"ONE FOUNDING FATHER, INVISIBLE,

 

                             WITH LIBERTY AND JUSTICE FOR ALL"

 

 

 

 

 

                                   AN ADDRESS ON JAMES WILSON

,

                   AS PRESENTED TO THE CHICAGO LITERARY CLUB,

 

                                         AT THE CLIFFDWELLERS,

 

                                               ON APRIL 28, 1997

 

 

 

 

 

 

 

                                                            BY

 

 

                                        HUGH J. SCHWARTZBERG

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

         HUGH J. SCHWARTZBERG, CHICAGO, ILLINOIS, APRIL 27, 1997.

 


 

                                                              WILSON SPEECH

 

The man who dreamed the United States, the man who invented the American Presidency, the essential designer of the United States Constitution, is the invisible man in American popular history.  Periodically, James Wilson is rediscovered,  with some sense of excitement.  All too soon, History has her way with him again.  He is once more forgotten, only to be exhumed again, buried again, the memory again repressed. 

 

Wilson's story is hardly a hidden one.  Hugh Brogan, in his current one‑volume Penguin History of the United States, notes that "The deepest thought lying behind the new Constitution was expressed by James Wilson." 

 

Irving Brant wrote a six‑volume study of James Madison, and came to the conclusion that Wilson was the more intelligent of the two men.  Recently, there have been some who refer to Wilson as the "Architect" of the United States Constitution. 

 

Next year, 1998, will be the 200th anniversary of Wilson's death.  It is unlikely that the government for which he was the principal designer will provide any posthumous celebrations for James Wilson. 

 

The man who cast the deciding vote for the Declaration of Independence, the man who understood that this Country must stand as "we the people," the first Justice of the United States Supreme Court,  died in disgrace.  The Supreme Court gave him no eulogy, no final service.  Wilson was buried

 


where he died, in the small town of Edenton, North Carolina.   

 

Let us begin with the last act of this Grand Opera.  In 1796 Wilson had been in and out of debtor's prison in Philadelphia.  He fled from the bailiffs of Philadelphia, who would have arrested him again.  He fled first to Burlington, New Jersey, but he was arrested there.  He was bailed out by his son, and next fled to Edenton, where he was arrested by another of his creditors, Pierce Butler of South Carolina, a fellow‑ signer of the Constitution, who sought recovery on a note which Wilson had co‑signed for $179,000.00.  Not a small sum in 1797.  Butler was, after some time, talked into allowing Wilson to be released, but that was just one of his creditors.  For more than a year before his death, a sitting Justice of the United States Supreme Court had been avoiding the bailiffs, living in a Tavern.  

 

His son urged him to file bankruptcy, but Wilson pointed out that one friend who had taken that route was still being held in jail, years after his filing.  The Northern schoolmaster for Wilson's young son wrote to Wilson, asking for tuition, and suggested that new clothes were also needed for that young man.  That student himself later wrote to his older brother that he was "coming out" of his last pair of trousers. 

 

Meanwhile, Wilson had written to the Supreme Court, asking to be assigned to ride the Southern Circuit, presumably because most of his creditors were to be found in the North.  Wilson's wife was bewildered by all of this.  What could he be thinking of, Hannah Wilson wondered; he has only one suit left, and one battered hat, and I, she wrote, have only one dress.  Her husband had not told her about his arrests.  What do they think of us back home, wondered Hannah.  One contemporary diary reads:  "Poor Wilson I pity him from my soul; he is a good man."

 


Wilson had never liked the South, or its climate, which he considered unhealthy.  Now he caught malaria.  In periods of high fever, he was raving, with intermittent periods of lucidity.  And so he died, on August 21, 1798.

 

In most of the early histories of the United States, all mention of any of the Supreme Court Justices was left out.  Later, the history of the first decade of the Supreme Court seemed to get overlooked. 

 

He who had wanted fame, is largely forgotten.  Instead, slowly, but quite surely, Wilson's notions about what the structure of the United States government should be have taken living form.   Through custom, process, and amendment of the Constitution, most of his vision has become reality.  We are living in James Wilson's dream, and although it was originally constructed largely out of thin air and theoretical principles, the product of his vision, his logic, his arguments, remains effective more than two centuries later.

 

 He was an immigrant, a "foreigner," "Jamie the Scot," "Jamie the Caledonian."  He was born on September 14, 1745, on a small family farm.  His mother had learned enough of her letters to sort of write her maiden name, Alison Lansdale, although with no great consistency as to its spelling.  She wanted her bright young son to be university educated, to become a minister in the Presbyterian Kirk.

 

James himself entered nearby St. Andrews United College with the help of a scholarship, at the age of fifteen.  He later became a college drop‑out, presumably because of the financial burden caused by his father's death.  For a while, young Wilson found work as a tutor.  He studied, or was about to study, accounting and bookkeeping with a  firm in Edinburgh, but when he was 22, a group of his friends and relatives raised enough money to send him off to the new world, to make his fortune.  Most of those early friends eventually came to believe that James Wilson had forgotten them. 


Arriving in Philadelphia, he again became a tutor, but within a year of his arrival, Wilson was studying law with John Dickinson.  The very  next year, in 1767, Dickinson began to publish "Letters From a Farmer in Pennsylvania," thereby becoming a prominent pamphleteer on behalf of the Colonial causes.  That was also the year when James Wilson began to practice law, in Reading, Pennsylvania.  The next year, 1768, Wilson wrote his own pamphlet on behalf of the colonists, but did not publish it at that time.  Wilson's piece was to become one of the major pamphlets of the period which preceded the Revolution.  It was entitled "Considerations on the Nature and Extent of the Legislative Authority of the British Parliament."  The thrust of Wilson's pamphlet was that the British Parliament had no authority over America and that America could continue to be loyal to the king under certain circumstances.  What Wilson did, in effect, was to invent the British Commonwealth, as a form of offer‑in‑settlement to Great Britain.  

 

Wilson married Rachel Bird of Birdsboro, the daughter of a wealthy ironmaster, in 1771.  Wilson had already moved on to Carlisle, Pennsylvania.  In Carlisle, Wilson became Chairman of the local Committee on Correspondence.  By age 32, nine years after having arrived in the United States, Wilson was, in effect, the political leader of his town.  

