James Wilson, Founding Father, 1742-1798

Citation preview

James Wilson Founding Father

1742-1798

By Charles Page Smith

PUBLISHED FOR THE

Institute of Early American History and Culture BY

The University of North Carolina Press Chapel Hill

The Institute of Early American History and Culture IS SPONSORED JOINTLY BY THE COLLEGE OF WILLIAM AND MARY AND COLONIAL WILLIAMSBURG INCORPORATED

National Collection of Fine Arts Smithsonian Institution, Washington, D. C.

JAMES WILSON

Copyright, 1956, by The University of North Carolina Press Manufactured in the United States of America

E 302.. G ■

2> 6

Such men as George Washington, James Wilson, Robert R. Livingston, John Dickinson, Edward Rutledge were always conservative in po¬ litical philosophy and practice. MERRILL JENSEN

[James] Wilson ranks with James Otis and Thomas Jefferson as one of the great democrats of the formative period of the Republic. HOMER C. HOCKETT

To TTCy TTCother

Foreword

Biography is perhaps

the most ephemeral form of history. There is much

evidence to suggest that it suffers far more from scholarly obsolescence than conventional monographs or general histories. The late Charles McLean Andrews denied it quarters within Clio’s mansion, and to many historians it appears as the stepchild of orthodox history. To such attitudes the biographer will reply that history is after all the activity of persons—the sum of an infinite number of biographies, written and unwritten. Since human life is the only reality directly accessible to us, it is quite proper that our best efforts should go into understanding it where it is realized in its greatest concreteness, that is to say in history. However much we may generalize and attempt to arrange the apparent facts of the past into significant patterns, we cannot forget that at the heart of history lies the ultimately inscrutable mystery of human personality. “The unities which interact in the marvelously complex whole of history and so¬ ciety are individuals . . . each of which is a world. Indeed, the world is nowhere else but in the consciousness of such individuals”

(Wilhelm

Dilthey, Gesammelte Schrijten, I, 28-29). The biographer is able to reveal to us the history of a period, with its congeries of events, through the eyes of a man with whom we can, indeed must at least in part, identify ourselves. Biography can thus give us new insight into problems that we before viewed abstractly, and which were, for us, encumbered with traditional and often stultifying interpretations. All history is refreshed when we have to face the problems that our subject faced, and trace out the answers, so far as we can, that he gave in his life and thought. Biography may further, by bringing home to the historian

FOREWORD

X

most forcefully the ambiguities of human nature and social life, induce a proper humility. Touching a life, we are ourselves enlivened. Seeing in love and charity a portion, we better understand the whole. “L’Histoire, c’est une resurrection,” becomes true in the only way it can when we relive history through the actors in its drama. James Wilson is a rewarding if thorny subject for a biographer.

As

much as any man of his day he was involved in the great events out of which this nation was born.

In the pre-Revolutionary agitation against

Great Britain, in the affairs of Continental Congress, in the development of a system of national finances, in the framing of the Constitution of the United States, in the early decisions of the Supreme Court, he played lead¬ ing roles. He made important and original contributions to American juris¬ prudence, to political thought, and to economic theory. His industrial ven¬ tures and land speculations were enterprises typical of the day and portents of the future development of American finance capitalism. James Wilson stood in the front rank of “founding fathers” and has a legitimate claim to be considered one of the principal architects of our nation. But alone among the great figures of his age he has been without a biography. As a consequence his name is virtually unknown to the general public, and many historians have only a vague idea of the range and variety of his accom¬ plishments. This book presumes to restore James Wilson to his proper place among the great figures of our history. To attempt to reanimate the ritual language of scholarly acknowledg¬ ments would be presumptuous. Yet I am conscious that formal phrases are inadequate to express my debt to the numerous individuals who have contributed to this undertaking. Samuel Eliot Morison first suggested Wilson to me as a fruitful subject for a biographical study, and his friendship, counsel, and interest have been a constant incentive to me. I owe a debt of gratitude also to Crane Brinton, in whose seminar I made preliminary soundings. If time is the wealth of scholars, I have been the beneficiary of many philanthropies. Mark DeWolfe Howe gave much kindly help and advice. Oscar Handlin read and criticized a major portion of the manuscript, be¬ sides smoothing my path in innumerable ways and always exhorting me to fresh efforts. John H. Powell gave large portions of this manuscript the kind of detailed textual criticism that is so time-consuming for the donor and so valuable to the recipient.

FOREWORD

XI

I am indebted to Eugen Rosenstock-Huessy for my initial interest in history and for frequent conversations about James Wilson which never failed to illuminate troublesome problems. Mrs. Charles Fischer of Swarthmore, Pennsylvania, saved me much labor by permitting me to use the manuscript Life and Letters of James Wilson written by her father, the late Burton Alva Konkle. Mr. Ivonkle spent many years collecting Wilson material and drawing attention to the stature and achievements of the Pennsylvania statesman. Almost everywhere I went he had preceded me. James Alan Montgomery, Jr., of Philadelphia has cheerfully endured many impositions without ever letting me feel that that were such. His collection of Wilson material, the largest in private hands, was always avail¬ able to me. Mrs. Joseph Carson of Bryn Mawr and the late Mr. Carson were in¬ variably helpful and sympathetic. Dr. Joseph Fields out of his vast knowl¬ edge of manuscript collections gave me innumerable research leads, and Dr. Frederick Dearborn of New York gave me access to his magnificent auto¬ graph collection. I could not begin to list the many busy people who have responded generously to my written inquiries. Among those who took special pains were the late Hervey Allen, the late Victor Hugo Palsits, the late Randolph G. Adams, Charles Coleman Sellers, Julian P. Boyd, Edward Phillips, and R. G. Cant, lecturer in Scottish history at the University of St. Andrews. The staff of the Historical Society of Pennsylvania, where the major part of my research on Wilson was done, made my work there a pleasure. R. Norris Williams aided this undertaking by every means in his power, and the interest of Nicholas Wainwright and Lois Given was expressed in many ways. I am further indebted to the Pennsylvania Magazine of History and Biography for permission to reprint the chapter on Fort Wilson,

which first appeared in their magazine. A grant from the American Philosophical Society’s Penrose Fund helped materially to bring this work to completion. To the Institute of Early American History and Culture under whose beneficent auspices this book was written I owe a special debt. I am sure that there is no better place for a colonial American historian to serve his novitiate than at the Institute. The opportunity to work there as a research associate was graced by the personal qualities of the staff. Lyman H. Butter¬ field has given more of his crowded time to this work than I can recall with-

FOREWORD

Xll

out embarrassment. Douglass Adair, tracked frequently to his lair in the offices of the William and Mary Quarterly, has given me the benefit on nu¬ merous occasions of his shrewd insight into the elusive life of ideas. Lester J. Cappon by his meticulous editing has saved me from many embarrassing errors and Jane Carson has performed vast labors to the same end. My mother’s discerning criticisms of the manuscript were invariably helpful.

Contents

Foreword. ix I Fifeshire.

3

II The Province of the Penns. 21 III A Venture in Journalism and a Venture in Love. 32 IV Lawyer and Revolutionary Pamphleteer. 43 V Continental Congress. 62 VI Independence. 78 VII Continental Policies and State Politics. 90 VIII A Philadelphia Lawyer.116 IX Fort Wilson.129 X Champion of the Bank.140 XI Speculators and Engrossers.159 XII Better Men in Better Times.169 XIII The Twilight of the Confederation Congress.

187

XIV James Wilson, Citizen of Philadelphia.202 XV The Federalists Attack.215 XVI Counterattack and Compromise.231 XVII The Rising Sun

.247

XVIII Spokesman of the “Dark Conclave” .262 XIX The Grand Procession

.281

XX “A Scotchman and a Scholar”. 296 XXI The Nature of Law XXII Law and Society

308 324

XXIII The Business of the Court.342 XXIV New Ventures.360 XXV The Morass.376 Epilogue.■ ■.389 Notes. 395 Index.• •. 413

James Wilson I 742-1 798

CHAPTER I

Fifeshire

James Wilson

was a Scottish man.

The Scottishness was in his speech,

with its soft burr; in the rather dour earnestness of his florid face; in the tall, strong frame; in the bent of his politics and his piety. of all in his fierce restlessness and boundless energy. physics are a volatile brew.

Perhaps most

Politics and meta¬

Scots—at once stonily practical and wildly

visionary—have a taste for this potion.

For whatever it meant, James

Wilson was a Scot. James Wilson was born in 1742 in the shire of Fife in the Scottish Lowlands. His father’s farm was in the little village of Caskardy below the dark bulk of Lomond Hill, half a day’s jog from the gleaming waters of Loch Leven.

A few miles to the east lay the university town of St.

Andrews, home of one of the oldest colleges in the British Isles. At the turn of the seventeenth century much of northern Scotland was still the preserve of lairds who lived the life of feudal seigneurs, a law unto themselves, quite beyond the reach of sheriffs or even armies. It was indeed the country that Walter Scott painted in such romantic colors, but a country stained with violence and barbarism.

Robbery, theft,

murder, and rapine were part of the pattern of Highland life. Through the first half of the eighteenth century figures of almost legendary fame like the fabulous Rob Roy carried on private warfare within thirty miles of the fortress towns of Sterling and Dumbarton and an equal distance from the thriving and prosperous Glasgow. The Scottish Lowlands, by contrast, were the region of small farmers, of business enterprise, of the rigorous theology of John Calvin.

Prosperous

farmers and energetic business men were victims of their predatory cousins

4

JAMES WILSON

from the north who swept down to raid and pillage, driving off the cattle at Michelmas when the herds were fat and sleek. The Lowlands contained much of the best spirit of eighteenth-century Scotland, and Edinburgh was the center of its richest life.

Edinburgh

Castle rose above the city with the black mass of Arthur’s Seat in the background.

High Street was then, as now, one of the most noble and

gracious streets in the world and the University of Edinburgh was emerg¬ ing as a great intellectual center, the heart of the unfolding glory of the Scottish Renaissance. Where the Highlands and the Lowlands meet in the east of Scotland the Neke of Fife thrusts out into the harsh waters of the North Sea, pro¬ tected on the north from the rough humors of the Highlands by the Firth of Tay and on the south by the Firth of Forth. Close to the civilizing influences of Edinburgh and the rugged strength of the Highlands, Fife is the country of the Covenanters, misty and wind-swept, the birthplace of the tough-minded Presbyterianism of Knox and Buchanan. Fifers were considered by their neighbors an eccentric, individualistic, self-sufficient breed, with a special flavor to their dry, dour wit.

“They

say in Fife,” one jingle ran, “that next to nae wife, the best thing is a gude wife.”

Fife was a democratic shire, too, the most democratic, some

said, in Scotland. a simple lot.

There were lairds, to be sure, but the lairds of Fife were

Everyone who possessed a piece of land rent free had a right

to the title and his wife was a lady, though both laird and lady might be poorer than some of their tenants.

Looking up from his plowing, James

Wilson’s father might very well see his laird’s lady with butter, cheese, and eggs swung in a pair of creels behind her saddle riding off to market in a thick woolen cloak to get the best price she could, like any farmer’s wife. The possessions of a Fife laird, as the saying had it, were “a puckle [grain] of land, a lump of debt, a doocot and a law plea,” the last indicating that the lairds were a contentious and legal-minded lot, if humble in worldly goods. When the Reverend Doctor James Thomson, a minister with the eye of a sociologist, took a trip through Fife at the end of the eighteenth century, he found that property in the shire was more evenly divided than in any other county of Scotland.

He estimated that while a small

portion of the holdings in Fife yielded a yearly income of somewhere between

^400

and

^3000

sterling,

the

majority

were

valued

from

^3° or ^4° t0 X400 Per annum, and in this category, he wrote, “there

FIFESHIRE

5

are proprietors who pay cess and rank as inheritors, and although of inferior fortunes are generally men of most respectable characters.”

The Doctor

was moved to add: “the extensive distribution of property is attended by the happiest effects.”1 The cities of Glasgow and Edinburgh had a vital influence on the social structure of the Lowlands population. The formation in the towns of a thriving middle class served, among other things, as a stage to which the sons of poor farmers and industrial workers might aspire, and it vastly in¬ creased the mobility of all Scottish classes. The economic democracy of Fife was strengthened by the existence of a community of believers that included the vast majority of the inhabitants of the Neke. Over these watched the stern spirit of the Scottish Kirk. All good Covenanters must be able to read the word of the Lord; therefore the Kirk had long been solicitous of education. The benefits of its parochial schools were readily apparent to Bishop Burnet in the early years of the century, and he confessed himself amazed to see “a poor commonalty so capable to argue upon points of government and on the bounds to be set to the power of princes in matters of religion.” Upon all topics “they had texts of Scripture at hand and were ready with answers to everything that was said to them. This measure of knowledge was spread even among the meanest of them, their cottagers and servants.”2 A sturdy independence was bred into the marrow of the Covenanters. They had a tradition of insubordination to civil authority which extended back to the dawn of the Reformation and which was reinforced by the reckless individualism of the neighboring Highlands. Above all there was the Kirk.

The puritanical temper of the Kirk is most uncongenial to us

today. Intolerant and narrow in many ways, it nevertheless gave, as did the Puritan church in America, an indelible stamp to the character of a people and successfully raised narrow ideas to the height of great principles. Finally there was that effusion of the mind and spirit known as the Scottish Renaissance which, starting with Francis Hutcheson and David Hume, carried the Scottish revival of learning everywhere in the Western world, putting the names of Berkeley, Robertson, Blair, Reid, and Adam Smith on every literate tongue and making Edinburgh, for a gen¬ eration or more, the greatest university in Christendom. Whatever the causes of the Renaissance, certain forces are discernible that helped to shape it—the increasing prosperity, the relatively high level

6

JAMES WILSON

of education, the invigorating influence of closer contact with England, and the constant ferment of theological controversy. It was in such a country, stirring in the fullness of new life and expectation, that James Wilson was born in 1742.

His mother, Alison

Lansdale Wilson, was a simple woman, tall and straight, strong in body and in spirit and deeply pious. She was little more than literate, but thoroughly schooled, nonetheless, through her husband and her pastor, in the doctrines and dogma of the Kirk. William Wilson was a shrewd farmer, patient and industrious like his neighbors whose farms dotted the shire and whose granges, mills and brewhouses yielded a comfortable store at harvest time. Augustinian, Benedictine, and Cistercian monks had been the first agriculturists of Fife.

Their tireless, loving work bore fruit centuries after

their orders had disappeared from the Neke in a deep tradition of skillful husbandry, and found a memorial in the farmhouse flower gardens that brightened the countryside. Fife farmers had the gardener’s instinct.

They

brought in exotic fruits, like the pears that ripened on gnarled trees in orchards around Caskardy.

They planted trees like the hollies, the Birkhill,

and the yew trees of Forgan; they nursed rare apple trees in the thin soil. Dovecotes were a fixture of every farm and the comfortable noises of doves were part of the music of domestic life.

Home weaving helped to

provide articles of clothing or augment the scanty farm income, and flax rotting in stagnant pools gave the air a sharp, sour odor. The long line of hills that ribbed the peninsula, the laws—Largo, Kelly, Norman, Benarty, and Lomond—were not wild like the Highland hills, but close-cropped pasture on which sheep and shaggy Angus cattle grazed.

The hills drew moisture from the North Sea winds that blew in

on three sides of the shire and brought a rich harvest in the fall.

Yet the

same winds blew raw and harsh and chilled the soil and chilled the plow¬ man, until countrymen remarked dourly, “Ilka blade o’ grass keps its ain drap o’ dew.” The Scot is slow to warm and Fife men were the slowest.

Their wit

was honed by the wind until it was sharp and wry like Yankee wit. What they had was hard come by and they were known as a close-fisted lot. “They that sup with Fife folk,” said one proverb, “maun hae a lang spune.” The accumulated wisdom of the shire was summarized in a mouthful of aphorisms that told the brief stories of farmers’ way and fortunes on the

FIFESHIRE Neke of Fife.

7

For a land swept by centuries of loud and often bloody con¬

flict, it was but truth to say, “Happy the man who belongs to nae party. But sits in his ain house and looks at Benarty.” And there was little patience in Fife with fine airs: “Auld men in the proverbe sayis, Pryde gays befor and schame alwayis Folowys this on all sa fast And it ower-takis at the last.”3 The life of the shire centered in the Kirk.

The legitimization of the

Church at the time of the Revolution of 1688 had not destroyed its tradition of fiery dissent, and in the first half of the eighteenth century, Scotland was shaken by secessions within the Church itself.

There is strong evidence

that James Wilson’s father was one of the leaders in the most notable secession—a secession which led to the independent Associate Presbytery. The differences that brought about the formation of the Associate Presby¬ tery in 1733 were in part organizational and in part doctrinal.

For many

years the local congregations of the Kirk had jealously guarded their right to elect the presbyteries, synods, and assemblies, and to appoint their own ministers.

In the 1720’s the Kirk began to usurp some of these prerogatives.

The more independent congregations became increasingly restive under what they felt were serious infringements of their traditional rights.

In

addition, the stricter lay leaders of the Kirk observed with open disapproval a growing faithlessness to the covenant of their fathers.

Arminianism, that

subversive Anglican doctrine of free will, and Erastian backsliding, in the form of subservience to civil authority, were among the failings most fre¬ quently mentioned by those who held to the old faith. In 1730 Ebeneazer Erskine at Portmoak, under the shadow of Bishop’s Hill, started on the road which led to secession a few years later.

Erskine

found his inspiration in Thomas Boston’s Four-Fold State, which contained a seventeenth-century Calvinist tract called “The Marrow of Modern Divin¬ ity.”

Erskine, speaking out against the errors of his church, was rebuked

by his presbytery. However, he found determined allies in William Wilson of Perth and Charles Moncrieff of Abernethy.

Together these men formed

an “Associate” Presbytery and carried on the reformed Calvinist doctrines of Thomas Boston, senior and junior.4

8

JAMES WILSON When James, the first son after three daughters, was born, William

and Alison Wilson pledged him to the Lord’s work in carrying forth the true doctrine.

It was well enough to be an elder and bear the lay side

of God’s work, but it would be a proud thing to have an educated son who could expound the faith of his father with the learning and eloquence of one of the Bostons. Thus young Jamie, like generations of Scottish youths before him, memorized the Shorter Catechism and listened Sabbath after Sabbath to the theology of John Calvin.

He had doubdess to repeat many nights the

turgid arguments of Dr. Boston by rote to an exacting father. In addition to regular attendance at the Kirk there were the “Oc¬ casions”—a week of tent-preaching ending with the “action sermon” and Holy Communion celebrated in the open air.

Frequently the meetings

were held at Portmoak not far from Caskardy, with the sparkling waters of the Tay in the background.

The Wilsons must have often made the

journey—the devout came sometimes sixty miles on foot to join in the week of prayer and preaching—and James was perhaps held aloft in his father’s strong arms to see the great George Whitefield and hear him preach one of his inspired sermons, the great periods rolling over a sea of rapt faces, the vast crowds silent under his magic. As one who had been marked for the Lord’s work, James Wilson “was kept constantly at school from the time he was capable of receiving instruction.”

The Kirk and the grammar school were the guideways for

his young life. The schooling must have been a severe drain on the family resources, always slender.

Besides his three sisters, Jamie had three brothers,

younger than himself, John, Andrew, and William.

Wilson’s farm was

fertile and well kept but it was hard put to produce sustenance for seven children, and William and Alison Wilson must have had a constant stru°-gle to maintain their young scholar at his learning.

Perhaps the other chil¬

dren felt the pinch; perhaps they, like their parents, found their sacrifices sweetened by the thought that their brother was being prepared for a special destiny that would bring honor upon them all. In the little parish school near Caskardy, James Wilson drew on a long and proud tradition of Scottish learning.

In 1495 the Scottish Parliament

had passed a law requiring the formation of grammar schools in the borough corporations, and the following year another law required that all barons and freeholders of substance, under pain of a heavy fine, send their eldest

FIFESHIRE

9

sons to grammar school to obtain a competent knowledge of Latin, and then for three years to “the schules of art and jure” until they had acquired sufficient familiarity with the law to distribute justice among their people. At the time of the Reformation, John Knox himself had proposed an elaborate system of national education. After the Rebellion of 1640 parochial schools, modeled upon those of Geneva, were established in great num¬ bers, and under the authority of the Kirk were heavily endowed with bursarships, or scholarships, which enabled worthy sons of the poor to receive an education. In the middle of the eighteeenth century the Scottish Kirk, like its American counterpart, pushed the education of its members vigorously and established new schools wherever older schools had fallen into des¬ uetude or remained in the hands of the Anglican Church. Young Jamie Wilson trudged off to school each day with his cousin, Robert Annan, a cheerful, precocious boy whose family lived in Perth and who boarded with the Wilsons in order to attend the little parochial school near Caskardy.

Robert was several years older than Jamie, and,

as the boys made their way to school, their dog-eared books hung by leather straps over their shoulders, their outsized boots stirring up plumes of dust in the roadway, he acted as friend and preceptor to his cousin. At school Jamie and his cousin studied the standard subjects—Sallust and Virgil, Euclid’s Geometry, Penmanship and Rhetoric—learning their Latin and Greek, struggling with the abstractions of mathematics, tracing the elaborate letters that, with frequent capitals and persistent commas, were the mark of an educated hand.5 The Wilson family was a close one.

On winter evenings the children

clustered around a splint-coal or peat-moss fire whose erratic flame provided light for Jamie to parse Latin sentences and his father to read aloud from the Bible or the younger Thomas Boston’s edition of the Marrow of Modern Divinity. A special favorite with Alison Wilson was James Hervey’s Meditations among the Tombs, combining as it did strict Calvinist doctrine with the most poetic feeling imaginable. In extravagant imagery, the Meditations told the tale of the author’s visit to a graveyard where every object reminded him of the transitoriness of earthly pleasures, the immutability of God’s justice, and the terrible dangers of the sinner.

As William Wilson read

the ornate prose his listeners felt a thrill of terror and fascination.

From

the sombre graveyard the narrator descends to a dark vault, “the dreaded

10

JAMES WILSON

abode” of “the pale nations of the dead.”

Here, he reflects, “those who

gloried in high-born ancestors and noble pedigree . . . drop their lofty pretensions.

They acknowledge kindred with creeping things, and quarter

arms with the meanest reptiles. ... It is said by their monuments HERE

LIES THE GREAT?

How easily it is replied by the spectator,

False marble! Where? Nothing but poor and sordid dust lies here.” The underlinings and exclamations, like stage directions, guided the reader through the properly solemn or eerie intonations, and the light of the peat-moss fire helped to summon up for the Wilson children and young Robert Annan the images of abandoned souls in hell. Through the sentimental imagery showed the stern lineaments of orthodox Calvinist theology.

Hervey never let the minds of his readers,

gripped though they might be by his rhetoric, stray far from some piercing moral.

It might be found unexpectedly in the picture of “a thoughtless

jay . . . idly busied in dressing his pretty plumes.”

and aims his rifle.

A sportsman sees him

“Swifter than the whirlwind flies the leaden death;

and in a moment, lays the silly creature breathless on the ground.

Such,

such may be the fate of the man, who has a fair occasion of obtaining

grace today, and wantonly postpones the improvement of it, till tomorrow.”6 For his studies Jamie had perhaps the use of a candle.

But candles

had to be made laboriously at home and it took precious inches to get through a knotty passage of Virgil or to unravel a Euclidian maxim.

The

nearsightedness which in later life caused James Wilson to gaze aloofly through thick spectacles and brought against him the charge of aristocratic superciliousness was perhaps a product of the small, smoky fires in the Wilson cottage at Caskardy. The fare that built the strong sinews of James and his brothers was monotonous but nourishing.

Its simple frugality was summed up in the

local saying: “A Januar’ haddock A Februar bannock [an oat or barley cake] And a March pint of ale.” Breakfast was a rib-clinging bowl of oatmeal porridge with churned or skimmed milk and sometimes whey.

Occasionally there was an egg or

two, but usually eggs went to St. Andrews to bring town money into the family purse.

FIFESHIRE

ii

Lunch was at one o’clock and consisted most frequently of barley broth with cabbage or green kale and an occasional piece of salt herring or pork to give it flavor. For young stomachs that still rumbled there was plenty of Alison Wilson’s bread—thick, heavy stuff, compounded of oat, pease and barley meal, but warm and fragrant from the oven. At night there was porridge again, or in winter, potatoes and milk. Sunday Alison and William might have a precious cup of tea and the children perhaps cambric to fortify them against the rigors of a Presbyterian Sabbath. Wilson’s youth was not all books and sermons and catechisms.

Al¬

though his studies must have won him some exemption from the endless chores of farm life, he was a stout lad who stood his turn with his younger brothers and knew, as every country boy must, the intricate and exacting science of his father’s farm.

His days were deeply involved in the seasonal

rhythm of rural life, and his interest in farming and in the latest agricul¬ tural techniques never diminished. Barley ripened in the late dog days of August, shading from green to gold, and it must be harvested and the sheaves brought in.

After the

barley was stood to dry and harden in the summer sun, and before the oats were in, there would be time for a “ploy,” a celebration for the harvest hands that featured croam crowdie—a potent mixture of cream and whiskey —and swirling, perspiring dancing in the kitchen or barn to the music of a fiddle or bagpipe or, in the absence of these a diddler, a leather-lunged hired hand who would beat out a rhythm with his heavy boots and sing “diddle-diddle-diddle” without change of tone or pause until “his tongue was dry as a parrot’s.” Besides farm and studies, Jamie Wilson’s boyhood was filled with the special pleasures of a country boy—ancient Fifeshire games, swimming in the burns, skating in wintertime and, perhaps for Wilson most alluring of all, fishing in the nearby lochs. In the deep waters of Loch Leven were fish that could augment the herring, cod, sea cat, tusk, and ling that formed a part of the Wilsons’ regular table fare. Loch Leven, as a country conundrum had it, was eleven miles round, with eleven islands, eleven burns and eleven kinds of fish— all surrounded by the lands of eleven lairds.

It abounded in eels, and if

Alison Wilson could not be persuaded to cook the long, slimy creatures, their skins, tougher than horsehide, could be sold for a few pence to join the handle and the souple of a farmer’s flail.

I2

JAMES WILSON Nearer the Loch were half-a-dozen burns where the boys could gig for

suckers, pick cat mint, bruise it with their teeth and savor the sharp, sweet taste, balance across the rocks, across the adder’s tongue fern and the apple moss that softened the hard projections of stone, looking for the quick shadows of fish on the pebbly bottoms.

Yellow toadflax and golden dock

grew around the deep pools near Cameron Bridge, and here Jamie and his brothers could stand waist deep in the clear, cold water and probe in hidden pockets and crevices along the banks, feeling for the soft, slippery body of a sucker or the more elusive trout. These juvenile pleasures were soon ended for Jamie Wilson, however, and his brothers were left to pursue such adventures alone.

At the age of

fourteen, he graduated from the little grammar school near Caskardy and applied for a scholarship to St. Andrews. James Wilson walked the six miles or so to St. Andrews in the fall of 1757, doubtless accompanied by his father, to take a competitive exam¬ ination for a bursarship.

Father and son knew the town.

The smell of

fish offal that stung their nostrils as they approached its gates was a familiar one.

Herring guts and midden, spilled from costers’ wagons, littered

Marketgate Street as they made their way past Northgate to Saint Salvator College whose spire rose above the town. Saint Salvator was in the proc¬ ess of being rebuilt and its two small, gloomy courts thrown into a single large gloomy one.

The chapel tower formed the gateway to the court¬

yard where untidy piles of stone and timber lay about. When James Wilson presented himself for his examination he found nine other nervous countryboys, stiff and awkward in their best clothes, waiting to be examined.

There is no record of who examined Wilson

or how he comported himself.

He must have returned home half numb

with anxiety to await the result.

Word came quickly that “upon the usual

trials,” Wilson and three others had been awarded the coveted bursarships, and he and his fellows were “call’d and allow’d to take their seats at the Bursar Table & appointed to pay each of them £10 Scots to the Factor.”7 Wilson entered St. Andrews in November, 1757.

He came up from

Caskardy carrying with him his small bundle of possessions and a knife and fork; a silver spoon would be provided for him by the college during his residence. The town of St. Andrews to which Wilson came as a student of the United College stands on a rocky promontory that thrusts out into the

FIFESHIRE North Sea like a thumb.

13

To the north and south long, level, glistening

beaches reflect the spires of the town at low tide. The town itself is much older than the University.

Nearby is the

old Culdee chapel where monks first established the Christian faith in Scotland.

St. Andrews was for more than a century the seat of the Arch¬

bishop of Scotland and the ruins of the Castle of the Primates are scattered along the shores of the North Sea. The University was poor and dilapidated when Wilson matriculated, but it had behind it an illustrious history.

In 1410 a group of masters,

former students in the great University of Paris, began to teach in St. Andrews.

The teaching masters formed themselves into the College of

Saint Salvator in the middle of the fifteenth century, and some sixty years later the College of Saint Leonard was founded.

Saint Leonard stood

in the priory precinct next to the Cathedral, while its older sister college was located in the northern part of the town near the Castle-Palace of the Primates, under the watchful eye of the Archbishop himself. Rich and powerful as was this stronghold of the Primates, it was not invulnerable to the new faith of Martin Luther and John Calvin.

In

1528 a young scholar of St. Andrews, Patrick Hamilton, was burned at the stake in front of the students and faculty of the colleges for daring to call into question the supremacy of the Roman Church, and a few years later John Knox began his fiery career in “Knox’s Kirk,” which still stands as a reminder of the tradition of Fife dissent, centuries old. With the departure of the mighty, St. Andrews lapsed into the simple life of a fishing town and the colleges barely existed.

In 1727 Daniel De¬

foe on his famous journey through England and Scotland found them “a grass-grown place of desolation,” but in 1747, a few years after Wilson’s birth, Saint Leonard, Saint Salvator and the newer college of Saint Mary’s were combined by an act of Parliament into the University of St. Andrews, doubtless in hopes of improving the waning fortunes of the individual colleges and of consummating what had long been an informal union. An enterprising new Provost, James Murchison, began to revive the fortunes of the colleges and in the 1750’s a number of excellent scholars were added to the faculty.

The combination of material decay and in¬

tellectual revival gave the University an atmosphere ideally suited to study. Across the court from the gateway to Saint Salvator were the common schools or classrooms and above them a common hall fifty feet long and thirty feet wide with a vaulted ceiling.

Here the students gathered for

I4

JAMES WILSON

meals and on official occasions. Many of the masters and students had their rooms in this building which stood on the northern edge of town with its back to the ruins of the Primates’ Castle and the North Sea, and here James Wilson undoubtedly had his lodgings. When Wilson entered the University he was one of perhaps twenty or thirty students who were divided into three ranks.

The primars were

the sons of the Scottish aristocracy, such as it was; the secondars were the sons of the gentlemen commoners, and the terners were those of the com¬ mon rank. Wilson, of course, was in the third category and thus, with his bursary, belonged both socially and financially to the lowest stratum.

His

bursarship marked the tall, rather gangling nearsighted boy as both a promising scholar and the son of poor parents. As a bursar Wilson had certain duties to perform which with his studies kept him early and late at work. lived reflected

the general

The rooms where the students

dilapidation of

the

colleges.

Many of the

windows had panes missing, and pieces of foolscap or boards filched from the repair of the quadrangle buildings shut out the marrow-chilling North Sea wind and the winter rain. Wilson was awakened each morning at five o’clock by the tolling of the college bell, and struggled with numb fingers to light a lamp in the chill dawn.

After the bell rang, the Hebdomadar made his rounds to rouse

students impervious to its clamor.

Sometimes the grim task fell to Wilson

as one of the duties of a bursar, and slipping into his warm scarlet gown, he would grope his way from one dark entry to another, wakening laggard scholars as he went. Breakfast was delivered to the students’ rooms—a half a loaf of oatenbread and a pint of beer “of the meanest quality.” After morning studies noonday dinner was served to the famished scholars “with some show of tarnished style” in the common hall.

For this

ceremonial meal eggs or fish alternated with coarse boiled beef and cabbage. Supper, like breakfast, was delivered to Wilson’s room; this time a tuppenny wheaten loaf with the same thin, sour beer, and he must choke it down as best he could, the cold of the stone floor seeping through his boots. There was a fireplace to be sure, but peat was dear and the chimneys themselves so imperfectly constructed that it often seemed better to freeze than to suffocate from peat fumes. Meal Monday holiday came several times a term to give students an opportunity to supplement their scanty rations by returning home for a

FIFESHIRE fresh supply of oatmeal.

15

Wilson welcomed these occasions.

He must

have enjoyed being fussed over and admired by his sisters and stuffed with Alison Wilson’s substantial cooking. From the seaside windows of Saint Salvator, Wilson and his fellows could see the lighthouses that marked the coastline south of the Forth winking in the void of night and sea like low-hung stars, but the view was dearly bought.

It was so cold in the rooms that the students had often to

study wrapped in blankets and wearing gloves of thick Shetland wool, their feet in woolen sacks. Among all the hardships and torments, however, the good spirits of youth thrust forth, only slightly daunted by hard lots and thin fare.

James

Wilson and his fellow-terners could find relief from the somberness of the college in the town itself.

They made numerous expeditions to get hot

tea and scones or sugar candy and ginger beer at one of the shops that catered to students.

The fisherman’s colony that lay at the north end of

town out the Swallowgate was a pleasant refuge from the bleak college yard.

When the weather was fine and the fishing fleet at sea, the women

and children sunned themselves in the streets; the old men with flat wattle baskets between their knees and a heap of odorous cockles by their sides, baiting lines; the women, short-skirted with thick white stockings, sitting in doorways where the sun fell obliquely on them as they clipped and repaired the tough twine of their husband’s nets; the children in their blue jerseys and brown corduroy trousers, running and playing in the streets. A boy like Wilson who had been nurtured on the romantic imagery of James Hervey undoubtedly found a haunting charm about St. Andrews. The bleached grey stones, the scarlet gowns of the students, the famous rose-grey light of the winter sky, the whisper of the sea sweeping over the broad sand flats—these things were part of the distinctive character of the town. St. Andrews was a town to think in, and to dream in as well; not soft, somnolent dreams, but hard-sinewed visions.

It was a town to breed

the temper of revolt, to lace the chill veins with iron, to induce that visceral ache over man’s cosmic destiny that contains the seed of thought about our human lot which is the beginning of wisdom. The young terner, James Wilson, began his work at Saint Salvator with more Latin, Greek, and mathematics. These were indeed the staple fare of all students throughout the four-year course, the marrow of the cur¬ riculum.

To these in successive terms were added courses in logic, moral

philosophy, ethics, and natural and political philosophy.

16

JAMES WILSON The year before Wilson came up to St. Andrews the faculty was

strengthened by the addition of David Gregory, brother of the famous George Gregory of Edinburgh, and the next year Provost Murchison brought Robert Watson to occupy the chair of logic and rhetoric.

Watson,

a well-known historian, was reinforced by the learned William Wilkie, tutor in natural philosophy, an urbane man who wrote good poetry and was apparently an excellent teacher. Coming from the capital of the new Enlightenment, these men helped to draw St. Andrews into the most exciting currents of the Scottish Renais¬ sance.

Indeed, if the Neke of Fife was somewhat isolated from the rest

of Scotland, it was almost as receptive to new ideas as the more cosmopolitan communities of Edinburgh and Glasgow. Newton’s revolutionary physics had been embraced at St. Andrews and the new natural philosophy based on it had been taught by James Gregory before 1691.

What was true of

the new physics was true also of the new Lockean psychology and the new philosophies of Hutcheson, Hume, Berkeley, and Shaftesbury. There is no record of the books Wilson read at St. Andrews, but he must have been much influenced by the fresh and exciting forces of the Scottish and English Enlightenment. If the radical speculations of Edinburgh and Glasgow affected Wilson’s thinking, he nevertheless stuck to his intention of preparing for the ministry. When he had completed his four years at Saint Salvator, he moved on to the school of divinity at St. Mary’s College and spent a year studying under Dr. Andrew Shaw.

Here Wilson must have fought out within him¬

self the conflict between the Calvinist dogmas of his father and the new spirit of the Enlightenment. It was perhaps this very spirit, gradually saturating the University, that drove Wilson’s cousin and schoolmate, Robert Annan, out of St. Andrews.

Annan had entered several years before James Wilson, but

he withdrew to study theology with the elder Moncrieff, who had been one of the leaders of the seceding movement.

While Wilson was still

pursuing his studies, Robert Annan was licensed as a minister in the As¬ sociate Presbyterian Church and left for America to find a parish on the Pennsylvania frontier. Before Wilson could make any final resolution between the old faith and the new, his studies at St. Mary’s were interrupted by his father’s death.

William Wilson must have been a comparatively young man, since

his wife survived him by almost thirty years, but there is no hint of the

FIFESHIRE cause of his death. studies.

17

In any event, it meant the end of Wilson’s advanced

The death of her husband left Alison Wilson with three sons

to provide for.

The girls were old enough to work out or help with the

farm, but John, Andrew, and William were still young boys.

The scholar

must be converted into a wage-earner. As for Wilson, he may have found his father’s death a kind deliverance. He was certainly more strongly drawn to the things of this world than to those of the next.

Although he may have found nourishment in the

dialectics of Calvinism, he had been thoroughly exposed to the softer and more fashionable doctrines of the Enlightenment and was not wholly im¬ mune to their seductive influence.

The interruption of his studies would

not have barred Wilson from becoming a minister in the seceding church. His decision to abandon the career his parents had chosen for him was made on other grounds. There was, indeed, a mood in the air that posed a more serious threat to the Kirk than all the Anglican divines or enthusiastic revivalists.

There

were those who said—and said it with growing stridency—that the true end and aim of life was happiness.

Governments were instituted to insure the

greatest possible happiness of all the people and derived their authority from the consent of the governed.

The new spirit was compounded of

a thousand elements, many of them by no means of recent origin, but almost all of them hostile to the spirit of Calvinism.

Suffering was to be

abolished by the new creed, and salvation replaced by happiness.

It was

this spirit, working in the church of the Covenanters, weakening and soften¬ ing its core, that had aroused Seceders like William Wilson and impelled them to call for a rebirth of the old faith of John Knox. William Wilson, having given his son to the work of redemption and reconstruction, may have been spared by his death the anguish of seeing him turn toward some of the very heresies that he had fought with bitter determination. Apparently it was determined in family councils that James should not return to take up the burden of farming his father’s acres. instead a position as tutor in a “gentleman’s family.”

