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Table of contents
The result was the speedy ratification in of the Eleventh Amendment. The new amendment stripped the federal courts of jurisdiction in suits commenced against a state by citizens of another state or another nation. This rebuke of Wilson was particularly poignant since in the constitutional convention he had urged the principle of dual sovereignty. Put to the test on the bench, however, Wilson discovered that his views on the sovereignty of the people had less support than he supposed, at least when that sovereignty trumped state authority.
Based on his new concept of the perpetually sovereign people, Wilson confidently proclaimed that the proposed Bill of Rights was neither essential nor necessary. Wilson even argued that the addition of a bill of rights would be dangerous because any enumeration of rights would imply that others were not included. The Lectures also remind us that Wilson was something of a legal sociologist. For example, he insisted that the will of the people tended to mirror their needs through the law, and he used the jury system to prove this proposition.
The jury, according to Wilson, was the most important embodiment of the will of the people in the legal system and an essential safeguard of liberty. Few early Americans, as the Lectures make clear, wrote with greater authority and passion about the jury. He, however, was an equally strong critic of jury nullification, the practice by which juries interposed their interpretation of the law in place of that of a judge.
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Wilson also covered the subject of equity. He believed that the entire purpose of the legal system was to produce justice; accordingly, the concept Edition: current; Page: [ xxiii ] of equity was central to the success of the American experiment. Wilson emerged as a proponent of law as a tool for the commercial growth of the new nation.
If the Republic were to prosper, it would do so based on principles of uniformity and predictability. Once again, he drew on his Scottish experience. The connection that Wilson made among common law, natural law, and the law of nations also informed his thinking about judicial review. Because judges were also agents of the people, those same judges could strike down an unconstitutional law. The people would expect nothing less of them. His version of judicial review was in part text based.
Judges, he believed, were required to take the text of the Constitution and lay it alongside the law that was in question. Judges could not simply do what they felt was best. In the Lectures, he went even further. Wilson argued strongly in the Lectures for the importance of federal judicial review.
He and other members of the Court objected because the law required them to perform non-judicial duties, thus violating the principle of separation of powers. The decision also prefigured arguments to come that the Court could declare an act of Congress to be unconstitutional, although it did not do so in this particular instance. The jury hearing the case, however, rejected his direct charge that, even though there was no specific statute that Gideon Henfield had violated, the captain of a privateer had nevertheless acted illegally by bringing a captured British ship to Philadelphia.
Wilson wanted to be Chief Justice, a position that he believed he had earned for his resolute support of the new national government. Wilson was also vain enough to believe that of the members of the Court, he was the one best versed in the law. Such an ambition was entirely in keeping with his goal of becoming the American Blackstone. Wilson seemed a likely possibility, but because of his preoccupation with land and Edition: current; Page: [ xxv ] business ventures, Washington ultimately turned to Oliver Ellsworth, a Connecticut Federalist, a member of the Philadelphia Convention, and the principal framer of the Judiciary Act of Wilson was devastated by being passed over, so much so that he wrote privately of his intentions of resigning.
He simply could not afford to do so. His steadily plummeting financial fortunes made his meager Supreme Court salary all the more important, especially since he was borrowing money to cover failed land speculation at rates as high as thirty percent. Wilson confronted financial ruin and, even more tragically for a judge, arrest and imprisonment. He was unable to return to the February term of the Court because his creditors would have had him imprisoned. Wilson could not pay; he was again jailed.
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Ultimately, Butler agreed to the release of the Supreme Court justice, who took up residence in the Horniblow Tavern. In July he was stricken with malaria; on August 21, , he died, financially ruined. Its disposition included hundreds of thousands of dollars in real property in Pennsylvania and the Gibraltar Iron Works in Bucks County. His estate also included an extensive selection of books on farming, a lifelong passion of Wilson and an echo of his childhood in Scotland.