 

That was in 1774, when he was lawyer of record for about half of the cases to be tried in the Cumberland County Court.  He practiced law in eight counties. 

 

That year also, he was elected to the First Provincial Convention for Pennsylvania, held in Philadelphia that July.  '74 was also the year when Wilson finally published his Considerations pamphlet, although in somewhat revised form.  At the next year's Provincial Convention, he would be chosen to give the principal oration.

 


Now it is important that we get our history straight.  The Stamp Act controversy had been current when Wilson arrived in this Country in 1765.  The Boston Tea Party was December 16, 1773.  The British military occupation of Boston was on May 13, 1774.  The First Continental Congress opened in Philadelphia on September 5, 1774.  On February 9, 1775, the British Parliament will declare Massachusetts to be in rebellion.  The battles of Lexington and Concord will then soon follow.  

 

Wilson's 1774 publication of his "Considerations" is therefore on the eve of the  Revolution. 

 

Buried in that pamphlet is a single paragraph in which James Wilson sets forth the ultimate beliefs on which our nation will be founded, and on which the Declaration of Independence will be constructed, eight years after this pamphlet's initial composition, and two years after Wilson publishes it. 

 

One aspect of Thomas Jefferson's genius was his ability to see enormous implications in the first seeds of ideas which were presented by others, and to restate those ideas in written words which echo and re‑echo in the mind.  To deny Jefferson the origination of the ideas contained in the Declaration of Independence is not to join the current foolish chorus which is bent on trying to tear down Jefferson's reputation, or to deny Jefferson's greatness.  Jefferson never claimed that the ideas contained in the Declaration were original with him. 

 

In 1774, James Wilson published the words, "All men are, by nature, equal and free."  And in 1776, as we all know, Jefferson wrote:  "we hold these truths to be self‑evident, that all men are created equal."

 


What did James Wilson mean when he said "all men are, by nature, equal and free"?  To ask that question, of course, is also to ask what we mean when we declare that "all men are created equal."  The first professor of law to lecture on our legal structure in light of the new American Constitution will be Professor James Wilson.  The audience for his initial lecture included President and Mrs. George Washington, and Vice President and Mrs. John Adams.  Wilson may well have bored them, for these were real law lectures, designed in part to destroy Blackstone's then rather recent theories of monarchy.  Wilson's lectures, given in 1790 and 1791, will expand on the theories implicit in his earlier statements. 

 

When we, in 1997, proudly declare that "all men are created equal," we are declaring two different ideas.  The first is a belief in the equal worth of each human soul, an implied declaration of the essential similarity and oneness of humankind.  The second is a declaration of the political equality of any two voters:  one person equals one vote.  Sometimes we pretend that the nation means only one and not the other of those two different ideas, but that is mere pretense.  To deny either is to diminish this nation's creed.  Wilson clearly believed in both, with the same ambiguities we have long practiced.

 

 For the first meaning, the egalitarian dream, he was to offer the following explanation in those law lectures:

"In civil society, previously to the institution of

 

 

civil government, all men are equal.  Of one blood all

 

 

nations are made; from one source the whole human

 

 

race has sprung."

 

 

For the second meaning, he offered the following, without making any distinction between these two meanings:

"When we say, that all men are equal; we mean not to

 

 

apply this equality to their virtues, their talents, their dispositions,

 

 

 or their acquirements.

 

                                                                       * * * * *

 

"But however great the variety and inequality of men

 

 

may be with regard to virtue, talents, taste, and

 

 

acquirements; there is still one aspect, in which all men in

 

 

society, previous to civil government, are equal.  With

 

 

regard to all, there is an equality in rights and in

 

 

obligations. . . . The natural rights and duties of man

 

 

belong equally to all......"


Wilson moved  ineluctably from the equality of humankind to majoritarian voting based on universal suffrage. 

 

When Jefferson wrote the Declaration, he went on to say that:

 

"they are endowed by their creator with certain

 

 

inalienable rights and that among those rights

 

 

 are life, liberty and the pursuit of happiness."

 

 

Jefferson is again paraphrasing the James Wilson of the 1774 pamphlet, at least to the extent that the "happiness of the governed" is a Wilsonian concept.  The pursuit of life, liberty and property had been the formula for John Locke, and it was Locke's formula which John Adams moved and was formally adopted by the first Continental Congress in 1774, as the very first resolution of that first Congress. 

 Wilson never did subscribe to Locke's formulation.  To Wilson, consent to government:

 

"is given with a view to insure and increase the

happiness of the governed, above what they could enjoy

in an independent and unconnected state of nature.  The

consequence is, that the happiness of the society is the

first law of every government."

So we get as our national purpose not "the greatest good of the greatest number," and not the protection of property, but the right to pursue on an individual basis what makes us happy, perhaps the farthest reach of the individualist portion of our national creed. 

 


Wilson rejected the glorification of "property" for several reasons.  Obviously it rang the wrong bells when one thought of slavery, which both Wilson and Jefferson hated, even though both held slaves at that time.  But that was not all.  Much later, at our national Constitutional Convention in 1787, James Wilson rose to discuss "wealth" and "property."  A number of voices had been raised at that Constitutional Convention on behalf of property requirements as a  pre‑condition of voting, or serving as a United States Senator.  Others feared that new settlers in the West would outvote the East.  Here is the complete text of the speech Wilson gave in response, based on Madison's notes, but without Wilson’s Scottish burr:: 

"If a general declaration would satisfy any

gentleman I have no indisposition to declare my

sentiments.  Conceiving that all men wherever placed

have equal rights and are equally entitled to confidence,

I view without apprehension the period when a few

States should contain the superior number of people. 

The majority of people wherever found ought in all

questions to govern the minority.  If the interior Country

           should acquire this majority, it will not only have the

right, but will avail themselves of it whether we will or

not.  This jealousy misled the policy of  Britain with

regard to America.  The fatal maxims espoused by her

were the Colonies were growing too fast, and that their

growth must be stinted in time.  What were the

consequences?  First, enmity on our part; then, actual

separation.  Like consequences will result on the part of

the interior settlements, if like jealousy and policy be

pursued on ours.  Further, if numbers be not a proper

rule, why is not some better rule pointed out.  No one

has yet ventured to attempt it.  Congress has never been

able to discover a better.  No State as far as I have

heard, has suggested any other.  In 1783, after elaborate

discussion of a measure of wealth, all were satisfied then

as they are now, that the rule of numbers does not differ

much from the combined rule of numbers and wealth. 