He secured

We know nothing

of the family, of Wilson’s duties, or his thoughts in the years he served as abecedarian for the children of a gentleman commoner. He seems to have stuck at the task until his sisters had prospects of marriage and his brothers were able to assume some of the load of supporting themselves and helping to provide for their mother.

He cannot, even at that, have

18

JAMES WILSON

been a very good provider.

His salary as a tutor was small, and he was

careless of money, having no talent for thrift or frugality. The fires of restless ambition that burned in James Wilson could not be damped down to burn at the slow and steady pace of a hireling pedagogue. In the words of Robert Annan, “his genius being too sublime for such drudgery he formed the resolution to try his hand in America.” After Wilson had abandoned his job as tutor, he went to Edinburgh in the spring of 1765 to take a course in bookkeeping and merchant ac¬ counting from Thomas Young, who remembered in later years how he had persuaded his pupil to play golf with him at Brunsfield links, and how he had been beaten soundly although Wilson had never played be¬ fore. Young confessed, when Wilson was a famous figure on both sides of the Atlantic, that he had marked him for greatness after this first stunning evidence of his skill in an unfamiliar game.

If the story indicates nothing

else, it shows that Wilson was a powerful and well-coordinated young man who could hit a golf ball with a certain force and accuracy.8 The drudgery of accounting turned out to be no more congenial than the drudgery of tutoring, and his brief experience with ledgers and accounts merely hardened Wilson’s resolve to go to America. If these were the best prospects of a young man “of the common rank” in Scot¬ land, then Scotland was not the place for James Wilson. The Wilsons already had friends and relatives in America.

Robert

Annan was established in the crude but prosperous little frontier com¬ munity of Marsh Creek in southern Pennsylvania.

The Erskines had left

Perth for the colonies and flourished there, and many others wrote back glowing accounts of the opportunities across the ocean.

James’ brothers

were old enough now to take care of themselves; his sisters were married. There was nothing to bind him to his home except the deep emotional ties that bind every man to his birthplace, to his friends and family.

The

greatest difficulty would be to finance the trip and secure the consent of his mother. difficult.

Without her blessing his departure would be much more

Though she had no money to give him, as titular head of the

family her approval or consent might help him win the backing that he would need. But Alison Wilson was very loath to let him go.

Even if his parents’

plan for him to be a seceding minister had failed, there were many other opportunities for a young man in Edinburgh or Glasgow as clerk or accountant with one of the rich merchants or perhaps even secretary to a

FIFESHIRE

19

lord. So his mother argued, and the son could not confess the unchristian sin of pride.

He could not tell her that in Scotland he would always be

thought of as a farmer's son, a terner, a bursar, very gifted but still of the “common rank of life.’’

He could not explain to his mother that a clerk¬

ship was naught to him, that his dreams took in vast wildernesses, moun¬ tains, great riches, and lordly estates.

These arguments would have meant

nothing to a devout mother who wished only that her son should not hold too fast to the things of this world, but rather look to the things of the next, submit to God’s will, and be filled with humility and devotion. The fires of a great creativeness burned in Wilson and made him impatient and restless.

He answered, though he could not have said it,

to a higher expression of divine force than his mother could conceive of. Her vision was of God’s law, stern and demanding, full of restraints and pro¬ hibitions, full of abnegation.

Her son answered to that infusion of true

grace which is true creativeness, and it made him subject to a different morality from the noble but largely negative one his mother pressed upon him. In his theology Wilson’s father had chosen the law rather than the spirit, but he had chosen it in a creative revolt, and this temper must have passed to the son.

If the great destiny that his father had envisioned for

him could not be realized, an even greater destiny must be fashioned. Wilson’s faith in his own future must have wavered and burned low in the trying years after his father’s death.

It must have almost flickered out in

his early days in America, but it must always have burned.

Those who

do not dream of a great destiny, in one set of terms or another, do not achieve it.

In New England a future compatriot and colleague of Wilson’s

was recording his own doubts and misgivings and above all his transcendent sense of his own great mission.

The diary of John Adams of Braintree

would have found echoes in the heart of James Wilson of Fife. So Wilson laid siege to his mother’s consent. but bitter.

Finally it was over; he was to go.

reluctant blessing.

The struggle was brief He had his mother’s

Now that it was decided, word went quickly around the

little village and the clans of Annans, Balfours, Lansdales, and Wilsons thereabouts.

Robert Annan at Marsh Creek must be alerted to keep an

eye out for his cousin.

And there were others, relatives and friends, most

of them in the colony of Pennsylvania, who might find it in their power to help a young adventurer from the homeland. Family councils and conclaves were held to make plans and raise

20

JAMES WILSON

money for the voyage. expensive matter.

To sail to America in the 1760’s was not an in¬

The passage on a sailing ship from Glasgow, that might

carry a load of sheep or cattle, would run some ^15 or ^20.

And then

there were things to be bought—a small, sturdy trunk such as a gentleman would carry instead of a motley pile of boxes and bags; some shirts of good quality from an Edinburgh tailor, and money to tide him over in the provinces until he should get a start and begin making his fortune.

Where

a skilled plowman made ^16 or ^18 a year, and a hired hand got as little as ^3 or £4 plus his allotment of flax or oats, it took most of the liquid capital of the little community to launch the adventurer.

But the

hat was passed around, and Jamie’s new brother-in-law, John Balfour, no doubt urged on by sister Ellie, with William Wilson, his brother, stood security and signed notes for what the family could not raise out of its own savings. When his friends and relatives gathered to see him off, to eat Alison Wilson’s oatmeal cakes, crisp and paper thin, to chat and repeat stories about the colonies, some fabulous tales and some true ones, James Wilson had become almost a corporate undertaking.

The hopes and prayers as

well as the finances of the community were behind him. To Perth on a farmer’s wagon, across the Forth by ferry to Edin¬ burgh, then down the flat, colliery-studded valley to Glasgow.

The Glas¬

gow boat that carried James Wilson to New York was dirty and uncomfort¬ able and the passage was a rough one.

Hanging much of the time over

the lee rail, Wilson vowed, before the voyage was over, never to go to sea again.

CHAPTER II

The Province of the Penns

Wilson's ship docked in New York in the fall of 1765.

Armed with a

letter to Dr. Richard Peters, Anglican minister and trustee of the College of Philadelphia, he hurried on to the Quaker City to find employment.

The

College of Philadelphia under the guidance of Benjamin Franklin and the Reverend William Smith was an up-and-coming institution.

Wilson

with his St. Andrews’ training had litde difficulty securing an appointment there as tutor. Philadelphia in the 1760’s was the foremost city of the American colonies.

Bounded on the east by the Delaware and on the west by the

Schuylkill, it had easy access to the interior of the province as well as to ocean commerce. Delaware.

From Front Street long wharves thrust out into the

Running back from the river on a north-south axis, the streets

were numbered consecutively—First, Second, Third, etc.—toward the Schuyl¬ kill, intersected by Pine, Locust, Spruce—streets named for native trees. The main artery of the city was Market or High Street where the Court House and markets stood.

Down this broad thoroughfare flowed most

of the population of the province at one time or another: German farmers from Lancaster, Chester, and Bucks in thick dark, clothes and broadbrimmed hats, Moravians from Bethlehem, Dunkards, and Mennonites in their buttonless costumes. were easy to spot.

Scots and Scotch-Irish from the frontier counties

Some were prosperous farmers; others, gnawed lean by

famine and disease, were ragged, unkempt and indolent, but poor and wellto-do were alike proud and irascible. Wagoners, drovers, Indian allies come to visit Brother Onas, as they called the proprietary governor, all mingled and rubbed elbows with Quaker

22

JAMES WILSON

aristocrats in fine London suits and with the wealthy lieutenants of the Proprietary family. Smartly turned out Philadelphia ladies, accompanied by their maids, picked their way through the crowded market street to collect meat and vegetables for their larders. Philadelphia was the most accomplished and cosmopolitan city in the thirteen colonies.

Whatever there was of literary taste, of scientific skill, of

philosophic bent in British North America found its highest expression in Philadelphia.

Its taverns were the largest and most hospitable, its brick

homes the most imposing, its streets the broadest and cleanest, and, thanks to Benjamin Franklin, the best lighted.

The city was ready to stake

its reputation for culture and urbanity on its leading citizen, the great Franklin, scientist, publicist, diplomat, civic reformer, moralist, hedonist, citizen of the world. This was the city to which Wilson came.

In it lay his destiny, a

seed nourished by the rich, variegated, above all intensely dynamic life of the colonial metropolis.

Although he left Philadelphia, the city drew him

ineluctably back, providing a brilliant stage for his greatest achievements. Teaching Greek to young Philadelphians or leading them through the mazes of eighteenth-century rhetoric was not a congenial task for Wilson. He had not fled pedagogy in Scotland to embrace it in America.

His re¬

lations with his students were, for the most part, stiff and formal.

He had

little understanding of their problems and little sympathy with their needs. His mind was concerned less with Latin grammar than with the broad problems of human society. The Stamp Act, passed by the unsuspecting Grenville ministry, had stirred up a hornet’s nest in the colonies while Wilson was crossing the Atlantic, and now the indignant colonists were meeting at New York in the Stamp Act Congress, as it was called, to express their common chagrin and their determination to seek repeal of the obnoxious law.

Big things were

afoot and Wilson yearned to be involved in them. He stuck to his task, uncongenial though it was, through the winter of 1765-66, elucidating for his pupils the obscurities of Francis Hutcheson and the natural law doctrines of Hugo Grotius, and he was rewarded for his labors by receiving an honorary master’s degree, bestowed at the spring commencement of the College, “in regard to [his] particular learning and merit.”1 The commencement was held May 20, 1766, “before a very crowded and splendid Auditory.”

At ten o’clock in the morning the procession formed

THE PROVINCE OF THE PENNS to march to seats in the public hall of the College.

23

Governor Penn and

the trustees led the procession, followed by Provost Smith, Vice-Provost Alison, the professors, the tutors, and finally the candidates for degrees, led by James Wilson resplendent in the scarlet gown of St. Andrews. In the hall which had resounded often with Whitefield’s sonorous periods, prayers were offered for the King, the royal family, the benefactors of the College, for the “whole Church of Christ” and for “the Propagation of the Gospel, and useful Science Wilson then stepped forward to receive his honorary degree.

With

him was Joseph Reed, a graduate of the College and a highly ambitious young lawyer from Trenton, who was to be president of Pennsylvania dur¬ ing the Revolution and the political enemy of James Wilson in many future battles. After Wilson and Reed had received their degrees, a gold medal was awarded to John Morgan, professor of physic in the College, for his essay “on the reciprocal Advantages of a perpetual Union between Great-Britain and her American Colonies.”

The last exercise was a dialogue by Richard Lee and Phineas Bond “in Honour of the Friends of America,” followed by “Odes on Liberty and Patriotism . . . sung by the two Master Banksons, accompanied by the

Organ”—all received with “the utmost Marks of Approbation.”2 Looking about him in Philadelphia, Wilson could not help noticing the young lawyers, their important and professional air, their easy fees extracted from a litigious citizenry.

These were the coming men in the city; their

manner of quiet self-assurance bespoke it.

The older generation was al¬

ready firmly established at the head of the city’s affairs.

Benjamin Chew,

a Proprietary lawyer and the King’s attorney, was one of the great powers in Philadelphia politics. oligarchy, was another.

Joseph Galloway, closely allied to the Quaker Most appealing to the young Scot, already whole¬

heartedly committed to the cause of the American colonies, was John Dick¬ inson, only ten years older than Wilson, but already one of the out¬ standing lawyers in the colonies and an eloquent champion of colonial liberties. Wilson applied to Dickinson to study law under him, but the fee was more than the penniless young man could pay. out of the walls of academe.

There seemed no way

Wilson traveled gloomily with his troubles

out to Robert Annan’s farm at Marsh Creek.

When he rode up to his

24

JAMES WILSON

cousin’s neat and prosperous acres he found that the Reverend Mr. Annan had grown in material as well as spiritual grace. Annan listened to the story of Wilson’s ambitions and frustrations with a sympathetic ear. The College of Philadelphia was a dead end, Wilson told his cousin.

He could not afford to study law, which he had come to

feel was his real vocation.

He had even considered establishing himself

on a farm. He was a farmer’s son with, indeed, a special bent for farming, but he had not money enough to rent or stock a farm.

If he could become

a lawyer, he would soon make large fees and become, like the other at¬ torneys around Philadelphia, a figure of dignity and importance. were his aspirations, but how was he to realize them?

These

It would take many

months of drudgery to earn enough to pay Dickinson even the required fee, and the need to support himself while he studied would protract his legal training endlessly. Robert Annan offered his cousin a way out.

His pastoral duties had

not prevented him from acquiring considerable property about Marsh Creek.

He would sell Wilson a farm for ^500, taking Wilson’s note in

return. Wilson could then sell the farm to John Dickinson, pay his fee, and support himself with the balance while he delved into the nature of the law.3 The arrangement evidently satisfied Dickinson, for Wilson began his apprenticeship at once.

This mode of legal study—reading under an ex¬

perienced lawyer—was uneven in its results and full of minor abuses. But at best the industrious and intelligent student of a conscientious master could get the finest possible legal training.

A lazy student, on the other

hand, with an indifferent mentor, might emerge from his apprenticeship thoroughly uninformed.

Another hazard was that the lawyer might ex¬

ploit his student by using him simply as a clerk.

Conscientious as Dick¬

inson must have been, he was not immune to this temptation, for one of Wilson’s successors complained that he had been put to work copying out the Farmer’s Letters—Dickinson’s famous vindication of the colonial cause.4 Wilson certainly applied himself industriously to his studies.

He

filled his notebooks in a minute and careful hand with pleadings, forms, terms of contract, replevins, and torts.5

Since disputes about land made

up eighty per cent of the cases of the average colonial lawyer, Wilson copied pages of Pennsylvania cases in trespass and assumpsit.

He listed a glossary

of legal terms and definitions and followed these with the “Six Funda-

THE PROVINCE OF THE PENNS

25

mentals” of the laws of England—“the Law of Nature; Revealed Law; General Customs; Maxims; Particular Customs; Statutes.”

After the fun¬

damental laws came a list of the particular laws and customs, divided into land and civil law, criminal law and ecclesiastical law.

The notebooks are

crowded with the legal minutae that every young lawyer must master, but here and there are aphorisms like banners that indicate Wilson’s concept of the life of the law.

The first notebook bears the date 1766 and a rough

sketch of a house plan on the inside cover, perhaps the house of Robert Wilson, merchant, with whom Wilson lived in Philadelphia. first page is a citation from Cicero:

Heading the

“The house of the Lawyer is the

oracle of the whole City.” The next sentence is also quoted from the Roman statesman.

“A

Lawyer is a man who knows how to give advice and apply in the most cautious manner those laws and that constitution that private men are directed by in a state.”

If Dickinson called his student’s attention to this

passage, it might be taken as an excellent summary of the master’s own at¬ titude toward laws and constitutions. vacillating.

Dickinson often seemed timid and

With a fine and incisive mind, he drew back from critical

decisions and his potential greatness was compromised by procrastination. He was the Hamlet of the American Revolution. After the aphorisms of Cicero in Wilson’s notebook come a record of the governors of Pennsylvania and a list of the steps that had been taken in establishing the early Pennsylvania frame of government.

Thus Wilson

was forced, or encouraged by his master, to be acutely aware of the historic origins of his adopted home and was doubtless impressed by the peculiarly American character of the law that developed in the colony of Pennsylvania. Almost symbolically, an examination of the constitution of Pennsylvania precedes an introduction to the government of England. After his notes on the Pennsylvania constitution, Wilson copied out Cicero’s reflections on orators.

“The man who deserves that awful name,”

he wrote, “must be one who upon all occasions shall be able to deliver what he has to say accurately, perspicuously, gracefully and readily, ac¬ companied by a certain dignity of action.” The grace came hard to Wilson. He was never to be a graceful speaker, but there was a kind of dignity in his stiffness and he was usually accurate enough. day he became a great orator.

By the canons of his

Wilson then noted in his neat hand that

“that part of philosophy which regards the life and morals of mankind must be completely understood by an orator,”

This was a significant

JAMES WILSON

26

sentence for Wilson.

It sank deep, for from the first his vision of the law

was broad and he looked beyond the law to the most profound problems of human life.

Cicero is speaking of orators, Wilson is studying the law.

A

lawyer must be a close reasoner and an able logican, but few lawyers would consider a thorough understanding of moral philosophy a prerequisite of their profession.

“No man unless he be a philosopher can be an orator,” Wilson

wrote, and twenty-five years later when he began his law lectures he laid down the same principles for the lawyer that Cicero had enunciated for the orator. Bound as he was to his law books, Wilson was nonetheless absorbed in the struggle between England and the colonies.

That conflict was the

particular preoccupation of his master, John Dickinson, and the student followed developments with the intense interest of his preceptor.

He read

avidly all the books he could find on the subject of constitutions and frames of government—Hume and Montesquieu, Adam Ferguson, On Civil Au¬ thority, described as a wise union of their works—Blackstone’s Commentar¬ ies, which had just been published and was a mine of information on the

common law, Algernon Sidney, Locke, Richard Hooker, Lord Bacon, Bolingbroke, the astute Tory, and dozens of others, combing them for arguments that might go into the colonial armory. In 1763, two years before Wilson’s arrival in Philadelphia, the Peace of Paris had ended the Seven Years War with England in possession of most of the North American continent.

France relinquished Canada, and

with the threat from that quarter removed, the colonies began to be more active in their resistance to British colonial policy.

England at the same

time took steps to put her colonial empire in order and to place on the reluctant colonies some of the burden of paying for their administration and their defense. Wilson arrived in the colonies to find the Americans in an uneasy and recalcitrant mood over the Sugar Act of 1764.

The Molasses Act of

1733 had imposed a heavy duty on West Indies molasses, a vital ingredient in

New

England

rum

and

in

the

entire

trade

structure

northern colonies, but this law had never been enforced. of 1764 lowered the objectionable duty but established collecting it.

The colonial

reaction

was immediate.

of

the

The

Act

machinery

James

Otis,

for the

Boston orator, made an impassioned declaration against the right of Parlia¬ ment to pass acts “for revenue.”

This was a way, he argued, of extracting

money from a citizen without his consent—in other words, “taxation with-

THE PROVINCE OF THE PENNS out representation.”

27

Citing James Harrington, Otis declared that while

“Empire follows the balance of property,” government nonetheless is not founded on property, on grace, on force, or on compact.

“It has an ever¬

lasting foundation in the unchangeable will of God, the author of nature, whose laws never vary.” It was up to the executive courts to declare a law of Parliament unconstitutional if it contravened God’s law. This might be James Otis’ reading of the British constitution or that of the Frenchman, Montesquieu, but it was not the English view.

The

English Whigs had fought hard for the supremacy of Parliament and they had no intention of surrendering its acts to review by judges of the King’s Bench.

To be sure, Otis and the colonial disputants who came after him

cited cases from English constitutional history to support their position, cases which the English preferred to forget and which indeed were at best somewhat ambiguous in their meaning. In the impassioned words of James Otis lay the roots of colonial rebellion against the mother country and the subsequent development of one of the most important principles of American constitutional theory. The Stamp Act, which placed a tax in precious sterling on all legal documents, newspapers, pamphlets, almanacs, playing cards and dice, had added fuel to the fire lit by the Act of 1764.

When Wilson landed in New

York and made his way up Broadway looking for a lodging place, he heard talk of little else.

In coffee shops, taverns, and on street corners, angry and

contentious men spoke openly of parliamentary tyranny and the sacred rights of Englishmen.

The papers were full of accounts of riots and tu¬

multuous meetings, of attacks on stamp-tax collectors, of forays that de¬ stroyed the hated stamps by the thousands and mobs that burned parlia¬ mentary leaders in effigy.

The intense drama of the times gave Wilson’s

study of the law a new perspective and raised it to a higher plane.

In the

age of the American Revolution colonial lawyers concerned themselves as much with constitutions as with torts; the transformation of the Puritan ideal of a community under God to the ideal of a nation under law ushered in the most creative period in American jurisprudence.

Wilson was pre¬

paring himself to take his place in that great generation of American lawyers. The storm aroused by the Stamp Act had hardly died away when the colonists found a new grievance.

The Townshend Duties were levied on

certain British manufactured articles imported into the colonies and, of most fateful consequence, on tea.

28

JAMES WILSON John Dickinson, soon after the passage of the offensive duties, began,

under the pen name of the “Pennsylvania Farmer,” to attack the theory that Parliament had authority to tax the colonies for revenue purposes. Meanwhile groups of patriots, more concerned with practice, banded to¬ gether and, calling themselves “Sons of Liberty,” worked to overthrow the economic reforms of the chancellor of the Exchequer.

The truth was that

England was making a belated effort to integrate the colonies into a pattern of mercantilism; to subordinate their economic development to the needs of Great Britain, and this the colonies were determined to resist. In Philadelphia as elsewhere the younger, hotter heads spoke of Amer¬ ican rights in language that to the ruling oligarchy smacked of outright treason. Wilson, listening intently to the clamor, talking with other young men and discussing events with his master, matured his own thought. While Wilson was pursuing his law studies—reading Pufendorf, Burlamaqui, Coke, Karnes, Bracton, Hardwicke, Hale and Gillespie in weighty succession—he made a firm friendship with one of the most engaging and gifted young men in the city.

Billy White was some six years younger

than Wilson, a slim, graceful boy with a thin, high-bridged nose and large, dark eyes.

His father, Thomas White, was a prosperous lawyer who had

migrated from Maryland and, as a trustee of the College of Philadelphia, had helped to guide the early steps of that institution.

Billy White had

graduated from the College the year before Wilson’s brief stay. young men found they had a number of common interests.

The two

Although a

a playmate recalled that Billy as a child used to tie an apron around his neck, mount a low chair which he called his pulpit, and play preacher to his companions, there was nothing dull or sanctimonious about the young man who helped to introduce Wilson to the fashionable life of Philadelphia. Wilson, raised in the fiery orthodoxy of the Seceding Church, had a good Presbyterian’s suspicion of bishops and of the Establishment.

Billy

White, on the other hand, was an Anglican preparing to enter the ministry and thus an apostle of that very Arminianism that Wilson had often been warned against. White was a persuasive dialectician. As the two young men debated the problems of free will, election and predestination, Wilson was drawn, perhaps unconsciously, to the more liberal doctrines of his friend.

White had history on his side to be sure.

congenial to the dogmas of Calvinism.

The times were un¬

The Anglican Church was a fine

half-way house between strict Presbyterianism and liberal deism.

Wilson

was strongly attracted to it as his spiritual home but he could never bring himself to abandon completely the forms and doctrines of his parents’

THE PROVINCE OF THE PENNS church.

29

Perhaps it was White who steered Wilson to the Anglican apolo¬

gist Richard Hooker, and he doubtless prescribed a course of readings in the ablest Church theologians for his Presbyterian friend. In 1767, after less than a year’s apprenticeship to Dickinson, Wilson and his mentor decided that his course of study was complete.

Philadelphia

was full of young lawyers, fighting for scraps from the tables of their elders. Wilson, looking about for a place to start his practice, decided on Reading, seat of Berks County, located some fifty miles northwest of Philadelphia. Reading lies in a valley where the Schuylkill cuts through a circle of abrupt hills.

Boatmen could pole their flat-bottomed barges up the river

with heavy cargoes of trading goods for the frontier, unloading salt, sugar and cloth, and carrying down the wheat, whiskey, hides and fur that farmers and trappers brought to town. dustrial as well as a trading community.

The frontier town was an in¬ The smell of flax, steeping in

dark pools, reminded Wilson of the farms of Fife. Woven into linen on hand looms, it was sold to the westerners for their wheat and whiskey. The town’s principal manufacture, however, was felt hats. Many of the beaver pelts that came into Reading were transformed into some forty thousand hats a year, known from their maker’s name as “Ram’s Beavers.” A feltry is only slightly less odorous than a slaughter house, and rotting flax and matted fur gave the town its own thoroughly distinctive smell. When Wilson established himself in Reading, it had a population of less than a thousand people, but thirty-one taverns served the town’s im¬ mense thirst.

Poling a boatload of bricks up the Schuylkill was dry work;

the roads into town from the west were hot and dusty in the summer, icy ruts in winter.

Whiskey helped a man keep his sense of perspective.

So Reading was a tough town and never tougher than when the fish were running—shad, salmon and sturgeon—and fishermen had their weirs and kiddles set up in the Schuylkill.

The boatmen, poling their way up

the river or running down the current, would smash their way through the lines of slim stakes and then there would be war with plenty of blood and almost enough litigation to satisfy the hungry young lawyers of Read¬ ing Town. The boatmen, the farmers, and the trappers who came to do business looked also for some of the pleasures of life—liquor, women, cock-fighting, and dicing, and an occasional gouging match between two bullies with an eyeball as the forfeit. Besides its noisy itinerants, Reading had a goodly number of substantial citizens.

They controlled the courts, managed the affairs of the town,

30

JAMES WILSON

divided among themselves the law business of the community, favored the Proprietary party, and stood with the patriot cause against the Quaker oligarchy of Philadelphia. Colonel John Patton had married the widow of the great ironmaster, William Bird of Birdsboro, a few miles down the Schuylkill. He and his stepson, Mark Bird, shared an interest in the Hay Creek Furnaces, built by William Bird, and were engaged in a number of new enterprises that promised to make them two of the richest and most influential men in the Province. Allied to the Bird family was George Ross of Lancaster, a rising young lawyer whose sister Mary was married to Mark Bird. Edward Burd, Edward Shippen, and Edward Biddle were scions of the town’s ruling class. The latter was a member of the great and powerful Biddle clan. The Shippen family were among the closest allies of the Proprietors and the constant recipients of their favors. “Neddie” Burd who, like Wilson, stood at the beginning of his career, was also closely connected with the Proprietary interest. Presiding over the fledgling attorneys was James Read, clerk of the courts of Berks County. Read’s merry head was crammed with legal lore that might be purchased by any young lawyer for the price of drink at the Federal Inn, across Penn Square from the Court House. It was the wonder of less hardy tipplers that Read, after a night of revelry, usually sobered up by th'e spectacular expedient of plunging into the Schuylkill, summer or winter. It was into this circle that Wilson had to win his way. He found it slow going at first. Edward Shippen, Nicholas Wain, and Robert Magaw monopolized a major portion of the town’s legal business, with, of course, a generous share for George Ross and substantial portions for Jasper Yeates, the brilliant young lawyer from Lancaster, who came over each term with some of his colleagues to argue cases in the Berks County Court of Common Pleas. In the February, 1767, term of the Common Pleas Court, Wilson had a meager fare of three cases through the beneficence of Nicholas Wain. Things were little better in the August term. In November, Wilson traveled over to Lancaster with Edward Shippen and there his sponsor, setting forth that Mr. James Willson had regularily studied the law under Mr. Dickinson in Philadelphia” and “was well qualified to practise as an attorney,” prayed that the “said Mr. Willson be added to the Roll of At¬ torneys of this Court.” Wilson then stepped forward, took the prescribed oath, and was free to argue cases in Lancaster County as well as Berks.6 From Lancaster Wilson rode on to Chester and Carlisle and was

THE PROVINCE OF THE PENNS

3i

admitted to practice before the Courts of Common Pleas in Chester and Cumberland counties.

For the young lawyer at the beginning of his

career, these were the first ports of entry to his profession.

Since most

of his practice would be land litigation, admission to the civil courts was of primary importance, and since the inhabitants of one county were constantly involved in cases with residents of other counties, lawyers must needs be accepted in all the adjacent courts and in consequence had to spend much of their time on horseback traveling from one county seat to another. Often in one term the same lawyer would handle a dozen cases in each of three or four county courts.

Where clerks, judges, and opposing

attorneys were all close friends, in fact often relatives, it was a simple mat¬ ter to group the cases of one lawyer together on the docket so that he could argue all of them within the space of a few days and then hurry on to a neighboring county. Besides the courts of common pleas each county had its courts of quarter session, also called courts of oyer and terminer.

These heard

criminal cases, tried cases with jury, and, like their English models, were responsible for certain administrative functions, in particular the mainte¬ nance of old roads and the building of new ones. It was in the Quarter Session Court that Wilson argued his first impor¬ tant criminal case. His client, one Henry Wilson, was on trial for murder. Lawyer Wilson fought for defendant Wilson with all the legal resources at his command.

In his final summation and appeal to the jury he freely

confessed himself “unknown and inexperienced at the bar.”

Although

he was convinced that extenuating circumstances should mitigate the severity of the law, Wilson declared frankly, “I am not entitled to expect that what I say, without producing my vouchers, will pass for law.” vouchers he has produced to the best of his ability. client now rests with the jury.

The

The fate of his

“Upon you,” said Wilson, speaking in

weighty cadences, “will depend whether the prisoner at the bar shall be remanded to the place from whence he came, and from thence to be carried to the place of execution, there to hang between heaven and earth as if unworthy of either; or whether, acquitted by your verdict, he shall be released from his confinement and restored with joy and safety to his friends and country.

I hope and pray, in his behalf, that the latter may be

the case.”7 There is no record of the fate of Wilson’s client.

Perhaps he was

“restored to his friends and country” by his young attorney’s eloquence.

CHAPTER III

A Venture in Journalism and a Venture in Love

Wilson’s law career had made discouragingly little progress by the end of 1767.

He could argue cases before most of the inferior courts of the

province, but he had few cases to argue.

Before he left Philadelphia,

he and Billy White had decided to combine their talents in the character of a pseudonymous columnist named the Visitant who would be the mirror of polite life, gentility, and good feeling.

Wilson’s scanty law practice

left him plenty of time to join with White in the projected collaboration. The Visitant began to appear in the Pennsylvania Chronicle on the first of February, 1768.

The opening sentence gave evidence of how far Wilson

had come from the sombre teachings of Dr. Boston and James Hervey. “Our happiness . . .” it read, “is the final end of our existence.”

It was the

purpose of the Visitant to inquire how happiness might best be achieved. The writers wished it to be understood at once that in the character of the Visitant they were men of the world.

“Though my reflections are

sometimes abstracted, my disposition is easy,” the Visitant announced.

“I

am inclined to view every thing in the most agreeable light. ... I conform myself to the temper of my company. . . . With the cheerful, I am gay; . . . with the witty, I am smart.

I talk of state affairs, with the politician;

of commerce, with the merchant; of trifles, with the coquette; of divinity, with the parson. ... I am happiest in small companies; and those, I think, are best when they are composed of near an equal number of both sexes. . . . One particular more in my disposition I must mention, because it is a particular, on which I greatly value myself—I prefer the conversation of a fine woman to that of a philosopher.” Two weeks later the essayists elaborated what was to prove their most successful theme—sex.

The Visitant acknowledged that in his search for

JOURNALISM AND LOVE

33

worldly experience and refined company he was obliged “to frequent the company of the Fair Sex,” and must indeed confess himself something of an expert on their “foibles” and “excellencies.”

“I have acquired a

general acquaintance among the Ladies,” the Visitant declared, “and the veneration I always discover for them, encourages my fair companions to express their sentiments more freely.” These “sentiments” he has found to be eminently “plain, agreeable and just.” The fact is that the qualities of the feminine mind are all too seldom appreciated.

The members of the fair sex are often condemned to be mere

adornments and playthings for male vanity, their real merit concealed by fripperies and fashionable poses adopted to please callow men. Apparently the character of the Visitant that the authors had so dashingly projected in their first essay was less congenial with their own interests and attitudes than they had anticipated.

They turned in their

next column from “politeness” to more serious speculations about man and society.

“Nature does nothing vain: She does nothing cruel.

ends are wise and good:

All her

All her means are proper and conducive to her

ends. . . . She does not preclude us from pleasure and conveniency; but she has rendered a vigorous exertion of our faculties requisite before we can enjoy them.”

Could these be the speculations of a Scot raised in Calvin¬

ism and a young divinity student who would some day be the Bishop of Pennsylvania?

The sentiments smacked far more of the sociologists of

the Scottish Enlightenment, such men as Sir James Stewart, the political economist, and Francis Hutcheson, the moral philosopher. It is our wants that have drawn us into society, they continued. Our desire to satisfy our wants has been the stimulus to civilization.

The more

we want, the more we seek to gratify those wants, the higher we ascend in the scale of civilization and culture.

This bland reference to a kind

of progressive teleology in the historical process itself is a good index to the extent to which Wilson and his friend had saturated themselves in the new ideas of the age. Having taken a flyer in the new sociology, the Visitant stepped, per¬ haps reluctantly, back into character with an essay on modesty, without which “even our good qualities become odious, and virtue is nothing but a name.”

And here the authors had special words of reproach for flirts

and coquettes who played a heartless game with the affections of their admirers.

These cruel damsels were traitors to their sex.

34

JAMES WILSON The ladies of Philadelphia were prompt to welcome the good offices

of the Visitant.

While they speculated on the identity of their champion

over tea cups, one of their number replied to him in verse: Hail candid, gen’rous man, whoe’er thou art; Thy sentiments bespeak a noble heart. . . . Thee, who canst give to virtue praises due, We safely trust to lash our errors too. No keen reproach from satire’s pen we fear, Of little minds, or painted toys to hear. You, Sir, with better sense, will justly fix Our faults on education, not on sex; Will shew the source which makes the female mind So oft appear but puerile and blind; How many would surmount stern custom’s laws, And prove the want of genius not the cause; But that the odium of a bookish fair, Or female -pedant, or "they quit their sphere,” Damps all their views, and they must drag the chain, And sigh for sweet instruction’s page in vain. But we commit our injur’d cause to you; Point out the medium which we should pursue. . . -1 Essays in defense of the fair sex continued through March, interspersed with observations on masculine dress, on courage, and on other manly virtues.

Departing for Carlisle to appear as the defendant in the Court of

Nisi Prius, Wilson left behind several columns concerned with weightier matters—the nature of reality, the problem of knowing, the great moral lessons of history—these were the real interests of the young author.

In

the Chronicle of April 25, the Visitant offered a learned discussion of the nature of mathematical and moral evidence.

Mathematical knowledge is

not received by the senses but rather proved by them.

“In moral subjects

the mind has not such a certain standard; there are numberless passions and prejudices to warp the judgment.”

It is thus “absolutely impossible,” the

Visitant declares, because of the weakness of our minds, to have a clear perception of moral truths.

“The most important moral truths are dis¬

covered not by reasoning, but by that act of the mind which I have called perception.”

We can, to be sure, grasp certain very simple moral truths,

but with truths of any complexity, the difficulty is vastly increased.

“Our

fullest evidence therefore is in the most simple truths, but reasoning is very fallacious, for every step leads us into danger, and by one false step we are irrecoverably lost.”

JOURNALISM AND LOVE

35

One remedy that the writer suggests for the difficulty of handling moral perceptions is to have strict and generally agreed upon definitions, “setting down that collection of simple ideas which every term shall stand for, and then using the term steadily and constantly for that precise col¬ lection.” The two journalists must have received

special

pleasure from

the

rumors that ran through Philadelphia about the authorship of the Visitant’s column.

The names of half-a-dozen of the literary lights of the Province

were whispered about as the anonymous author. Galloway, famous for his wit and learning.

Some suspected Joseph

Others offered their own

candidates, but Wilson and White preserved their secret.2 From speculations on the theory of knowledge the Visitant advanced to the topic of history.

It was obvious that the writer was thoroughly

familiar with Lord Bolingbroke’s Study of History and his famous character¬ ization, borrowed from the ancients, of history as “philosophy teaching by examples.”

The uses of history were eminently practical, for the man who

knows history, the Visitant pointed out, “already knows mankind in theory, and, for this reason, will be in less danger of being deceived by them in practice.” On the 16th of May, the Visitant made his last appearance in the Chronicle.

With a noble effort the authors brought their attention back

to “female charms,” dress, fashion and the haut monde. that the two essayists had exhausted their repertoire. was beginning to absorb more of his time.

It may have been

Wilson’s law practice

The observations on the fair

sex which had met with such a ready response could not be prolonged forever.

The more serious observations on epistemology and history were

hardly suited to the character that the Visitant had assumed in his initial appearance and were undoubtedly less congenial to the readers of the Chronicle than the Addisonian essays on polite manners.

The authors

had had the immense pleasure of seeing their productions in print for almost four months, and they were perhaps beginning to feel the un¬ comfortable pressure of meeting deadlines. John Dickinson’s Farmer’s Letters began to appear in the Pennsylvania Chronicle at the same time as the columns of the Visitant.

Dickinson’s

temperate but unflinching espousal of the cause of the colonies was an immediate hit.

The Letters captured the mood of the time, devotion to

the King, and pride in the Empire, contrasted with a growing sense of America’s special needs and interests.

Dickinson’s arguments contained

36

JAMES WILSON

nonetheless a dangerous loophole for British dialecticians to wriggle through. He conceded to Parliament the right to control colonial trade.

Duties

could be levied for this purpose but not to raise revenue, for then such duties took on the nature of a tax.

Not until Tom Paine’s Common Sense

did a propagandist for the colonial cause touch so responsive a chord with patriots.

The Farmer’s name was on every tongue and his health was

drunk from New Hampshire to Georgia wherever friends of liberty gathered to affirm their solidarity. Perhaps it was his mentor’s spectacular rise to fame that inspired Wilson to try his own hand at arguing the colonial cause.

Whenever his practice

permitted, he gave his attention to a paper on the right of parliament to tax the colonies.

Mustering an overwhelming array of arguments against

the authority of the British parliament over the American colonies, he found that his logic carried him, when his paper was at last completed, a good deal beyond his master.

He sent the essay to White with the request that

he show it to Dr. Francis Alison, vice-provost of the College of Philadelphia and professor of “the Classics, Logic, Metaphysics, and Geography.”

Wil¬

son, who knew Dr. Alison from his term as tutor at the College, wished the opinion of the older man on the content of the paper and on the advisability of publishing it.

Billy White thought that the inquiry should have been

addressed to Dr. Ewing, professor of natural philosophy, who, in White’s opinion, would have been “a better Judge as to the Propriety of publishing it.” Dr. Alison had liked the piece, White wrote, but he would prefer not to see it printed until he could discuss certain revisions with the author. It was the hunch of Billy White, already wise in the ways of editors, that Dr. Alison didn t want the essay printed.