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Ultimately, his son, Bird, was able to pay the great bulk of his debts in full. In the end, the real wealth and fame that Wilson sought eluded him. Literally no one had a good word to say about him.
His land-acquisition programs and personal conduct are subjects well worthy of the attention of modern scholars of the Court and the era. Wilson did leave a legacy in the law and in his contributions to the creation of the American republic. As Arthur Wilmarth reminds us, he was committed to the idea of public virtue, an unwavering belief in the power of popular sovereignty, and an oddly unrealistic view of human nature.
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Judges were supposed to be agents of human perfection. In some ways Wilson was the first sociologist of American law; his legacy lingers in his admonition to view law as a system of social adaptation. This edition is the most comprehensive collection of materials ever assembled by and about James Wilson. Although comprehensive, it is not complete.
For example, Wilson made a number of charges to grand juries in the course of his circuit court duties while sitting on the Supreme Court between and , but not all of them were recorded, and of those that were only two merit serious consideration, one from Pennsylvania in and the other from Virginia in Scholars uniformly treat these as important contributions by Wilson to the development of American law.
The first is from the famous case of Chisholm ; the other, and much briefer, from Ware v. Hylton Wilson was on the Court in only two other significant cases: Hylton v. Edition: current; Page: [ xxvii ] United States and Calder v. Bull In Robert G. His two-volume compilation was for the most part a reprint of the text prepared by Bird Wilson. In James DeWitt Andrews edited a two-volume collection.
Andrews omitted some of the papers that Bird Wilson had included and modestly rearranged some of the materials. McCloskey provided an illuminating introduction and supplied footnoted annotations along with the translation of Latin phrases. These notes are discussed at the beginning of the section on the Lectures in an essay by Wilson scholar Mark David Hall.
Hall not only addresses the notes but also offers a substantial commentary on the origins, purposes, and value of the Lectures. In presenting the text, the chief goal has been to make it as authentic as the original edition of the lectures and to leave the reader to reach his or her own judgments about it.
The spelling, capitalization, and punctuation have been left as they were in the edition. They are indicated by letters. This volume is arranged somewhat differently from that of McCloskey, in part to reflect the new material and in part to underscore that the Lectures were a self-contained enterprise. The decision to place these materials first was driven in part by their chronology, since most of them appeared before the Lectures were given. Although Wilson repeated some of these thoughts in his Lectures, the excerpts from the convention shine light on one of his most important contributions to American constitutional history.
Finally, this volume also contains a Bibliographical Glossary, one that McCloskey prepared for his two-volume work. The impetus for this volume originated with Maynard Garrison of San Francisco, a person with a strong interest in Wilson and the Founding Era. Garrison pulled together a collection of materials that makes this volume the most comprehensive assemblage of writings and speeches ever collected by and about Wilson.
In bringing this volume to publication, I have had considerable assistance. Hall for their assistance with footnote preparation, citation checking, research on the annotations, and proofreading.
I also treasure the professional support and patience provided by Laura Goetz of the Liberty Fund press. The consequence is, that the happiness of the society is the first law of every government. No question can be more important to Great Britain, and to the colonies, than this—does the legislative authority of the British parliament extend over them? On the resolution of this question, and on the measures which a resolution of it will direct, it will depend, whether the parent country, like a happy mother, shall behold her children flourishing around her, and receive the most grateful returns for her protection and love; or whether, like a step dame, rendered miserable by her own unkind conduct, she shall see their affections alienated, and herself deprived of those advantages which a milder treatment would have ensured to her.
The British nation are generous: they love to enjoy freedom: they love to behold it: slavery is their greatest abhorrence.
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Is it possible, then, that they would wish themselves the authors of it? Oppression is not a plant of the British soil; and the late severe proceedings against the colonies must have arisen from the detestable schemes of interested ministers, who have misinformed and misled the people. A regard for that nation, from whom we have sprung, and from whom we boast to have derived the spirit which prompts us to oppose their unfriendly measures, must lead us to put this construction on what we have lately seen and experienced.