Again, I cannot agree that property was the sole or the

primary object of Government and society.  The

cultivation & improvement of the human mind is the most

noble object.  With respect to this object, as well as to

other personal rights, numbers are surely the natural &

precise measure of Representation.  And with respect to

property, they cannot vary much from the precise

measure.  In no point of view, however, could the

establishment of numbers as the rule of representation in

the first branch vary my opinion as to the impropriety of


letting a vicious principle into the second branch." 

Another basic American and Wilsonian idea is to be found in that 1774 pamphlet:

 

"All lawful government is founded on the consent of

 

 

those who are subject to it." 

As we shall see, for James Wilson that consent had to be real.  That meant that he wanted the people themselves to ratify the United States Constitution directly.  It meant that he wanted the President, and the House of Representatives, and the Senate, each of them, to be subject to direct, frequent and repeated elections by the people.  He emphasized that a one‑time election was insufficient. 

 

I have assumed, of course, that Jefferson was well aware of Wilson's pamphlet, and had either absorbed Wilson's basic  formulations fully, or had Wilson's actual pamphlet before him when he drafted the Declaration.  Jefferson, decades later, denied that any pamphlets were before him (perhaps suggesting that the question of such a source had already been raised) but Jefferson also asserted that he had never claimed that the ideas which he was presenting were original with him.  One of Jefferson's more recent biographers, Alf  J. Mapp, Jr., in his fine two‑volume study, concludes that if Jefferson "copied most from himself, he seems to have drawn next most heavily from James Wilson in his pamphlet, 'Considerations' . . ."

 

Mapp expressly notes that same paragraph of Wilson's which I first quoted above, and he concludes that Jefferson's and Wilson's words, "though not cut from the same die, would seem to issue from the same mint."  But Mapp also concluded that if Jefferson is like Wilson, Wilson is also like Locke, Hutcheson, Lord Kames and Burlamaqui.  Mapp's words are a  handsome tribute to Wilson,  although the differences between Wilson and the other named sources are, I believe, important. 

 


There is still another possible explanation for the transfer of ideas from Wilson to Jefferson.  Between 1774  and 1776, Wilson's exact words appear to have sparked more than one torch.  His words seem to have reverberated in the national ear in a most remarkable way.  Wilson's 1774 formulation, you will recall, was that "all men are, by nature, equal and free."  In 1776, on May 15th, Virginia adopted its Bill of Rights, a document clearly and recently known to Mr. Jefferson, when he sat down to draw the Declaration.  Virginia declared that "all men are by nature equally free and independent," which is pretty close to Wilson's "all men are by nature equal and free."  "All men are by nature equally free and independent," said Virginia, and declared that Government best which produced the "the greatest degree of happiness and safety."  The draftsman, George Mason, added:  and  which also protected against "maladministration."  Mason also included a provision that "all power is vested in, and consequently derived from, the people." 

 

Even after the Declaration of Independence had become a guideline for our public faith, Wilson's ideas were not necessarily clear to all of the nation, or even to much of it.  It has taken the combined work of Wilson and Jefferson and Lincoln and countless others to make our democratic faith a reality.  But as far as I am able to determine, much of that faith flows through James Wilson.  The difficulties which Wilson later had in making that faith understood during our Constitutional Convention are themselves a tribute to his own historical importance. 

 

The 1774 pamphlet was a remarkable success.   

 

We can get some idea of the power of Wilson's pamphlet, and the reception which it received, from a letter of Francis Lightfoot Lee of December 1774.  Francis Lightfoot Lee in '74 was a delegate to Virginia's House of Burgesses and will be a delegate to the Second Continental Congress in '75, along with his brother, R. H. Lee.  Frances sends this letter to London, to one of his two brothers there, both of them active in London politics on behalf of American causes. 


 

"R. H. Lee will send you the political letter you

 

 

desire by the next opportunity.  In the meantime, he

recommends it to you to put it into the hands of ... Chatham

and Temple a pamphlet written by Mr. Wilson of Philadelphia.              The title is "Considerations  n the Nature and the Extent of

the Legislative Authority of the British Parliament" . . . . 

This pamphlet is no doubt to be had in London.  I have read

it & I think it a compleat refutation of their Lordships' position.”

 

In January, 1775, at the Pennsylvania Provincial Convention, Wilson supported the right of Massachusetts to fight the proposed changes to its Charter, and affirmed the right to resist. Wilson argued that however difficult it is to establish an original contract for the first institution of a state in other circumstances,

 

"it is the easiest thing imaginable to prove it in our

 

 

constitution . . . . .

 

 

And he also said that the ultimate end of the King's laws is

"the interest and happiness of his subjects."

 

The Second Continental Congress met in Philadelphia on May 10, 1775.  This time, James Wilson is present as a delegate.  The war that began in Massachusetts is now three months old.  Among the delegates from the three largest states are James Wilson and Benjamin Franklin from Pennsylvania, John Adams and Samuel Adams and John Hancock from Massachusetts, and George Washington and Thomas Jefferson and Richard Henry Lee from Virginia. 

 

 Jefferson's forte was not the give‑and‑take of public debate, and he participates very little in such, but impresses many as a thinker and a draftsman.  Jefferson did take notes, and thereby preserved certain speeches by others.  Here is Jefferson's version of one of Wilson's speeches, slightly edited. [I have done so in an attempt to more fully and clearly reflect the obvious wording of the original:]:


  

"Taxation should be in proportion to wealth, but

representation should accord with the number of

freemen.  Government is a collection or result of the wills

of all.  If any government could speak the will of all, it

would be perfect; and so far as it departs from this it

becomes imperfect.  It has been said that Congress is a

representation of states; not of individuals.  I say the

objects of its care are all the individuals of the states.

It is strange that annexing the name of "State" to ten

thousand men, should give them an equal right with forty

thousand.  This must be the effect of magic, not of

reason.  As to those matters which are referred to

Congress, we are not so many states, we are one large

state.  We lay aside our individuality, whenever we come

here." 