The Doctor pointed out that

the Farmer’s Letters had drawn a storm of criticism from certain quarters, and if Wilson published his more radical essay, he might, as a lawyer at the beginning of his career, suffer much from the disapproval of the Penns or of the Quaker oligarchy. World,

He was a young man “just coming into the

and a bold assault on the authority of Parliament would be certain

to make powerful enemies.3

While Wilson hesitated, perhaps a little un¬

nerved by Dr. Alison’s arguments, the non-importation crisis passed and he laid the essay aside. Thus Wilson’s effort to compensate for his self-imposed exile by startling

cognoscenti of Philadelphia with a brilliant exposition of the

colonial cause came for the moment to naught.

When his essay did see

JOURNALISM AND LOVE

37

the light of day, in 1774, as “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament,” a large segment of patriot opinion was abreast of it; it startled no one, though it helped to mark its author as one of the ablest colonial dialecticians. From Reading, Wilson carried on by mail his dispute with White over the Establishment.

He could not resist the impulse to jibe at his friend

about the iniquity of bishops but White was ready in rebuttal.

“You seem

to triumph in your Demonstration about the Deuce and the Devil,” he wrote back to Wilson.

“Further may I argue that you are presbyterianized

into an uncharitable Temper. . . . You unhappily mistook a poor harmless [bishop] for the very Devil.

In the same Manner those Writers think

they argue against Bishops, while they rail at the Devil and devilish Actions.”4 Wilson’s law practice continued to grow rapidly.

In the August, 1768,

term of the Court of Common Pleas at Reading, he had appeared in four¬ teen cases.

They were to be sure small cases for small fees, but their total

was impressive for a novice.

Wilson was beginning to be recognized as

an able young lawyer. Perhaps through the good offices of Nicholas Wain, Wilson received a commission a few months later that pleased him.

Deborah Franklin, wife

of Benjamin, sent the young lawyer her power-of-attorney to collect a debt of ,£I04 owed her husband by the estate of William Maugridge of Reading. Benjamin Franklin was in England on the business of the colonies and Wilson was directed by Deborah to recover the debt from Maugridge’s daughter, who had married a man named Drury, a Reading innkeeper. Wilson collected the debt and evidently did so with skill and tact, for the Drurys retained him thereafter as their own lawyer.5 In the February term of 1769, James Read listed Wilson’s name in the appearance docket of the Court of Common Pleas as attorney in twentyeight cases.

In addition, Wilson argued a number of cases in Carlisle

in the same term, and in April traveled to Philadelphia with Robert Magaw, a friend from Carlisle, to be admitted, under the sponsorship of John Dickinson, as an attorney before the Supreme Court.

When Wilson

returned to Reading for the May term of Common Pleas he was retained in thirty-five more cases, in one of which he was attorney for the plaintiff against two of the local panjandrums, Colonel Patton and Mark Bird. Wilson must have made a special effort to appear at his best, full of eloquence and dignity, for he had recently met the charming Miss Rachel

38

JAMES WILSON

Bird, step-daughter of the Colonel and sister to Mark, and he had already requested permission to visit her at the family estate at Birdsboro.

Promise

and address must take the place of family and fortune if he was to be favorably considered as a suitor for the hand of Rachel. Colonel Patton must have been impressed with the young lawyer’s skill; Wilson’s friendship with Rachel Bird grew, and soon he was spend¬ ing every moment stolen from the law with her at Birdsboro. her to play piquet and she beat him.

He taught

In Carlisle at the fall term of the

Court of Common Pleas, he longed to give her a second lesson and suffer a second defeat. Birdsboro provided a romantic setting for the charming Rachel.

In

front of the handsome stone house, the lawn ran gently down to the Schuylkill. feathers.

Peacocks strolled about furling and unfolding their elegant

Box-wood, clipped yew, and tall belvedere hedges prescribed the

formal paths that Rachel and her suitor might walk. where it joined the Schuylkill was a deer park.

Just across Hay Creek

Up the creek lay the iron

furnaces, and the labored breathing of the bellows that forced air into the charcoal fires drifted at intervals down the little valley.

At night when

molten iron ran from the throat of the furnace, sparks leaped to the tree tops and vivid red light blazed against the hillsides that rose above Birdsboro. Gradually Wilson’s interest in the distracting Rachel took possession of him. tained.

He was in love.

The staggering fact could no longer be con¬

Visiting Rachel, he blurted out his feelings.

him demurely.

Rachel answered

“I am much obliged to you for the good opinion you hold

of me,” she declared.

“Indeed I do not know of a gentleman of whose

friendship I would be more glad than I would of yours.

Your frequent

visits give me pleasure, but you must visit me in the character of a friend and not in that of a lover, for I do not propose to marry.6 This reply the Visitant, infinitely wise in the ways of women, chose to consider simply as a standard move in the ritual of courtship. The next time he rode out to Birdsboro he chided Rachel gently on her determination to be an old maid.

Pluto had assigned spinsters a

special office in his kingdom, he reminded her. Her response caught him quite off guard. replied,

“Indeed, Mr. Wilson,” she

I know not how it may be with other girls in pretense, but it is

a serious matter with me,” and then Rachel lectured her suitor, as he later wrote to White, “with some of the finest observations I have ever

JOURNALISM AND LOVE

39

heard on the dangers of the married state and the source from which those dangers arose.” unpersuaded.

But if his head was convinced, his heart remained

He would, he declared, continue to visit her as a lover and

would never visit her “in any other character.” Then, Rachel said, she would not see him at all.

But she relented

and he continued to call, to play piquet, to walk with her about the spacious lawn, to sit in the shaded living room, trying to turn the conversation into a personal channel and she to avoid it. Indeed Rachel remained so cool that the young Scottish lawyer felt it was a minor triumph when, “after some sweet reluctance,” she gave him permission to write her while he was away on legal business.

Exercising

his franchise at once, he wrote, “By this means, when I cannot experience the joy of seeing and conversing with the dear object of my affections, I can at least think of her and impart my thoughts by that method which was invented ‘for some lover’s aid.’ ”7 Love cast a warm glow over everything when he was with her, and he was full of wonder at the way in which “a thousand little trifles which are wholly unentertaining and indifferent to others become so many sources of delight to those who love.”8 When he was away he wrote Rachel long, ardent letters, saying what lovers always say, begging for “some distant hint” that he “need not de¬ spair,” pointing out that she herself had admitted that “the married state may be a happy one.”

“Why are you afraid of it?” he asked.

lightfully would I run the risk with you.”

“How de¬

Separated from her, his thoughts

were often drawn from the details of disputed land titles to “the thousand graces and sweetnesses that every moment shine in your behavior. . . . Do you think favorably of me:

I will do all in my power to deserve it,”

he assured her. Finally he could stand the torment of uncertainty no longer. must have an answer, yes or no. end the pain of doubt. “imprudent ardour.”

He

He rode out to Birdsboro determined to

Love had destroyed caution, and he spoke with an

Even a refusal, he declared, would be better than the

suspense in which he had lived for months. Then a refusal it must be, but a refusal “attended with so much kind¬ ness and good nature” that the despairing lover “could not forbear be¬ lieving she meant yes when she said no.” To soften the “no” she offered him again the immemorial sop to

4o

JAMES WILSON

disprized lovers—friendship—declaring with downcast eyes that although she could not consider marriage, they must always be “good friends.” This was the crumb of consolation he must feed on.

Rachel certainly

had in her disposition something of the flirt, but she must have been in love with the young Scot, for the bitterness of her refusals was always tempered by “the most bewildering sweetness.”9 By December of 1770, Wilson had been courting Rachel for over a year and things seemed no nearer the resolution he desired than at the beginning of his courtship.

Wilson wrote for advice and consolation to

that other prominent authority on women’s foibles, Billy White.

The com¬

ponent parts of the Visitant were suffering, it turned out, somewhat similar anguish at the hands of that same fair sex they had so recently championed in the pages of the Chronicle.

They had indeed warned young ladies

against coquetry and flirtatiousness; their own warnings, if they remembered them, must have echoed hollowly in their ears.

Certainly the two young

men had dared fortune by posing as experts in the dark and impenetrable science of the female temperament. Wilson confided to his friend that he could account for Miss Bird’s behavior on only three suppositions:

“he had frightened her by his ardour;

she was sincerely opposed to marriage; or she had simply acted like some foolish unfeeling girls [who] make it their business and pleasure to draw in admirers, to encourage their addresses, and afterwards when they think them in their power, to mortify them by a refusal.”

In other words Wilson

was tormented by the suspicion that his beloved Rachel was the same kind of heartless flirt that he had admonished in the character of the Visitant. Only Billy can help him in his dilemma. Rachel has gone to Philadel¬ phia for a visit, and Billy’s fiancee, Mary Harrison, is a close friend.

She

can make discreet inquiries and discover Rachel’s true feelings towards her suitor.

But Rachel must not suspect that the inquiries are inspired

by Wilson.

“Let me know by the first opportunity (you must guess I

am all impatience) if she is at Philadelphia and when you expect to see her.

White must not even mention receiving a letter from him, or

Rachel may suspect some connivance.

“You may say,” the plotter writes,

“that you had a letter from me two months ago telling you that I was in love with her, or that you have heard it by other means.” Wilson closes the letter with a plea for speedy action.

“You cannot

imagine, Billy, what uneasiness I have felt, since I first offered my address

JOURNALISM AND LOVE to this (what epithet shall I give her?) girl.

4i

I think I have as much resolu¬

tion and self-command as most people have; but here I confess I am at¬ tacked on my weak side.

Love enervates and softens the heart; and renders

it incapable of collecting itself to oppose subtile efforts.”

He has little

hope of regaining his “former composure” until he hears from his friend. “Delay not a moment,” he urges him, “to write me your success.”10 Billy White was preparing to go to England to complete his divinity studies and take orders as an Anglican minister when Wilson’s letter ar¬ rived.

His intercession for his friend crowded his last days in the city, but

it bore fruit. Rachel.

Wilson was encouraged to continue courting his reluctant

And she could not hold out forever against her suitor’s Scottish

persistence.

Although Wilson moved to Carlisle in the fall of 1770 on

“the prospect of much greater business,” as he wrote White, he continued to besiege Rachel with ardent letters and reinforced these with flying trips to Birdsboro.

At last she consented to marry him and the wedding was

set for the fall of 1771. Now that he had Rachel’s consent, Wilson bought a house and lot in Carlisle on the corner of Penn and Hanover Streets, a block from the court house.

When a young lawyer friend of Wilson’s, Ephraim Blaine,

prepared to ride into Philadelphia to get his commission as sheriff for Cumberland County, Wilson prevailed on him to deliver a letter at Birds¬ boro on his way back.

“Such furniture as will be absolutely necessary,” he

wrote Rachel, he would order in Carlisle from the local cabinet-maker, but these rather simple pieces would, he promised, be embellished by elegant chairs and tables, curtains and rugs chosen by her in the best Philadelphia shops.11 On one article Wilson indulged himself.

Isaac Bachmann of Lancaster

was the finest cabinet-maker west of Philadelphia.

Wilson was determined

to get Bachmann to make him a handsome bookcase to fit on top of his desk.

He had seen such desks in the homes of wealthy Philadelphians.

The one at the Chew’s estate at Clevedon had a bust of Voltaire in the broken pediment at the top of the bookcase.

Bachmann was a cabinet¬

maker, not a sculptor, but Wilson prevailed upon him to attempt a head of William Penn for the pediment of his desk.

The result was engaging.

The pediment was carved with a lavish richness of classical ornament. From it the head of Penn looked down with pursed mouth and narrowed eyes, the earnest work of an amateur hand.

To the sophisticated it might

appear simply and crudely done, but there were no sophisticates in Carlisle,

JAMES WILSON

42

There it was looked upon as a magnificent adornment to a handsome desk.12 Caught up in the long anxiety of his courtship, and trying to keep pace with his growing law practice, Wilson neglected to write home for months on end. Finally Alison Wilson, impatient for news, sent a letter up¬ braiding him for his long silence. She was troubled, too, about the stories that reached Fife of his growing prosperity and success.

It meant that the

temptations and distractions of this world would crowd in on him more insistently than ever to the peril of his soul.

So she must “Exhort you

above all things to make Sure an intrest in Crist as your all and onley trust for time and Eternity.”

“You will find,” she warned him, that “the

best things ever you did will yaeild you no Comfort in a deying hour none but Crist.”

Wilson must read James Hervey and Dr. Boston and

hold to their faith.13 That Wilson was less than dutiful in writing to his mother was owing, in part at least, to the fact that he was moving further all the time from the strict theology that sustained her.

More than that, perhaps, was his

sense that all he was building meant to her only the vanities of the flesh and the temptations of the devil. gagement.

He did not even write her of his en¬

She would have no joy in it.

To her it would only make the

possibility of his return more remote than ever. James Wilson and Rachel Bird were married November 5, 1771, at St. Gabriel’s Episcopal Church, across the river from Birdsboro.

The

marriage of the young heiress of Berks County brought the wealth and fashion of the region to the little church on the banks of the Schuylkill, to be ferried from thence to a reception amid the peacocks, deer, and box¬ wood hedges of Birdsboro.

CHAPTER IV

Lawyer and Revolutionary Pamphleteer

The Carlisle

to which Wilson had moved in 1770, although the county

seat of Cumberland County, was still a frontier community.

Near LeTort

Springs in the 1740’s a group of settlers had laid out the town in blocks, bounded by North, South, East, and West Streets. Where Hanover and Main intersected, Central Square made a focus for the life of the town. During Pontiac’s Rebellion, six years before Wilson’s arrival, Carlisle had been the bastion of the Pennsylvania frontier, serving as a base for General Bouquet’s expedition against the Indians. The town lay in a wide valley, and travelers approached it through desolate farms, scabby acres with girdled trees standing in the midst of grain, the houses mere windowless shacks, dark and evil-smelling.

A few

miles outside the town the appearance of the countryside changed radically. The road ran here through broad, fertile fields with sturdy barns and stout fences.

These acres belonged to the substantial citizens of Carlisle, most

of whom lived in the town and directed the tenants or Negro slaves who worked their farms. In spite of its stone houses, built of limestone quarried in the Square, Carlisle in 1770 had a disheveled, unfinished air.

The streets were thick

with dust until a sudden storm turned them into a quagmire, and through them passed a tide of settlers moving westward.

Tough wagoners, whose

small wiry horses drew unwieldy carts, mingled with families of ScotchIrish moving out toward the forks of the Ohio.

Drovers with herds of

scrawny cattle or flocks of sheep passed prosperous farmers traveling in some style to broader acres beyond Shippensburg.

A couple driving a

bony cow that doubled as a pack animal glanced scornfully at a wife and

44

JAMES WILSON

husband who carried their worldly possessions in untidy bundles on their backs. All this migrant humanity eddied around the Carlisle Court House and through the unkept Square where pigs lay in muddy holes and thin, fugitive chickens pecked about or fled squawking from beneath horses’ hoofs. The ratio of taverns to settlers was higher in Carlisle than in Reading, and life, if possible, even more crude and violent.

Yet the Court House,

an imposing brick structure, and the two churches, Anglican and Presby¬ terian, that faced it across the Square symbolized the rule of man’s law and God’s law in the town.

And just as in Reading, there were a number

of solid and influential citizens who ran the town with a proper concern for order and justice.

Of these the most prominent was John Armstrong,

a lawyer and a judge in the Court of Common Pleas.

Armstrong had

helped to survey the site of the town, and afterwards his exploits in the French and Indian War had won him the title of “Kittanning Jack.”

It was

he who had persuaded Wilson to establish himself at Carlisle.

Judge

Armstrong, a Scot himself, had observed his young compatriot arguing cases in the Cumberland Court with skill and learning.

He promised

Wilson, if he would remove to Carlisle, a portion of his own lucrative practice. The opportunity was a splendid one for Wilson.

He could at one

time get out from under the shadow of his seniors in the Reading bar, and move, with the most favorable sponsorship, nearer the frontier where lawyers were scarce and land litigation was apparently endless—as though the Almighty had devised it expressly to nurture a generation of young Pennsylvania attorneys. John Montgomery, another of Wilson’s sponsors, was typical of the town’s oligarchy.

He was an Ulsterman who had been among the town’s

original settlers, and his house, Happy Retreat, was a rallying place for men of substance.

Montgomery’s six horses, four cows, three sheep, and

his wide acres that stretched along the outskirts of town made him one of Carlisle’s wealthiest citizens and indeed one of the most prosperous men in Cumberland County. Dr. William Irvine was another Scot, an early settler whose affluence was attested by his gracious style of living and the services of a Negro slave.

William Thompson, likewise a native of Scotland, was a well-to-do

farmer who played an active role in Cumberland County affairs.

George

LAWYER AND PAMPHLETEER

45

Stevenson, with three Negro slaves, ranked as the town’s largest property owner, and an important member of the ruling group. In every frontier community, the most essential task was to impose form on the chaotic elements that swirled around and through it. The land problem—who owned what acres—was simply another manifestation, if perhaps the most dramatic, of the problem of order.

Law was form and

in the several decades preceding the American Revolution, the founders and first citizens of frontier communities almost invariably became lawyers, because by so doing they were able to bring the whole awesome weight of English law to bear on the intractable and anarchical forces of the frontier. All the human energies and resources of the backcountry were absorbed in the immense task of integrating vast land spaces into the narrow structure of colonial English society without disastrous dislocations. yer both lived literally “off the land.”

Farmer and law¬

The frontier lawyer, often a farmer

himself, was the principal instrument of a ruling class, charged with superintending the orderly digestion of hundreds of thousands of new acres in the west.

The Proprietary party was the conscious sponsor of

the frontier lawyer. If the first generation, consisting of men like Armstrong and Mont¬ gomery, was very crudely trained in the law with only the most rudimentary mastery of their profession, the young Philadelphia-trained lawyers whom they recruited to their ranks in the 1750’s and 6o’s brought with them a respectable knowledge of English law and a thirst for theory that was stimu¬ lated by the Revolutionary crisis with Great Britain. Robert Magaw and James Wilson were just such young men, enlisted by the town’s elders to take from their shoulders some of the law business that threatened to inundate them. Besides Robert Magaw, Wilson found an ally in another Scottish im¬ migrant, who had established himself in Carlisle.

Thomas Smith, half-

brother of Provost William Smith of the College of Philadelphia, was a thoroughly entertaining and eccentric companion, whose rough tongue and uncouthness of dress and manners marked him in any group.

Horace

Binney recalled seeing Smith at a meeting of fellow lawyers, his wig caked with powder and pomatum, “a part of which had run down in white streams upon a face [which was] as red in all the unplastered parts as a boiled lobster.”

Even in the hottest weather Smith wore immense boots,

spurs, and a huge, broad-skirted coat.

The two transplanted Scots found

much in common and they often traveled the circuit together.

46

JAMES WILSON Another young recruit to the legal fraternity of the town was Ephraim

Blaine, an astute and ambitious politician and an able lawyer. Wilson was rapidly inducted into Carlisle’s small “board of directors.” As the Revolutionary crisis developed these men guided the political af¬ fairs of Cumberland County with firm hands and joined with their col¬ leagues in other towns to form a province-wide revolutionary organization. The same men remained in control of the county until they were drawn off as soldiers and politicians to take their places in the Continental army and in Congress.

When they moved on to the larger stage of intercolonial

affairs, they left behind them a power vacuum which was rapidly filled by a frontier group that had already grown restless under their domination. The new party of the frontier was an indigenous one that had no entangling alliances with the ruling parties of Quakers or Proprietors in the east. Their interests were exclusively western and their objective was to wrest power from those who held it.

The fact that they succeeded left its im¬

print on Pennsylvania politics for years to come. With this impressive sponsorship it is hardly surprising that Wilson’s success in Carlisle was immediate.

In the October, 1769, term of Common

Pleas he appeared in twenty-three cases.

He must have made a favorable

impression, for in the next term of the court he had more than forty-eight cases, and in April, 1770, he outdistanced his most formidable rival, Robert Magaw, with fifty-three out of a docket that numbered barely a hundred. His reputation reached as far as Philadelphia.

Robert Morris and Thomas

Willing, partners in one of the largest trading companies in the colonies, chose Wilson to appear as their attorney in an important land case. Wilson’s practice in Carlisle represented only a portion of his legal business.

With Magaw, Smith, and the other young Carlisle lawyers he

traveled to the adjacent county courts in each term to handle cases in neighboring jurisdictions. He appeared in cases in Lancaster, Reading, and York, and at the January, 1771, term of the Cumberland County Court at Carlisle he was involved in eighty cases. The Provincial court of appeal, and in some cases of original juris¬ diction, was the Supreme Court of the colony. When Wilson began his law practice, William Allen, a member of the powerful Allen clan, closely allied with the Penns, was chief justice of the Supreme Court.

Beginning

its sessions in Philadelphia in early April, the Court then went on circuit to bring the Proprietor’s justice to the frontier settlements.

From Phila¬

delphia it moved to York, thence to Lancaster in June, on to Reading and

LAWYER AND PAMPHLETEER

47

Carlisle, from there to Chester, and then back to Philadelphia for the September session of the Philadelphia County Court. The circuit of the Supreme Court had a social as well as a legal character.

With the justices rode a retinue that included the clerk of the

court and a number of prominent lawyers.

Benjamin Chew, the King’s

attorney in the colony, Joseph Galloway, Quaker lawyer and legislator, John Morris, one of the leaders of the Philadelphia bar, and John Dickinson traveled in this high company.

When the justices and their party reached

a county seat, the whole group would be royally entertained by the local bar with many toasts and much conviviality. The circuits helped to form the lawyers into a kind of sub-society, a group with, for the most part, common interests and attitudes that were strengthened by strong bonds of friendship.

The Carlisle lawyers knew

their colleagues from the counties of Berks, Chester, Lancaster, York, and Bedford.

Most of them had received their law training in Philadelphia,

many from the same masters, and they doubtless on occasion shared the same bed in crowded inns. of family and friendship.

All were bound to the capital city with ties As the revolutionary agitation developed, the

lawyers drew closer together, turning their informal professional relations into a political association. The policy of the Penns in their struggle with the Quaker oligarchy had been a shrewd one. They had bound many of these able young lawyers to their cause by dispensing such political plums among them as the jobs of prothonotary and deputy surveyor, and by giving them first choice of new lands opened for settlement.

Among Wilson’s friends, Arthur St.

Clair was made prothonotary of the new county of Westmoreland and Thomas Smith was appointed prothonotary, clerk, and recorder of Bed¬ ford.

In the same spirit Armstrong and Montgomery received large parcels

of land in the pre-public distribution in 1768.

This program not only

strengthened the hands of the Penns against their Quaker enemies, but made their proteges reluctant to take the final step toward independence in the Revolutionary crisis. In the winter of 1771 Mr. and Mrs. James Wilson were at home in their new house on Penn and Hanover Streets to receive the calls and con¬ gratulations of friends.

John Dickinson, who only a year earlier had

himself married an heiress, wrote in December to congratulate his former apprentice.

He would have written sooner, he assured Wilson, but his

wife had recently presented him with a little girl, “as hearty as if she had

48

JAMES WILSON

been born in the Highlands of Scotland.”

For James and his bride, the

Farmer wished “the best delights of that best state, and that you may long enjoy them.”1 What with furnishing the new home and directing a household of her own, there was little opportunity for Rachel to speculate on the hazards of marriage. In the winter and spring of 1772 her husband was busier than ever with his rapidly growing practice.

He covered the terms of the county

courts and rode with the Supreme Court on its spring circuit.

Rachel was

pregnant and Wilson spent with her what time he could steal from the circuits. His growing prosperity was reflected in his purchase of two horses to carry him about his business and a cow to provide Rachel with fresh cream and milk. Although Wilson had not written his mother, word of his marriage had reached her by some one of the numerous friends and relatives who traveled back and forth between Pennsylvania and Fife, and made, by their constant peregrinations, news from Cumberland almost as fresh in Caskardy and Coul as it was in the counties of York or Berks. Alison Wilson wrote to remind her son that she had predicted he would prove a poor correspondent, “that al communication” would be “broken up.”

She had heard of his marriage, and now she knew that he

would never return to Scotland. “O, Jamie,” her heart cried out to him in the old refrain, “mind much the things of another world . . . you’ll find this world and all its Glory but a meserable comforter to you. . . .” She must also remind him that things are hard in Coul.

“I thought

you might have minded it and pay the monie you Borrowed so soon as in your Power. . . .” To which reminder, the scribe, Wilson’s brother William, had added, were it in your power to send home the payment of the money you took away with you it would be very acceptable as those from whom you got it is surprised that you never paid them or at least wrote them a letter of excuse.”2 Wilson, always short of hard cash, had neglected his debt to his family and friends in Scotland, perhaps with the excuse to himself that he would soon be thoroughly established and able to pay off his obligations without putting himself in debt.

He saw his cousin, John Annan, brother

of his benefactor Robert, as he was about to leave for Fife and gave him a draft of fourteen pounds thirteen shillings for Alison Wilson.

In a sudden

spasm of filial feeling and responsibility, he told John Annan that he planned

LAWYER AND PAMPHLETEER to settle an allowance on his mother for her lifetime.

49

He would also send

his brother William a draft soon for the money he owed him. When John Annan delivered his charge, Alison Wilson dictated a reply at once for him to bring back to her son in Carlisle,

The letter was

full of complaints against her sons and daughter. They have all abandoned her, she declares.

John, the only one who was ever kind to her, is dead

now, drowned in a flash flood.

The others have turned her away from

their doors, and she lives at present with her widowed sister.

“Jamie,”

she ends, “it is but little I can say to you but you are on my mind night and day. . . .” William, who had patiently transcribed his mother’s complaints against her children could not refrain from a most human postscript. “You have on the other side,” he wrote, “a letter from our Mother ... in which she very breefly exclaems against her good sons and tells there usage to her but neaver a word of hers to them; but as it is neither entertaining nore agree¬ able [I] shall not insist upon it, only let it suffice that her long destress has altered her temper much and makes her more fractious then she was formerly.” William adds that he has heard with “unspeakable joy” John Annan’s account of Wilson’s marriage, “and also of your success in the American world.”3 The first child of James and Rachel, a girl, was born in September, 1772.

She was christened Mary but her mother and father called her Polly.

The year 1773 was, for Wilson, a year of intense legal activity.

His

law business, already large, grew enormously, and in addition he was in¬ volved in the acrimonious dispute over the Pennsylvania-Virginia border. Mason’s and Dixon’s Line, run in 1767, extended only as far as Maryland's western boundary.

Beyond lay a region drained by the Monongahela and

Youghiogheny Rivers which was claimed by both Virginia and Pennsyl¬ vania.

Westmoreland County, with Arthur St. Clair as its prothonotary,

had been created to meet the threat of Virginia’s West Augusta County. The region from Laurel Hill west to Fort Pitt thus had two competing administrations, and irregular warfare between the Virginia and Pennsyl¬ vania claimants kept the territory in a turmoil.

Throughout the year 1774,

and indeed until the controversy was submerged in the larger issue of colonial liberties and parliamentary authority, Wilson acted as counsel and advisor for the officials of Westmoreland County, especially his friend St. Clair, in their nerve-wracking contest with the Virginia invaders.

5o

JAMES WILSON While Wilson was applying himself to his large frontier law practice,

the American colonies were moving rapidly toward a showdown with Great Britain.

In 1772, with the burning of the British ship Gaspe, the

final period of colonial agitation began.

Sam Adams organized that great

revolutionary instrument, the committees of correspondence, to encourage communication with patriots in every colony so that all might present a united front to the pressures of Parliament.

Virginia responded at once

with her own committee; and then in quick succession came the Tea Act, an effort to bail out the East India Company at the expense of the colonies; the Boston Tea Party, led by Sam Adams and the Sons of Liberty; and, following close on, the British response—the Coercive Acts, designed to bring rebellious Boston to heel.

The effect was quite different.

Adams’ committees had done their work well. of each colony were united in a common cause.

Sam

The principal patriots Other colonies came

promptly and generously to the relief of beleaguered Boston.

The reper¬

cussions were felt in every seacoast town and city and on the most remote frontier.

All Americans who cherished liberty equally with property im¬

agined that they felt the fetid breath of despotism upon their necks. In Philadelphia attention was focused on Wilson’s teacher, John Dick¬ inson.

His Farmer s Letters, his political power, his alliances with prom¬

inent Quaker and Proprietary families made him a key man in the province of the Penns.

But John Dickinson, with a Quaker wife and mother-in-

law to reinforce his natural distaste for militant action, preferred caution to valor.

It was left to young men like Charles Thomson, “the Sam Adams

of Philadelphia,” and his allies, Joseph Reed and Thomas Mifflin, to swing Pennsylvania into line behind Boston.

These patriots called a meeting at

the recently completed City Tavern on Second Street for the evening of May 20, 1774, to consider what action Philadelphians might take in support of their Massachusetts brethren.

Aware that they had no chance of rallying

support without the sanction of Dickinson’s presence, Mifflin, Thomson, and Reed rode out to Fairhill the evening of the meeting to persuade him to attend.

Once there they fortified his “weak nerves” by “circulating the

glass briskly.”

When at last he had reluctantly consented to appear at the

meeting, Reed and Mifflin dashed back to the city to announce the Farmer’s impending arrival to the crowd now waiting impatiently at the City Tavern, while Thomson stayed behind to prevent Dickinson’s wife and motherin-law from undermining his shaky resolve.

Just as the crowd was ready

to disperse Dickinson and Thomson appeared.

Wfiile Thomson, over-

LAWYER AND PAMPHLETEER

5i

come by the excitement and heat, fainted dead away, Reed got up and “urged the most spirited measures.”

This was done to set the stage for Dickinson

to make a speech urging moderation.

After Reed’s heated polemics, the

crowd grasped eagerly at Dickinson’s mild suggestion that the Governor be requested to summon the Assembly to deal with the problem of Boston and the Coercive Acts. dress to the Governor. gained.

A committee was appointed to prepare this ad¬ As Reed wrote later, “This . . . was a great point

It gave birth to a Public Body in appearance, and that once estab¬

lished by prudent management led to other open actions.”4 The City Tavern conclave also issued a call for a general meeting of citizens representing all groups in Philadelphia.

At a mass-meeting on

June 18th, presided over by Thomas Willing and John Dickinson, the Boston Port Act was declared unconstitutional and a committee of cor¬ respondence was appointed, with John Dickinson as its chairman, to sound out the “sense of the people.”

The hope was that by such means pressure

would be brought to bear on the Governor and Assembly to provide for the election of delegates to a Continental Congress. An even more vigorous meeting was held on June 28th, and a circular letter to the counties was pre¬ pared by Provost William Smith and John Dickinson, urging patriot leaders to rally the friends of colonial liberty in every town of the Province. In most instances the instructions went to county lawyers, who formed a closely articulated network for political action throughout the colony. These men formed committees of correspondence and assumed control of the Associators, the militia units that had been formed to repel the Indians. In Carlisle a meeting was called on the 12th of July.

The burghers

who crowded into the cool interior of the First Presbyterian Church placed John Montgomery in the chair and then lost no time approving the agenda that had been drawn up by Wilson, Magaw, Montgomery, Armstrong, and the other members of the town’s oligarchy.

The first resolution called for

a Congress of deputies from all the colonies to concert common action; the second for a policy of non-importation from Great Britain.

It was then

resolved that a committee be immediately appointed for Cumberland County “to correspond with the committee of this province, or of other provinces, upon the great objects of the public attention.”

To this committee the

meeting elected James Wilson, John Armstrong, John Montgomery, William Irvine, William Thompson, Ephraim Blaine, and Robert Magaw—the sub¬ stantial citizens of Carlisle, all of them lawyers except Irvine.

52

JAMES WILSON The meeting then proceeded to elect James Wilson, Robert Magaw

and William Irvine to be “Deputies appointed to meet the Deputies from the other counties of this province at Philadelphia, on Friday next, in order to concert measures preparatory to the General Congress.” The final resolve declared that “the late act of the parliament of Great Britain, by which the port of Boston is shut up, is oppressive to that town and subversive of the Rights and Liberties of the Colony of Mas¬ sachusetts Bay.”5

Although British tyranny was directed against the New

England colony, all shared the danger.

A blow at the liberties of one

weakened her sisters. Wilson and his fellow-delegates packed their saddlebags hastily and departed for Philadelphia, where delegates for the counties assembled in Carpenter’s Hall on the 15th of July.

When the three delegates from

Cumberland County entered the Hall for the opening session of the Pro¬ vincial Convention, they saw many familiar faces.

Besides his many friends

and acquaintances from Philadelphia City and County, Wilson greeted Richard Reiley, a young lawyer from Chester, George Ross and William Atlee from Lancaster, James Smith and Thomas Hartley, members of the York County bar, and Edward Biddle from Reading. The Convention opened its deliberations by solemnly affirming its al¬ legiance to his Majesty King George the Third. The idea of an “uncon¬ stitutional independence” was, the delegates declared, “utterly abhorrent to our principles.”

They had no greater wish than to see “perpetual love

and union” subsist between colonies and Mother Country. Yet the distressing fact was that the Acts of Parliament closing the Port of Boston, altering the administration of justice, and changing the constitution of the colony were unconstitutional, and the colonies had the unhappy duty of therefore opposing them.

The delegates then resolved

unanimously that “there is an absolute necessity that a Congress of Deputies from the several Colonies be immediately assembled ... for the purposes of procuring relief for our suffering brethren, obtaining redress of our griev¬ ances, preventing future dissentions, firmly establishing our rights, and restoring harmony between Great Britain and her Colonies on a constitu¬ tional foundation.” The delegates decided to prepare instructions for the Assembly which the Governor, harassed by Indian troubles on the frontier, had consented to call into session, and a committee composed of, among others, Wilson,

LAWYER AND PAMPHLETEER

53

Dickinson, Dr. William Smith, Joseph Reed, William Atlee, and James Smith was appointed to bring in a draft of such instructions. Two days later the Committee brought in its report for consideration. The lengthy document was divided into two sections—one devoted: to instructions to the Assembly and recommendations addressed to the Con¬ gressional delegates that were to be elected by the Assembly; the other, “the Argumentative part,” an exhaustive discussion of the constitutional issues involved. The Instructions and Argument together constituted one of the most erudite and detailed reviews of the American cause turned out by any colonial apologist.

John Dickinson was the author.

on the report since early in July.

The Committee was appointed simply

to give added authority to his handiwork. air of filial affection and moderation.

The Instructions breathed an

The colonists were dutiful sons

who recoiled from any suggestion of rebellion. on their “English” liberties.

He had been working

They stood firm, however,

“Honour, justice, and humanity,” Dickinson

declared, “call upon us to hold, and to transmit to our posterity, that liberty which we received from our ancestors. to our children:

It is not our duty to leave wealth

But it is our duty to leave liberty to them.

No infamy,

iniquity, or cruelty, can exceed our own, if we, born and educated in a country of freedom, entitled to its blessings, and knowing their value, pusillanimously deserting the post assigned to us by Divine Providence, surrender succeeding generations to a condition of wretchedness, from which no human efforts, in all probability, will be sufficient to extricate them.”6 If the objectionable Acts of Parliament are rescinded, the Colonists will undoubtedly be inclined to “settle a certain annual revenue on his Majesty, . . . and to satisfy all damages done to the East India Company.” The Argument ran to a number of pages and was decked in the most formidable array of scholarship.

Anticipating the doctoral dissertation

of a later day, a little stream of text meanders through thickets of footnotes. There are, indeed, footnotes to the footnotes, the whole quite overwhelming in its mass of learned citation and exegesis. Having been debated, amended, and approved by the delegates and signed by Chairman Thomas Willing, the instructions were presented to the Assembly as soon as it convened.

The Assembly acquiesced reluctantly

to the demand that it appoint deputies to a general congress and, determined to maintain firm control over Pennsylvania’s course in the projected con-

54

JAMES WILSON

vention, elected seven of its members as delegates.

Joseph Galloway, the

conservative leader of the Quaker oligarchy, headed the list which included Thomas Mifflin, George Ross, Edward Biddle, John Morton, and Samuel Rhoads. It was the intention of the more aggressive wing of the Provincial Conference to have Wilson and Dickinson included among the delegates to Congress, but the Assembly thwarted this plan by appointing the delegates from their own number.7 Perhaps inspired by John Dickinson’s report to the Provincial Con¬ ference, Wilson dug out the attack on the powers of parliament that he had written in 1768 and after refurbishing it to bring it up to date, en¬ titled it “Considerations on the Nature and Extent of the Legislative Au¬ thority of the British Parliament.”

He found a publisher in the firm

of William and Thomas Bradford, Printers, at the London Coffee House. Having surrendered his work into the hands of the Bradfords, Wilson must have suffered some incipient pangs of authorship. The essay constituted his first official public appearance.

It was his card of entry into the higher

circle of colonial leaders. If it were favorably received, it would mark him as a rising young politician.

At the same time it would undoubtedly

alienate many powerful leaders in the Province and might wreck instead of make him.

His arguments were sweeping and conclusive.

He had

denied the “legislative authority of the British Parliament over the colonies . . . in every instance." This was considerably further than Dickinson had

cared to go in his Instructions and Argument drafted for the Provincial Convention. With truly Baconian dialectic, Wilson declared in his opening para¬ graph that he had simply set out, in an impartial and scientific spirit, to trace some constitutional line between those cases in which we ought, and those in which we ought not, to acknowledge the power of Parliament over us.”

His discovery that Parliament had no right in any case was the

result, he assured his readers, of his careful researches and not in any sense predetermined.

He even went so far as to intimate that he presented

his conclusions a little reluctantly, like a scientist who has discovered an unwelcome truth and feels duty-bound to place his findings before the public, however unwelcome they may be.

In his studies he had found that

no line existed between those powers that Parliament could exercise and those that were denied it; “there can be no medium between acknowledging and denying that power in all cases.”

