- 


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 


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 

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- 


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. 

2 9 

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 


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 


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- 


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 


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 w r ent 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 


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- 

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 


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 


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 


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 


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- 


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 



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."