 

                                                                      * * * * *

 

"The probability is much greater that the larger

states will disagree than that they will combine.  I defy

the wit of man to invent a possible case or to suggest

any one thing on earth which shall be for the interests of

Virginia, Pennsylvania & Massachusetts, and which will

not also be for the interest of the other states."

That debate on the Articles of Confederation was concluded on July 12, 1776, just after passage of

 

the Declaration of Independence.  Jefferson left Congress that September. 


 

Wilson and Adams continued to serve on an enormous number of committees of the Congress, and were both very active in floor debate, often serving on many committees at the same time. 

 

Let's backtrack a moment.

 

The Continental Congress held a deep belief in civilian control of the military, and it placed oversight of the Revolutionary War in the hands of a three‑man committee, the War Board, consisting of Wilson, Adams and George Blythe, with Adams as Chairman.  It was, Adams noted, the most exhausting task he ever undertook.  Our general ignorance of that civilian control of the military may be partially excused by a fire which later destroyed most of the records of the War Board. 

 

On June 15, 1775, George Washington was placed in charge of the Continental Army by the Continental Congress. 

 

By the end of 1775, the military assault on Canada had failed, and Washington was pleading for aid.  Could he not at least get the uniforms which had been used by our defeated soldiers?  And why hadn't his Christmas letter been answered?  That original dispatch is marked to be assigned to Adams and Wilson and Blythe. 

 

Meanwhile, back in Carlisle, a militia had been formed.  Wilson, in absentia, is elected a Colonel. 

 

 


In February of 1776, the Continental Congress designated James Wilson to prepare an address to the colonists to strengthen the national resolve.  Note that the Congress does not assign a committee to do so; it assigns one man, James Wilson.  Wilson's draft of February 18, 1776, included the following:

 

"If common Rights, common Interests, common Dangers and

common Sufferings are Principles of Union, what could be

more natural than the Union of the colonies."

Voting on the actual Declaration of Independence was delayed until Wilson could get the Pennsylvania legislature to change the instructions which had forbidden its delegates (including Wilson) to vote for Independence.  When this is done, Wilson has to convince two of the other Pennsylvania delegates to abstain rather than voting "nay."  The Convention then allows James Wilson to cast the symbolic, deciding vote for independence.  Jefferson, Adams and others sign a pamphlet in which they explain that as soon as Wilson was able to do so, he had supported the Declaration, and signed it when everyone else did.   

 

On July 4, 1776, instead of spending the entire day celebrating, we know that Colonel Wilson sat down and named the officers for the German regiment of Pennsylvania.  The letter itself, written and dated in his own hand, lies in the archives of the Chicago Historical Society, where it appears to have been overlooked. 

 

The debate on independence helps trigger a new constitution for the Province of Philadelphia.  This 1776 Pennsylvania Constitution, like that in most of the colonies of that time, gave lip‑service to separation of powers, but Judges were re‑elected by the Legislature, and the executive was weak, almost powerless, and itself dependent on securing agreement within an executive council of twelve.  In reality, this was Government by legislature, and Wilson hated it.  Others loved their new

 

Constitution, if only because it had introduced almost universal suffrage.


1777 saw the end of Wilson's first legislative career.  Those who had passed the '76 Pennsylvania Constitution did not like the idea of continuing to send their severest critic back to represent them.  

 By the time that Wilson returned from Congress to his home in Carlisle, his national reputation among the country's leadership, as one of the major figures of the country, was secure. 

 

Let me cite one odd proof.  In '78, Dr. Benjamin Rush wrote a letter to Patrick Henry of Virginia arguing that the Continental Congress no longer had any great legislators:

 

"America looks up to her councils and arms for

 

 

protection, but alas!  what are they?  Her representation in

Congress dwindled to only 21 members.  Her Adams, her

Wilson, her Henry, are no more among them."

Including Henry as a great man may just have been flattery, but, in this context, this mention of Adams and Wilson can only be interpreted as indicating that in Rush's eyes, at least, these were already the great figures in American legislative annals.   

 

Whether the people at large already understood his role may, of course, be a different matter.

 

The British vacate Philadelphia in June of '78, because the French have come into the war.  Wilson moves to Philadelphia, and becomes a great lawyer. 

 

The redcoats had looted the city.  All the rebel resentment against the occupiers now breaks loose against Tories and Presumed Tories and Quakers of all sorts.  The cries of "treason" and "death to traitors" are heard in the land. 

 


In the Fall of '78, Wilson defends several of those who are accused of being traitors.  At least two of these are put to death, despite Wilson's pleas for mercy, after an unsuccessful defense.  Wilson had attempted to limit treason to situations in which there were two witnesses to the same overt act, but had been overruled by the trial judge.  So now you know why the U.S. Constitution defines treason as it does, although Wilson's proposal will puzzle Madison during the Convention. 

 

In '78, as a lawyer, Wilson argues a prize ship case before the Continental Congress' Committee on Appeals.  Wilson won the appeal, but the State Court refused to recognize the national ruling, on the ground that the Appeals Committee had dealt with both the law and the facts.  So now you know why the U.S. Constitution says that federal courts have jurisdiction on appeal over both the law and the facts. 

 

Wilson was the lawyer for members of the Penn family.  He was a lawyer for Tories; he was a lawyer for rich merchants.  He was the lawyer for Haym Salomon (who thought Wilson charged too much), and for Robert Morris (financier of the Revolution to some, but war profiteer to others.) None of this endeared Wilson to the populace‑at‑large.

 

In '79, the fight against the Pennsylvania Constitution of '76 was heated up by Wilson once again.  The Constitutionalist Party were the defenders of the '76 Constitution.  They gained support from those who wanted price controls and from militia men who were being paid in Continentals, which rapidly depreciated in value to almost nothing.  The Secretary of the Pennsylvania Supreme Executive Council, Timothy Matlack, implied that Wilson's Republican Party, which is to say the Anti‑Contitutionalist Party, were being financed by "British Gold." 