LAWYER AND PAMPHLETEER

55

It is the colonists who are acting in harmony with the British con¬ stitution. They are victims of the “detestable schemes of interested Minis¬ ters.” If the colonists can win back these rights to which they are en¬ titled “by the supreme and [unjcontroulable laws of nature, and the fundamental principles of the British constitution,” they will redeem the traditional liberties of all Englishmen. Wilson opened his formal argument with a quotation from Blackstone declaring that “Acts of Parliament, have, by the British Constitution, a binding force on the American Colonies, they composing a part of the British Empire.” This is only conditionally true, says Wilson, for “All men are, by nature, equal and free: No one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: Such consent was given with a view to ensure and to encrease 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.” Wilson then added a citation of Burlamaqui, the Swiss political theorist, from whom his concluding phrase was taken. It was Burlamaqui who had been one of the first to lay down as a basic principle that governments existed to promote the happiness of the governed. Thus if sovereignty fails “to procure real felicity,” in Burlamaqui’s words, it “ceases to be a legitimate authority.” “This rule,” Wilson wrote, “is founded on the law of nature: It must controul every political maxim: it must regulate the Legislature itself.” If it does not, the people become slaves. Wilson’s phrase, “All men are, by nature, equal and free” would appear in the Declaration of Independence two years later. The sentence was an early and vivid expression of the popular Lockean dogma. Wilson proceeded to trace the history of Parliament itself, enumerat¬ ing the safeguards that had been established to secure the election of that body from “the servility, the ignorance, and the corruption of the electors,” as well as from undue influence on the part of the crown. Frequent elec¬ tions remind the legislators “whose creatures they are; and to whom they are accountable for the use of that power, which is delegated unto them. The first maxims of jurisprudence are ever kept in view—THAT ALL POWER IS DERIVED FROM THE PEOPLE—THAT THEIR HAP¬ PINESS IS THE END OF GOVERNMENT.”

56

JAMES WILSON The early history of Parliament was that of alternating despotism and

anarchy.

Princes, barons, and priests took turns oppressing the people,

but with the appearance of the House of Commons a new era opened. Commons acquired the “indisputable and peculiar privilege” of granting taxes and “thus checked the progress of arbitrary power.” Wilson then undertook to demonstrate that the colonies, having no choice in the matter of parliamentary representatives, are not bound by the decisions of that body. “Are [the members of Parliament] elected by Americans?” he asked.

“Do they know the interest of the Americans?

Does their own interest prompt them to pursue the interest of the Amer¬ icans? If they do not pursue it, have the Americans power to punish them?” From what source does “this mighty, this uncontrouled authority,” claimed by the House of Commons, flow?

“Have they a natural right

to make laws, by which we may be deprived of our properties, of our liberties, of our lives? . . . What act of ours has rendered us subject to those, to whom we were formerly equal?

. . . Do those, who embark,

freemen, in Great-Britain, disembark, slaves, in America? ... Is this the return made us for leaving our friends and our country-—for braving the danger of the deep—for planting a wilderness, inhabited only by savage men and savage beasts—for extending the dominions of the British Crown —for increasing the trade of British merchants—for augmenting the rents of the British landlords—for heightening the wages of the British artificers?” If Parliament is to have power over the colonists, candidates for that body may win favor by advancing the cause of England over that of her colonies.

It is useless to believe that the legislators will be restrained

by appeals to their sense of duty or fair-play, or “their veneration for the dictates of natural justice.

A very little share of experience in the

world—a very little degree of knowledge in the history of men, will suf¬ ficiently convince us, that a regard to justice is by no means the ruling principle in human nature.

He would discover himself to be a very sorry

statesman who would erect a system of jurisprudence upon that slender foundation.” These are arguments enough to show “that it is repugnant to the es¬ sential maxims of jurisprudence, to the ultimate end of all governments, to the genius of the British constitution, and to the liberty and happiness of the Colonies, that they should be bound by the legislative authority of the Parliament of Great-Britain.”

LAWYER AND PAMPHLETEER

57

Wilson was prepared for the fact that his systematic destruction of the right of Parliament to legislate for the colonies might arouse objec¬ tions in the servile and mercenary who “would meanly bow their necks to every exertion of arbitrary power,” and that it may also alarm some who treasure the connection between Great Britain and her colonies. It is the latter group that Wilson wishes especially to reassure.

For them,

he will show “that a denial of the legislative authority of the British Parlia¬ ment over America is by no means inconsistent with that connexion, which ought to subsist between the Mother Country and her Colonies . . .; but that, on the contrary, that connexion would be entirely destroyed by the extension of the power of Parliament over the American plantations.” There is no relationship of superiority to inferiority, Wilson de¬ clares, playing on what was to become a favorite theme of his, in the re¬ lationship of Britain to the American colonies.

There is no “obligation”

on the part of the colonies to obey the Acts of Parliament because there is no “correspondent right!’

The colonists are not the creatures of Parlia¬

ment, “for the Commons of Great-Britain have no dominion over their equals and fellow-subjects in America.” What then, it may be asked, is the tie that binds American colonies to England? logic?

Are all bonds to be dissolved in the acid of the author’s

Wilson assures his readers that there is no such danger.

The

colonists owe “obedience and loyalty” to “the Kings of Great-Britain.” From the first the colonists have acknowledged their allegiance to the king, taken possession of the country in the king’s name, “held the lands under his grants, and paid him the rents reserved upon them: they es¬ tablished governments under the sanction of his prerogative, or by virtue of his charters. —No application for these purposes was made to Parlia¬ ment:

No ratification of the charters or letters patent was solicited from

that Assembly,

as

is

usual

in

England

with

regard

to

grants

and

franchises of much less importance.” Here then was the answer.

The colonists owed loyalty and allegiance

to the crown as subjects of the English king, equal before him with his subjects in England and entitled to the same rights of Englishmen en¬ joyed by their cousins who lived on the soil of the Mother Country. There was no chance that Great Britain would heed this voice of a colonial apologist, but in working out the relationship between colony and homeland Wilson foreshadowed the dominion status of the Empire colonies

58

JAMES WILSON

that became the official policy of Great Britain in the middle of the nine¬ teenth century. Wilson’s analysis was perhaps the most far-sighted, coherent, and logical that came from the pen of any colonial disputant in the years prior to the American Revolution.

The fact that it was first conceived in 1768

is testimony to his maturity of mind and dialectical skill.

At the time

of the Non-Importation Agreement, Wilson was only twenty-six years old, but his thoughts on the developing struggle with Great Britain were years ahead of those of most of his contemporaries. John Adams’ Novanglus, which appeared six months after Wilson’s pamphlet and advanced a very similar concept of imperial relationships, was apparently written by Adams shortly before it appeared in print, and Wilson may thus be credited with formulating the idea of dominion status six years ahead of his illustrious colleague from Massachusetts and some seventy years ahead of the British Foreign Office. Jefferson’s Summary View of the Rights of British America, drafted for the guidance of the Virginia delegates to the First Continental Con¬ gress, appeared about the same time that Wilson’s pamphlet was published. Penned, as Jefferson confessed, in haste “and with some uncertainties and inaccuracies,” it is not one of the great Virginian’s great documents.

The

Summary View while written with more skill lacks the logic and original¬

ity of Wilson’s essay.

Jefferson chose to scatter his fire in preference to a

concentrated blast, and his arguments are confused rather than strengthened by his astonishing eclecticism. Wilson’s work, however forceful, was certainly not without flaws. It had the vices as well as the virtues of his style.

It was perhaps too long; it

moved rather heavily from argument to argument; it was tainted with pedantry and more than a little colored by the author’s incurable dis¬ position to rhetorical embellishment.

Yet it remains one of the great

statements of the principles for which the American Revolution was fought. Proud of his handiwork, Wilson sent a copy to his friend and political ally, Thomas Smith, but Smith differed sharply from Wilson and, typically, did not hesitate to say so.

“Upon the Principles of Law, as far as I am

capable of judging,” he wrote, “you are certainly right, but how far, upon the Principles of Temporary Policy, such principles, may be avowed, I will not venture to give my opinion.

It will perhaps be the wisest System of

Policy that the Colonies can adopt at present, to Temporize a little and

LAWYER AND PAMPHLETEER

59

not now to insist too peremptorily on all those rights, which Time will both justify and enable them to do.”8 Wilson had hardly time to complete the fall circuits of the county courts and to spend a few weeks with Rachel, Polly, and his first son, six-month-old William, before he was chosen again, with Robert Magaw, as a delegate to another provincial convention in Philadelphia on the 23rd of January, 1775.

When the convention met, Wilson saw many of his as¬

sociates of the July conference.

John Dickinson was present, as were

Thomas Mifflin, Charles Thomson, several Cadwaladers, George Clymer, a handsome, florid man and an able Philadelphia lawyer, John Nixon, one of the leading merchants of the city, Jacob Rush, brother of Benjamin and a rising young attorney, Sharp Delany, the patriot druggist, William Bradford, another capable Philadelphia lawyer, and Joseph Reed who was promptly elected president of the convention. Anthony Wayne was back as part of the Chester delegation.

From

Reading there were Edward Biddle, Jonathan Potts, Mark Bird, Wilson’s brother-in-law, and his stepfather-in-law, Colonel Patton. The principal purpose of the convention was to put the stamp of ap¬ proval on the work of the Continental Congress.

Having done so, it passed

a series of resolves designed to stiffen resistance to Great Britain and to encourage the production within the Province of articles lost by the ter¬ mination of trade with England.

The delegates solemnly recommended

“the setting up of Woollen Manufactures in as many different branches as possible, especially Coating, Flannel, Blankets, Rugs, or Coverlids, Hosiery, and Coarse Cloths,” dye stuffs, hemp and flax, salt and saltpetre, nails and wire, steel, paper, glass and copper, tin, malt liquors, and of course printing types to turn out propaganda for the colonial cause.9 Mark Bird and Colonel Patton doubdess urged the resolution calling for increased production of nails and wire.

They had between them half a dozen new furnaces and

forges in operation or under construction. A convention without at least one oration would be an anomaly.

The

honor fell to James Wilson to address the delegates on the justice of the colonial cause and the tyrannies of Great Britain.

With his mentor in

the audience, Wilson reviewed the history of the developing crisis. “Whence,” he asked, “proceeds all the invidious and ill-grounded clamour against the colonists of America? and ungovernable?”

Why are they stigmatized in Britain, as licentious Actually the colonial resistance is motivated by the

60

JAMES WILSON

purest devotion to liberty.

Wilson insisted that “this ethereal spirit,” this

devotion, has only manifested itself in the most orderly and restrained fashion.

When, under the oppressive acts of the British Parliament, “the

spirit of liberty found it necessary now to act . . . she acted with the calmness and decent dignity suited to her character.” When the objectionable Stamp Act was repealed, the loyal colonists turned joyfully back to the Mother Country.

“Far from being peevish or

captious, we took no public notice even of their declaratory law of dominion over us.” Then came the Boston Tea Party and the repressive measures of the Coercive Acts that were designed to reduce a proud and liberty-loving people to serfdom.

These acts, directed ostensibly against Boston, were in fact a

treacherous blow against all the colonies.

They showed quite plainly how

Parliament intended to deal with the colonies whenever they showed a spirit of resistance to British tyranny.

The action of the colonists had been

simply to reaffirm their determination to cling to inherited British liberties and to take the required measures for their self-defense. “Are these measures, sir,” Wilson asked, “the brats of disloyalty, of dis¬ affection?

There are miscreants among us—wasps that suck poison from

the most salubrious flowers—who tell us that they are.” But only “the utmost malice brooding over the utmost baseness, and nothing but such a hated commixture, must have hatched this calumny.” The colonists are now at the crossroads; their cries for justice have been spurned.

Consider now what must be done.

Here Wilson launched into

a flight of oratory typical of the immense historic sense, the sense of destiny, that was so often present to him and his great contemporaries.

“Let us

pause,” he admonished the convention, “before we give an answer. . . . The fate of us; the fate of millions now alive; the fate of millions yet unborn depends upon the answer.” Having stressed the awful gravity of the moment, Wilson then of¬ fered his own resolution—that the acts of the British Parliament “for alter¬ ing the charter and constitution of the colony of Massachusetts Bay” are “unconstitutional and void. . . . That all force employed to carry such un¬ just and illegal attempts into execution is force without authority; that it is the right of British subjects to resist such force; that this right is founded both upon the letter and the spirit of the British constitution.”10 Wilson went on to prove that, whether based in acts of parliament

LAWYER AND PAMPHLETEER

61

or the supposed prerogatives of the crown, the Declaratory Act, like the Coercive Acts, was unconstitutional and therefore void. Wilson’s dialectics, like those of most of the colonial apologists, were in¬ hibited by the intense conflict between loyalty to Great Britain and de¬ votion to the special interests and needs of the colonies. After a five-day session the convention adjourned on the 28th, showing unusual dispatch at a time when verbiage often seemed the only weapon in the armory of colonial politicians.

The truth was that there was much

to be done if the high resolves of the convention were to be any more than paper bulwarks against the actions of Parliament. Wilson hurried back to Carlisle to help John Armstrong and John Montgomery, William Thompson and Dr. Irvine organize the Cumber¬ land militia.

Law practice was combined with the duties of a recruiting

officer, and Wilson doubtless signed up many of his former clients in Cumberland as “Associators.”

The county was divided into four military

districts, each to provide a battalion of “farmers in arms.”

Jasper Yeates

was carrying on similar activities around Lancaster, and Wilson wrote his friend that in Cumberland three thousand Associators had been formed into companies.

Of these, fifteen hundred—the so-called “flying camp”—

were to be ready to march off to the support of Continental forces.

A bat¬

talion of five hundred men, the vanguard of this contingent, would be ready to march within a week, wherever they were needed.11 When John Montgomery and William Thompson went to Philadelphia at the end of April for the May session of the Pennsylvania Assembly, they saw to it that their young protege, “James Wilson, Esquire,” was re¬ warded for his industry by a commission as “colonel of the fourth battalion of Associators in the County of Cumberland.”12 Wilson seemed destined for a military career.

For the moment James

CHAPTER V

Continental Congress

When the Second

Continental Congress began to assemble in May,

1:775, Wilson’s friends in the Pennsylvania Assembly, headed by John Mont¬ gomery and William Thompson, took advantage of Benjamin Franklin’s return from England to add Wilson and Thomas Willing as well as Frank¬ lin to the Pennsylvania delegation. Thomas Willing was one of the richest men in Philadelphia, senior partner in the firm of Willing and Morris whose business enterprises covered half the globe.

Franklin was, of course, one of the great men of the age,

but in the Continental Congress he found himself in an arena not especially suited to his talents.

Wilson’s election marked the entry of the young

Cumberland lawyer on the stage of colonial politics. As soon as Wilson could put his affairs in order and pass on to his Carlisle friends his duties as a member of the Cumberland County Com¬ mittee of Correspondence, he set out for Philadelphia by way of Reading and appeared in Congress on the 15th of May. Much had happened since the First Continental Congress broke up at the end of October, 1774, and John Adams rode away in a torrent of rain not expecting to see the Quaker City soon again.

Now he was back seven

months later with his cousin Sam, William Cushing, Robert Treat Paine, and John Flancock, who was an addition to the Massachusetts delegation. The Associators had failed in their plan of nonimportation and ex¬ portation.

Instead of bringing the British lion to his knees as the delegates

had too fondly hoped, the agreements had served merely to twist his tail and draw angry roars.

The Coercive Acts had remained in force, with the

Massachusetts government formally suspended and General Gage and

CONTINENTAL CONGRESS martial law reigning in its place.

63

Then in April came the dramatic word

of Lexington and Concord, where a group of farmers with muskets in their hands brushed with some redcoats north of Boston and buzzed around them like hornets on their long retreat to the city. joined; force had met force.

The issue seemed finally

New England militia began to collect out¬

side Boston. The city found itself in a state of siege. The delegates who assembled in Philadelphia in early May were sobered by the knowledge that another step had been taken on the path toward open rebellion against the Mother Country. The Second Continental Congress was quite obviously a continuation of the first.

Peyton Randolph, vast of size and courtly as a king, presided,

and Charles Thomson, the Philadelphia firebrand, was again secretary. Here and there were new faces:

John Langdon, a wealthy New Hampshire

patriot, Hancock, a slim, elegant gourmet who dashed about Philadelphia in a magnificent carriage accompanied by liveried outriders, five new delegates from New York, and “some fine fellows from Virginia,” as Joseph Reed wrote, “very high” in patriotism; “the Bostonians are mere milksops to them.”

The Virginia delegation certainly outweighed every

other in poundage.

In addition to Peyton Randolph, there was Benjamin

Harrison, a Falstaff of a man, “his conversation,” as John Adams wrote austerely, “disgusting to every man of delicacy,” and Thomas Nelson, a politician of similar dimensions. The ranks of the conservatives had been thinned between the meeting of the First Continental Congress and the Second.

Men like Joseph Gallo¬

way, representing the extreme right wing, had been displaced and the new conservatives were the old radicals—men like Dickinson, Cushing and Will¬ ing. To the left were the Adamses, John and Sam, and Sam’s tool, John Hancock, Patrick Henry from Virginia, and Christopher Gadsden, the South Carolina aristocrat.

Making balance between the two wings were the

moderates like Washington, Wilson, and Jay. If there was much to be done, there were able men to do it.

Although

the way ahead was beset with innumerable obstacles, the delegates turned to the task with a confidence that would have been imbecile had it not been touched with faith and inspiration.

If to us the battle seems clearly joined

by the spring of 1775 and the implications of the growing conflict stand out starkly in retrospect, it was not so for the men who went to their political kindergarten in the Second Continental Congress.

It was a slow and

painful process for these men of widely varying backgrounds, with diverse

64

JAMES WILSON

interests and little experience of common action, to accept a fundamental transformation of the traditional relationship by which they lived and to which they had given their deepest loyalties. The phrase “reluctant rebels” applies with special aptness to most of the delegates in the Second Congress who struggled slowly and fearfully toward an acceptance of what had in¬ deed come to pass.

The American Revolution was in many ways a prag¬

matic revolution that proceeded from event to event, groping uncertainly, pulling a dozen different ways, learning difficult lessons as it went.

In

most revolutions the manifesto precedes the uprising, but in the American Revolution it followed, hesitantly. When Wilson reached Philadelphia he found that John Montgomery, having helped to hoist him into Congress, had left for Carlisle.

There he

kept a neighborly eye on Rachel and the children, Polly and the infant Billy. Wilson wrote, reminding him that the proceedings of Congress were secret.

He had sent off a packet of newspapers to Rachel, however, and

from these Montgomery could glean the latest news of the conflict with England.

At this juncture, Wilson advised his friend, he could best serve

the cause by promoting the military spirit that “so laudably prevails in Cumberland County.”

Upon that spirit everything depended.1

Congress was still shaking down, accommodating itself to its new quar¬ ters in the handsome, white-panelled room in the State House, renewing old acquaintances, savoring again the fine wine of Philadelphia hospitality, when word came that Ticonderoga had surrendered to Ethan Allan’s challenge “in the name of the Great Jehovah and the Continental Congress.”

This

news was followed by reports of the fall of Crown Point and St. John’s. New York requested advice on what stand to take should the British abandon Boston and descend upon them, and Connecticut and Massachusetts petitioned Congress for counsel in their own affairs.

Congress met the

emergencies as they arose, one at a time, while the moderates within that body pressed their campaign for reconciliation with the Mother Country, deploring the “dangerous and critical situation” in which the colonies had been placed by the action of the British government, expressing their determination to assume a position of defense, but at the same time giving voice to an almost wistful desire for “a restoration of the harmony formerly subsisting between our Mother Country and these colonies.”

To heal the

breach many of the members of Congress were anxious to petition the crown “humbly.”

But while the delegates deliberated, determined not to

outrun public sentiment or lag too far behind, events, not for the first or

CONTINENTAL CONGRESS the last time, outstripped them.

65

New Hampshire sent word that she had

made plans to muster two thousand men, and the Massachusetts Pro¬ vincial Congress, sitting at Watertown, requested the advice of Congress on two urgent matters. Should the Provincial Congress take up and exercise the full and plenary powers of civil government; and would Congress take over the army that was daily growing around Boston? A committee, composed for the most part of moderate Whigs, was chosen by ballot to consider the Massachusetts letter.

Richard Henry Lee

was its only firebrand. He was more than balanced by the nasal-voiced John Rutledge of South Carolina, Thomas Johnson of Maryland, John Jay, the New York aristocrat, and James Wilson, freshman delegate from Pennsyl¬ vania. It was the first of a wearisome succession of committees on which the Scotsman was to serve in years to come. The committee brought in a safe and temporizing report on the 9th of June.

The members recommended that the Provincial Assembly be

confirmed in its powers and directed to continue them “until a Governor, of His Majesty’s appointment, will consent to govern the colony according to its charter.”2

The radical delegates had hoped for much more.

They

had provided Congress with the opportunity to make a ringing denuncia¬ tion of British tyranny, followed by a call to all the colonies to establish their own independent governments and press forward with revolutionary vigor, but Congress had chosen a more moderate course. As for Massachusetts’ plea that Congress take over the army around Boston, the delegates were without a logical alternative.

Whatever heart¬

ache it might cost, whatever grave anxieties it might arouse, they had acquired an army and now they must make some provision for it. Congress laid aside for the moment its humble petition to his Majesty George III and took up, reluctantly, the problem of finding a general to command the army it had fallen heir to. In a day when almost every prominent colonial politician had served as a militia officer in some border skirmish, there was no lack of candidates ready to push themselves forward as military leaders of the first rank. John Hancock was one of these, Henry Lee another, and Artemus Ward, who was in command of the militia forces at Boston, a third.

Colonel

George Washington wore his uniform to Congress as though to underline his own eligibility. The New Englanders were inclined to favor Washington, hoping thus to seal their alliance with the Virginia firebrands.

Eliphalet Dyer, the

66

JAMES WILSON

prolix delegate from Connecticut, recommended Washington to his northern friends as “discreet and Virtuous, no harum Starum ranting Swearing fellow but Sober, steady, and Calm” and “very Agreable to the Genius and Climate of New England.”3 John Adams, for his part, had no hesitation in throwing John Hancock overboard to clear the way for the Virginian.

The New

Englander rose to second Washington’s nomination, noting with some malice Hancock’s chagrin, when, after delivering a eulogy that Hancock fancied was directed at him, Adams turned to Washington. Having fashioned a paper army on the uncertain base of some ragged and untrained citizen soldiers clustered around Boston, Congress could not forbear to meddle.

For a time it seemed as though every delegate had

blossomed into a major strategist, and each would have his finger in the military pie.

Problems of logistics, of general organization, of the req¬

uisition of vital supplies remained in abeyance while the delegates, focus¬ ing their collective gaze on Boston Harbor, played soldiers with a disorderly and undisciplined army. Wilson was hardly seated in Congress before letters began to arrive from his friends in Carlisle—Armstrong, Montgomery, Irvine, and Thomp¬ son.

Irvine wrote to inform Wilson “of our present temper.”

The troops

who have appeared to fill the battalions are a seedy lot, few in number and poorly equipped.

The military spirit in Cumberland County seems more

inclined to manifest itself in resolutions and in a little half-hearted drilling than in fighting. slowly.

According to Armstrong, the recruiting is going very

“The spirit and use of vigorous resistance,” he notes glumly, “is

not yet sufficiendy imbibed by the populace.”

And small wonder since

Armstrong goes on to suggest that Congress draw up an oath of allegiance to the King for all colonists to sign, seeing in such an oath nothing in¬ consistent with a determination “to resist his arms.”4 John Armstrong wrote several days later to assure Wilson that Rachel, Polly, and little Billy were well and to outline plans for building up the militia.

A circular letter has gone out to the “Captains of the several

townships” asking them to assemble in Carlisle “in order to concert measures for the better regulation of our Military Associations throughout this County.”5 Rachel and the infant Billy joined Wilson in June, perhaps staying with the Whites. Polly remained behind in Carlisle with the Montgomerys, who were affectionate foster parents. Armstrong that same month.

More cheerful news came from John

He was busy recruiting Wilson’s battalion

CONTINENTAL CONGRESS

67

and although some of the men were, at best, but average stuff, others “may be such men as Saul and Jonathan upon whom a great General bestowed high encomiums. . .

Of the four Cumberland battalions, Thompson has

the Second, which he plans to march to Boston to join Washington’s army. Montgomery has the Third and Wilson the Fourth.

All three colonels are

from Carlisle, and Armstrong notes that “some prudence was required to carry so many gentlemen from almost the same spot.”6 On the 24th of June Congress was immensely heartened by the news of Bunker Hill. Although technically a British victory, it had been a pyrrhic one. British regulars in full array had stormed up Breed’s Hill in wave after wave, only to be shot down until the militia, exhausted and out of am¬ munition, fled as the redcoats mounted their earthworks. With such reassurance, Congress turned hopefully to the problems of organizing and supplying the Continental Army. being was one thing.

To call an army into

To arm, clothe, and feed it was a task that quite ex¬

hausted the ingenuity and practical experience of Congress. at first seemed relatively easy.

The solution

If money was needed, it could be printed.

Wilson, John Adams, James Duane of New York, Franklin, and Rutledge were appointed to a committee to arrange for the printing of two million dollars in paper currency. It was Wilson’s first close contact with Adams. The two men were mutually impressed. Their minds were much of a kind; Wilson’s the freer, the more widely ranging, Adams’ the more disciplined, the more incisive, touched with a bitter wit.

John Adams wrote his Abigail

about the “young gentleman from Pennsylvania . . . whose fortitude, rec¬ titude, and abilities too, greatly outshine his master’s.”7 The moderating influence of John Dickinson was highly distasteful to the more impetuous John. To the plea of New York that Congress undertake to protect that colony from the hostile Indians that swarmed about her borders, the dele¬ gates responded by appointing a committee to consider what steps should be taken “for securing and preserving the friendship of the Indian Nations.” On it were three New Yorkers, Duane, Philip Schuyler and Philip Living¬ ston, and Wilson and Patrick Henry.

The group became the permanent

Committee on Indian Affairs.8 The committee brought in its report on the 12th of July, recommending that Congress divide the colonies into three departments—northern, mid¬ dle, and southern—and appoint eleven commissioners to supervise Indian relations in the three areas.

In the north, where the Iroquois pressed menac-

68

JAMES WILSON

ingly, there were to be five commissioners, and three each for the middle and southern departments.

These commissioners were to have the “power to

treat with the Indians in their respective departments, in the name, and on behalf of the united colonies, in order to preserve peace and friendship with the said Indians, and to prevent their taking any part in the present commotions.”9

An eloquent address was prepared to the Six Nations of

the Iroquois Confederacy—the Mohawks, Oneidas, Tuscaroras, Onondagas, Cayugas, and Senecas—and Benjamin Franklin, Patrick Henry, and Wilson were chosen unanimously as commissioners for the Middle Department. Immersed in an ever-increasing mass of daily routine. Congress now and again raised its head to take in a broader perspective.

If this extra-

legal body, that styled itself rather pretentiously Continental Congress, was to

long

continue

its

deliberations,

it

seemed

advisable

to seal

its

confederation with some articles of agreement among the several colonies. Benjamin Franklin, author of the Plan of Union of 1754, turned his facile hand to the task and very promptly produced a draft for the delegates to gnaw on.

But Franklin’s proposed frame of government received short

shrift from Congress and the task was assigned to John Dickinson. In 1775 July was a month no more endurable in Philadelphia than it is today. The numerous committees of Congress had staggering accumula¬ tions of work to perform.

Urgent matters called delegates to their own

colonies, and while the city, infested with flies in black swarms, persistent and omnivorous, lay in a heat-dulled stupor, Congress adjourned until the third of September.

Even John Adams, although he would not vote for

adjournment, could not, in view of the heat, condemn less hardy delegates who did.10 There are two lights in which one may view the accomplishments of the Second Continental Congress in the preceding months and indeed in the ten years or so that lay ahead of it.

On one side a case can perhaps be

made for the opinion that its history was a comedy of errors, a tale of ineptitude, bungling, suspicion, and frustration.

Congress was a breeding

ground for petty jealousies, for small but bitter feuds, a stage for large posturings and minor achievement.

A few devoted soldiers, by this in¬

terpretation, fought and won the war, less because of Congress than in spite of it.

Washington fought on two fronts—against the British and

against the stupidity and, on occasion, the hostility of Congress itself.

His

requisitions went unfilled, his desires ignored, his best officers passed over

CONTINENTAL CONGRESS

69

for Sunday soldiers, even his strategy dissected by the great military minds in the Pennsylvania State House. The other view is that the record of Continental Congress, improvising at it went along, struggling against human error and weakness at every step, educating itself in the vast and complex problems of free government, struggling for coherence and unity, is a memorable one.

Thirteen contend¬

ing loyalties tore at its precarious fabric; idealism and self-interest proved, on occasion, equally crippling.

Congress was itself the object of suspicion

and distrust, driven from one uneasy refuge to another, besieged at last by its own troops, the butt of wits, working without precedent on the constantly shifting, highly volatile surface of events themselves.

A large

proportion of the 342 members, who sat at one time or another in its coun¬ cils, proved themselves both then and later men of extraordinary ability. Many of them sacrificed health and fortune to a thankless job, rising at five in the morning to meet in committee, going thence to Congress, and con¬ ferring into the night on problems and more problems. Both views are, in a sense, true. amazing performance.

Congress on the whole gave an

No revolutionary assembly has ever done so well,

steering between the dangers of revolutionary acceleration on one side and internal disintegration on the other.

The Continental Congress was the

nursery school of American politics; the teacher was experience, and some of the students learned their lessons well. Benjamin Franklin and Patrick Henry, appointed with Wilson as Indian Commissioners for the Middle Department, declined to serve and were replaced by Dr. Thomas Walker from Virginia and Lewis Morris, .a Congressional delegate from New York.

Congress, before its adjournment

directed the commissioners to negotiate a treaty with the western tribes at Fort Pitt. As Wilson rode west in mid-August, 1775, with Lewis Morris, the two men stopped off at Laurel Hill to visit Arthur St. Clair and enlist his assistance as secretary during the coming pow-wow with the Indians. St. Clair, who had been fighting a discouraging battle against the officials of West Augusta County in their attempt to make good Virginia’s claim to the regions of southwestern Pennsylvania, readily accepted the invitation. Wilson, Lewis Morris, and St. Clair, “escorted by a party of paltry Lighthorse,” reached Pittsburgh several weeks before Walker and a group of Virginians sent by that colony to make negotiations on their own. Wilson set to work at once to round up the important Indian chiefs, noting

7o

JAMES WILSON

that the frontier settlements were restless and uneasy, swept by rumors of impending savage raids.11 When Dr. Walker and his Virginia companions arrived at Fort Pitt on the ioth of September, they were disturbed to find that Wilson, St. Clair, and Morris, all hostile to Virginia’s claim to the Fort Pitt region, had been on hand for several weeks. Walker, a business man, politician, planter, and explorer, as well as physician, suspected Wilson of intriguing against the Virginia claim, and the Pennsylvanian was equally annoyed at the presence of a contingent of Virginia militia who arrived the day after Walker’s party and established themselves in the Fort despite the objections of Morris and Wilson.12 Thus the bitter Pennsylvania-Virginia boundary dispute provided the background against which the Indian negotiations took place. Gradually through the dying days of September when sharp nights made the morning mist lie on the river like pale smoke, the tribes drifted in.

By the end of the month the banks of the Ohio were lined with their

camps and Indians crowded the little town, bringing the traders a flourishing business and carrying off to their camps gallons of hot rum in exchange for skins of deer, mink, beaver and otter. Onas, was there.

Silver Heels, a friend of Brother

Blue Jacket, who years later would defeat St. Clair in

battle, accompanied the great Shawnee chief Cornstalk.

Kilbuck, the

Delaware, one of the staunchest allies of Onas, spent much time with his white friends in the settlement, and Kyashota, the Seneca chief, gave freely of his counsel to Wilson and the other commissioners. The commissioners, for their part, were only too conscious that they sat on a powder keg.

Old inter-tribal animosities and feuds flared up as

the Indians waited for the opening of the conference. bitter

Shawnee-Iroquois

land

dispute;

the traditional

There was the hostility

of

the

Wyandottes and Iroquois; the sullen rebelliousness of the Delawares, who had stewed long in their humiliation.

These conflicts were due primarily

to the decline of the power of the Iroquois who had held the Delaware and Ohio tribes tributary for decades, and now saw their authority openly challenged.

As long as the growing independence of the Ohio Indians

failed to express itself in some overt act, the treaty could go forward. Thus all care must be exercised by the commissioners to prevent open hostility.

The

colonies desperately needed the neutrality of the Indian tribes along the border.

Later it might be possible to impose peace on the Iroquois and

Shawnees by force of arms.

But now there were neither men nor supplies

CONTINENTAL CONGRESS

7i

for the defence of the frontier. So the commissioners kept their own council, held their collective breaths, and waited while the savage pageantry washed around the fort. By the 7th of October, the Delaware White Eyes, last of the dilatory chiefs, had arrived and the conference was formally convened.

A council

house had been erected, open on four sides to the fall sunshine and chilly wind from the river.

The chiefs of the assembled tribes approached, carry¬

ing their tribal insignia and firing rifles in a ragged salute. The interpreters, among them Simon Girty, “the white savage,” looking like an Indian in his greasy buckskins, with a red bandana around his dark hair, stood be¬ side the commissioners as the Indians took their places in the council house. The chiefs wore their most elegant trappings, a strange mixture of soiled English and native finery—deerskin mantles rubbed soft and white, beaver top hats, coats of red broadcloth trimmed with gold lace, and flowered silk vests. The commissioners in their best ruffled shirts and bright buckled shoes, their wigs carefully powdered, sat facing the Indians, and when the chiefs had settled themselves in all their mottled magnificence, Lewis Morris rose with a belt of wampum in his hands.

His was the opening move in the

elaborate ritual of the Indian treaty.

The established forms called for

him to evoke the Council Fire, to declare the road free and unobstructed, the chain of friendship burnished.

Then came the ceremony of con¬

dolences in which the uneasy spirits of slain Indians and whites were laid to rest with immense metaphors, with moving and vivid savage imagery. The Indians played their part in the ritual with impressive dignity.

The

treaty conference was, after all, an Indian function; the Indian had set the pattern and the white man must carefully observe it.

“With these strings

of wampum,” Morris declared, “we wipe the dust and sweat occasioned by the fatigues of your journey.

We likewise wipe off from your memories

and clear your ears from any wicked reports which may have tended to interrupt you and our peace.”

Next came the condolences.

“We collect

the bones of your deceased friends and bury them deep in the earth and transplant the Tree of Peace over them that our friendship may not be interrupted nor our minds disturbed at the sight of them.”

Then Morris

presented a string of wampum for every nation, solemnly given and received with equal gravity by the principal chief of each tribe. Observing the rift between the Delawares and the Iroquois, Wilson and Morris apparently decided to try to use the Delawares as a foil against

72

JAMES WILSON

the Iroquois, who were, for the most part, strongly drawn to the British. An independent and aggressive group of Delawares led by White Eyes and backed by Continental Congress might keep the Iroquois neutral or help fend them off if they decided to cast their lot with the British. When the treaty was at last concluded in late October after a number of lengthy sessions, peace for the frontier seemed assured.

The chiefs broke

their camps and moved out heavy with loot, carrying as expressions of the colonists’ friendship red turkey cloth, worsted caps, beads, thimbles for their women, powder and lead, ivory combs, broadcloth coats, bundles of duffle and shroud, linen handerchiefs and ruffled shirts, plumed hats and calimancoe—all the bright bait which had drawn them to Pittsburgh to meet in solemn conclave. As the Congressional Commissioners rode back to Philadelphia, bring¬ ing White Eyes with them to dramatize their policy of special friendship for the Delawares, they undoubtedly felt that their mission had been suc¬ cessful.

Congress could turn its attention to other pressing problems and

the harassed settlers could filter back to their forest settlements with some assurance of safety. Back in Continental Congress, Wilson continued to play a leading role in the formation of Indian policy.

If the positions he held and the

frequency with which he appeared on committees concerned with Indian affairs are an index, he was until his departure from Congress in 1777 the most active and influential single delegate in laying down the general outline that governed the relations of Congress with the border tribes. When the delegates to Congress slowly filed back into the city, in Sep¬ tember, they discovered that their adjournment had solved no problems. It was the middle of the month before there were enough reluctant mem¬ bers to make a quorum.

Powder was desperately needed for the army at

Boston; clothing, medicine, weapons, and of course, as always, money. The Indian Commissioners had sent on a preliminary report of their negotia¬ tions with the savages at Fort Pitt, but other more pressing problems oc¬ cupied Congress for the moment.

Washington at Boston had found com¬

munications with Congress so tedious and protracted that he urged that a delegation be sent to Cambridge to observe the wants of the army at first hand.

Critically needed articles of supply for the Continental forces were being exported to France and the West Indies, and this trade, centering on

CONTINENTAL CONGRESS

73

hides, lumber, and deer skins, Congress promptly prohibited. kinds was also extremely scarce.

Cloth of all

Perhaps inspired by Richard Smith and

Stephen Crane, two of the New Jersey delegates who appeared in “Homespun Suits of Cloaths, an Adornment,” as Smith modestly confessed, “few other Members can boast of,” the delegates went so far as to recommend to their own company “the Practice of wearing leather Waist Coats and Breeches.”13 Winter was coming on with a rush and for perhaps the only time in military history a requisition for clothing was met by sending the frost¬ bitten soldiers good stout Kersey cloth with needles and thread to make their own watch coats.14 On the 3rd of November the Pennsylvania Assembly returned Wilson and the other members of the Pennsylvania delegation to Congress, elect¬ ing Robert Morris as an additional delegate.

Morris was partner in the

commercial house of Willing and Morris, a thickset, courtly man with strong blunt features.

He and Wilson promptly joined forces when Wilson

returned to Congress in the middle of November, and the two henceforth made up one of the most effective political duos of the Revolutionary years. Morris was the pragmatist with vast experience in the intricacies of practical finance; Wilson was the theorist, eloquent, highly articulate, a most valuable ally to Morris in his efforts at financial reform. Soon after Wilson took his seat in Congress another in the long suc¬ cession of committees was established to determine the disposal of mari¬ time prizes captured from an enemy with whom the colonies were not of¬ ficially at war.

The Pennsylvania delegate was appointed to the committee

with Thomas Johnson, George Wythe, Edward Rutledge, John Adams, William Livingston, and Benjamin Franklin.

The need for supplies was

desperate; cautious scruples and nice distinctions could not be preserved in the face of the army’s needs.

The committee recommended that Washing¬

ton be granted the authority to arm and commission raiding vessels to seize British ships. disposed of.

But once seized, these embarrassing riches must be

It was one thing to defend one’s liberties; quite another to

embark on what smacked of piracy on the high seas.

To capture English

ships was indeed lese-majeste, but Congress was driven to condone such measures and having condoned them must take on additional responsibili¬ ties that most of the delegates would have preferred to avoid. The committee also brought in a report that authorized the confiscation of all captured cargoes and recommended the establishment of admiralty

74

JAMES WILSON

courts to determine the disposition of the vessels and their cargoes.

Before

the delegates were through debating the measures, the American navy was born and the seed of a judiciary planted.15 Through November, Congress continued its hand-to-mouth existence, commissioning a shipless navy, desperately staving off the disintegration of Washington’s army by offering bounties for enlistment, ransacking every corner of the colonies for the always critically needed saltpetre, smoothing the feathers of disgruntled generals. By the middle of January, disheartening news arrived from Quebec— General Montgomery dead, Benedict Arnold’s leg shattered, Morgan’s rifle¬ men captured.

It was a major calamity; and there were other distressing

incidents to distract the deliberations of the delegates.

British cruisers had

shelled Falmouth, Maine, and now word came that they had destroyed Norfolk, one of the largest towns in Virginia. In spite of the bad news from Canada, Congress was reluctant to abandon its pipe dream of a northern empire.

A flurry of resolutions were

passed summoning up thousands of soldiers, appointing officers, and re¬ quisitioning supplies.

Fifes and drums were dispatched to the ragged,

starving army at Quebec, perhaps in hopes that the city’s walls would fall to their music. Wilson helped to frame a letter that reaffirmed the colonies’ friendship for their northern neighbors at the same time that colonial troops stormed their cities. Early in January Wilson moved, “and was strongly supported,” that Congress declare its intentions “respecting an Independency.” The King had charged the colonies with aiming at complete independence, and Wil¬ son wanted Congress to assure its “Constituents and the World” that it had no such design.16

There was immediate alarmed opposition from the

left and the motion was delayed for the moment.

Doubtless John Adams

and his friends drew the young Scotsman aside “out of doors” to ex¬ postulate with him.

This was not the time for further pious declarations

of loyalty; let the Crown make conciliatory proposals.

The people must

be hardened in their resolve, not deluded with false hopes. John Adams, failing to gain the assurances he sought from Wilson, started a backfire with a motion to consider again the question of framing articles of confederation, but Hooper and Dickinson opposed the idea and Adams reluctantly abandoned it. Wilson prevailed at last.

He was appointed with a committee of

five to prepare “an address to the inhabitants of the United Colonies,”

The

CONTINENTAL CONGRESS

75

composition of the committee was the best possible barometer of Congress’s temper.

All the members were chosen from among the moderates or con¬

servatives: Dickinson, John Adams’ “piddling genius,” William Hooper, the conservative North Carolinian, James Duane, the New Yorker, and Robert Alexander of Maryland, whose constituents had already enjoined him to “Firmness tempered with Moderation.”17 men.

There was not a radical among them.

Congress knew these

They would produce no

hot-headed or inflammatory declarations. The composition of the committee gave pause to the radicals. peace faction was by no means routed.

The

Christopher Gadsden, one of the

pillars of the radicals, had gone home in disgust to command troops.

“God

save them,” Lynch wrote.18 When the report of the committee appointed to “prepare an address to the inhabitants of the Colonies” was submitted to Congress on the 13th of February, 1776, it was the work, to a large degree, of Wilson.

Dickinson

went over it beforehand and lopped off much excess verbiage, but much re¬ mained and Wilson even expressed a mild defiance of his former master by restoring some of the passages that Dickinson had crossed out.19 “Friends and Constituents,” Wilson began. “Constituents” smacked too much of the local politician. Dickinson crossed out the word and wrote “Countrymen” above it (one of the few corrections that Wilson accepted). “History, we believe, cannot furnish an Example of a Trust, higher and more important than that which we have received from your Hands. It comprehends in it every Thing that can arouse the Attention and in¬ terest the Passions of a People who will not reflect Disgrace upon their Ancestors, nor degrade themeselves, nor transmit Infamy to their De¬ scendants. . . . The Calamities which threaten us would be attended with the total Loss of those Constitutions, formed upon the venerable Model of British Liberty, which have long been our Pride and Felicity.

To avert

those Calamities we are under the disagreeble Necessity of making tem¬ porary Deviations from those Constitutions.”

Under such circumstances,

“it will not discourage us to find ourselves represented as ‘labouring to enflame the Minds of the People in America,’ and openly avowing Revolt, Hostility and Rebellion.”

Rather, the delegates deem it “an Honour ‘to

have raised Troops, and collected a Naval Force;’ and cloathed it with the sacred Authority of the People, from WHOM ALL, LEGITIMATE AU¬ THORITY proceeds.” Dickinson had crossed out the sentence but Wilson

clung stubbornly to it.

76

JAMES WILSON The colonists have been unjustly accused of waging war “for the

Purpose of establishing an Independent Empire.” The delegates to Congress deny the charge.

“We declare, that what we aim at, and what we are en¬

trusting [the people] to pursue, is the Defense and Re-establishment of the constitutional Rights of the Colonies."

But however temporizing the address might be, there was nothing hesitant or obscure about its final sentences.

“That the Colonies may

continue connected,” Wilson had written, “as they have been, with Britain, is our second Wish: Our first is—THAT AMERICA MAY BE FREE.’ While Wilson labored over his exegesis of the colonial case, a slim book, as stirring as a bugle call, appeared in Philadelphia.

Tom Paine’s

Common Sense, hardly dry from the presses, had run through the colonies

with the speed of rumor, each copy passing, thumbed and dog-eared, from one patriot hand to another.

With phrases like cannon balls, Paine shat¬

tered the towering edifice of monarchy, and colonists, reading the ex¬ plosive little pamphlet, felt a shock of recognition.

Casting off a king,

Paine warned, “may at first seem strange and difficult, but like all other steps which we have already passed over, will in a little time become familiar and agreeable; and until an independence is declared, the Continent will feel itself like a man who continues putting off some unpleasant business from day to day, yet knows it must be done, hates to set about it, wishes it over, and is continually haunted with the thoughts of its necessity.” No one in all those troubled months, or since with the wisdom of hindsight, has ever expressed the condition of the colonies more truly or succinctly.

A master diagnostician had put a finger on the disease of Con¬

gress. Wilson’s paper was obsolete before it was ever presented to Congress, made so by events and by Tom Paine. Paine’s with the new.

It dealt with the old situation;

From the day that Common Sense appeared, the

temper of a considerable group of patriots threatened to outrun Congress. If in November and December Wilson and the moderates were right in declaring that the people hung back and were afraid of independence, by February this temper was radically changed, and there was a strong block of revolutionary sentiment in the country.

Perhaps Congress sensed it.

After Wilson’s address in the Journals are the words, “Ordered to lie on the table.”

Washington in his headquarters at Cambridge no longer

toasted the King, but sent instead a note of congratulation to the pock¬ marked English pamphleteer.

CONTINENTAL CONGRESS

77

Turning from the larger and more bewildering problems of independ¬ ence and international trade, Congress picked up the thread of those daily practical matters that, often trivial in themselves, brought the country closer to independence with each passing day.

More paper currency was

ordered to be struck off; ways were sought to increase the supply of salt¬ petre; more troops and supplies were requisitioned.

The simple fact was

that the overworked delegates were encompassing within the four walls of their State House chamber all the functions of government: foreign affairs, the Navy, the Army, supply, trade, finances, and a thousand in¬ credibly minor details. One page of the Journals during February recorded the following: To Frederick Bicking for 102 Reams of paper of the continental bills of credit, the sum of 7^265 4 = 707.2 dollars: To the estate of David Hall, deceased, for stationary . . . the sum of 7T8 19 11 =50.6 dollars: To Robert Erwin, for 20 cords of wood, the sum of £30 = 80 dollars:20 With such matters did Congress occupy itself—everything from grand strategy to reams of paper.

It is hardly surprising that the strategy was

often fumbling and funds were wanting to pay for the paper. Before the load could be lifted from the back of Congress, semi-inde¬ pendent departments—of the Navy, of War, of foreign affairs—must be established, departments which would be responsible to Congress, but not parts of it.

But no legislative body was ever more jealous of its

powers than this group of harassed Continental delegates.

Wilson was

one of the first to urge reform of the cumbersome and unwieldy system of Congressional committees.

His proposals were ignored.

The delegates

must acquire much painful experience before they were ready to sur¬ render or delegate authority of the most limited kind.

CHAPTER VI

Independence

While Wilson

served on committees and joined in the endless debates

of Congress, Pennsylvania was undergoing a political revolution with deep implications for the young Scotsman.

After a long history of hos¬

tility, the Proprietary interests and the Quakers made an uneasy truce, and, representing the wealth and aristocracy of the Province, held its administra¬ tion in a firm grasp.

The Proprietary party had sought to strengthen its

hand against the Quaker oligarchy by encouraging the aspirations of frontier elements—the rough and independent Germans and Scotch-Irish— but both Quaker and Proprietary parties were inherently conservative. Thus the first stirrings of colonial rebellion against England aroused in the hearts of the politically dispossessed frontiersmen the hope of emancipation. As the ruling class held back from the revolutionary agitation or affirmed its loyalty to the Crown, the radical westerners rallied noisily to the patriot standard.

The cause produced the effect and the effect in turn acted upon

the cause to increase the reluctance of the party in power to move further in the direction of independence.

Colonial independence became associated

in the minds of the Pennsylvania ruling class with the dissolution of the government under which they had so long exercised power.

The As¬

sembly’s instructions of November 9, 1775, to the Pennsylvania delegates in Congress, framed by John Dickinson, allowed no room for doubt as to the attitude of the Assembly.

“We strictly enjoined you, that you, in be¬

half of this Colony, dissent from and utterly reject any propostions, should such be made, that may cause or lead to a separation from our Mother Country, or a change in the form of this Government.”1 George Ross feared that “the late instructions” to the delegates would

INDEPENDENCE

79

have “fatal consequences,” and from Reading he wrote to ask Wilson what was “generally thought” of them.2 The answer of the radical westerners to the Assembly’s instructions came through the military associators.

As the frontier lawyers—men like Wilson

and his friends—were drawn into Provincial and continental affairs and relinquished their leadership in the counties, the Associators' became the vehicle for the political aspirations of the westerners, and, as such, in¬ creasingly hostile to the Assembly. These men found allies in Philadelphia where the left-wing Whigs formed themselves into the “Philadelphia Committee,” a body whose avowed aim was independence and the establishment of a new state government. In March 1776 the Committee petitioned the Assembly to repeal their “deadly instructions to their delegates in Congress,” but the Assembly de¬ cided, after much vacillation, to put principle ahead of expediency and voted on April 6 by a great majority not to alter the obnoxious instructions. As soon as it was known that the Assembly had refused to remove the restrictions on the delegates, the agitation for a convention was renewed to the despair of the moderates.3 All those who were opposed to the authority of Parliament and had resolved to resist it called themselves Whigs and denominated Tories those who placed loyalty to Great Britain before colonial liberties.

Within

the Whig party, however, were represented all shades of opinion.

On the

right stood those Whigs who, however devoted to liberty, could not face the prospect of independence. John Dickinson, Thomas Willing, and many other prominent Philadelphians were in this group.

On the left

were the radical Whigs—the westerners and eastern democrats like George Bryan and Benjamin Franklin, men who provided the initial leadership for the radicals until their own champions stepped forth.

These men were

anxious to overthrow the famous Charter of Liberties, which dated from the early years of the colony, on the ground that it gave inadequate representation to large sections of the state and denied the ballot to many of the artisans and workers in the city of Philadelphia.

In the middle

of the Whig party stood the moderates, among them James Wilson, George Clymer, and George Ross.

These men feared that anarchy would come

with the dissolution of the existing government.

They wished to preserve

and liberalize the charter government as a bulwark against chaos. For the most part these men favored independence but resisted a formal statement of it in the hope that a broader and more liberal As-

80

JAMES WILSON

sembly could be persuaded to approve independence without giving way to a revolutionary junto.4 In Congress Wilson was subjected to constant pressure from the im¬ patient Massachusetts and Virginia delegates who wished him to stand forth and be counted for independence. When the members, late in April, 1776, stole time from the press of their practical duties to take up the question of independence again, Wilson was in a difficult position. He knew that the Pennsylvania Assembly would soon vote to return or replace the colony’s delegates in Congress. Open championship of in¬ dependence might cost Wilson his place, which he was understandably reluctant to surrender. John Dickinson had made an effort to relieve the pressure from the radicals by inspiring a bill to increase the Assembly by seventeen new members from the under-represented counties. The elec¬ tions for the new assemblymen were to be held on the 1st of May. Wilson, anticipating that these additional representatives might modify the in¬ structions to the delegates, urged postponement of the question of in¬ dependence until the true temper of the people might be discovered. For his part he felt satisfied, he declared to the delegates, that the colonies would stand justified before God and mankind in making an absolute separation from Great Britain. He believed too that a majority of the people of Pennsylvania were in favor of independence. It remained simply to give that opinion time to express itself through the regular organs of government in the state. Joseph Reed, another moderate Whig, expressed the anxiety of those caught between the immovable Tories and the implacable radicals when he wrote to his brother-in-law, “We shall endeavour to get the Assembly . . . to take off the instructions from the delegates, and increase the representa¬ tion. ... I hope we shall succeed in all, but some violent spirits have ob¬ structed our measures by calling a convention, or attempting to do so, before we know what the Assembly will do. Great contests have ensued upon it, and the event is yet doubtful.”5 The radical Whigs met on May 1 at William Thomas’ schoolhouse in Videll’s Alley. Christopher Marshall was elected chairman and James Cannon, professor of the College of Philadelphia, secretary. The group agreed to support George Clymer, Daniel Roberdeau, Owen Biddle, and Frederick Kuhl as assemblymen from Philadelphia in the coming elections for the newly created seats in the Assembly. The moderate Whigs and Tories united on Samuel Howell, Andrew Allen, Alexander Wilcox, and

INDEPENDENCE

81

Thomas Willing, causing Marshall to remark caustically that “Quakers, Papists, Church, Allen family, with all the Proprietary party, were never seemingly so happily united as at this election.”6 In spite of the most energetic electioneering by the radicals, the old guard, protected by the limited franchise and profiting from an uneasy alliance with the moderates who hoped to avoid a dissolution of the ex¬ isting government, carried the day by a comfortable majority.

Of the

radical candidates only George Clymer was elected and he was more moderate than radical.

Even the enlarged representation from the western

counties failed to affect the conservative majority in the Assembly. The radicals determined at once to upset the Tory-Moderate Whig applecart.

In their plans they had the enthusiastic aid of John Adams

and Elbridge Gerry, who had fought for independence for months only to find the Pennsylvania delegation with its “deadly” instructions across their path.

Nothing could be done to sever the cord which still technically

bound the colonies to England until the issue in Pennsylvania was re¬ solved.

The Virginians, like their Massachusetts allies, were angry with

the Whigs and impatient with the involvements of local politics, blaming the delay on the Proprietary interests. The Virginia assembly could strengthen the hands of the advocates of independence by instructing her delegates in Congress to vote for in¬ dependence, Richard Henry Lee wrote to General Charles Lee.

Then the

people “in these Proprietary Colonies will . . . force the same measure, after which Adieu to Proprietary influence and timid senseless politics.”7

All

eyes thus turned to watch the struggle in Pennsylvania. It was a time of severe testing for Wilson. prominent figures in Congress. generally recognized as such.

He was one of the most

His ability was of a high order and

Throughout the winter two Johns, Adams

and Dickinson, had contended for his political soul.

It was a contest

that the New Englander was to win but not without a bitter struggle.

For

the moment Adams could not act with his Pennsylvania colleague but must throw his weight against him.

If Congress would declare all existing

governments dissolved, the Pennsylvania radicals could then take over the government from the nerveless hand of the Assembly and alter the “deadly” instructions.

John Adams therefore procured the appointment of a com¬

mittee on the tenth of May “to prepare a resolution recommending to the people of the States to institute governments.” The committee, of which

82

JAMES WILSON

canny John was of course a member, “requested me,” he later wrote, “to draught a resolve, which I did, and by their direction reported it.”8 The resolve recommended “to the respective assemblies and conven¬ tions of the United Colonies, where no government sufficient to the exigencies of their affairs have been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.”9 The moderates seemed to have a reprieve.

The Charter was certainly

“sufficient to the exigencies” of the colony’s affairs.

It could be liberalized

as soon as the power of the ruling oligarchy was broken. The last door was quickly shut in the faces of the moderate Whigs, however.

Adams, Edward

Rutledge, and Richard Henry Lee were appointed to a committee to pre¬ pare a preamble.

The preamble, as reported on the 13th of May went

considerably beyond the original resolution, and, lest there be any mis¬ understanding of the intentions of Congress, it declared “it is necessary that the exercise of every kind of authority under the said Crown should be totally suppressed, and all the powers of government exerted under the authority of the people of the Colonies.”10 Richard Henry Lee could write his cousin that he had struck a smashing blow against “the shamefully interested Proprietary people.” Wilson was absent from Congress when the original resolve was passeo, but when the preamble was presented he rose to ask a brief delay. However irritating to the patriots his demurrer might be, he nevertheless felt him¬ self entitled to speak.

He had served, they might remember, on the com¬

mittee which, almost a year earlier, had advised Massachusetts to establish its own government.

The same advice tendered later to New Hampshire,

the Carolinas, and Virginia had met with his wholehearted approval, but the present issue was a grave one.

Regardless of their personal feelings

the Pennsylvania delegates were servants of the people, “sent here to act under a delegated authority.

If we exceed it, voluntarily,” Wilson argued,

“we deserve neither excuse nor justification.”

Having been placed under

restraints by their constituents, Wilson declared, the Pennsylvanians can¬ not vote without transgressing their instructions.

Pennsylvania had in¬

deed “done much and asked little from this Congress; the Assembly, largely increased, will (not) meet till next Monday.

Will the cause suf¬

fer much, if this preamble is not published at this time? published without the preamble?”

if the resolve is

Wilson, in spite of the conservative

INDEPENDENCE

83

character of the newly enlarged Assembly, felt that the augmented body might be brought to see the error of its ways.

He therefore laid bare the

heart of his reluctance to accept the preamble.

“In this Province,” he

told the delegates, “if that preamble passes, there will be an immediate dis¬ solution of every kind of authority; the people will be instantly in a state of nature.

Why then precipitate this measure?

Before we are prepared

to build the new house, why should we pull down the old one, and expose ourselves to all the inclemencies of the season?”11 As Adams copied down Wilson’s pleas for delay, the irony of the situation must have been apparent to him. first things came first.

For John Adams, however,

A declaration of independence was the first thing.

If in the process Pennsylvania suffered a degree of political chaos or fell into the hands of men whose ideas of government were very far from John’s own, that was unfortunate.

But the cause could not be allowed

to disintegrate in doubt and confusion merely to preserve the power of the ruling class in Penn’s province. Wilson was heard with respectful attention, and the vote on the pre¬ amble postponed until the Assembly, newly enlarged, should meet to reconsider their instructions to the Pennsylvania delegates. Wilson’s urgent request for delay, eminently reasonable under the circumstances, was seized upon by his political opponents to brand him as an enemy of popular liberties and independence. The hue and cry against him became so intense that a Defense of Wilson was finally prepared to vindicate the Pennsylvania delegate and to prevent him, if possible, from becoming a victim of the radical patriots who were taking the loose reins of government into their own hands.

The Defense was signed by all the

delegates, among them many whose devotion to independence was beyond question.

For the moment it helped to appease the wrath of the radicals.12

When the new Assembly convened, it voted by a margin of two votes to stand by the old instructions. As soon as the word reached Congress, the preamble was passed, and John Adams wrote triumphantly to his friend James Warren, “This Day the Congress has passed the most important Resolution that ever was taken in America.”13 the long-delayed declaration of independence.

The path was cleared for

For the Pennsylvania Whigs

their season of travail had begun. The old guard saw the handwriting clearly on the wall.

They were

to go down and carry with them into exile the most experienced and able politicians in the state.

One of them, James Allen, wrote gloomily, “A

84

JAMES WILSON

Convention chosen by the people, will consist of the most fiery Independents; they will have the whole Executive and legislative authority in their hands. . . . I am determined to oppose them vehemently in Assembly, for if they prevail there; all may bid adieu to our old happy constitution and peace.”14 The radicals, for their part, lost no time.

The day after Congress

passed the preamble a crowd of aroused Whigs met at the Philosophical Hall with Thomas McKean in the chair and debated the action of Congress until ten o’clock at night.

Next day the decision was quickly reached to

summon a meeting of patriotic citizens at the State House to determine the sentiment of the city on the question of independence.10 The call went out and on Monday, May 20, one of the largest crowds ever assembled in the city collected in the State House yard. rain did nothing to dampen its spirits.

A soft spring

As dusk closed down, torches were

lit and, sputtering in the rain, they threw an uncertain light over the sea of glistening faces and across the brick of the State House walls. Colonel Daniel Roberdeau, a popular Whig leader, was placed in the chair and the resolve of Congress was read.

Whereupon “the people, in

testimony of their warmest approbation, gave three cheers.”

Roberdeau

then read the instructions of the Pennsylvania Assembly, enjoining the delegates to “dissent from, and utterly reject” independence, or a “change of the form of this government.”

The meeting proceeded at once to pass

a series of resolves, declaring that “the said instructions have a dangerous tendency to withdraw this province from that happy union with the other Colonies, which we consider both as our glory and protection.” The Charter government was dissolved, declared the radical Whigs, and since the present Assembly had not been formed for the express pur¬ pose of creating a new frame of government it must give way to a con¬ stitutional convention elected to frame a government that would be in accord with the resolve of Congress. If there was any doubt about the mood of the crowd, patiently en¬ during through the quiet rain, it was dispelled by its final resolve:

“that

we will support the measures now adopted, at all hazard, be the consequences what they may.”16 When the resolves were presented to it, the Assembly replied with spirit, pointing out that the action of Congress was in the nature of a recommendation, nothing more, and was meant to apply only in those cases where the established government was overthrown or prorogued.

INDEPENDENCE

85

Their stand was a forlorn one and from the day of the State House meeting the Assembly declined rapidly in authority. The moderate Whigs both in and out of the Assembly made an im¬ mediate response of their own.

The day after the radical Whig meeting

a group of them drew up an “Address and Remonstrance” which upheld the Charter government and declared that “we are not represented in the said protests.”

When presented to the Assembly a week later, the resolve

contained the names of six thousand people from Philadelphia and the Liberties.17 Petitions and counter-petitions were showered on the unhappy As¬ sembly.

Everywhere the moderates tried to rally people for the support of

“our Birthright, in the Charter and wise Laws of Pennsylvania.”

Radicals

and moderates alike hurried to the voters with their respective cases. Edward Shippen wrote to Wilson’s friend, Jasper Yeates, who anchored the moder¬ ate line at Lancaster, that a “certain bawling New England man called Doctor Young, of noisy fame,” was on his way to Lancaster to try to rally the people there to the support of the new government, a government, Shippen feared, “which would not be very favorable to Liberty.”18 Staunch party regulars like Yeates did what they could to stem the tide, but the radicals had succeeded too well in associating their immediate political aims with the ideals of American independence. addition, fissures in the ranks of the moderates.

There were, in

Some were unnerved by

the knowledge that the Charter stood in real need of reform; others by the politicians’ desire to ride with the storm. On the 5th of June, with the call already out for a Provincial con¬ vention to meet on the 18th of the month, the Assembly gave way and “by a large majority” directed a committee composed of Robert Morris, Dickin¬ son, Joseph Reed, George Clymer and Thomas Smith to bring in new instructions to the Pennsylvania delegates in Congress. Richard Henry Lee moved for a vote on independence.

On the 7th of June, The Pennsylvania

delegates, waiting hopefully for new instructions, voted against the motion and the next day the committee of the Assembly brought in a report rec¬ ommending that the delegates of the Province be authorized “to concur with the other Delegates in Congress in forming such further compacts between the United Colonies, concluding such treaties with the foreign Kingdoms and States, and in adopting such other measures as shall be judged necessary for promoting the liberty, safety, and interests of America.” Perhaps it was not too late after all to stem the radical tide.

The patriots

86

JAMES WILSON

might still take half a loaf; the resolution carefully reserved “to the people of this Colony the sole and exclusive right of regulating the internal gov¬ ernment and police of the same.”19 In Congress Wilson, Robert Livingston, Rutledge, and Dickinson argued that “the people of the middle colonies . . . were not yet ripe for bidding adieu to British connection, but that they were fast ripening, and in a short time would join in the general voice of America.”"0

An im¬

mediate vote on independence might force the delegates of the middle colonies to withdraw. As for the Assembly any hopes that Wilson may have entertained of its aid were hollow indeed.

It met from June io to 13 both morning and

afternoon, but most of the moderate Whigs, unable to sway the conservative majority, stayed away and it was impossible to muster a quorum.

On the

14th the members present resolved “that we are earnestly desirous of carry¬ ing into execution the resolution of congress of the first instant”—to raise 4500 militiamen for the army—but that, as they despair “of procuring a quorum of the House, they find themselves unable, at this time, to proceed on the said resolution.” The Assembly did, at least, adopt the resolves of the Committee on Instructions to the Delegates in Congress.

The instructions

of November 9, 1775, were rescinded and the Congressional delegates were left to act in whatever way they considered best “for promoting the liberty, safety and interests of America.”

They did this much, and they voted

pay for the Pennsylvania delegates, ^381.5.0 to Wilson for 213 days at¬ tendance,21 but further they would not or could not go.

The Assembly

adjourned, to meet briefly in August and September and then expire. On the 18th of June the Provincial Convention, called by the radicals to make plans for superseding the Charter government, assembled at Carpenter’s Hall.

After electing Thomas McKean president, the delegates

voted to extend the franchise, in the coming election of delegates to a state constitutional convention, to all Associators over the age of twenty-one who had been residents for one year in the state and who had paid or been as¬ sessed taxes and “to all others presently entitled” who would swear or affirm that they did not owe allegiance to George III and would not “by any means directly or indirectly oppose the establishment of a free gov¬ ernment in this province by the convention now to be chosen.”

A further

qualification was to swear or affirm faith in the Trinity and in the Divine inspiration of the Scriptures.

Having thus widened the franchise and

virtually excluded Quakers and Tories from participating in the establish-

INDEPENDENCE

87

ment of the projected government, the delegates to the Provincial Con¬ vention set the 15th of July for the meeting of the constitutional convention and unanimously expressed “our willingness to concur in a vote of the Congress declaring the United Colonies FREE and INDEPENDENT STATES.”22 June, 1776, was a trying month for Wilson. The story circulated by his enemies that he was opposed to independence had been laid to rest by the Defense, but his bifurcated existence, involved in the politics of his state and

the affairs of Congress was a severe strain on him. By July 1 the Declaration of Independence was ready to be placed be¬ fore Congress.

Jefferson had worked long and late on the great document

and it had been polished in committee.

The delegates promptly resolved

themselves into a committee of the whole to “take into consideration the resolution respecting independency.”

Dickinson, still unreconciled, spoke

at length against the resolution; John Adams for it. silent.

Wilson remained

He was satisfied that the declaration by the Provincial Convention

favoring independence had freed him to vote for the Declaration. The debate which lasted all day, was, to John Adams at least, “an idle mispence of time, for nothing was said but what had been repeated and hackneyed in that room before, a hundred times for six months past,”23 and when the question was finally put at the end of a session that had rubbed nerves raw and sharpened tempers, Pennsylvania and South Carolina cast their votes in the negative, while Delaware was split evenly and New York abstained.

Morton, speaker of the now adjourned Assembly, joined

Franklin and Wilson in voting for independence, with Dickinson, Robert Morris, Willing, and Humphreys against. voted for independence.

A majority of nine states had

But unanimity was all-important and frantic ef¬

forts to line up the recalcitrants followed the adjournment of Congress on the first. Before Congress convened the following day, the Pennsylvania dele¬ gation must have done some soul-searching.

Wilson, closer to Morris and

Dickinson than were Franklin or Morton, may have employed his eloquence to dissuade those two dissenters from voting against the Declaration.

When

Congress met on the 2nd, Morris and Dickinson, though present, did not officially take their seats, and Wilson, Franklin, and Morton carried the state for independence against Thomas Willing and Humphreys, who re¬ mained adamant to the end.

South Carolina bowed gracefully to the in¬

evitable, and from Delaware, Caesar Rodney, summoned by McKean, rode

88

JAMES WILSON

over to Philadelphia “tho detained by Thunder and Rain,

to cast his vote

dramatically for independence and swing Delaware to the patriot side."4 Only New York, bound by its instructions, declined to be counted. John Adams, in the exuberance of victory wrote Abigail that “the greatest question was decided which was ever debated in America, and a greater, perhaps, never was nor will be decided among men.”"J The question of whether Wilson and the moderate Whigs were justified in the fight to preserve the old charter government even at the cost of delaying the Declaration of Independence cannot be answered with¬ out considering a half dozen problems that were involved with it. Alex¬ ander Graydon, in later years, expressed the opinion that had the moderate Whigs held control of the Assembly they could have suppressed the Tories, placated their own right wing, and avoided the political revolution that took place within the state. Charles Thomson, secretary of the Continental Congress, a warm patriot and an experienced Philadelphia politician, believed similarly that “[had] the Whigs in Assembly been left to pursue their own measures, there is every reason to believe that they would have effected their purpose, pre¬ vented the disunion which has unfortunately taken place, and brought the whole Province as one man, with all the force and weight of government, into the common cause.”20 On the other hand there was the pressing problem of American in¬ dependence.

It was John Adams’ judgment, before the event, and that of

other patriots who were detached from the heat of Pennsylvania politics, that the issue of independence could no longer be ignored without en¬ dangering the whole fabric of colonial union and the very will to resist. The decision of the Virginia and Massachusetts men to force through the resolve and preamble at the cost of the dissolution of the Charter government of Pennsylvania was made in the broad view of all the colonies and was per¬ haps the correct one.

It is nonetheless possible that the Pennsylvania

Whigs, with a little more resolution and a little more time, might have brought their state into line with the others and in much better condition to contribute effectively to the “common cause.” It is impossible to say what proportion of the citizens were opposed to independence at the beginning of 1776 and how many came around in the months that followed.

It is perhaps significant that John Adams, with

a day to reflect on the glorious event, admitted to Abigail that “the delay of this Declaration to this time has many great advantages attending it.

INDEPENDENCE

89

The hopes of reconciliation which were fondly entertained by multitudes of honest and well-meaning, though weak and mistaken people, have been gradually, and at last totally extinguished.

Time has been given for the

whole people maturely to consider the great question of independence, and to ripen their judgment, dissipate their fears, and allure their hopes” by discussion and debate, by newspaper editorials and pamphlets, “so that the whole people, in every colony of the thirteen, have now adopted it as their own act.

This will cement the union, and avoid those heats, and perhaps

convulsions, which might have been occasioned by such a Declaration six months ago.”27 These were remarkable second thoughts for the Massachusetts delegate who had been so impatient of delay.

They suggest that, quite apart from

the issue of maintaining the charter government, Wilson and the moderate Whigs may have been right in fighting for time to allow the hesitant colonists in Pennsylvania and elsewhere “to ripen their judgment.”

Per¬

haps Adams was wise after the event and Wilson before. Nor was it strange that Wilson, who had been so far in advance of public opinion in his early draft of the Considerations, took a conservative Whig position at the time of the Revolutionary crisis.

His Considerations

on the Nature and Extent of the Legislative Authority of the British Parlia¬ ment was an essentially conservative treatise which looked toward perpetual

union with Great Britain on the basis of dominion status for the colonies. Revolution would result in independence which Wilson had not en¬ visioned and did not desire.

Indeed, he might have argued that, questions

of state politics aside, his actions were much more consistent with his avowed theories than were those of his radical colleagues from Massachusetts and Virginia.

Wilson was typical of the great majority of the delegates who

accepted with the greatest reluctance what they could no longer avoid.

CHAPTER VII

Continental Policies and State Politics

The morning of the 8th of July was warm and sunny. A throng of people

assembled in the State House yard to hear John Nixon read the new Declaration of Independence and to answer by “three repeated huzzas.” The King’s arms were removed from the Court Room at the State House by a dozen eager hands, and the bells of Philadelphia rang out exultantly. As evening came on, bonfires flared about the city and patriots toasted independence and the thirteen colonies.1 Wednesday, Congress adopted rules of procedure which indicate that a Congressman in 1776 was not dissimilar in some ways from his modern counterpart.

The rules provided that “No Member shall read any printed

Paper in the House during the sitting thereof without Leave of the Con¬ gress.”

In short there was to be no more leisurely reading of the daily

paper by the less industrious delegates while the great business of the country was being debated.

Further, the rules read, “no Member shall

speak [or whisper] to another, so as to interrupt any Member who may be speaking in the Debate.”"

So much for bad manners.

In July John Dickinson’s committee reported to Congress the Articles of Confederation, by which the united colonies were to confirm their com¬ pact, and although the powers granted to Congress were largely nugatory, the document proved too advanced for those members who were zealous in protecting the rights of the individual states. A major stumbling block was Dickinson’s proposal that the western lands be turned over to Congress.

It was over this clause that the debate

was hottest. Virginia was determined to maintain her claim to the western lands, extending as far as the “South Sea”—the Pacific.

The smaller, land-

POLICIES AND POLITICS

9i

less colonies were equally adamant in resisting Virginia’s claim.

Samuel

Chase of Maryland and James Wilson, themselves interested in western lands that lay within the existing state claims, spoke heatedly against the Vir¬ ginians.

“No Colony,” Chase declared, “has a right to the South Sea; they

never had; they can’t have.

It would not be safe to the rest.

It would be

destructive to her sisters and to herself.” Wilson followed Chase to insist that Virginia’s claims to the “South Sea” were extravagant.

“The grants were made upon mistakes.”

grantors “were ignorant of the Geography.

The

They thought the South Sea

within one hundred miles of the Atlantic Ocean. . . . [the land] extended three thousand miles.”

It was not conceived that Pennsylvania had no right

to interfere in those claims, Wilson told the delegates, “but she has a right to say, that she will not confederate unless those claims are cut off.

I wish

the Colonies themselves would cut off those claims,” Wilson added.3

It

would take four years of bitter wrangling, however, before the disputed claims were surrendered. The debate over the Articles that occupied much of July moved on to the matter of representation but the delegates found themselves again in sharp and, at least for the time, irreconcilable disagreement. The southern states were opposed to counting slaves as a basis for taxation, but wished, on the other hand, to count them in any basis of representation by numbers. Against this masterpiece of illogic the northern delegates cried out. again led the battle.

Wilson

If the war continued for two more years, he argued,

every soul would have forty dollars of the public debt to pay. To exempt slaves from serving as a basis for taxation will be to encourage slave-keeping and expand it.

Some states, Wilson pointed out, have as many black as

white inhabitants and “these will not pay more than half what they ought. Slaves prevent freemen from cultivating a country,” and to him at least, the whole system of slave-holding was involved in many difficulties and “inconveniences.” But the real issue of representation lay deeper.

The small states wished

each state to vote as a unit; while the larger states wished to have pro¬ portional representation and individual voting so that their greater popula¬ tion and size would carry more weight. To Stephen Hopkins, the Rhode Island delegate, who asked whether nine states should place it in the power of four to govern them, Wilson replied by posing another question.

“Shall two millions of people put it

in the power of one million to govern them as they please?” We are not

92

JAMES WILSON

so many states, we are one large state.

We lay aside our individuality,

whenever we come here.” Some speakers implied that the smaller states would be in danger from the greater.

Use honest language, Wilson challenged them, “and say

the minority will be in danger from the majority.

And is there an assembly

on earth where this danger may not be equally pretended?

The truth is

that our proceedings will then be consentaneous with the interests of the majority, and so they ought to be.

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 and Massachusetts, and which will not also be for the interest of the other states.”4 Wilson’s speech was an early and forceful statement of the large-state men who favored a strong national government with proportional represen¬ tation. There were to be many echoes of such ideas in the years ahead, and they would seldom sound without arousing the suspicion and often the frantic opposition of the small states and of those who advocated state sovereignty. For the moment the Articles seem to have served only to bring to the surface deep-rooted differences and opposing interests, but this in itself was not without value. Once basic conflicts had been exposed, the long, tortuous progress toward reconciliation could begin; from thesis and antithesis would come, eventually, synthesis. The delegates were distracted, in their deliberations, by news from the armies.

The Canadian expedition had withdrawn in June shattered and

demoralized.

Now dismal news came from New York.

General Howe

had driven Washington from Long Island and it was evident that the Continental forces must soon evacuate New York.

Despirited and weary,

mired in discord and frustration, more and more delegates drifted off, abandoning Congress to attend to personal business or to visit families. By November that body was reduced to a handful of permanent committees which carried on the business of government in days when Congress could barely muster a quorum. Supplies for the army remained a critical problem, and George Ross wrote to Wilson from Princeton about “the distress of our Soldiers who I have met almost naked and hardly able to walk or rather wade through the mud. ... I shudder to tell you that they fall dead on the road with their packs on their backs. . . .”5

Washington’s de-

POLICIES AND POLITICS

93

moralized and ragged army was fleeing south through the Jerseys after the Long Island debacle. Already occupied with the Board of War and half a dozen lesser committees, Wilson was appointed to three new committees in two days as Congress struggled desperately to make shift with the meager forces at its disposal.

Concentrated among a dozen or so of the ablest delegates

were the executive, administrative, legislative, and judicial functions of a country in arms.

The administrative duties alone included control of

commerce, of the army and navy, of finance.

In addition Congress func¬

tioned, properly or improperly, as a general headquarters for the armies, sifting reports from commanders in the field, dispatching divisions, plan¬ ning grand strategy for an army that was maintained largely by the tenacity of George Washington. Seen in this light its frequent missteps, its bumblings and failures seem less an indictment of Congress than a measure of its immense responsibilities and manifold duties. While Congress voted paper reinforcements and conducted lotteries to raise funds, Washington’s small army dwindled rapidly as dispirited militia stole away during the night, or, with their terms of enlistment up, decamped more openly, sheepish but defiant.

George Ross wrote Wilson

from Elizabethtown that the General had scarcely 2000 men left in his com¬ mand.