 


Charles Wilson Peale, the famous artist, served as chairman of the Contitutionalists.  Peale attacked the "defaulters," "the forestallers," "the monopolizers," "the enemies of the cause."    Now from the militia there arose a mob that would rid the country of its "un‑American elements."  At first, their intent was to force the women and children of these "Tories" out of the city.  Later, the words to be heard from the mob were:  "Get Wilson."  The mob/militia tried to convince Peale himself to take charge of their march on Wilson, but Peale begged off on political grounds:  it might hurt him in the next election.  Peale leaves, and, seriously afraid of the whirlwind he had reaped, Peale runs off to get the Governor.  The mob moves to arm itself and to advance on Wilson's house.  It is October 4, 1779.

 

Some twenty of Wilson's friends now arm themselves, and begin to drill in front of Wilson's house.  As the mob approaches they move inside.   

 

By this time, the mob has arrested some citizens, and they were dragging them along.  When they reach Wilson's house, Captain Campbell, an invalid officer from the regulars of the Continental Army, appears at Wilson's second‑story window, with his pistols.  Campbell orders the mob to move on.  Captain Campbell is shot dead.  In the ensuing gunfire on both sides, four of the mob are killed. 

 

The militia brings up a mortar.  They break down Wilson’s doors.  One of the militia bayonets one of the defenders.  Another defender is shot through both hands, before the militia are forced out.  The door is barricaded with desks and chairs.  Now, more mortars are being brought forward. 

 

The Governor, his boots unlaced, arrives with troops, in time to drive off the mob. 

 


Peale himself later testified that if the Governor had been much later, every single person inside the Wilson home would have been killed.  The Governor's arrival caused most of the mob to flee.  After rounding up some of the remainder, the Governor rushed off to try to stop the Germantown militia from adding their firepower to this battle, leaving Peale to help see to the prisoners.  The Governor returned to find that Peale (the Constitutionalist Party Chief) had talked the man‑in‑charge, Timothy Matlack (the Constitutionalist Secretary of the Executive Council), into releasing the mobsters on bail, on their own recognizance. 

 

Wilson's friends now convince Wilson to flee for his life.  He hides out in an attic on Robert Morris' farm, outside the city.  Morris had been one of those inside the Wilson house, and Morris sends word that Wilson must not return until things have quieted down, and that the farm is not safe.  Morris has great difficulty in convincing Wilson not to come back immediately in order to try to organize Philadelphia, house‑to‑house. 

 

Five months later, in March of 1780, everybody is pardoned.  The Wilson family home has become known as "Fort Wilson."  The external enemy is now faced by all once again, as that other war, the Revolutionary War for Independence, continues.

 

A nation founded on "no taxation without representation" sometimes acted as if its real creed was "no taxation at all." 

 

In March of 1780, James Wilson, apparently as an act of patriotism, gathered some fellow Philadelphians to form a Bank of Philadelphia for the purpose of buying supplies for the Continental Army. 

 

The money was raised, but Wilson's plea to the Pennsylvania Legislature to take over the bank and to use it as part of a general pattern of fiscal reform, failed.  By September, the new bank's funds were exhausted. 

 


The next year, 1781, Robert Morris agreed to become Superintendent of Finance for the National Congress, on his own terms, which included private profit, in the face of what looked like national bankruptcy.  Morris proposed a national bank, based on Wilson's planning.  This "Bank of North America," acquired a charter from  Pennsylvania and also from the National Congress.  Two years later, Haym Solomon advised Morris that a group was preparing to petition the Pennsylvania Assembly for a charter to set up a competing bank. 

 

[Haym Solomon held two shares in the Bank of North America to Wilson's five, several hundred having been subscribed for.   Robert Morris held 98.]   

 

A spokesman on behalf of the proposed new, competing bank-- the Bank of Philadelphia-- told the Pennsylvania Assembly that the

 

"Bank of North America was swayed by the influence of

Jews, who favored outrageous interest rates and who

oppressed people in their hideous drive for wealth.  The

infiltration of Jewish evilness would be halted if another

bank were established, based on just interest rates."

 

Haym Solomon responded by a public advertisement signed "Jew Broker."  Wilson was attorney for the Bank as well as its principal creditor.  Some shares of the old bank found their way into the hands of the proposed shareholders of the new bank, at special prices, and the petition for the new bank was dropped.  

 


The Bank of North America's difficulties were not over.  The Constitutionalists moved to revoke the Bank of North America's Pennsylvania Charter, and eventually succeeded in doing so.  Three annual Pennsylvania state elections were fought out on the issues of the Bank of North America, test oaths, and paper money.  A final compromise was worked out at the end of the line by Benjamin Franklin, limiting both the Bank's capital and its life.  Because it was chartered both as a Pennsylvania Corporation and a National Corporation, after Pennsylvania revoked its charter Wilson defended its National Charter in a pamphlet which urged two points that are emphasized by  Wilson's great biographer, Page Smith.  Wilson argued for the  Implied Powers of the Confederation, and against any state's power to lawfully impair either corporate or contract rights.

 

You may ask, wasn't it Alexander Hamilton who invented the National Bank?  The answer is No. If you want to read Hamilton's original proposal for a National Bank you have to look at Wilson's papers, while Wilson's earlier proposal is to be found in Hamilton's papers.  Hamilton did visit Wilson's bank, to study its actual operation.

 

In 1782, George Washington knew that he wanted  his favorite nephew, Bushrod Washington, trained in the law by the right man.  Wilson didn't want the job, and tried to get out of it by asking for 100 guineas.  Washington said he didn't have that much, but would give his promissory note, with interest.  Wilson had made a mistake.

 

Ask any ten citizens, or even any ten schoolchildren, "Who wrote the Constitution?"  They may say Thomas Jefferson (who in 1787 was an ocean away, in France) or John Adams (who was separated from the Convention by that same ocean, but in England).  George Washington is almost a correct answer, the General did preside, but he carefully kept his participation minor. Ben Franklin was present, but largely ignored, except once.  Usually, Franklin provided only innocuous speeches which he handed to James Wilson to read to the Convention. 

 

Madison and Wilson handled much of the heavy lifting, but also used up much of the Convention's time and patience trying to bulldoze the small states into accepting proportional representation, across the boards, based on population.  Franklin knifed them both in a compromise committee, making it clear by so doing that the large states' threat of going‑it‑alone was an empty one.


Wilson's very first motion was for a single executive, which shocked George Mason, who had wanted a three‑headed monster, one President from each of three geographical areas.  After Wilson succeeded with his idea of a single President, Mason gave this as one of the principal reasons why he would not approve the proposed Constitution.