His goal was New Brunswick, “where,” Ross declared, “we are

going to make a stand in hopes of reinforcements.” rumored to be headed for Philadelphia.

The British were

“I hope we shall rouse from our

Lethergy,” he added, “and play the part of men who Merit freedom.”6 There were no reinforcements at New Brunswick.

Instead a large

part of what had been called so dramatically, the “Flying Camp,” took wing.

The portion of them who passed through Philadelphia were ha¬

rangued by General Mifflin in the State House Yard. Many of the Pennsyl¬ vania militia, more susceptible to the General’s eloquence, returned to serve another month. On December 2 word reached the anxious city that General Howe was prepared to cross the Delaware and descend upon Philadelphia. gress met in an atmosphere of feverish excitement.

Con¬

Drums beat through¬

out the city, summoning the Associators, sounding a hurried pulse of warn¬ ing, insistent and ominous.

Militia roamed the streets, and merchants,

perhaps as much in fear of their own undisciplined troops as of the British, closed shops, giving the city a funereal air.

94

JAMES WILSON All week long Philadelphia was like a beleaguered city, flooded with

new alarms, vibrating to the most recent rumor from the Jerseys.

Congress,

thoroughly disheartened by the failure of their constituents to rally to the cause of American independence, resumed their plans to abandon Philadel¬ phia, comforting themselves with the thought that they had no intention of dispersing, but only of finding a haven where they could devote “that quiet and uninterrupted attention to the public business, which should ever prevail in the great continental council.” Meanwhile, Washington with his remnant of an army barely slipped across the Raritan ahead of Cornwallis, destroying the bridge at New Brunswick behind him.

Even so, his small force could hardly have escaped

extinction if General Howe had not procrastinated, delayed the pursuit, dispatched several battalions to Rhode Island, and otherwise behaved more like an agent of Continental Congress than the commander of the British army.

Washington, “in full possession of his mind and a better degree

of spirits than could reasonably be expected,” as St. Clair wrote to Wilson,7 improved the breathing spell allowed him by Howe to seize the ferries above and below Trenton and commandeer every barge and skiff for miles up and down the Delaware. With Lord Stirling covering, he then carried his army across the Delaware while Howe, flags flying and drums playing, came up through Trenton on the heels of the Continental Army without a pontoon in his entire baggage train.

The soldiers who reeled back across

the river were ragged, half-frozen, lousy, ridden with disease—pneumonia, dysentery, and camp fever. A Tory journalist was not far wrong when he wrote gleefully, “the rebels are mouldering away like a rope of sand.”8 Congress itself had shrunk to a handful, “exceeding thin.”

And these,

advised by Mifflin, packed their baggage and left for Baltimore.

Whatever

their motives, their departure increased the confusion and disorder in the city they abandoned, and angered Washington’s little army. But there was to be a reprieve for the soldiers. General Howe, easy¬ going, inclined to pleasant and genial living, decided to outpost the Jerseys and make his winter headquarters in New York among friendly Tories, counting doubtless on winter to be as formidable a foe to the tattered and demoralized Continental Army as his own forces.

Indeed, his feelings

toward the rebellious colonies were not of a nature to urge him on to^a relentless winter campaign against the chilblained remnants of Washing¬ ton’s army that huddled on the western shore of the Delaware.

On the

POLICIES AND POLITICS

95

13th of December Howe garrisoned the northern counties of New Jersey and established his own headquarters in New York. The delegates of Congress, making their way to Baltimore as best they could over the iron ruts of the Post Road, passed neat farms with large flocks of grazing sheep.

The air was sharp with the smell of flax,

and John Adams reported later that he saw few farms where men and women were not busy breaking and spreading shredded stalks to dry in the thin winter sun. The city of Baltimore, or more justly, the town, sat, like ancient Rome, on seven hills that rose above the harbor.

The highest of these, on which

John Adams conferred the accolade of “the Beacon Hill of Baltimore,” bore St. Paul’s Church with a handsome detached bell tower, and a large square brick courthouse.

The town that spread over the steep hills, with

ragged ravines and eroded gullies, had a raw look, but landward a lovely countryside of broad fields and woods swept away in the distance. Market Street was Baltimore’s principal thoroughfare.

At its western

end, in the handsome brick mansion of Jacob Fite, Congress found a temporary home.

The street, with its thin fringe of locust trees, straggled

up hill and down, lined with hip-roofed houses painted white, yellow, and blue. Wilson found his lodging, not far from Fite’s house, with William Neill, a Baltimore merchant and staunch patriot. The reaction of the Congressmen to their new quarters was largely un¬ favorable.

Baltimore was a simple town with none of the comforts or re¬

finement of Philadelphia. The streets were ankle-deep in thick, viscous mud. Even carriages stuck fast in the mire, and many delegates had to make their way to the meetings of Congress on horseback.

One angry member wrote

back to Robert Morris in Philadelphia that “this dirty boggy hole beggars all description. . . . When the Devil proffered our Saviour the Kingdoms of the World, he surely placed his thumb on this delectable spot and re¬ served it to himself for his own peculiar chosen seat and inheritance.”9 Congress set grimly to work in its new quarters, perhaps hoping to make industry an atonement for timidity.

To impress the local citizenry

with their seriousness and the gravity of the crisis, the delegates met even on Sunday, and Sam Adams reported to his cousin John, just setting out for Baltimore, that more business had been done in three weeks than could have been accomplished in six months in Philadelphia.

96

JAMES WILSON Wilson found himself a member of a committee with Richard Henry

Lee and Sam Adams, “to take into consideration the state of the army,” and the same day he was appointed with Elbridge Gerry, William Whipple, and the vast Thomas Nelson, “to prepare a plan for the better conducting the executive business of Congress, by boards composed of persons, not members of Congress.”10

This was a reform that Wilson and Robert

Morris had long hoped for and done much to promote.

The recommenda¬

tions of the committee that such boards be established promptly marked the beginning of the differentiation of the government into modern depart¬ ments charged with conducting the detailed business of government under the supervision of Congress and later of the President. As a delegate to Congress from Carlisle, Pennsylvania, Wilson was solicitous, as are all politicians, for the well-being of his constituents.

It

was perhaps a little judicious log-rolling on Wilson’s part that induced Congress to recommend that a depot be established at Carlisle for the supply of the army.

Wilson wrote to Robert Morris to tell him of the

Congressional resolution and of his own intention of hurrying back to Carlisle to push the project along. Although there would be no opportunity to lay a cornerstone and remind the citizens of his solicitude for them, it could do no harm to come bearing word of the depot, and he would, in ad¬ dition, have a welcome visit with Rachel and the children.

Rachel was

almost nine months pregnant, and with luck he could time his visit to coincide with the arrival of the new baby. Before Wilson could slip off for home, however, there was much un¬ finished business.

The committee appointed to consider “the state of the

army” was faced with a most disheartening task, but they had hardly got into it when a marvelous change took place in the condition of the de¬ jected and half-frozen soldiers of the Continental Army.

While Washing¬

ton’s forces huddled on the south bank of the Delaware, across the river in Trenton, Colonel Rail, a brave but fatuous Hessian commander, rested secure in his contempt of the ragged colonials.

His concern was more for

the accomplishments of his military band than the state of his defenses in this outpost of Howe’s Army. So while the Colonel and his men celebrated Christmas Eve with German conviviality, Washington ferried his small army across the Delaware in a bitter storm of hail and cold, soaking rain, and closed in at dawn on the sleepy Hessians.

In a few confused and desperate minutes, at the

POLICIES AND POLITICS

97

threshold of a new year, the cause of independence was saved from in¬ glorious dissolution. The country was starved for some news that would put heart into the wavering and nerve the will for new efforts and new sacrifices.

Trenton

changed the whole mood and temper of the nation, and by instilling in the already cautious Howe a heightened respect for the skill of his adversary, it paid rich dividends in future campaigns. When the news reached Baltimore, Congress, exultant and strengthened in its own task, gave Washington a free hand in recruiting and reorganiz¬ ing his army.

Wilson’s committee on the state of the army was instructed

to frame a circular letter to the “several United States,” explaining the reasons which had induced Congress to enlarge the powers of General Washington, and requesting them to cooperate with him in every way. Efforts were renewed the same day to find means of obtaining foreign aid, and Congress proceeded to tackle its endless problems with new spirit and energy. On January 2, 1777, Wilson was appointed to a committee of three with Chase and the recently returned John Adams to draft a commission for Benjamin Franklin to the Court of Spain, but Rachel, the impending baby, and the Carlisle supply depot were much on his mind and a day or so later he excused himself from Congress and hurried home over frozen roads to be with his wife. After months of the grinding routine of committee business, after the cold and mud of Baltimore, Wilson was glad to be home, reading, writing letters, puttering about in his library and playing with the children. The new baby, a fine boy to be named Bird, was born on the 8th of January.

Polly was now five, lisping and winsome, Billy a year and a half

younger.

The household centered on Rachel and the infant with its remote

vegetative life; Wilson was free to attend to neglected business, answer letters long overdue, and give some thought to the broader matters of government.

In Congress he had often yearned for quiet hours in his

library, but now at home his mind kept turning back to Congress and its problems like a lodestone drawn to its pole.

“The situation of public

affairs is so interesting,” he wrote St. Clair, “that I find myself incapable of fixing upon those tranquil pleasures in my library, of which I have often formed such fond ideas when perplexed and distracted with bus¬ iness.”11

9g

JAMES WILSON What had seemed to him a refuge now confined him like a cage.

kept a watchful, almost impatient eye on Rachel. enough to spare him, he must get back. numbered.

He

As soon as she was well

Yet his days in Congress were

His enemies in the Assembly would soon muster enough

strength to remove him from the Pennsylvania delegation to Congress. It would be hard to step from the stage where history was being fashioned and take a humble seat in the audience. remain with the other actors after all. Robert Morris.

Perhaps he might find a way to He wrote his ideas to his friend,

Morris will be glad to hear that Congress has at last

seen “the propriety of distributing the executive Business of the Continent in different Departments, managed by Gentlemen not Members of Con¬ gress, whose whole Time and Attention can be devoted to the Business committed to their Charge.” There is one such office that is especially close to Wilson’s heart and he describes it to his friend. A Court of Admiralty and Appeal should be established with an official appointed by Congress to act as judge or ad¬ viser to that body on all “Questions in the Civil and Maritime Laws and the Law of Nations as shall be stated to him, for that purpose, by Congress, the Board of Admiralty, the Board of Commerce, or the Committee of Secret Correspondence.”

Wilson went on to list the advantages that would

accrue to the states from establishing such a position.

The responsibility

for instituting inquiries into the conduct of public affairs and undertaking the prosecution of public officials who are guilty of “mal-conduct” would rest with this official.

The current practice of appointing committees to

deal with such problems is unsatisfactory, for where “it is every body’s busi¬ ness to manage matters—You know the Consequence—it is no body’s Busi¬ ness. The Friends of the Person accused think themselves, and are thought by others, justified in doing everything in his behalf.” Unless one man has an official obligation to undertake the task of prosecutor there is sure to be much delay, inefficiency, and injustice. The final duty of such an official would be by far the most important, in Wilson’s opinion.

“I hope,” he wrote Morris, “the United States will

never be involved in the Maze of European Politics; but it is incumbent upon us to know something of them, even to steer clear of them.

Every

Letter from our Commissioners at Foreign Courts, almost every Resolution of Congress about Foreign Affairs will bring into View some Principle of Civil or Maritime Law, or of the Law of Nations.” On all such matters

POLICIES AND POLITICS Congress needs expert advice.

99

In short an advocate or attorney general

is much needed by the United States. Wilson would like to suggest himself as a candidate for the job if “no one offers for it better qualified.”

Perhaps Morris will make the

proposal for such an office to Congress, and, if Congress approves, suggest Wilson for the post, since his “course of Studies” has been such “as in some Measure to prepare me for it.”

He has written Morris with “all the open¬

ness of a Friend to a Friend,” and he has mentioned himself because he feels that he can be “of some service in this line.

I have not been so

unsuccessful in private life,” he adds, “as to be obliged to obtrude myself upon the Public.”12 When Wilson took his seat in Congress again, he found a letter from Morris waiting for him.

He was convinced, the financier wrote, of the

soundness of Wilson’s plan, but stuck fast in Philadelphia he was “a very slave, far from Baltimore,” and unable to turn his hand to directing the action that Wilson wished.

However Jay might well help and Johnson

of Maryland was another who should be sympathetic.

If they arrived in

Congress in time, these two might do the job. In any event Morris hopes that something can be worked out, “for,” he continued, “I am told our assembly do not intend you shall be in the New List of Delegates.”

Morris would gladly take up the cudgels for his

friend, but he is swamped with work and could accomplish little.

He

adds a consoling word, however. “You will enjoy your Family and Friends at home if you are deprived of the opportunity of Continuing those Services to your Country which she so much needs and of which if I mistake not she will feel the want off, untill better men in better times shall call you forth again.”13 Back in Baltimore, Wilson found his services much in demand. Many of the delegates had been laid low by colds and fevers.

Less than twenty-

five members were left to conduct the business of the nation, and most of these were plagued by coughs and sniffles.

William Hooper wrote to

Morris, “I declare . . . the Congress presents such a scene of yellow death like faces, that you would imagine Rhadamanthus had shifted his quarters and was holding court in Baltimore.”14 Wilson found a measure of cheer in the presence of a new delegate. John Adams had arrived in Baltimore in February to take his seat in Congress once more.

He noted with approval that the inhabitants were

I00

JAMES WILSON

“all good Whigs.”

But Congress itself presented a “meloncholly Prospect”

to the New Englander.

“Very few Faces remain, that I saw in the first

Congress,” he wrote his friend James Warren.

“Mr. S. Adams, Mr. Sher¬

man, and Coll. Richard Henry Lee, Mr. Chase and Mr. Paca, are all that remain.

The rest are dead, resigned, deserted or cutt up into Governors,

etc. at home.”15

Amid all the unfamiliar faces, Wilson’s ruddy Scots

countenance, thick glasses balanced precariously on his short nose, must have been a welcome beacon to John.

Soon the two were busily promoting

their common ideal of a strong and effective union. If Morris anticipated Wilson’s removal from Congress and Wilson himself was resigned to it (he wrote St. Clair that he retired “without disgust; and with the conscious reflexion of having done my duty to the public and to the state which I represented”)16 at least one other member of Congress looked on the prospect of his loss with less composure.

“I have

the next delegation of your State much at heart,” Hooper wrote to Morris, “and should be very sorry that any change should take place to the ex¬ clusion of Wilson.”

Although Hooper must confess that the Scotsman,

with his stiff reserve and awkward manners, is a bit eccentric, “after a long and pretty intimate acquaintance with him, I am extremely deceived, if pure integrity and love to America, a just and generous attachment to the state which he represents, a strong natural capacity improved by ex¬ tensive reading, a very retentive memory when cool judgment has matured and digested what he has read, are not the genuine Characteristics of my friend Wilson. His removal from Congress . . . ,” Hooper concluded, “would work an essential political Evil.”17 Nevertheless, when the Pennsylvania Assembly, a few days later, selected delegates for another term, Wilson was dropped.

Franklin, Robert Morris,

Daniel Roberdeau, Jonathan Smith, and William Moore were chosen. George Clymer and Benjamin Rush, like Wilson enemies of the state con¬ stitution, were also replaced. There were immediate protests, not all of them from enemies of the Constitution. Clymer had done yeoman work on the Committee of Congress that had carried on much essential business in Philadelphia after Congress had removed to Baltimore, and Wilson was one of the most able and conspicuous patriots in the country. Bearing on the problem of finances and on the powers of Congress was a letter from the New England states which had met in Rhode Island and there taken common action to prevent the depreciation of their cur¬ rencies.

The letter from the New Englanders, describing the results of

POLICIES AND POLITICS

IOI

their conference, presented Congress with a delicate problem. To censure the eastern states for their independent conduct would be dangerous and indeed impossible.

Yet such independent action, if not challenged, would

soon undermine the precarious authority of Congress.

A committee, com¬

posed of Wilson, John Adams, Chase, Sherman, and Richard Henry Lee, was appointed to recommend action.

Their report urged that Congress

express approval of the steps taken by the conference, except such measures as might tend “to depreciate the continental and other currencies.” These ought not to be adopted.

As a counterbalance to the unilateral action of

the New Englanders, the middle and southern states were urged to meet in conventions of their own and to concert similiar plans that would strengthen each state without weakening its neighbors.

The general ap¬

proval of the New England measures was thus largely negated by specific criticisms.

The invitation to other states to hold conferences gave Congress

the initiative and created the impression, somewhat illusory to be sure, that it was exercising jurisdiction and control.

The report, engineered by

Wilson and Adams, was an effective statement of the aspirations of the “nationalists.”18

Even so Wilson was not content.

He wished the resolve

strengthened by an explicit statement upholding the right of Congress to disapprove action taken by individual states or groups of states that affected the common interest. Congress pondered the question of its “right” for three days, and the debate, according to the practical-minded William Ellery of Rhode Island, was highly “metaphysical.”19 This dispute between the advocates of Con¬ gressional power and those who considered themselves the champions of the states foreshadowed the most dramatic political struggle of the revo¬ lutionary era, a struggle that finally terminated, at least for a time, in the Federal Constitution. Meanwhile alarming news came from Washington.

Howe’s army was

on the move again with Philadelphia as its apparent objective. The depleted Continental forces were powerless to stop him.

Congress replied to the

danger by the usual flurry of resolutions, summoning paper soldiers to take up non-existent arms, and cloaking its impotence under a fine garment of bravado. The delegates would reinforce the General, they declared solemnly, “to enable him not only to Curb and Confine the Enemy within their present Quarters but with the Blessing of God Entirely to subdue them.” As one member wrote, “This pompous Paragraph was very much Con-

I02

JAMES WILSON

demned by some Gentlemen as an unworthy Gasconade, and it was warmly debated.”20 Philadelphia, a city of perpetual allure, still drew the weary delegates, now thoroughly tired of provincial life.

Having just decided to suspend

their adjournment thence, Congress came back to the issue again in peevish altercation.”

‘a

Burke “moved to put off the question on behalf

of” North Carolina, thus exercising his veto power in an arbitrary man¬ ner and recalling to the attention of the larger states, with bitter directness, the tenuous bonds that held their infant confederation together. grew short.

Tempers

The wrangle over sovereignty that had occupied most of

the previous session had done nothing to sweeten dispositions soured by the dirt and expense of their southern exile, the ominous news from Wash¬ ington, and the delegates’ sense of their own futility.

John Adams, Wilson,

and Roger Sherman led the attack against the obstructionist tactics of the North Carolina delegate.

A majority vote, they insisted, must decide

the question of whether a single state could forestall discussion of this question. But threats and blandishments were alike wasted on the Caro¬ linian. “Gentlemen were exceedingly mistaken,” he informed them icily, “if they deemed him a Man who would tamely suffer any Invasion or en¬ croachment” on the rights of his state.21 last carried to abandon Baltimore.

On Thursday the motion was at

Congress would meet in Philadelphia

on the Wednesday following to resume business at their old stand. Just as Congress was about to break up, word came to Wilson that he had been kept on the Pennsylvania delegation after all.

When William

Moore had refused to serve, the pressure on the Assembly to re-appoint Wilson increased, and meeting on February 22 the Assembly added Wilson and Clymer to the Pennsylvania delegation. The reprieve astonished Wilson.

He wrote to tell Morris that the

nationalists had won an important victory before the adjournment by securing an increase in the interest rate on government loan certificates. Perhaps this measure would “give a Spring to the Sinews of War.”

For

himself he could not imagine “What in the Name of wonder” had in¬ duced the Assembly to reappoint him.

“I am undetermined how to act;

I really think I could be more useful to the Public in another Character.” But he will obey the summons of the Assembly, and continue to serve to the best of his abilities, he added.22 Congress reconvened in Philadelphia on the 12th of March, but Wilson lingered on at Carlisle with Rachel and the new baby, and it was the end of

POLICIES AND POLITICS the month before he took his seat.

103

When he did a letter was waiting for

him from St. Clair who, wintering at Morris Town with Washington’s forces, had resolved to write Wilson weekly.

Word of his friend’s re¬

appointment to Congress had not yet reached St. Clair, and he wrote an angry note berating that “contemptible and disjointed Body,” for removing Wilson.

Indeed, one might almost say, he added, “ ’tis in some measure

disgraceful to be of their Choice.”23 In reply Wilson told the General that he had resumed his seat in Congress.

“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,” although the Assembly is taking every pos¬ sible advantage of “the very critical Situation of public Affairs.”24 Consideration of the Articles of Confederation had been pushed aside by Congress in favor of more critical problems, but it was now decided to devote two days a week to the proposed frame of government.

The first

article, readily agreed to, confirmed the name of the confederation as the United States of America. The second article, as it was originally offered to Congress, reserved to the states the powers of internal police.

Thomas

Burke in alarm countered with an amendment “which held up the principle, that all sovereign power was in the States separately.”

Certain

enumerated powers Congress might exercise in conjunction with the states, “but that in all things else each State would exercise all the rights and power of sovereignty, uncontrolled.”25 Wilson was outspoken in opposition.

This was the kind of particular¬

ism he most feared, and he and Burke clashed repeatedly.

The Pennsyl¬

vanian saw in Burke’s motion simply another effort to cripple the effective¬ ness of a federal government strong enough to deal with the common problems of the states. With the question unresolved, Congress was forced to turn back to more pressing matters.

Wilson was appointed to a committee with the

irascible Burke and William Duer, newly arrived from New York, to prepare another address “to the inhabitants of the thirteen United States, on the present situation of public affairs.”26

Perhaps the delegates had

their tongue in their collective cheek when they placed Wilson and Burke on the same committee.

Wilson had found the Carolinian blocking his

path at every turn, muttering or shouting about the despotic schemes of the nationalists, waving his banner of state sovereignty, turning up dark

I04

JAMES WILSON

plots in every motion of the big-state members. Now the adversaries must combine their talents as best they could. By the end of May, Wilson had finished the address.

Before it was

submitted to Congress, it was carefully reviewed by the North Carolinian and Burke’s imperious comments pepper the pages.

After enumerating

the wrongs of the colonists in typically orotund phrases, Wilson observed that the oppressors had “turned a deaf ear” to the colonists’ pleas for justice. Here Burke’s blunt hand questioned the phrase, “Is not this a vulgarism, amend it thus, ‘refuse even to hear.’ ” To Wilson’s careful retracing of the steps leading to the final rupture with Great Britain, the Carolinian appended a curt criticism, “This does not enter my Mind with sufficient force, clearness and Simplicity, neither the reasoning or motive is full, satisfactory or conclusive.” comment, Wilson’s face grew red with anger. presume so?

Reading the

Who was this bumpkin to

It was one thing to endure the opaqueness and obstinacy

of his opponent in debate.

It was quite another to have this tactless South¬

erner correct a style that was much admired and bore the stamp of a university education.

As he read on, Burke’s comments stuck out here

and there like small obstructive twigs, marring the even flow of Wilson’s rhetoric. The address ended with an idyllic picture of the citizen, no longer the oppressed minion of a despotic government, but victorious through patience and valor, sitting “under your own Vine, and under your own Fig-tree. . . . All political Power will be derived from you; and will be exercised only by such Persons, during such Terms in such Manner and for such Purposes as you shall appoint.” Congress took no action on Wilson’s composition.

It lay neglected,

riddled by Burke’s darts, while the delegates struggled with more mundane and more urgent business.27 Much of the time of Congress in the spring of 1777 was taken up with a political wrangle that almost immobilized that body.

When Henry

Laurens arrived in Philadelphia somewhat later to take his seat as a delegate from South Carolina, he found “parties within parties, divisions and Subdivisions to as great a possible extent as the number 35 (for we have never more together) will admit of.”28 For some months in 1777 the intriguing coalesced around two figures— General Philip Schuyler and General Horatio Gates. The New Englanders, in alliance with Richard Henry Lee and some of the Georgia delegates,

POLICIES AND POLITICS

105

supported Gates.

New York and the middle states threw their weight

behind Schuyler.

The prize was the command of the semi-independent

northern army, presently encamped at Ticonderoga. The New Englanders won the first round in March when Gates was given command of the Northern Department in preference to Schuyler.

The New Yorkers in

Congress, pressing relentlessly, won the second round when Congress, after hearing Schuyler present his own case, reversed itself and gave him the disputed command in place of Gates who was already busy strengthening the fortifications of Ticonderoga. Impeded by the Gates-Schuyler controversy and the multitudinous dayto-day details that burdened Congress, the business of the confederation went haltingly. Wilson, finding himself powerless to effect any real strengthening of the still-debated Articles, turned his energies to the problem of finances. Here much might be done indirectly to sustain the Revolution and knit more closely the union of the states. On September 3 the house resolved itself into a committee of the whole under the chairmanship of Benjamin Harrison to debate ways and means of raising the funds needed to maintain the continental forces.

The

desideratum was to procure money without annoying or inconveniencing any patriots. The emission of paper money was demonstrating its dangers even to financial dullards.

Wilson and Adams, with support from Henry

Laurens, tried once more to get Congress to vote stiffer taxes. Behind the stubborn refusal of Congress to put some order into continental finances lay several motives that can be readily identified. A sound financial system must rest on a program of uniform taxation in all the colonies, but there were psychological as well as practical difficulties in the way. The colonists were extremely sensitive, as a result of the preRevolutionary agitation, to all taxes. To impose taxes that could not be collected would be to weaken further the precarious confederation. In addition, the states were most jealous of their vaunted sovereignty. Powers had not been allocated between Congress and the states, and most of the states were wary of any precedent that might lead to Congressional usurpa¬ tion of a right that, to their minds, belonged in the state alone. A strong “national” system of finances, besides implying a centralized system of collection, would be but the first step in the creation of a national govern¬ ment that would soon absorb the states. The advocates of an effective tax system understood this dialectic equally well, and it encouraged them

106

JAMES WILSON

to persevere in their struggle through endless defeats and discourage¬ ments. The whole issue was further complicated by the deep suspicion of the smaller states for their larger neighbors. Their fear of being engulfed was never allayed until the framing of the Federal Constitution when, pro¬ tected by the Senate, the small states quite readily abandoned the cause of state sovereignty—the cause whose most determined and consistent cham¬ pions they had long been. On the 21st of August, Congress was cheered by the news that the crochety veteran John Stark had brought a hornet’s nest of New England militia swarming about a Hessian force at Bennington and routed them completely, killing or capturing most of the enemy.

The New Englanders

in Congress indulged themselves in an orgy of self-congratulation. The military news from elsewhere was less heartening.

In July Howe

had withdrawn from the front of Washington’s formidable position at Middlebrook, and loading his troops in transports had begun a baffling series of maneuvers, impelled more by indecision than by strategic con¬ siderations.

Uncertain whether the English commander aimed for the

Hudson or the Chesapeake, Washington marched and countermarched his weary soldiers through most of July. Finally, early in August, Howe appeared at the mouth of the Chesa¬ peake, beat his way slowly up the bay, and put his army ashore at last at the head of the Elk. Congress in great alarm sent off word to Washington immediately, and the now familiar appeals went out to Pennsylvania and the adjoining states to come to the aid of the threatened capital.

The reply was a

disheartening trickle of patriots, hardly fifteen hundred in number, who straggled into Washington’s camp on the Neshaminy.

With them Wash¬

ington was able to muster no more than eleven thousand men to oppose some seventeen thousand of the finest professional soldiers in the world. Yet with the issue in the north unsettled as Burgoyne made his way laboriously southward, and with the defeat at Ticonderoga still rankling in patriot bosoms, Washington had little choice but to attempt a defense of Philadelphia against an opponent who, however lacking as a strategist, was a capable and resourceful tactician who almost invariably handled his army with sure skill.

POLICIES AND POLITICS

107

As soon as he received word from Congress of the approach of Howe’s army, Washington began his move south.

On Sunday, the 24th

of August, 1777, he marched his battered legions through Philadelphia. However ragged and ill-equipped they might be, there was about the Continental veterans a litheness of step, a lean hardness and tough pride that reassured those spectators who could look beneath shabby exteriors. While an anxious city watched Howe’s advance, driving Washington back at Brandywine early in September and advancing on the Schuylkill, the city’s last line of defense, and while Congress prepared for a second time to abandon its capital, word came to Wilson that the Pennsylvania Assembly had removed him and George Clymer from the state delegation to Congress.

Jonathan Smith resigned, and the three delegates were re¬

placed by Joseph Reed, who had made his peace with the radicals and was soon to be President of Pennsylvania, William Clingan, and Dr. Samuel Duffield, a Philadelphia druggist. With the exception of Reed, the delegates were men whose greatest claim to distinction was that they were staunch supporters of the Constitution of 1776.

The three together made a poor

exchange for Wilson’s long experience and high ability. Wilson’s two and a half years of service in Continental Congress was at an end “till better men and better times” should call him forth again. If James Wilson was a Continental statesman, he was also a Pennsyl¬ vania politican.

Burdened as he was with his multitudinous Congressional

duties, he nonetheless led the fight in his own state against the radical Westerners. A week after John Nixon read the Declaration of Independence to the assembled citizens of Philadelphia, the Pennsylvania Constitutional Con¬ vention assembled in the State House, across the hall from Congress. Indignant over the Pennsylvania delegation’s split on independence, the convention promptly replaced all those who had voted in the negative or abstained, with the exception of Robert Morris.

He, with Wilson,

Morton, and Franklin, was reappointed while the other delegates were replaced by members of the convention:

Benjamin Rush, George Clymer,

George Ross, George Taylor, and James Smith.

Thus when the members

of Congress gathered on August 2 to sign the engrossed text of the Declaration of Independence, the Pennsylvania delegates were unanimous in affixing their signatures.

I08

JAMES WILSON The delegates to the state convention were for the most part men with¬

out political experience.

Led by doctrinaire radicals who fired them with

enthusiastic perspectives of a new democratic era modelled on the Roman Republic, they followed docilely in the paths laid out for them.

One

observer described them as “honest well meaning Country men . . . intirely unacquainted with such high matters,” and noted that they seemed “hardly equal to the Task to form a new plan of Government,” while another less tolerant witness dismissed them as “numsculs.”29 Wilson’s friend Thomas Smith, himself a delegate and now sporting the title of Colonel, wrote that “not a sixth part of us ever read a word on the subject [of government] but I believe we might have at least prevented ourselves from being ridiculous in the eyes of the world were it not for a few enthusiastic members who are totally unacquainted with the principles of government.

It is not only that their notions are original,” he added,

“but that they would go to the devil for popularity.”30 The “enthusiastic members” included bawling Dr. Young, a peripatetic revolutionist, Timothy Matlack, a Philadelphia democrat, James Cannon, an Edinburgh Scotsman and teacher of mathematics at the College, and George Bryan, port officer of Philadelphia and an astute politician.

So

carried away by political allurements was Cannon that he declared all learning to be “an artifical constraint on human understanding,” and ad¬ vised “our sovereign lords, the people, to choose no lawyers or other pro¬ fessional characters called educated or learned men, but to select men un¬ educated with unsophisticated understandings.”31 Benjamin Franklin was the most outstanding figure in the convention, but constitution-making was not his forte. In philosophy, natural and moral, in diplomacy, in a thousand discreet arts and accomplishments he excelled, but as a political scientist he left much to be desired. Although he was more often absent than present, the final result of the convention embodied many of his own ideas on government and was hailed with delight by his French friends, the philosophes, as a model of democratic perfection. Wilson, across the hall from where his friends Thomas Smith and George Ross were laboring valiantly to check some of the more extreme suggestions of the radicals, kept a close watch on the proceedings.

As a

retiring commissioner for Indian affairs in the Middle Department, he was able to help secure appointments as commissioners for Jasper Yeates and John Montgomery.

Flaving dispatched Yeates to Pittsburgh with ten

thousand dollars and “a great many belts of wampum” to negotiate with

POLICIES AND POLITICS

109

the Indians, Wilson wrote his friend in August to advise him about the coming Indian treaty and to inform him of the progress of the convention in framing the new constitution. Our friends Ross and Smith seem pretty well pleased with what is going on, [he wrote] but at other times not entirely so. The legislative Power, I am told, will be vested in only one Body, to be annually elected. A Rotation in this Body is suggested as a Check upon it and upon its Members. A septennial or decennial Convention with Power to correct and amend Errors discovered in the Constitution or Administration, is proposed. Such a Convention to support its own Importance, will, in my opinion, either find or make Mischief: To make it Salutary, the Consti¬ tution should be a bad One. Perhaps, however, such a Convention to meet at very considerable Distances of Time, such as 50 years, might be of Serv¬ ice. By that Time some of the Wheels of the Machine, tho’ well made and properly put in motion at first, may be out of Repairs. A Governour and Council are proposed as the Executive Power. 1 have heard very little concerning the Judges.32 What Wilson heard of the executive power, the so-called Supreme Executive Council of twelve elected officers, was not at all to his liking, and he and his friends rebelled openly at the constitution’s provisions for a judiciary appointed for seven years and removable by the Assembly and Council.

Last and most offensive to the Whigs was the oath required of

all the voters—to uphold the Constitution fashioned by the radicals.

The

“septennial Convention” which Wilson mentioned in his letter to Yeates was the Council of Censors, modelled after the Roman original, which was to review all legislation every seven years.

The Council very soon be¬

came one of the principal targets of those who opposed the Constitution of 1776. The Constitution was indeed an abortive and unworkable document that from its inception aroused the most bitter opposition among large numbers of people who were by no means blind supporters of the old regime. strife.

Through it the state was subjected to fourteen years of intestine If the Constitution seemed the pinnacle of enlightened statesman¬

ship to its authors, to the moderate Whigs it was more like “Ovid’s de¬ scription of matter before the Creation,”33 and although Wilson and his friends might joke about the new “frame of government” they were deter¬ mined not to rest until it had been replaced by a more rational document. Nevertheless, whatever might be said against the Constitution of 1776 as a blueprint for an orderly state government, it contained a strong

II0

JAMES WILSON

measure of democratic idealism.

Distinctions of position and wealth were

to a considerable degree destroyed; the franchise was extended to every man who paid taxes—which included most of the citizens of the state—and ordinary men were drawn into offices formerly reserved for the rich and the well-born or their beneficiaries.

The Constitution made liberal modi¬

fications of the debtors’ laws and broke the power of the eastern oligarchy. The radicals formed the nucleus of what eventually became a strong democratic party in Pennsylvania.

Their years in power trained up a

shrewd group of frontier and Philadelphia politicans who played a vital role in state and national politics at the end of the century.

In a sense

the radicals were justified in seizing power by whatever means lay at hand in order to break for all time the control of the Easterners and to train their own men in the practice of government. However, having won

their fight, the Westerners

secure and enjoy the fruits of their victory.

settled back

to

Pennsylvania’s war effort

was virtually paralyzed in the unrelenting struggle over the new Consti¬ tution.

From the very first Wilson was a leader of the opposition.

His

steady resistance to the Constitutionalists aroused their bitter resentment and they looked for an opportunity to remove him from Congress and bar him from participation in state politics as well.

Thomas Smith, observing

how the wind blew, wrote to St. Clair that although Wilson was “a fine fellow” he had enemies, “created, I sincerely believe, by his superior talents. Their malice has hitherto been impotent; but they are such industrious, undermining, detracting rascals, that I hardly think they will rest till they have got him out, and a ready tool in his place.”34 The conservative reaction to the new state Constitution grew daily in intensity and bitterness.

Many of the moderate Whigs refused to accept

office under it, many more refused to take the test oath, and government was almost at a standstill for want of able and experienced officers.

In

Bedford County Wilson’s friend Thomas Smith, who held the offices of prothonotary, recorder of deeds, and clerk of the orphans’ court, refused to surrender the records to his radical successor, and similar incidents oc¬ curred throughout the state.

On

October

17 Wilson

and

his

friends

collected “a large number of respectable •citizens” at the Philosophical Hall “in order to consider of a mode to set aside sundry improper and un¬ constitutional rules laid down by the late Convention, in what they call their Plan or Frame of Government.”

A series of thirty-one resolves which

Wilson undoubtedly helped to frame were agreed to and ordered to be

POLICIES AND POLITICS

hi

printed and distributed throughout the state to rally opposition to the new constitution.

The thirty-one resolves represented an all-out attack on

the radicals and ranged from a caveat that “the Christian religion is not treated with the proper respect” to a detailed assault on almost every provision:

“The said Constitution unnecessarily deviates from . . . the

former Government of this State, to which the people have been ac¬ customed”; it is full of “strange innovations” and against “all principles of government laid down by such authorities as Montesquieu”; there is “no distribution of power into different hands, that one may check the other”; the whole document is “confused, inconsistent and dangerous.” The special wrath of the moderate Whigs or, as they now came to be called, the Anti-Constitutionalists, was directed against the Test Oath. There must be a new convention, they insisted, elected without any such limitation, to alter or amend the constitution.30 The following Monday, October 21, some fifteen hundred people collected in the State House yard to hear the merits of the new government debated.

McKean and Dickinson attacked it energetically and it was

defended with equal vigor by its framers, Cannon, Matlack and Young. By the time the debate had ended it was late and the meeting adjourned until the following evening.

When it reassembled the next evening, the

thirty-one resolves were approved by a large majority, and although the crowd refused to vote for repeal of the loyalty oath, Wilson and his fel¬ low Republicans were much encouraged by the results of the meeting.36 Wilson wrote at once to his lieutenants around the state to inform them of the outcome of the State House meeting and to forward the thirtyone resolves.

With Thompson, Irvine, and Armstrong in the army and

John Montgomery at Pittsburgh with Yeates, George Stevenson was one of the last of the old guard in Carlisle.

Wilson sent him a packet of anti-

constitutional literature for distribution throughout the county. Stevenson replied promptly that he had carried out his commission.

He had made

fifteen copies and sent these “with a News Paper and a few lines from myself to the Different Parts of the County.”

One bundle had gone to

Shippensburg, another to Conecocheague. As for the local political situation, Carlisle, in Stevenson’s opinion, would give twenty votes to the radical candidate, Andrew McGhee, “who will swallow the Oath, if there are as many Fish-Hooks in it as there are letters.”

With McGhee as inspector of the elections, the non-juring citizens

of the town will be excluded from offering a ticket and the Constitutional-

II2

JAMES WILSON

ists will carry the election.

It is Stevenson’s opinion that the Test Oath

is a device of “the late Convention” to secure themselves seats in the next Assembly.

For “such as like and swallow the Oath, of consequence

like and approve the makers of it and will give them seats in the House of Assembly.”37 And so it proved.

The radicals, buttressed by the loyalty oath, won

control of the Assembly.

The moderate Whigs meanwhile tried to rally

their own demoralized forces for an attack on the new Constitution, but before Wilson and his lieutenants could strike an effective blow, the ap¬ proach of General Howe’s army and the necessity for bolstering the existing state government forced them to suspend their campaign.

Sitting

in Congress at Baltimore, Wilson could do little to resume the offensive, even when the British threat had subsided, and it was perhaps this thought that prompted the radicals in the Assembly to retain him on the state dele¬ gation to Congress. When Congress finally voted at the end of February to return to Philadelphia, Wilson headed at once for Carlisle where he conferred with conservative leaders of Cumberland County and mapped a new attack against the Constitution, not yet a year old. He wrote to William Atlee and Jasper Yeates in March that the state government had taken advantage of powers given it to prosecute the war to add to its own authority.

“It is

therefore high Time,” he declared, “that those who think the Constitution a bad one should rouse themselves.” The dissatisfaction with “the Assembly and their Measures is very great and general ... a successful Opposition wants only a beginning.”

He enclosed for his friends a declaration, doubt¬

less drafted by himself, to “shew what Steps we are taking here,” and urged them to take up the cause in Lancaster County.38 Back in Philadelphia, Wilson took over direction of the growing op¬ position to the Constitution.

For the moment his Congressional duties

suffered and he worked early and late framing remonstrances, petitions, and addresses to be printed in the newspapers and circulated about the state. The radicals, organized by Charles Willson Peale, the young artist, into the Whig Society, met at the Philosophical Hall early in April to form a committee of correspondence consisting of Peale himself, James Cannon, the democratic mathematician, David Rittenhouse, the astronomer, the “bawling Dr. Young,” and Major Thomas Paine, revolutionary prop¬ agandist temporarily unemployed.

The committee was instructed to cor-

POLICIES AND POLITICS

113

respond with any societies or individuals “from whom they may expect to obtain information interesting to our common liberties.'’39 Despite the activities of the Philadelphia radicals, reports reached Wilson from his lieutenants in the counties that gave him high hopes. Montgomery wrote that there was dissatisfaction with the Constitution in Cumberland County.

George Stevenson, equipped with Wilson’s am¬

munition, had attacked it effectively, and “the people about Shippensburg” were much put out with the high-handed behavior of the Assembly.

Wil¬

liam Thompson also wrote Wilson to assure him that “the sensible and vertious party of the country, have since you left us, been endeavoring to set this villanous constitution aside.” Montgomery, confident as he was, could not quiet a voice of doubt. The justices appointed under the new government were soon to meet in Carlisle, and the town would be “full and Stinking with yellow wiges.” “Will you adviss us,” he asked Wilson, “to Submit our necks to the Yoak like ass? ... I am affraid if they once are allowed to open the Courts, it will be over with us. . . .” The bitterness of the old guard at Carlisle was increased by the de¬ fection of former sheriff, now general, Ephraim Blaine.

The Anti-Con¬

stitutionalists had been in a strong position, and under their leadership Cumberland County might have united against the “Villanous Constitu¬ tion,” but General Blaine had announced in chilling tones that a majority of the state supported the constitution and that “it would be enforced by fixed Bayonets.” Thompson was convinced that Blaine had become the creature of the Executive Council.

“I know,” he wrote, darkly, “it is not

for nothing he deserts a Cause or a Friend.”40 The news of Blaine’s stand was a blow to Wilson, for it was Wilson who had recommended Blaine to Washington as the ideal man to take charge of the Carlisle supply depot, describing him as “sensible, active, spirited.”41 Whatever were the virtues or vices of the Constitution, the state government was disintegrating at an alarming rate.

There were riots

about the state between bands of angry partisans and in Lancaster, Christian Wertz testified that his life and property were endangered by civil dis1

orders.

With the coming of spring Howe was on the move again, rumors

said to Philadelphia. The virtual collapse of the state administration compounded the already multitudinous problems of Congress, and on the 14th of April, the delegates

II4

JAMES WILSON

appointed Sam Adams, Richard Henry Lee, and William Duer as a committee to meet with President Wharton and the Pennsylvania Board of War in an effort to restore some order to the government.

Wilson,

Robert Morris, George Clymer, and Daniel Roberdeau were present also as the delegates of Pennsylvania in Congress. The conferees quickly reached the conclusion that “the Executive Authority of the Common-Wealth ... is incapable of any exertion, adequate to the present crisis.”

Until “such

time as the Legislative and Executive authorities of the Commonwealth of Pennsylvania [could] resume the regular exercise of their different functions,”42 a cadre of state officials received the sanction of Congress to carry on the administration.

A kind of junto composed of President

Wharton, the Board of War, the Navy Board, and such members of the Supreme Executive Council as could be rounded up constituted the govern¬ ment of the Commonwealth. to resume control.

The time seemed ripe for the Republicans

In the early weeks of May they stepped up their prop¬

aganda barrage with a flood of letters to the Journal, the Gazette, and the Advertiser.

Apparently it was Wilson, writing under the pseudonym

of “Addison,” who fired the opening gun. Addison called on “honest men on both sides” to join in recommend¬ ing a new convention “for the purpose of altering and amending the Con¬ stitution, agreeably to the sentiments of a majority of the people.” Assembly

will

issue

the

call,

all

factions

of

“the

If the

whig-interest

the state” will support the existing organs of government.

of

The oath to

uphold the Constitution, required of all voters, received Addison’s severest strictures.

The oath was directed against “whigs, who should disapprove

of the constitution,” and “Those, who directed this measure, must have been secretly of opinion, that the constitution would be disagreeable to a majority of the Whigs in the State.”43

They had therefore attempted to

disenfranchise a majority of the state’s voters. The next edition of the Journal contained an address to the “President of the Executive Council and Board of War for the State of Pennsylvania.” The letter, repeating Addison’s call for a new convention, was signed by a host of prominent Republicans among them Benjamin Rush and his brother Jacob, several Cadwaladers, George Ross, Mark Bird, Richard Peters, the Bradfords, Thomas FitzSimons, the Clymers, Sharp Delany, Charles Thomson, Robert Morris, and of course Wilson himself.44 As soon as the Assembly convened, Wilson, John Cadwalader, Benjamin Rush, Peters, Robert Morris, and George Ross published an open letter

POLICIES AND POLITICS

ii5

calling on the representatives to demonstrate their good faith by calling for the convention. The Constitutionalists, harried on every side, replied as best they could. The ready pen of Tom Paine was enlisted in the radical cause and “Common Sense” took up the cudgels against “Addison.” tinued through May and June.40

The paper warfare con¬

Wilson, anticipating victory as the ad¬

ministration failed to revive, was indefatigable in his efforts. He frequently absented himself from Congress to compose new assaults on the Constitution or to make hurried trips to confer with his lieutenants in the counties. However, with success in sight, it was the British rather than the radicals who frustrated his efforts at the last moment.

On the 9th of July a con¬

ference was arranged between a committee of the Assembly and representa¬ tives of the Republican Society.

The Assembly informed Wilson and his

friends that it had decided against the convention.

Howe’s transports had

left New York with Philadelphia as their rumored destination.

It was

no time, they declared, to debate constitutional questions or frame new governments. It was a disheartened group of Republican leaders who assembled at the Philosophical Hall to hold a post mortem on their unsuccessful cam¬ paign to replace the Constitution of 1776.

As Wilson wrote St. Clair, the

approach of Howe had for a second time saved the Constitutional Party. “When an opposition has been twice set on foot, and has twice proceeded so far as to become formidable, he has twice, by his marches toward the Delaware, procured a cessation.”40

But the fight would go on.

CHAPTER VIII

A Philadelphia Lawyer

Ousted from

Congress, Wilson set out for Carlisle.

He had hardly

reached home before word came that Howe had driven Washington’s forces back and occupied Philadelphia.

The delegates to Congress had

slipped out of the city and made their way to Lancaster, where they were now deliberating.

However, the bitter blow of losing the foremost city

of the colonies to the enemy was largely redeemed by word of Gates’ victory over Burgoyne at Saratoga, and a few months later the Treaty of Amity and Commerce with France put new hope in patriot hearts. For Wilson his removal from Congress marked a turning-point in his career.

He had started out as a frontier lawyer.

In Congress he had

made friends with many of the wealthiest and most influential men in the new nation.

Political office, continental or state, seemed closed to him

because of the ascendancy of the radicals.

Wilson therefore turned in¬

creasingly toward business ventures and land speculation to give ex¬ pression to the immense energy he had expended in public affairs. While he was still in Congress his friend William Smith, provost of the College of Philadelphia, had written him about a company that was being formed by some twenty or twenty-five merchants to trade with France and Holland.

Each entrepreneur was being asked to put up £5000

to launch the venture.

Would Wilson be interested in joining, Smith

asked?1 And there were a number of similar enterprises in the air.

Robert

Morris, who had business interests all through the South, may have of¬ fered Wilson an opportunity to act as his agent, collecting tobacco for ship-

A PHILADELPHIA LAWYER

117

ment to the West Indies, Martinique, or Eustatius for trans-shipment to France or Holland. Carlisle, however, was no place from which to direct a mercantile undertaking.

In addition Wilson’s efforts to arouse opposition to the Con¬

stitution had made him a hated enemy of the radicals, and Carlisle was now a radical stronghold. With Carlisle in the hands of his political enemies and Philadelphia in the hands of the British, Wilson was undecided where to establish his own headquarters.

For a time he considered buying William Paca’s magnificent

house in Annapolis and moving to the Maryland town where he could pursue his new commercial activities in congenial surroundings.

Indeed

rumor had it that he had purchased the Paca mansion for ^4500, but while the sale was still pending, General Clinton, Howe’s successor, evac¬ uated Philadelphia, and Wilson decided to move permanently from Carlisle to the city.2 The Anti-Constitutionists, now terming themselves Republicans, had been gaining ground in Pennsylvania.

They had extracted a promise

from the Assembly to canvass the state on the question of drafting a new constitution.

Thus his two principal concerns—business and politics—

drew Wilson back to Philadelphia.

At the end of June, 1778, he sold his

Carlisle property, two lots and a substantial house, to Dr. Jonathan Potts for ^2500.3

His days as a frontier lawyer and politican were over.

Hence¬

forth the principal city in America would provide the stage for the career of James Wilson.

The ornate bookcase that Isaac Bachmann had made

for a young lawyer eight years before, the bookcase with the naively carved head of William Penn, remained behind.

Wilson could see now that it

was much too crude for a Philadelphia mansion. As Clinton withdrew from Philadelphia the patriots lost no time in tak¬ ing over the city.

By June 26th, George Bryan, who had succeeded Thomas

Wharton as president of Pennsylvania, reestablished the government of the state in the Quaker city, and on the 2nd of July, Congress returned from its most recent place of exile in York. Philadelphia in the summer of 1778 had all the marks of an occupied city, hastily abandoned.

Trees had been destroyed for fire-wood, churches

and public buildings that had been used as troop quarters by the British were littered with trash and excrement. feed insatiable bonfires for the redcoats.

Fences had been torn down to Some houses were completely

gutted, doors torn from their hinges and sashes smashed; gardens were

n8

JAMES WILSON

trampled and orchards ruined.

The State House was in such a “filthy

and sordid” condition that until it could be cleaned and refurbished the delegates had to meet at the College of Philadelphia.

Besides what was

damaged, much had been stolen by the decamping British and their hangerson.

Where some bit of rebel property had attracted the eye of a departing

soldier he had stuffed it in his pack or hidden it in one of the commissary wagons lumbering out of the city ahead of the rear guard.

The road

north was littered with debris from Philadelphia homes as weary Britishers discarded loot in the hot June sun.4 The Whigs viewed the wreckage of their city with mounting in¬ dignation.

Before Howe’s occupation they had let the Tories feel the

force of patriot displeasure.

Under the British occupation, it had been

the turn of the Tories to exact vengeance.

Now with the Whigs in the

saddle again, there was a loud baying for Tory blood. a wicked mood.

The city was in

Chief Justice McKean sat every day in the upstairs

chambers of the City Hall to hear indictments brought against scores of Philadelphians accused of Tory sympathies. Many innocent men and many Quakers, whose sole crime was that they struggled to remain neutral or that they continued to affirm loyalty to the King, suffered in the proscription of Tories.

Class animosities were

mixed with political hostility and these in turn with religious resentments. The Tories—Quakers and die-hard adherents of the Proprietors—were down now, and the patriots showed a disturbing determination to kick them mercilessly. Some of the Tories had been friends of Wilson and other patriot leaders; some had been themselves leaders in the affairs of the province and would emerge again as leaders in the state.

They had rights to de¬

fend against the indiscriminate anger of enthusiastic colonials and in many cases good hard money to pay for defending them.

Wilson joined forces

with George Ross and William Lewis to stand forth as defender of the Tories in the Pennsylvania courts. Lewis, like Wilson a learned lawyer, was also the son of a farmer.

He

had persuaded his father to apprentice him to George Ross after he had heard lawyers arguing cases in the court house when he brought his father’s produce to market nearby. Tall as Wilson, thin and stooped—“he had but one dimension, length,” a friend said of him—he was constantly wreathed in cigar smoke.

Ad¬

dressing a court, he stood like a genial crane, speaking in a slow country-

A PHILADELPHIA LAWYER

119

man’s drawl with quick, jerky movements, one hand thrust between his waistcoat and shirt, his eyes bright and humorous, his nose immensely long. Philadelphia was the great American school for the law of treason, and in that school Wilson, Lewis, and Ross became the masters. Wilson’s con¬ nection with the subject of treason went back to June, 1776, when he was appointed with John Adams, Jefferson, John Rutledge, and Robert Living¬ ston to the Committee on Spies.

That committee had brought in a report

to Congress which declared in a highly arbitrary manner—considering that the Declaration of Independence had yet to be signed—that “all per¬ sons abiding within any of the United Colonies, and deriving protection from the laws of the same, owe allegiance to the said laws.”

Individuals,

the report continued, “members of, or owing allegiance to any of the United Colonies, as before described, who shall levy war against any of the said colonies ... or be adherent to the king of Great Britain, or others the enemies, of the said colonies . . . are guilty of treason against such colony.”

The report then urged the states to pass laws that would provide

for the punishment of treason.5 The opponents of colonial independence had been declared traitors by simple decree.

But then revolutions are

never accomplished by observing nice distinctions of justice.

If the Amer¬

ican Revolution refrained from eating its own children, it could not be too severely blamed for devouring some adherents of the enemy. The blood-hunger of the Philadelphia patriots in 1778 came to fasten, finally, on two unfortunate victims, both Quakers, both accused of treason. The first of these was Abraham Carlisle, an elderly, prosperous Philadel¬ phia carpenter.

Wilson, Lewis, and Ross were his defense counsels.

His

indictment read that during the British occupation he had accepted a com¬ mission from the British and acted as a guard at one of the gates of the city, “having not the fear of God before his eyes, but being moved and seduced by the instigation of the devil.” The case came to trial on the 24th of September in the Court of Oyer and Terminer of Philadelphia County before Supreme Court Justices, Thomas McKean, William Atlee, and John Evans.

Jonathan Dickinson

Sergeant and Wilson’s fellow degree holder, Joseph Reed, were prosecutors for the Commonwealth, “Respublica” as the docket read. As the trial opened before a jury of Philadelphia Whigs, Wilson ob¬ jected at once to the second charge of the indictment—that the prisoner had levied war against the state.

For such an indictment there must be

I20

JAMES WILSON

proof of an overt act.

In a case of treason the charge must be certain, he

declared, citing Foster, Hale, and Strange.

It is not enough to present

a general mass of evidence as indicating treason; each charge must be closely supported by unquestionable proof. Through an appeal to common law, Wilson succeeded in blocking evidence that Carlisle had taken salt from patriots to turn over to the British forces. The state then produced a stream of witnesses who together established beyond reasonable doubt that Carlisle had indeed functioned as a guard for the British at one of the northern gates of the city.

The defense re¬

sponded by producing twelve witnesses who testified to various acts of kindness and leniency on the part of the accused in his capacity as guard. Wilson insisted that no adequate proof of the first charge had been presented, namely that the prisoner had accepted a commission from the British. one.

No commission had been produced nor any direct evidence of

He was never observed to have carried a sword or a gun and he

might thus be considered a civilian employee of the British, which was not treason.

Wilson laid special emphasis on the statute of 25 Edward

III (1351), which had set the standard observed in English law ever since, by requiring proof of an overt act, strictly defined, in all treason cases, and which, as Wilson was later to point out to his students, had marked a great step forward by taking interpretation of treason out of the hands of judges, sensitive to the king’s displeasure, and placing it under the province of Parliament. All penal laws must thus be construed most strictly, as Blackstone had remarked, according to the letter in criminal cases.

By this criterion

it remained to be proved that Carlisle had accepted a commission in the British army.

The confession of the prisoner himself was not sufficient

to establish this under Pennsylvania law. by two witnesses.

The treason must be proved

To support the prosecution’s claim that the prisoner

had sent out a spy to observe movements of the continental units only one witness had been produced, and that one of doubtful veracity. Lewis followed Wilson, insisting, in his nasal drawl, that treason must be “cul-lear and pul-lain.”

It is allowable, he declared, for the inhabitants

of a conquered city to “join the conquerors” without incurring the charge of treason. Ross closed the arguments for the defence on the first day of the trial and resumed them when court convened the next morning.

Wilson

A PHILADELPHIA LAWYER

121

followed his friend and traced the historical development of the concept of treason.

Treason was indefinite and not clearly defined at best, but by

the statute of 25 Edward III it had been fixed and limited, and the parliament which fixed the famous rule has since been called the Bendictum Parliamentum for its service to the cause of justice.

The whole historical

development of the judicial concept of treason has been in the direction of narrowing the limits of what actually constituted treason.

A conviction

in the present case, he argued, would open the way for new and dangerously broad interpretations. Chief Justice McKean’s charge to the jury apparently favored the broader interpretation of treason argued for by the attorneys for the state. The jury, after being out for almost twenty-four hours, returned a verdict of guilty, but the jurors joined with Justices McKean and Atlee in a plea to the Executive Council for mercy.

Wilson made a final effort to have

the judgment stayed on the grounds that indictment was “vague and un¬ certain,” but the Court refused to accept the plea. The trial of Joshua Molder and John Taylor on changes of treason followed that of Carlisle. This time the three defense attorneys were more successful and their clients were acquitted. In the next case Wilson and Ross defended one Malin, and Wilson won his point that words were not treason and that the defendant could not be convicted except by proof of an overt act.

Malin, like Molder and

Taylor, was acquitted. Respublica v. John Roberts followed on the Court’s docket.

Roberts,

who had nine children, was a miller in Lower Merion, and, like Carlisle, a Quaker.

The state opened the trial by presenting a damning array of

witnesses.

Roberts had, according to the testimony of one, urged patriots

to abandon the Revolutionary cause as hopeless.

Thirty thousand Russian

troops, each one twice the size of an American soldier, would soon arrive to reinforce the redcoats.

Another prosecution witness swore that the

prisoner had called him an “old rebel” and threatened to have him hanged as a traitor to Great Britain.

The state scored a damaging point with the

story of one Grove, who reported that he had heard Roberts making plans to lead a troop of British horse to the rescue of the Quaker leader Israel Pemberton. After the parade of witnesses, Joseph Reed for the state moved to in¬ troduce Roberts’ confession as evidence.

Wilson was up at once to protest.

The Pennsylvania Assembly had passed a statute barring a confession as

I22

JAMES WILSON

evidence in a trial of this nature.

He backed his statement with citations

from English statutory and common law.

The confession should not be

admitted by the Court as evidence of guilt. Reed replied that “a dozen judges have settled [the] point.

Confes¬

sions may be given in evidence to corroborate other proofs of overt acts by two witnesses.”

Wilson’s objection was overruled by Justice McKean.

The defence then proceeded to call its witness.

The first was Daniel

Clymer, a prominent Quaker lawyer, a friend of Wilson’s from his Read¬ ing days, a militia officer and a Republican. favorable to Roberts.

Clymer’s testimony was very

Roberts had not only expressed to Clymer his deter¬

mination to remain neutral, but he had gotten word to him that the jour¬ nals of the Continental Congress were on his farm.

He had asked Clymer

to send word to General Washington so that they could be recovered before they fell into enemy hands. Thirteen witnesses for the defense then testified that Roberts had gone out of his way to help individual patriots and prisoners in the hands of the British.

Against the impressive testimony in his favor, the prosecution

rested its case primarily on Grove’s story and on Roberts’ own confession. The jury brought in a verdict of guilty, but as in the case of Carlisle, the jurors petitioned for mercy for the prisoner.

Wilson once more asked

that the finding of the jury be set aside, since “the evidence given respecting [Roberts’] declaration or confession was altogether illegal and ought not to have been allowed.”

The Justices refused Wilson’s motion and Justice

McKean pronounced the sentence of death by hanging, although he mentioned “with pleasure” the testimony that the accused had frequently intervened in “acts of humanity, charity and benevolence” toward American prisoners of war.6 The fate of Carlisle and Roberts now rested with the Supreme Executive Council, which alone had the power to commute the sentence. Many of the leading Whigs in Philadelphia interceded for the con¬ demned men.

Twenty-two petitions were placed before the Executive

Council, and one on behalf of Carlisle was signed by 386 Philadelphians. The Council, apparently more sensitive to the general public clamor for a scapegoat than to the promptings of justice, or of mercy, refused to grant a pardon, and Roberts and Carlisle were executed on the 4th of November. According to the practice of English law their property was attainted and seized by the state of Pennsylvania.

A PHILADELPHIA LAWYER

I23

Wilson and his fellow defence counsels failed to thwart a popular desire for vengeance, but during the trial Wilson had helped to clarify the legal concept of treason as it applied to the American scene and thereby to lay the foundation for an interpretation of treasonable acts that marked a great step forward in Anglo-American law.

During the Federal Con¬

vention, nine years later, Wilson was appointed to the Committee of Detail, and it was this committee which brought in the treason clause that was finally incorporated in the Constitution.

The clause provided that

treason must be proved by two witnesses to the same overt act.

English

law since the statute of Edward III had required two witnesses to an overt act in all treason cases, but the requirement of two witnesses to the same overt act narrowed the bounds of treason greatly.

As Wilson pointed out

later to his law students, “Treasons capricious, arbitrary and constructive, have often been the most tremendous Engines of despotic Power or of legislative Tyranny,” but in the United States “a new and great Improve¬ ment” had been introduced.

The treason clause in the Constitution gave

the American citizen “not only a legal but a constitutional Security against the Imputation of Treason,” or the extension of its definition to cover political heresies.

Even the “Fury of legislative Tempests” cannot en¬

danger this security, Wilson told his students, for “as the Crime of Treason is correctly and permanently ascertained; so its Punishment is restricted to the proper Object.”7 The authorship of the treason clause in the Constitution is beyond final proof, but there is much circumstantial evidence that Wilson framed it. The most thorough student of American treason law credits him with the clause, and observes that in the discussions of the provision during the convention debates, Wilson spoke “most positively ... in the role of draftsman-technician.”8 Our present-day law of treason grew out of the dramatic events in the Philadelphia County Court of Oyer and Terminer in the fall of 1778, events in which Wilson played a central role. In October, 1778, a new Pennsylvania Assembly was elected.

Wilson

and his friends had the pleasure of seeing a number of conservatives in the legislature—among them Robert Morris, Thomas Smith, George Clymer, Dr. Jonathan Potts, Edward Biddle, and Wilson’s brother-in-law, Mark Bird.

The Bedford delegation, led by Smith, was staunchly Republican,

and a disputed election in Chester gave the conservatives hope of adding

I24

JAMES WILSON

to their strength.

Since General Anthony Wayne had a large popular fol¬

lowing in his home town, Wilson wrote a letter to Wayne urging him to make an appearance there in support of the Republican cause. “Affairs now wear a very pleasing Aspect in Pennsylvania,” the letter read. “A Majority of the Members elected for the Assembly are sincerely and warmly disposed to rescue their Country from Tyranny and from Contempt.”

There has been a contested election in Chester County and

a new balloting seems likely.

“Your Presence in that County and this City

during this important Conjuncture, will be of signal Service in many Respects which we forbear to mention in a Letter,”

Wilson continues.

If Wayne can get a few days leave from the army he may be able to turn the balance.

“Matters are now approaching a Crisis and in a few Weeks

it will be determined whether the State of Pennsylvania shall be happy under a good Constitution; or oppressed by one, the most detestable that was ever formed.”

The letter was signed by Wilson, Mark Bird, Biddle,

Potts and Thomas Mifflin.9 Wilson’s optimism seemed justified.

At the end of November the

Assembly resolved to “take the sense” of the people on the question of reforming the Constitution.

It must also have been a source of satisfaction

to Wilson that the Assembly rather belatedly voted him pay for his at¬ tendance in Congress from January i to September 14, 1777, a total of 255 days, of which he had been absent 32.

At three shillings a day his

remuneration came to ^ici.io.o.10 In December Wilson was involved in an admiralty case which, before it was over, became one of the most famous cases in American legal history. The British sloop Active, out of Jamaica for New York with a load of rum and coffee, fell in with two British cruisers off Cape Charles. captured American sailors were transferred to the Active.

Four

When the

cruisers departed, the Americans, led by a sailor named Gideon Olmstead, made a bold attempt to capture the vessel.

They had succeeded in driving

the British crew and passengers below deck, when the American brig Con¬ vention, sailing under commission from the state of Pennsylvania, came up

and formally captured the Active while the privateer Gerard stood by. The captured vessel was carried into Philadelphia.

There George Ross,

newly appointed to the Admiralty Court of Pennsylvania, presided over a jury trial that awarded one-fourth of the prize money resulting from the sale of the ship and its cargo to the officers and men of the Convention; one fourth to the state; one fourth to the Gerard; and one fourth to Gideon

A PHILADELPHIA LAWYER

125

Olmstead and the American seamen who had made the courageous effort to seize the British sloop at sea.

Although Ross sympathized with Olm-

stead’s claim to a larger share of the prize, he delivered the jury verdict. General Benedict Arnold, living high off the graft he extracted from Philadelphians in his role of military governor of the city, bought up the claim of Olmstead and his companions and appealed the decision of the Pennsylvania Admiralty Court to the Court of Commissioners set up by Congress to hear appeals from state courts.

Arnold retained Wilson and

William Lewis (who had handled the case in the Admiralty Court) to argue the case on appeal. As in the treason cases of Roberts and Carlisle, Wilson’s experience with the Congressional Commissioners on Appeal extended back to his early days in Congress. In November, 1775, George Washington wrote Congress to urge the delegates to make provision for the settlement of prizes brought to port by American privateers.

Congress responded by appointing a committee

of seven that included Benjamin Franklin, Wilson, George Wythe, Edward Rutledge, John Adams, and Thomas Jefferson to “take into consideration . . . the disposal of such vessels and cargoes belonging to the enemy, as shall fall into the hands of, or be taken by the inhabitants of the United Colonies.” The committee in turn brought in a report, which was adopted by Congress, recommending to the states that they set up courts or empower existing courts to decide prize cases.

The report also recommended that

appeal be allowed in such cases to Congress within forty days. The first appeal came in August, 1776, and a special committee was appointed in September to hear this case.

Wilson, who was a member

of this Committee on Appeals, served on every subsequent special com¬ mittee until the formation of a permanent standing committee in January, 1777.

George Wythe, the great Virginia lawyer, served with Wilson on

three of the committees.

William Hooper, the handsome North Carolinian

who had attended Harvard and studied law under James Otis, was regularly chosen for this duty, as was Samuel Chase of Maryland, later, like Wilson, to become a justice of the Supreme Court. On December 15, 1778, Wilson argued the case of Gideon Olmstead on appeal before the Congressional Commissioners—William Drayton of South Carolina, John Henry of Maryland, William Ellery of Rhode Island, and Oliver Ellsworth of Connecticut—and the court upset the decision of the

126

JAMES WILSON

Pennsylvania Admiralty Court by awarding a larger portion of the prize money to Olmstead.

The issue was thus sharply drawn in the increasingly

important question of state sovereignty versus the authority of Congress. Judge Ross, Wilson’s ally in many political and legal battles, refused to accept the judgment of the Commissioners, declaring that a recently enacted Pennsylvania law prohibited appeals to a higher court on the findings of fact by a jury. As soon as word of his friend’s recalcitrance reached Wilson, he directed Arnold to write the Commissioners that the Pennsylvania Court “is about getting possession of the [prize] money, with the avowed and declared purpose of standing out obstinately against any orders that may be given.” The marshal of the Court, Matthew Clark¬ son, had been instructed to secure the prize money and hold it for dis¬ tribution on the basis of the Court’s original decision.

The funds were

to be delivered into the custody of Judge Ross at nine o’clock the next morning, and Matthew Clarkson “positively declares that no order of the Court of Appeals shall take it out of his hands or be obeyed.” “Such a daring attempt as this to evade the justice of the Superior Court,” Arnold wrote, guided by Wilson, “will I doubt not apologize for my troubling you with a request to meet this evening” in order to block the plans of the Admiralty Court.11 The Commissioners, too scattered to be assembled that night, held a hasty conference at eight o’clock next morning in a final effort to forestall Marshal Clarkson.

Their injunction was firmly worded.

The “said

Judge hath refused to pay obedience” to the decree of the Commissioners and has ordered the marshal to sell the ship and cargo “and lodge the Residue of the monies arising from the said sale in the Court aforesaid.” The Commissioners, for their part, “command and firmly enjoin” the marshal “to detain and keep in your hands and custody the whole of the monies arising from said sale of the said Sloop and her cargo . . . until the further order of this Court be made known unto you as you will answer the con¬ trary at your peril.”12 Matthew Clarkson, servant of Pennsylvania, deposited the “said monies” in the state Admiralty Court.

The authority of the Congressional tribunal

had been openly and unmistakably flaunted. undone by Wilson s friend.

For the moment a firm protest was the only

recourse for the Commissioners. port that

Wilson’s client had been

They ordered it entered upon the re¬

the Judge and Marshal of the Court of Admiralty of the state

of Pennsylvania had absolutely and respectively refused obedience to the

A PHILADELPHIA LAWYER

127

decree and writ regularly made in and issued from this Court.”

But the

Commissioners, “being unwilling to enter upon any proceedings for con¬ tempt lest consequences might ensue at this juncture dangerous to the public peace of the United States, will not proceed further in this affair.” Wilson, Arnold, and the Commissioners must find what consolation they could.

George Ross and the sovereign state of Pennsylvania were in pos¬

session of the field. Congress itself.

The only remaining hope, and that a faint one, was

Wilson and Lewis wrote to John Jay in September, 1779,

asking him to do what he could to persuade Congress to uphold the action of its Commissioners and validate the claim of Gideon Olmstead. Congress preferred discretion to bootless valor.

Nothing was done.

The two at¬

torneys formally petitioned Congress once more in the spring of 1780 “on behalf of our injured and aggrieved clients.” Arnold’s treachery had mean¬ while been discovered and the claim had reverted to Olmstead and the seamen.13

Still Congress took no action and the decision of the Pennsyl¬

vania Court stood. But there was another chapter to be written. Wilson did more than any other man of his generation to give shape to the concept of a federal judiciary with appellate jurisdiction over the state courts.

After his death

the United States Supreme Court spoke the final word in the case of Gideon Olmstead and the sloop Active.

By 1809 the property in question

—an equity in the one-fourth taken by the Commonwealth of Pennsyl¬ vania—had passed on to two embattled sisters, the heirs of David Rittenhouse, state treasurer in 1779. a traitor’s exile.

Ross, like Wilson, was dead; Arnold in

Only Gideon Olmstead still fought for his rights.

The

District Court of Pennsylvania ruled in his favor, and, urged on by a mandamus from the Supreme Court, the United States marshal appeared to seize the sisters in their home, “Fort Rittenhouse.”

The Governor and

Assembly called out the state militia to defend the sisters, but the marshal, scaling several backyard fences, entered the house unnoticed by the troops and carried one of the ladies away under arrest.

When the case came

before the state Supreme Court, William Lewis, Wilson’s former law partner, argued the case of the United States and succeeded in having the sister, surrendered on a habeas corpus, returned to the custody of the marshal.

The Pennsylvania Assembly thereupon voted money to satisfy

the ancient judgment of the Commissioners on Appeal and secure the release of the feminine hostage.

128

JAMES WILSON The Pennsylvania militia were then brought before Supreme Court

Justice Bushrod Washington in Circuit Court.

Washington, nephew of

the General, law student of Wilson and his successor on the Supreme Court, sentenced them to fines and prison terms for resisting the authority of the United States.

James Wilson had his vindication at last.

The set-back which the Olmstead claimants received at the hands of the Pennsylvania Admiralty Court emphasized the impotence of Con¬ gress.

It was another in a series of experiences that helped to convince

Wilson of the need for a strong national government with power over individual states.

If a state could defy Congress when it wished, there

could be no orderly or effective general government. Wilson’s defense of Roberts and Carlisle and his determined efforts on behalf of Olmstead marked his entry into the front ranks of his pro¬ fession.

Wilson lived in Philadelphia when that city was famous as the

incubator of brilliant lawyers, and no lawyer in the city had more im¬ portant cases or argued them with greater skill.

Clients from every

state pressed Wilson to take cases for them. Many of these were admiralty cases, and here, where careful briefs and logical argument counted for more than emotional appeals to jurors, he was at his best. He represented Aaron Lopez, one of the richest merchants in America, his friend Morris, the Penns, a score of Tories, and the Commonwealth of Pennsylvania in its claims against its neighbors. But Wilson, with one of the largest and most successful practices in America, never allowed what he later called “the retail business of the law” to absorb all his energies.

His library remained his refuge, and there

he labored to extend his theoretical knowledge of the law until it should encompass all the important speculations of the past and make them ser¬ vants of the present.

CHAPTER IX

Fort Wilson

Wilson

and

his

fellow Republicans, encouraged by the Assembly’s No¬

vember resolve to take “the sense of the people” on the constitutional issue, worked assiduously in the early months of 1779 to rally voters to their cause.

But the Constitutionalists were once more ahead of them.

Word

reached Wilson that even the ministers of the gospel in the western counties had been enlisted by the radicals to inveigh against the proposed ref¬ erendum.

Petitions calling on the Assembly to rescind the resolves circu¬

lated all over the state.

And thousands of Pennsylvanians, assured by

the radicals that the Republicans were Tory aristocrats bent on establish¬ ing a “House of Lords” in the State House, added their signatures.

Such

charges found a ready acceptance among frontier farmers, men with an instinctive suspicion of eastern politics and politicans. As the petitions calling for the abrogation of the November resolve poured in upon the none too resolute assembly, the members of the Re¬ publican “Society” tried to stem the tide with a public statement of their aims and character.

Wilson drew up a long letter defending the Re¬

publican leaders and attacking in bitter terms the “general weakness, inactivity and confusion” of the existing constitution.

The enemies of

the constitution have been called a cabal with no motive but avarice and a desire for power, but Wilson assured his readers that “we have, and can have no common interest with one another, but that which we have also with you.

We are of different occupations; of different sects of

religion; and have different views in life.

No factions or private systems

can comprehend us all; but one powerful source of attraction unites us— The Liberty and Happiness of Pennsylvania.”

Wilson challenged those

I30

JAMES WILSON

who doubted the truth of his words to “read over the list of the subscribers; enquire into our occupations and professions, . . . and you will be convinced” that the charges against the Republicans are “the greatest absurdity.” “Are we all desirous of becoming Lords?” Passing to the attack, Wilson criticized the single legislature as the incubator of despotism. There was no hope of settled justice where judges were “tossed about by every veering gale of politicks,” and where the Council of Censors at the end of every six years celebrated “a jubilee of tyranny” by turning up the very foundations of government. “You are called upon by your Representatives in the Assembly,” Wilson reminded his readers, “to testify your sentiments, on the first Tues¬ day of April next, whether you will choose to labour under the . . . dis¬ advantageous parts of the Constitution; or will substitute in their place such establishments, as will insure to you the blessings of freedom, happiness and independence.” The people of Pennsylvania must not let the op¬ portunity pass. The name of Richard Bache as chairman of the Society led the signers, followed by a representative group of Philadelphians, chosen to refute the charge of cabal. Wilson, Sharp Delany, a Philadelphia druggist, Alexander Nesbitt, a merchant, Isaac Melcher and Jacob Hiltzheimer for the German element, General Thomas Mifflin, and Admiralty Judge Francis Hopkinson were included, with Mark Bird, Thomas Smith, Robert Morris and a score more of Philadelphians.1 The letter had not even appeared in the Gazette before the blow struck. On the 27th of February the majority of the Assembly, fortified by petitions from “a very considerable and respectable number of the in¬ habitants of this Commonwealth,” resolved to “rescind the said resolves, and the said resolves are hereby rescinded.” Once more Wilson and his forces had been turned back. The Republicans for their part were quick to charge bad faith on the part of the Constitutionalists. Why, if the people of the state were so overwhelmingly in favor of the Constitution, should the radicals resort to every possible artifice to prevent them from expressing this approval?2 Timothy Matlack, member of the Constitutional Convention in 1776 and secretary of the Supreme Executive Council, undertook to answer Wilson and his allies. Wilson had implied that most supporters of the new government were dependent on it for their livelihood and thus bound to support it, however faulty, at all hazard. Matlack expressed himself

FORT WILSON

T3*

quite ready to admit that his daily bread depended on his office. Wilson “without a blush, charge poverty on any man as a crime.”

But can It was

not so long ago that Wilson himself, “who now holds up his head so very high’,’ was equally impecunious.3

The Republican Society, Matlack implied, was financed by British gold and its true purpose is to “divide and govern.”

“Let some cool and

dispassionate Member of your club look on the path in which you are treading,” wrote Madack, “and count how many steps there remains be¬ fore you, between you and the line on which is marked Conspirators, and I suspect that he will be induced to think you have gone far enough.” Tension mounted in Philadelphia when the Constitutional Society, a successor to the Whig Party, was formed in April with Charles Willson Peale as chairman.