 

Because Madison and Wilson agreed on so much in a convention that was so often seriously divided, it seems almost unfair to separate Wilson out from Madison.  To us, as to Wilson, it is obvious that limiting Senators to the wealthy is obnoxious to the spirit of the nation, but that is  because now, we are all Wilsonians.  That Wilson had the support of no more than one state other than his own when he first proposed direct election of the President, seems to us absurd. 

 

Wilson's importance was not only the consistency of his voice for democracy but the fact that it was his voice, the voice of a figure important enough that he could not simply be ignored. 

 

Wilson argued for the annual election of the House of Representatives and thereby succeeded in reducing the period between elections of that body from three years to two years.  He supported the right of relatively new immigrants to serve in both houses.  He spoke in the name of "Myriads yet unborn,"  and of "Millions" yet to come, as against the pessimists who really believed that the document on which they were working would not last for very long.  Wilson did not fear foreigners, but many of the other delegates did.  He believed white free men should be equal to those of other colors, but perhaps because of his own certainty that he would not be supported, or perhaps because of some action by committee, those words in his handwritten draft of the Constitution are stricken, leaving just the general and more ambiguous term "freemen" rather than the explicit, "white freemen and those of other colors." 

 


And while he was willing to compromise with slaveholders to build the new nation, he who had held three slaves himself, successfully fought to keep slavery out of the new states, and to create a date by which the National Legislature would be able to do away with the slave trade.  Wilson makes certain that there is no mention of slavery in the document so as not to pollute the document itself.  Oddly enough, it is on matters of slavery that Madison and Wilson seem to be closest. 

 It was Wilson who kept fighting for a Federal Executive strong enough to stand up against the Legislature.  And he almost loses, even quite close to the end. 

 

Only four weeks before the end of the four‑month Convention, one of Wilson's greatest fears,  legislative tyranny,  is almost the center-piece of the new structure..  The Senate is to be elected by the state legislatures, and it is the Senate which is to elect the President.  Then Pennsylvania's Gouverneur Morris proposes a system of state electors, picking up on an idea which Wilson had offered much earlier, but which had been rejected at that earlier time.  This time, Gouverneur Morris' proposal is adopted by a compromise committee, but only after first being defeated again. 

 

Madison correctly foresaw that this system of electors would come to mean election of the President by the people.  What had originally been a proposition put forward by one man, James Wilson, and acceptable to only one state [Pennsylvania, if Madison's notes are right] or to two states [Pennsylvania and Maryland, if the Convention Secretary got it right], had become the will of the entire Convention. 

 

Wilson's steady drumfire of words on the dangers of "legislative tyranny" and the importance of a truly independent Executive had finally had their effect. 

 

What Wilson sought, and he was explicit, was not simply a separation of powers but sufficient power in each branch of the government for what he called "Reciprocal Control."  (Madison missed that phrase, but one of the other delegates heard it, and recorded it.) 


Although Wilson did not hide his beliefs in the importance of the principles of democracy, and he did use that word, he was somewhat devious in his attempts to ensure that the new government had an adequate grant of powers.  When the  Convention insisted on naming specific powers to be granted to the new government, he tried to add some specific ones, but he also carefully included the "necessary and proper" clause of the Constitution in order to pick up everything that might be included under either "general welfare" or "commerce."  He also tried to reach the same result by the use of punctuation, but retreated when he was found out.  The government had to be clear in its principles, and in the area of principles, Wilson fought with great clarity, but the government better also have the power to act, under almost any circumstances.  For that proposition, he was willing to maneuver in the dark. 

 

Alexander Hamilton, after weeks of absence, returned for the close, and moved to send the final document to Congress and the State Legislatures for ratification.  Direct ratification by the people was the conclusion to a Wilsonian dream, but anything else weakened the chances of success.  So Wilson had to correct Hamilton, whose sense of legislative maneuver often proved abysmal. 

 Hamilton's private judgment on the final Constitution was that it was a "shilly‑shally thing" of "milk and water" and "could not last."  As a good lawyer, he was later convinced to write a fine legal brief on behalf of the cause, in the form of several of "The Federalist" papers. 

 

It was one thing to draft the Constitution and quite another thing to see it ratified.  Bernard Bailyn in his "Ideological Origins of the American Revolution," suggests that the enormous importance accorded "The Federalist" papers is largely a 20th Century phenomenon.  Bailyn concludes that credit for passage of the Constitution could not be ascribed to the Federalist: 

 

"But in the 'transient circumstances' of the time it was not

 

 

so much the Federalist papers that captured most people'

            imaginations as James Wilson's speech of October 6, 1787,

the most famous, to some the most notorious, Federalist

statement of the time.  To this early, brief, and luminous

pronouncement there were floods of refutations,


confirmations, and miscellaneous responses.  Comments on the

Federalist Papers on the other hand, were few, usually

scholarly and technical, and politically unremarkable."

Delaware was the first to ratify the Constitution, and the ratification battle quickly moved to Pennsylvania.  There Wilson had his legislative majority in hand, but the minority attempted to undo it by preventing a quorum.  The majority sent out its Sargent-of-Arms, and a helpful mob assisted him by dragging two minority legislators, torn clothes and all, into the Legislative Chamber.  The majority then voted for a people's Convention to consider ratification. 

 

This time, Wilson did not attempt to use any surrogates.  Only he among the delegates to the Constitutional Convention was to go to the Pennsylvania Convention on Ratification.  He was going to do this one right.  He carefully took note of more than 200  arguments which the opponents used against the new Constitution, and before the Convention ended, he rose to answer all of them. 

 

For some reason, the opposition screamed "unfair," and "bribery," when the printers of Philadelphia would print only the speeches of Wilson and his friends. 

 

Because Wilson spoke in his own voice, and his speeches were public prior to the State Convention, during that Convention, and afterwards, they were printed under his own byline.  Most other analysts, on all sides of the controversy, retreated back to the pseudonyms of pre-revolutionary pamphleteering.  As a result, the debate on the Constitution, not only in Philadelphia, but also elsewhere, had an odd aspect:  it is Wilson's name that is emphasized in the debates on ratification.

 

A writer for the Pennsylvania Gazette, in offering a recipe for an Anti‑federalist Essay, recommended, among other ingredients, the use of the term "Aristocracy" eighteen times, "Liberty of Conscience" once, and "James Wilson" forty times. 

 


Wilson made certain that copies of the newspaper reports of his speeches were widely distributed.   On April 4, 1788, George Washington acknowledged receipt from James Wilson of a printed copy of the Pennsylvania debates on ratification.  In his note, Washington told Wilson that his only sources of information were from newspapers or visitors, because he hadn't traveled more than ten miles from Mount Vernon since the Convention.  This was a bit foxy, because when Washington received a copy of the Federalist, he helped arrange its publication, secretly.  Indeed, six months before this letter, Washington had secretly arranged to republish Wilson's principal speech at the Pennsylvania Ratification Convention.  Washington wrote to a friend that publishing Wilson's speech "will be of service at this juncture."   Washington added that Wilson "was as able, candid and honest a member as any in the Convention." 

 

Wilson's arguments were accepted as the basis for the ratification fight by almost all the proponents of the new Constitution.  Take the objection which was raised to the absence of a Bill of Rights.  Wilson's primary answer to this argument was a technical one.  Wilson argued that because the grants by the people to the national government in those areas were limited, the people retained their rights.  (His wording, with almost no changes, later became the Ninth Amendment, and thereby a fundamental part of our Bill of Rights.  So that's another part of the Constitution which Mr. Wilson wrote.) 

 

Wilson's argument for non‑action by the Convention was quite specious.  After all, the Convention had protected against Bills of Attainder and ex‑post facto law, and had assured both habeas corpus and trial by jury in certain cases.  This was a partial Bill of Rights.  It just hadn't been called such, and didn't employ the kind of preamble that Mason had borrowed from Wilson and others in writing Virginia's Declaration.  But even Washington and Madison trotted out Wilson's argument, regularly, all during the debate on ratification.  Madison even used it in his private correspondence with Jefferson. 


Jefferson replied that "to say as Mr. Wilson does...might do for the Audience to whom it was addressed, but" he rejected Wilson's argument.  Madison stuck to his position that he didn't view a Bill of Rights "in an important light" for several reasons, the first of which was "Because I conceive that in a certain degree, though not in the extent argued by Mr. Wilson, the rights in question are reserved by the manner in which the federal powers are granted."  Among Madison's other reasons was that "in actual experience Bills of Rights hadn't helped much."

 

Wilson's real opinion of a Bill of Rights would become clearer  when Pennsylvania rewrote its own Constitution, in 1789. 

 

In the conventions to draft that new State Constitution, Wilson tries to get what we know he wanted all along: direct election of the executive, and a two‑chambered Congress, each of which is to be directly elected by the people.  The men of Pennsylvania's West, who had been fighting him so long, now had a chance to learn the truth.  In committee, the idea that both houses should be elected by the people loses.   Wilson has to make a floor fight of it.  Some of his political enemies are so stunned that they don't jump aboard Wilson's wagon.  But enough do.

 

 And Wilson also adds a Bill of Rights.  Freedom of the Press, which had been buried at the Federal Constitutional Convention, emerges here, with Wilson's support, in what then looked like its strongest possible form:  The new Pennsylvania Constitution would provide that in freedom of the press cases, the jury could now consider the law and the facts.  The Zenger case had been constitutionalized, for what may have been the first and last time.

 

But even so, back in Carlisle, an effigy marked “James de Caledonia” was burned in a bonfire when this new Constitution passed.

 


In November of 1788, Alexander Hamilton pleaded with Madison to go back to  Virginia and reestablish his political base, because without Wilson or Madison in at least one of the branches, "the Government may severely feel the want of men who unite to zeal all the requisite qualifications for parrying the machinations of its enemies." 

 

Wilson wrote to George Washington to formally state that he wanted to be named Chief Justice.  Wilson hurried to register as the first Supreme Court Justice when that appointment came through, even though he never made Chief.

 

As a Justice, Wilson was one of those who declared the supremacy of judicial interpretation of the Constitution, refused to let the Court write advisory opinions for the President, and would not comment on matters which might come before the Court. 

 

Please forget some of the things you thought you knew about John Marshall, who did not join the  Supreme Court until some ten years later.

 

When redistricting of the House of Representatives first arose, the Congress tried to fiddle with the figures.  Jefferson was for letting the matter go, but Attorney General Randolph reported to President Washington that he had run into Justice Wilson, and as Wilson did not expect the matter to come before the Court, he felt free to tell the Attorney General, that the Congress had seemed to forget the sources of its own power.  The President followed Wilson rather than Jefferson.

 

There were some private conversations between the President and Justice Wilson, but the President only noted in his diary that the Justice had paid his respects.

 


When Rebellion broke out in Western Pennsylvania, the Cabinet again stood divided, while the Governor of Pennsylvania  temporized.  The President asked Mr. Justice Wilson for a declaration that the ability to enforce the law through the judicial system had broken down, so as to justify Federal intervention.  After some consideration, Justice Wilson did so, and the Whiskey Rebellion was put down.

 

The early Supreme Court cases have no one opinion.  Each judge provided his own.  The first opinion in my constitutional law class came from Justice Wilson.  It was from the case of Chisholm v. Georgia.  What Wilson did was to enforce the obvious words of the Constitution, which expressly allowed a citizen of one state to sue another state. 

 

The State Legislatures promptly voted to amend the Constitution.  So Wilson found himself the inadvertent and indirect author of the 11th Amendment to the Constitution.  Mr. Wilson's doctrine of "reciprocal control," it turned out, applied to the Supreme Court as well. 

 

Wilson's other opinions were not overruled by amendment.  The Court exercised its supremacy by declaring that treaties were paramount over state laws.  It ruled that one state could not confiscate debts belonging to citizens of another state.   It established admiralty jurisdiction.   For ten years Wilson helped set the initial patterns of the Supreme Court.  John Marshall was a lawyer in that decade, but he did not come on to the Court itself until almost three years after Wilson’s death.

 

Rachel Wilson had died in 1786.  In choosing her as his first wife, he had chosen a woman who later became the largest single fundraiser for the Revolutionary cause, even without counting her own $1,000 contribution.  Rachel Wilson had gone begging, door to door, for a cause they shared. 

 


In choosing his second wife (they were married on September 13, 1793), Wilson had found a woman who begged him to free his last remaining slave, the man who ran his household.  And he did so, on January 1, 1794.  His second wife was Hannah Grey, a Bostonian.  He bought Jefferson's bookcases for use in his new home. 

 

All of which would bring us to the end of one of the more illustrious careers in the history of mankind, the story of the inventor of democracy and the American Presidency; a man who had had the zeal and ability to help trigger a national revolution; who helped lead that nation's battles, who outlined the nation's political theory; who had helped make peace with a portion of one enemy (the Indians); and who had played a prominent role with our most important and necessary ally (the French), the signer of two of the most important documents in American History, being the "deciding" signer of the Declaration of Independence and being either the most important draftsman of the Constitution, or one of two such; who played a major (or the major) role in securing that Constitution's Ratification; the inventor of our first great national issue (The National Bank); the reviser of his own state's constitution into that format which the nation itself would eventually adopt; one of the first professors of American Constitutional Law (or perhaps the first); the first Justice of the United States Supreme Court; the author of the Ninth Amendment to the Constitution; and the cause of the Eleventh.  Why then is it that so many of you had never even known his name before tonight?  Why was he written out of history or even ignored by it?  What was his unforgivable sin? 

 

When we first looked at Wilson he was being chased by the bailiffs.  It was not a matter of what we would today consider a crime.  No one claimed fraud.  In those days, there was debtor's prison.  In those days, bankruptcy laws were not always kind. 

 

James Wilson and Robert Morris and others had been buying up the country, --‑ literally.

 


As always, Wilson's actions were based on a theory, most of which he disclosed immediately after the Constitution was ratified.  The country didn't have to go the way of the great southern plantations, which were expanding quickly.  There were great tracts of rich, empty, agricultural land in the North and West.  Slaves were not necessary for those farms, and Wilson and the Congress had barred slavery from those lands.  If European immigrants and European capital could be married to that American land, we could become a truly great country.  And although he did not so state, the friends and relatives he had left behind in Scotland would have an easy road to a bright future in that same new land.  What it took, he thought, was carving the land up into usable chunks, pre‑preparing the initial crops, providing the tools for farming, and making the sea journey less terrible than it had been, so that whole families could be quickly enticed in huge numbers.  All this must be done quickly before the South grew too powerful, or so I assume he thought.  And being James Wilson, he started to do it all, on his own.  At first he controlled thousands, then tens of thousands of acres, then hundreds of thousands, and finally millions of acres.

 

There were two drawbacks.  One was that he had sometimes bought from the Indians.  When those dealings were questioned, the Indian Chiefs stood by those transactions.  The House and the Senate disagreed with each other on the validity of those grants as late as 1794, in the face of continuing arguments and pamphlets from James Wilson, but shortly afterwards, both houses of Congress rejected them. 

 

Much other land had nothing to do with the Indians.  In 1792, Wilson made a sale of 450,000 acres to the Holland Land Company.  Wilson sought land, surveyed it, purchased it, plotted it, mortgaged it, and bought some more.  Always borrowing to buy more.  His investments in manufactures were growing.  Then came the great depression of 1796.  Wilson struggled desperately to hold on.

 


Filing for bankruptcy, as he saw it, would be unfair to those who had lent him money, and unfair to those who had invested with him.  A trustee in bankruptcy, he was sure, would sell it all off at 30 cents on the dollar.  It was better to hold on; prices would come back.  As they did, but too late for Mr. Wilson.  Only a very little money, perhaps $30,000, would save it all, he wrote.  But all his friends were now in trouble.

 

And in that final delirium, did he remember being attacked by the mob? (He had come close to death that way on at least two occasions.)   Did he remember his excitement, the first time he rode out to make peace with the Indians?  Benjamin Franklin and Patrick Henry had declined the honor of accompanying him.  Did he picture the Indians in all their finery, and he and the other Continentals with their silver buckles on their shoes? 

 

I like to think that he might have been comforted by the memory of his role as Chairman of the 5‑man Committee on Detail for the Drafting of the United States Constitution.  Two southerners, two northerners, and James Wilson, who produced the first printed draft of our Constitution.  An earlier draft had read "The People and the States of New Hampshire, etc."  In his handwritten draft, Wilson stuck the word "we" in front so that it now read "We the People and the States" and then ‑ it must have been a sweet memory ‑ he drew a line through "and the states", so that his intent would be clear: "We the People."  

 

Let me close by calling three witnesses, contemporaries of James Wilson.  To Samuel Bryan, who wrote the most powerful of the anti‑federalist essays under the name of Centinel, James Wilson was the "Lieutenant General of the Myrmidons of Power."   Bryan may well have believed that. 

 

William Pierce, a fellow delegate to the Constitutional Convention, made notes on all his fellow delegates, but only a few fared well:

 


"Mr. Wilson ranks among the foremost in legal and

political knowledge.  He has joined to a fine genius all

that can set him off and show him to advantage.  He is

well acquainted with Man and understands all the

passions that influence him.  Government seems to have

been his particular study, all the political institutions of

the World he knows in detail, and can trace the causes

and effects from the earliest stage of the Grecian

Commonwealth down to the present time.  No man is

more clear, copious and comprehensive than Mr. Wilson,

yet he is no great Orator.  He draws the attention not

by the charm of his eloquence, but by the force of his

reasoning." 

After Wilson died, Dr. Benjamin Rush recorded his notes on several founders.  This is his vision of James Wilson: 

 

"He spoke often in Congress, and his eloquence

 

 

 was of the most convincing kind.  He reasoned,

declaimed and persuaded according to circumstances

with equal effect.  His mind, while he spoke, was one

blaze of light.  Not a word ever fell from his lips out

of time, or out of place, nor could a word be taken from

or added to his speeches without injuring them.  He

rendered great and essential services to his country in

every stage of the Revolution." 

Both Pierce and Rush were hardly kind to others whose names we do remember, in pronouncing judgment on them. 

 

"His mind, while he spoke, was one blaze of light."

 

I give you a toast: to the man who dreamed the United States.  I give you another: to a founding father, invisible, with liberty and justice for all.