“We have too much reason,” the Constitutionalists

declared, “to apprehend that the public wealth is plundered by defaulters, and the whole country imposed upon by forestalled and monopolizers.” The Society intends to expose and punish all such enemies of the cause.4 To the Republican cry of tyranny and inefficiency, the Constitutionalists would reply with the charge that their opponents were malefactors of great wealth, bent on destroying the liberties of the people.

The statement of

the Constitutionalists was aimed specifically at the friends and associates of Robert Morris and at Morris himself for refusing to abide by the price regulations that had been promulgated at a rump meeting of radical Whigs.

As an enemy of price controls and a friend of Morris, Wilson

shared the opprobrium.

In addition Wilson had drawn attention to him¬

self by his skillful defense of Philadelphians accused of treason. There was, of course, some truth in the radical charge that certain business men were speculating in public money and withholding vitally needed commodities.

But as Benjamin Rush wrote a friend, the “quantity

and the instability” of paper money “would corrupt a community of Angels.” Yet the efforts of the radical committees to regulate prices were, in Rush’s medical analogy, like “a violent puke given to a man in the last stages of consumption.”5 Frustration merely raised blood-pressure.

Cargoes of wheat going

down river were seized and returned to the city.

The flour stocks

of merchants were inventoried by self-appointed committees.

Wagons

rattling out of Philadelphia with tea, sugar, and rum were sequestered by the radicals.

When General Cadwalader, one of the heroes of Trenton,

but suspected of strong Republican leanings, tried to address a restless,

i32

JAMES WILSON

noisy mob, he was prevented by Constitutionalists wielding clubs.

The

Republicans thereupon moved to the yard of the College on Fourth Street and organized a rump meeting of their own.

With Morris presiding, his

own actions, not unexpectedly, were completely vindicated.

A committee

consisting among others of Wilson, Sharp Delany, Whitehead Humphreys, and Benjamin Rush was appointed to take measures against the misrepresen¬ tations of the Constitutionalists.

Humphreys suffered for his activities by

having his house raided and his sister knocked down by a party of marauding radicals.6 The raw nerves of both Republicans and Constitutionalists were further exacerbated in July when Charles Willson Peale told a group of Whigs at the Coffee House that a bribe had been offered Tom Paine, presumably by Silas Deane or one of Deane’s friends, to refrain from exposing Deane’s defalcations as commissioner in France.

Word quickly reached Deane,

who wrote to Peale demanding that he disclose the name of the “person or persons who made this offer to Mr. Paine.”7

Deane, Wilson, and

John Nixon delivered Deane’s letter to Peale. Wilson and Nixon evidendy felt that their business association with Deane placed them under the same cloud. The next day Paine himself stepped into the quarrel by promising that he would “tell all.”

Having labored for two days, Paine produced

a very small mouse, in fact hardly a mouse at all.

“It is sufficient on my

part,” he declared, wrapping his rather tattered dignity about him, “that I declined the offer; and it is sufficient to Mr. Nixon and Mr. Wilson that they were not the persons who made it.”

Mr. Paine had pulled

in his horns, but, having done so, he attempted to retrieve something from the exchange by addressing Wilson. “I take the liberty of asking Mr. Wilson,” he wrote, “if he is or was not directly or indirectly a partner in the Foreign Commercial Company, in which Mr. Deane, with several other members of Congress at that time, and others were concerned.’’8 Paine’s technique was that of the oblique insinuation, subtilely damag¬ ing and very difficult to meet because so broadly stated.

Against such a

dramatic charge, “no” sounds flat and unconvincing.

There was no

evidence anywhere available to support Paine’s charge.

He failed to pro¬

duce any and none has been found since, but the letter, printed in the Packet, received enough credence among the ill-informed to increase the

suspicion and hostility that already grew too luxuriantly in the city.

FORT WILSON

133

Underlying all the particular issues and immediate antagonisms in Philadelphia in the fall of 1779 were the lurking animal violence and panic that move in the wake of war and revolution. social forms had been shattered.

Old loyalties and old

The rough tides of conflict had cast up

with the able and devoted, the warped, the greedy, the pathologically bitter. Anger, fear, suspicion, and restlessness were the volatile chemicals that produced riot and insurrection. In the first days of October the city was full of militia, many of them Germans, a sorry lot of soldiers for the most part, ill-disciplined, led by officers who stirred old resentments and played upon new prejudices.

On

Monday morning, October 4, a hand bill was passed around calling for the militia to collect on the commons to “drive off from the city all disaffected persons and those who supported them.”

Militiamen began to congregate

early at Paddy Burn’s Tavern on Tenth Street between Race and Vine, full of dark threats and mutterings against the Tories and profiteers. Some small-fry Loyalists were dragged from their homes and placed under guard in the Tavern, but the mob’s wind was up, the bottle passed freely around, and the cry arose to bag some of the nabobs. As chairman of the Constitutional Society, Charles Willson Peale was one of the radical leaders.

The militia had requested him to assume the

direction of their campaign to rid the city of “unAmerican elements.” When Peale arrived at Burn’s Tavern he found the Falstaffian Dr. Hutchinson, a medical professor at the college.

Realizing the temper of the crowd, they

tried to persuade the men to draw up some resolves and disband but to no avail.

Two militia officers named Bonham and Pickering reviewed a

long inventory of wrongs, and heated by language and liquor, the crowd gave tongue, “Get Wilson.”

As the mob set off with a drum beating in

a ragged cadence, Peale, now thoroughly alarmed, headed for Reed’s house to get the President of Pennsylvania to intervene. Wilson, having heard earlier that he was among the proscribed, ap¬ plied to the Assembly for protection.

The Assembly referred him to the

President and Council, but there was hardly time for the orderly operation of government. With no faith in the wish or the

ability of the state

officers to enforce order, Wilson gathered a company of his friends and prepared to stand off the militia.

Rachel, near the end of her fourth

pregnancy, was bundled off with the frightened children to the Morrises. A group of twenty or so Republicans who, like Wilson, were in extreme disfavor with the mob, gathered on Second Street and proceeded to organize

i34

JAMES WILSON

themselves into a kind of military unit.

They made a bizarre picture-

stout, prosperous-looking men clutching muskets and pistols. group was salted with experienced soldiers.

Yet the

Colonel Stephen Chambers

was a militia officer and a member of the Supreme Executive Council. Wilson’s old friend William Thompson from Carlisle had commanded a Cumberland County battalion in action; Captain Campbell was an in¬ valid Continental officer, and Wilson’s brother-in-law, Mark Bird, had led a militia battalion of his own raising from Berks County.

The unit

thus mustered a rather military air as it marched and countermarched on Walnut Street.

Included in the little force was Staats Lawrence, a

law apprentice of Wilson’s, Staats’ brother, Thomas, Robert Morris, if anything more hated by the mob than Wilson, Sharp Delany, a druggist, who was dispatched to Carpenter’s Hall to cram his pockets with powder and bullets, Dr. Jonathan Potts, another Carlisle friend and purchaser of Wilson’s house, his brother Nathaniel, George and Daniel Clymer, Samuel Morris, John Mifflin, and William Lewis.

A message was sent to General

Mifflin; when he appeared at Second Street, he took command of the small company and the drill continued under his experienced eye. In the midst of these maneuvers word came that the militia was on the way, headed for Wilson’s house on the corner of Walnut and Third. The little force promptly fell back on the “Port” and barricaded the doors and windows.

The house was a solid brick structure, set back a little

from the street with a view of Walnut as far as Dock and down Third beyond Pear.

By the time the militia, their ranks swollen by the curious

and idle, had made their way down Arch to Pront Street and thence to Chestnut, the garrison of Port Wilson was waiting with weapons primed. Prom Second Street the mob surged into Walnut, where two Continen¬ tal officers, Colonel Grayson and Captain Allen M’Lane, tried to deflect them.

A militia captain named Faulkner was leading the procession,

and as the defenders of Fort Wilson watched from the upper windows of the house, their hands sweating on their guns, they could see the officers arguing with the militiaman while the mob milled uncertainly in the street, those in the rear pressing forward on the leaders.

For a moment

it looked as though the Continental officers would halt the marchers.

Then

Pickering and Bonham broke angrily through the packed ranks and threatened the officers with their muskets, Pickering making short stab¬ bing motions with his bayonet to drive M’Lane back, the blade winking evilly in the sun.

Led by Pickering, the stream of men broke forth,

FORT WILSON

135

engulfing the officers, and moved on toward the corner of Walnut and Third. As the disorderly crowd drew abreast of Wilson’s house, Captain Campbell called out peremptorily from a window ordering the soldiers to move on.

The answer was a musket shot that killed him instantly.

Fire blazed from the house and the siege began.

The acrid smell of smoke

and powder, the flash of musket fire transformed the scene at once.

The

crowd shattered into its component parts as men dashed for cover.

Five

bodies lay sprawled in the street, their blood staining the cobblestones. The two Continental officers, caught between the fire from the house and street, were recognized by General Mifflin, who opened a door and allowed them to slip inside. There was a brief lull as the militia leaders reformed their forces and made plans for an assault upon the house.

One group was dispatched

for a fieldpiece to fire on the fort. Another squad went in search of crow¬ bars and sledges to attack the doors. General Mifflin, from a second floor window facing Third Street, called to the militiamen to disperse, trying to make himself heard above the sporadic rattle of fire and the shouts and jeers of the besiegers.

The

only response was a bullet that smashed the sash by the General’s head and showered him with splinters of wood and glass.

The General replied

with both his pistols. While the defenders crouched in the house, waiting for the next move of the militia, an assault party, stripped to their shirts and armed with sledges and bars, dashed out of Pear Street on the double, covered by brisk fire, in an attempt to take the house in the rear and batter down a door. Masked from the fire of the defenders, they quickly achieved their ob¬ jective.

As the soldiers rushed through the smashed door, they were

met by fire from the stairs.

Colonel Chambers wounded one of the in¬

vaders, but before he could reload he was dragged from the stairs and bayoneted. The militia fired blindly through the smoke-filled hall and then fled, leaving a badly wounded companion behind.

The defenders in their

turn rushed to shore up the doorway with tables and chairs against another attack. Before the field piece could be brought into action or the attack on the door resumed, help arrived.

President Reed had ordered the City Troop

of Light Horse to the spot, and then dashed off himself ahead of them, his knee buttons unfastened and his boots unlaced.

Now he came charging

136

JAMES WILSON

down the street with a pistol in his hand and two mounted dragoons at his back with drawn swords. The sight of the militant President had a sobering effect on the rioters, and even before the City Troop clattered up under the command of Major Lenox in his shirt sleeves, most of the militia had faded away.

While

the troopers seized twenty-seven stragglers and clapped them in the prison behind the State House, the defenders of Fort Wilson sallied out to join their rescuers, flushed with a sense of valor, happy to have endured.

Besides

four dead militiamen and a Negro boy who had joined the mob, fourteen of the militia had been wounded.

Within the fort, Captain Campbell was

the only one of the garrison who had been killed.

John Mifflin had

a bullet through both his hands, Sharp Delany a minor wound, Colonel Chambers a bayonet gash.

The injured men of both sides were placed in

nearby houses to await the arrival of doctors. General Benedict Arnold, military commandant of Philadelphia, who had already been warned away by President Reed, arrived in his coach soon after the City Troop. He was helped down by ready hands, his dark face twisted with scorn for the militia, his dislike of Joseph Reed breaking forth in bitter words.

“Your President has raised a mob, and now he can¬

not quell it,” he snarled, and then, accompained by several of the defenders, he toured the scene of battle while the action was described to him.

At

an upstairs window he drew his own pistols and weighed them reflectively as though sorry he had not been present to bag a few of the rabble himself. Wilson, a most unmilitary figure with his thick-lensed glasses perched precariously on his nose, had acted as Mifflin’s lieutenant in disposing the forces of the defenders. It was in his house that the mob’s intended victims had found refuge; it was from his windows that the bullets had come which had killed or wounded a dozen or more militia.

Peace might be

made with others, but Wilson’s life was not safe in the city, nor would it be easy to placate the militia and restore order with Wilson around to inflame the mob. A hasty council of city officers decided that Wilson and the principal defenders of the fort must flee Philadelphia before new disorders broke out. Wilson left reluctantly, yielding at last to the persuasion of Robert Morris, who, hiding in the city, promised to keep in touch with Wilson through Morris’s Negro, James.

FORT WILSON

137

With a number of the militia in jail and the rest in a sullen and ex¬ plosive mood, Philadelphia was wracked by rumors and alarms.

Next

morning the militia officers appeared at the Court House on Market Street to demand the release of the prisoners, and word came at the same time that the Germantown militia were preparing to march on the city to reinforce their fellows.

President Reed left Timothy Matlack, the

secretary of the Executive Council, to handle the crowd of angry militia and rushed off to halt the Germantown soldiers. Matlack, faced with a mob that threatened to release the prisoners by force, decided that it was a wise policy to mollify the militia and persuaded the magistrates to let the rioters go. When Reed returned from Germantown, having prevailed upon the militia there to disband, he called a meeting in the Supreme Court Room of the State House and exhorted the responsible leaders of both sides to preserve order and avoid actions or statements that might lead to further violence. Robert Morris was present and reported to Wilson, via James, as¬ suring him that Mrs. Wilson and the children were safe and telling of plans to meet the next morning to collect evidence in behalf of the de¬ fenders of the fort.

Could Wilson suggest reliable witnesses whose testi¬

mony might be secured, Morris asked.

“The Storm is over for this day,”

he wrote, “without any mischief except Mr. Lewis is in Gaol. . . . The President I am told is determined to put the Laws in force or resign. . . . The Ferment is particularly high against you. . . . The poor unfortunates that lost their lives yesterday have been buried this evening with the Honours of War—a Circumstance not Calculated to allay the Passions of Men in a Ferment.”

Wilson, hiding out in Morris’s country house, should move

to some place less conspicuous.

At all events Wilson had best keep to the

attic and contrive his bedding from an old mattress or some blankets. James has the key to the wine cellar so that Wilson can refresh himself and cheer his exile.

There is tea and sugar in the house and James will

bring food, but Wilson must not stay there another day “unless the Tide change.”9 Wilson, with James waiting to carry his letter back, promptly made up a list of witnesses to be called in behalf of the defenders of the fort. Colonel Hartley had observed the riot.

Doctor Ewing, professor at the

College, was an unimpeachable witness.

Mr. Joseph Hewes, delegate to

Congress from North Carolina, could give valuable testimony.

John

i38

JAMES WILSON

Gibson, city auditor, Colonel Patton, Wilson’s stepfather-in-law, Captain Stoddard, secretary of the Board of War and Captain Kearney of Shep¬ pards Town in Virginia—all these men had been witnesses to the events of October 4.

Some could testify to the fact that the defenders had

called out to the mob “not to fire.”

The action of the militia, Wilson

adds, in “forming before the house, and firing into it without any previous demand or complaint should be shown.” to the city.

Wilson himself wishes to return

“My absence, I’m afraid, only makes matters worse.”10

Morris placated Wilson by promising to ride out for a visit and a council of war on Thursday, but Thursday night, sitting in a darkened room so that his enemies might not discover he was at home, he wrote his exiled friend that he could not come. “I cannot commit to paper what has passed this day,” he added, urging Wilson, if he valued his life, to remain in hiding.

If he insists on returning to the city, Morris suggests

that he dismount several blocks from his house, turn his horse over to James, and slip into the “Fort” as unobtrusively as possible.

A horse seen

at his door might draw enemies there.11 The following day Morris wrote to repeat his warnings. present refuge is hardly safe. after you in that neighborhood.”

Wilson’s

Morris has heard that “some parties was He had best slip across the river into the

Jerseys. “Retreat,” Morris writes, “untill the Ferment is over, you may then be heard patiently and have justice done you, in the present State of things, the passions of men might do you injustice that their own judg¬ ments would hereafter condemn and their humanity regret.”12 It was not Wilson’s nature to wait passively while friends tried to ap¬ pease his enemies.

He encountered Captain John Barry, the naval of¬

ficer who had recently won Washington’s encomiums for “gallantry and address,” and the two made plans for a counter-offensive against the Philadelphia mobs.

Wilson was determined to take “further Steps for

our Security, and to prevent repeated and continual Insults.”

A group

of citizens must join together to “give some Stability to our Defense of the first Rights of Man,” he wrote Morris.

If the plan met with Morris’s

approval, he was to send it from house to house “of those whose Senti¬ ments we know, in order to be signed.”

Once a sufficient number have

enrolled, the list can be given to President Reed “with a Tender of the Services of the Subscribers in support of the Government.”

Such measures,

Wilson declares “will unite and strengthen us, and will awe the In-

FORT WILSON

139

surgents.”13 Barry took the scheme to Morris, but Morris felt that Reed would soon succeed in his efforts to restore order. To quiet popular clamor the order was given for the defenders of Fort Wilson to post bail for court appearance. On the 13th of October Daniel Clymer posted bail of ^5000 with the Assembly. Wilson was back in the city by the 19th and he likewise posted ,£10,000 bail with George Clymer and Samuel Caldwell as sureties. The rest of the defenders fol¬ lowed suit and in the face of President Reed’s determination to suppress further outbreaks the crisis spent itself rapidly. Many of the antagonists must have felt, as their tempers cooled, that Philadelphia’s war within a war was making a sorry spectacle of Pennsylvania patriotism. Had there been no Revolution, no pressure from the army and from the delegates of Congress for the factions to compose their differences, no such distracting news as word of the arrival of the French fleet off Georgia, the incident might have grown into a minor civil war, but against the larger back¬ ground of the Revolutionary cause the squabbles of discontented militia and frustrated politicians seemed small and petty, and all parties became at length heartily sick of the whole affair, wishing only to forget the autumnal madness that had swept the city like a fever. In March, 1780, the Executive Council closed a violent chapter in the city’s history by passing “an act of free and general pardon” to all concerned.

CHAPTER X

Champion of the Bank

Back in Philadelphia and united with his family, Wilson soon found him¬

self again a father. James, Junior, was born on November io, 1779; the infant and mother were well in spite of the strain that Rachel had been under while her husband was a fugitive from the wrath of the city mobs. In December Wilson bethought himself of an office that he might occupy with profit and distinction.

He wrote at once to John Holker,

French consul-general and purchasing agent for the Royal Marine in America, suggesting that the French crown would derive great benefits from an advocate-general in the United States. The trade that is anticipated between France and the United States must be laid on the soundest possible foundation, Wilson pointed out. To effect this would require a solid basis in international law and there¬ fore “the Laws of Nations, the Laws of France and the Laws, Customs and Interior Police of the United States must be accurately known and compared.” Wilson offered as his own credentials the fact that he was familiar with the laws of England and America, having studied them for thirteen years; and since he had been suggested (by himself) as a candidate for the post of advocate-general, he had directed his studies to “the Laws and Ordinances of France.”1 Although Holker supported Wilson’s candidacy and Silas Deane pulled what wires he could at the French Court, and although Holker consulted Wilson frequently on legal matters, the appointment hung fire. required fee was too big for the French.

Wilson’s

Wilson chafed at the delay,

and he seldom wrote Deane without jogging him to do what he could to speed the machinery of the French Court.

CHAMPION OF THE BANK

141

In line with his plan to prepare himself for the office, Wilson wrote to John Adams in Paris, telling him of his nomination.

He had re¬

quested that X200 be appropriated by Gerard, the French Minister, for the purchase of books needed for study and reference in his new office, and he asked Adams to purchase them for him.

“I wish also,” Wilson

added, “to have some of the best Books on the History and Policy of the Kingdom.”

He had recently read the “Report of the Plan of a Constitu¬

tion of Massachusetts,” and “from the masterly Strokes of profound Juris¬ prudence and of refined and enlarged Policy which distinguish that Per¬ formance,” Wilson could “easily trace it to its Author,”2

John Adams.

Adams wrote Wilson in reply that he could not have received a com¬ mission “more agreeable to my inclinations.”

As for Wilson’s kind re¬

marks about the Massachusetts constitution, Adams assured him that “the approbation of so able a judge . . . gives me great consolation.”3 Throughout the year 1780 Wilson devoted most of his time to various business schemes.

With Robert Morris and the Nesbitts he embarked on

a plan to establish a commercial house at Nantes,4 and numerous other projects simmered away.

But his principal energies were directed to

securing a contract with the French navy for ship masts.

Wilson’s partner

in this venture was the wealthy New Yorker, William Duer.

Casting

about for a French representative, the two men enlisted the services of Silas Deane, recently dismissed by Congress from his post as French com¬ missioner.

Deane, who alternated between high hopes and black despair,

was confident that his friends at the French Court would smooth the way for the mast contract, and Wilson, his ambition fired by Deane’s jaunty optimism, commissioned him to raise capital in France for new western land speculations.5 Deane departed for Nantes in July, loaded with schemes for turning a fast dollar, but on his arrival the gloomy side of his nature took pos¬ session of him.

The chronic inability of Congress to put its financial af¬

fairs in order, he wrote to Wilson, has “shaken all faith in the integrity and character of America.

It is interpreted to mean that the United States

are bankrupt,” and this impression of course made business dealings most difficult.6 In Paris, however, Deane found some encouragement, and his volatile spirits quickly reviving, he wrote Wilson that all was going grandly. Wilson, in reply, suggested that Deane try to secure a mast contract from Spain as well.

I42

JAMES WILSON His greatest hope, he wrote Deane, was to interest “gentlemen in Europe

who have the command of money. ... A fund of one hundred thousand guineas, at least,” is needed to make possible really sound large-scale opera¬ tions.

The letter ends with an anxious word about the fate of Wilson’s

nomination as advocate-general of France.7

But in spite of Deane’s as¬

surances, the mast contract and the much-wished-for appointment con¬ tinued to encounter obstacles.8 In March, 1780, the Pennsylvania Assembly voted an issue of paper currency, pegged at a certain ratio to Continental currency.

Meanwhile

Congress, struggling to reform its own money, found its difficulties much increased by the instability of the Pennsylvania currency.

A group of

prominent Philadelphians, Wilson among them, made an heroic effort to support the Pennsylvania paper by signing an agreement to accept it “as equivalent to gold and silver.”

But the depreciation continued.9

The condition of continental finances, and especially the inability of Congress to provide funds for the army, was a subject of much concern to Wilson and Morris.

Together with Thomas Willing they called a

meeting of Philadelphia merchants and lawyers at the Coffee House on June 8, 1780.

As a result of their discussion the members of the group

resolved “that a subscription be opened to provide a fund that should be given in bounties to promote the recruiting service of the United States.” Funds for the project came in so rapidly that nine days later the com¬ mittee had received ^4°° in gold and silver coin and ^1364 in depreciated Continental money.

The triumvirate of Wilson, Willing, and Morris had

meanwhile decided to attempt a much bolder enterprise. They called an¬ other meeting for the 16th and there presented their plan for a bank, to be incorporated in the state as the Bank of Pennsylvania.

Its purpose

would be to furnish “a supply of provisions for the armies of the United States.”

Wilson wrote an introduction and outline of the plan to present

to the meeting.10 The grave nature of the present crisis, he reminded the gathering, called for special efforts and sacrifices.

“A Jealousy of Power exists in

all republican Governments,” he had written at first, and then, going back, he had crossed out “republican” and written “democratic.” was a significant one. word in 1780.

The change

Few of his compatriots would have chosen the

In times of stress, Wilson declared, the individual must

give his strongest support to his government and receive in return “en¬ couragement for the spirited Aims and Efforts of Individuals.”

It is under

CHAMPION OF THE BANK

143

such stimulus that the plan for the Bank of Pennsylvania has recently been formed in order to finance the Continental forces fighting in the “Cause of the United States, of Freedom and of Mankind.” All funds acquired by the bank were to be expended on food and munitions for the army, and lest there be any question about the aims of the bank, Wilson offered a detailed outline of its method of operation. “A Number of Gentlemen shall give their Bonds,” Wilson declared, “to the Directors of the Bank, in such Sums as each shall think proper, binding himself for Payment thereof. . . .” The capitalization had been set at ^300,000 in Pennsylvania currency, payable in gold or silver coin, onetenth payable at once, the rest on demand. On these terms Blair M’Clenachan and Morris subscribed ^10,000, while Wilson and a number of others each subscribed ^5000. The Directors of the bank were to have the right to issue special bank notes bearing interest at the rate of six percent, and to borrow money for periods of not more than six months.

Congress was to help

by depositing sums in the bank for “reimbursement,” but when Con¬ gressional funds and money borrowed were not sufficient to the bank’s needs, the directors might demand from every subscriber according to the amount of his subscription, "a general Loan to the Ban\,” the bank in turn granting to the subscribers notes bearing interest. All money received from Congress was to be used for the sole purpose of buying provisions for the use of the Continental Army, and for other purposes of supply. Two directors, according to the plan that Wilson, Morris, and Willing had worked out, were to manage the daily affairs of the Bank under the general supervision of the Board of Trustees or subscribers, and under the direct supervision of a five-man Board of Inspection. All the personnel of the Bank shall receive “reasonable Compensations,” but since the Bank is “founded in the present public Necessities, with Intention to relieve them . . .; none of the Subscribers to the general Loan, Inspectors ... or other Gentlemen that may give occasional Assistance are to derive the least pecuniary Advantage to themselves or Families from this Exertion.”

Whatever the benefits to be derived, they would spring in¬

directly from establishing a sound, if temporary, financial system.11 The plans for the Bank won immediate acclaim from the Gazette, which noted with pride that “examples so patriotic and animating can¬ not fail of being gloriously followed by every other state in the union.”12

I44

JAMES WILSON

,£270,000 was promptly subscribed and John Nixon and George Clymer were elected Directors, with Morris, M’Clenachan, Samuel Miles, J. M. Nesbitt, and Cadwalader Morris as the Board of Inspectors. The Bank of Pennsylvania, almost fully subscribed, opened for busi¬ ness July 7, 1780, on Front Street, near Walnut, facing the river.

It was

an immediate success and began at once to pump new blood into the ex¬ hausted veins of the continental economy. When the Pennsylvania Assembly convened in November, 1780, it was apparent that the currency issued so hopefully in March had suffered the inevitable depreciation.

In addition, since this currency was pegged

to the continental paper, it was inhibiting the efforts of Congress to bring about general currency reform.

Many members of the Assembly, more¬

over, were inclined to view the newly created Bank of Pennsylvania, how¬ ever laudable its expressed intent, with suspicion.

Perhaps too many

Republicans were involved in its establishment. If these suspicions could be allayed, the Assembly might be persuaded to alter the March bill and to employ the Bank of Pennsylvania as an agent of financial reform in the state.

Wilson was chosen to address

the Assembly on these delicate and complex financial problems. “It is now become obvious,” he told the members, “that the remaining Hopes of the Enemies of the United States depend on the Disorder and Disarrangement, and Profusion that have unfortunately taken Place in their Finances.

It is therefore of the utmost Importance that Regularity

and Economy should be introduced pursued and established in every Thing which regards the Assessment, the Collection, the Appropriation and Ex¬ penditure of public money.” Any financial system has three possible sources of revenue—an as¬ sessment of real and personal estates, an impost on imported merchandise, and finally an excise tax.

The first of these is the most “natural and

obvious” source of public funds.

“The second may, on many Occasions,

be employed with Advantage, if it be conducted with Skill and Prudence,” Wilson continued. “The third should be resorted to only in Cases of sudden and strong Necessity.

Perhaps all three will be found indispensably

required in the present Conjuncture.” Wilson was, in effect, making a plea for the Assembly to show the way to the other states by adopting a pay-as-you-go system of financing Pennsylvania’s portion of the war debt.

The existing Bank of Pennsyl¬

vania, Wilson suggested, might well be the agency of such a reform.13

CHAMPION OF THE BANK The Assembly failed to rise to the bait.

145

The members showed no

desire to make the financial reforms that Wilson proposed, and the Bank of Pennsylvania, having given the country’s economy a life-sustaining transfusion, went out of business in September, its borrowing power ex¬ hausted. Wilson and Morris, however, were not reconciled to its demise.

The

good name that the Bank of Pennsylvania had won for itself as a patriotic measure, backed even by such radical champions as Tom Paine, left a small group of Philadelphians, of whom Morris and Wilson were the most prominent, determined to established a national bank on a permanent basis.

Such a bank, once started, would be most useful in the creation of

a national system.

Moreover, both Morris and Wilson felt, in their own

business ventures, the severest limitations imposed by lack of available capital.

Patriotism and self-interest reinforced each other.

Wilson was a careful student of the Scottish political economist, Sir James Stewart.

Sir James’ vast work, An Inquiry into the Principles of

Political (Economy, gave special attention to the financial needs of his

native country, and in reading the Inquiry, Wilson was struck with the similarity between Scottish and American conditions.

Stewart’s book, a

typical product of the Scottish Enlightenment, mixed morality and eco¬ nomics into an extraordinary brew.

Adam Smith, who developed an

economics that was less eccentric and more enduring, viewed Stewart’s ef¬ forts to wed morals and economics in much the same way that Hume regarded Lord Karnes’ experiment with morality and law.

Stewart was,

nevertheless, for almost forty years the most influential economist in America, quoted as gospel by those who fancied themselves students of finance. His statement on credit struck an especially responsive note with Wilson.

“Without credit,” Sir James declared, “there is no borrowing

of money, no trade, no industry, no circulation, no bread, for the lower classes, no luxury, not even the conveniences of life for the rich.”

Private

credit was “the most solid of all,” resting as it did on “security sufficient to make good the obligation of repayment of capital and interest.” Stewart might well have had the Americans in mind so closely did his analysis fit their case when he wrote, “In countries where trade and industry are in their infancy, credit must be little known; and they who have solid property, find the greatest difficulty in turning it into money,

I46

JAMES WILSON

without which industry cannot be carried on . . . and consequently the whole plan of improvement is disappointed. “Under such circumstances,” Stewart continued, “it is proper to establish a bank upon the principles of private credit.

This bank must issue notes

upon land and other securities, and the profits of it must arise from the permanent interest drawn for the money lent.”14 Fortified by such scripture, Wilson threw all his energies into the fight for a permanent bank.

When Morris accepted the position of Super¬

intendent of Continental Finances in the spring of 1781, Wilson wrote to congratulate him. “The Minds of the People seem now open to the Necessity of adopting a System very different from that which has long been so injudiciously pursued,” he noted hopefully.

A bank is the only answer.

“The more I think of a Bank, the more I am convinced of the great Benefit that will ensue from one established on a just and liberal Foun¬ dation.”15 Morris agreed.

He immediately proposed the plan of a bank to a

desperate and insolvent Congress.

The delegates gave their approval and

Morris, with Wilson’s assistance, set to work at once to draw up a charter and attract subscribers.

The long-deferred Confederation of the states had

finally been completed, and the fourth article of the new constitution con¬ tained the clause, “Full faith and credit shall be given in each of these states to the records, acts and judicial proceedings of the courts and magis¬ trates of every other state.”

This, Morris felt, was sufficient to cover the

operation of a bank such as he envisioned.

Wilson was a subscriber, a

member of the Board of Trustees, the attorney for the bank, and its most articulate and skillful public defender.

He also became, quite promptly,

its most persistent debtor. Throughout the fall of 1781 Wilson labored with Morris to launch the institution.

Their plans received an added impetus with the news of

the arrival at Boston of some 2,500,000 livres of the most recent French loan, and Morris dispatched the cashier, Tench Francis, to transport the money to Philadelphia in an ox-drawn caravan, guarded by soldiers.

From

this sum Morris reserved $250,000 which was subscribed to the bank by Congress. Thomas Willing was elected president in November, 1781, and on the last day of the year, Congress granted a charter to the Bank of North America.

The bank opened a week later in what had been the store of

Tench Francis on Chestnut near Third.

In spite of the $250,000 subscribed

CHAMPION OF THE BANK

147

by Morris in the name of the United States, private subscriptions were slow to come in.

When the bank began operation only $50,000 had been

subscribed and over 200 shares, out of 1000 put up for sale, remained unsold. The officials of the bank hit upon a scheme, however, to reassure holders of the bank’s notes.

Silver was taken from the bank very os¬

tentatiously, as though on loan, then secretly returned to be lent again with much show.

When the notes of the bank at first failed to circulate at par,

customers were shown impressive piles of silver which Cashier Francis had arranged on a kind of endless chain running up from the vaults; so that the same specie, hoisted, strewn about the counters and surreptitiously returned to the basement, was raised again, reappearing innumerable times before the dazzled eyes of the bank’s clients.16 Reassured by such sleight-of-hand, and even more by the obvious advantages of the bank and the conservatism of its president, Philadelphia merchants soon took the bank to their hearts.

A few weeks after it had

opened, the Board of Directors was able to lend Congress $100,000, and it was soon so flourishing that it was the object of considerable envy among merchants who stood outside of its charmed financial circle, and of suspicion on the part of radical politicians who saw in it an instrument of aristocratic domination. In the last months of 1783, a group of Philadelphians who had been watching the success of the Bank of North America with growing envy, launched a project of their own to establish a second bank to be called the Bank of Pennsylvania.

This bank, they declared in their petition to the

Assembly, would break the monopoly of the Bank of North America and increase the credit facilities of the state, making more money available at a cheaper rate of interest. The directors and president of the Bank of North America sprang immediately to the attack, determined to block the chartering of a com¬ petitor so near by.

The men who had worked long and hard to establish

the original bank were alarmed at the prospect of a rival. jections were perhaps as much political as financial.

Their ob¬

Another bank might

serve as a rallying point for the western radicals and their Philadelphia allies.

The old bank at once requested a hearing before the Assembly, but

this was refused and a committee was appointed to hear counsel for both parties.

Gouverneur Morris, the New York aristocrat who was making

Philadelphia the center of his business activities, was chosen with Wilson

i48

JAMES WILSON

as attorney for the Bank of North America.

Jonathan Dickinson Sergeant,

William Bradford, Miers Fisher, and Jared Ingersoll were present for the projected Bank of Pennsylvania. When the opposing counsel appeared before the committee of the As¬ sembly on March 2, Gouverneur Morris opened for the Bank of North America, and Wilson made careful notes of his arguments.1' Morris was followed by Jared Ingersoll, who centered his fire on the monopolistic aspects of a single bank. followed.

Bradford, Sergeant, and Fisher

When at last it came Wilson’s turn to plead the case of the

old bank against the new, he had carefully digested the arguments of his opponents and prepared his rebuttals. notes, “the Origin and Use of Banks.”

“Consider,” he had written in his Always from the general to the

particular, from the historical to the immediate—that was his dialectic. “Consider and answer Objections against the Bank of N. America; and the Arguments for instituting a new Bank for this State.” He began his argument with “an enlarged View” of commerce and finance.

Then, step by step, relying heavily on Sir James Stewart, he

traced the growth and development of banks, their various uses, their different aims.

The advocates of the new bank, with their frightening

visions of monopoly and economic despotism, have overlooked the fact that the legislature has a check on the extension of the Bank’s powers. Indeed the charter of the Bank sets very distinct limitations on its opera¬ tions.

To charter another bank will result in a dangerous rivalry between

the two institutions and the citizens of Pennsylvania will be made to suffer for the avarice of a few ambitious men. The directors of the Bank of North America were anxious to avoid a showdown before the Assembly, and perhaps while Morris and Wilson were delivering their arguments, a deal was negotiated that made a number of shares of bank stock available to the leaders of the new-bank movement at bargain prices. Thus appeased they abandoned their fight, safe now in the bosom of the Bank of North America. The Bank’s reprive was only temporary, however.

The struggle in

Pennsylvania between the Constitutionalists and the Republicans reached new heights of bitterness in 1785.

As the Republicans approached parity

in both the Assembly and the Council and began to plot the destruction of the Constitution of 1776, the radicals renewed their attacks on the “aristocrats” and “Tories.”

CHAMPION OF THE BANK

149

The Republicans concentrated their fire initially on the Test Act which excluded the so-called “non-jurors” who had refused to support the Revolution from participation in the political life of the state. As an enemy of the Act expressed it, “the principal part of the non-jurors are Quakers, Mennonites, Swingfielders and Moravians, all of whom are principled against war.

The Test law . . . therefore is an invasion of the

rights of conscience, and a direct act of persecution for conscience sake.” To these attacks, the radicals replied with righteous wrath.

The non¬

jurors, instead of “acknowledging their past misconduct, expressing their sorrow and penitence, promising ... to be faithful citizens in the future, and . . . humbly praying forgiveness” for their sins, have the arrogance to speak of their rights.

Such men are, indeed, but “mean, s\ul\ing cowards.”

But the radicals had more than rhetorical arrows in their quiver.

In

March they secured a law in the Assembly authorizing the issuance of bills of credit “to the amount or value of one hundred and fifty thousand pounds . . . printed on good strong paper.”

At this news the Bank of

North America let word leak out that the trustees were little inclined to receive such irresponsible paper.

The radicals at once moved against the

Bank. A few days after the passage of the paper money bill, the Assembly received a petition that complained of the “injurious consequences of the institution to the fair trader,” and demanded the repeal of rhe Bank’s charter.18 A heated newspaper controversy at once broke out between the enemies and champions of the Bank.

To the charge of the Republicans that the

hard times which were being felt throughout the state were due to the abortive Constitution of 1776, the radicals now had a ready reply—it was not the Constitution but the Bank.

The Bank had sucked all the available

specie in the state into its vaults and then shipped it overseas to pay for European luxuries imported by rich merchants.

The Republicans replied

that an attack on the Bank would “loosen all the bands of morality and government, and . . . introduce the manners and vices of barbarians and savages” into Pennsylvania.

It is not the rich merchant who will suffer

from the annihilation of the Bank; he can always command capital. “The merchant of moderate capital, the farmer and the mechanic will be the first class of citizens that will complain of this impolitic measure.”19 The Constitutionalists in the Assembly had planned their attack on the Bank shrewdly.

Before the startled directors were fully awake to

the danger, a bill to repeal the Bank’s charter had passed its second reading.

I50

JAMES WILSON

The Assembly under the Constitution must wait until after its summer adjournment to give the bill its final reading and complete the destruction of the Bank of North America. Stunned by the suddenness of the radical offensive, the Bank employed the summer months to rally its own legions.

Wilson, the directors hoped,

might be able to accomplish something for the cause in Congress since the Bank operated under a Congressional charter as well as that of the state. Wilson himself was deeply in debt to the Bank.

Only the summer

before, Thomas Willing had been in the embarrassing position of having to dun Wilson for the payment of loans long overdue.

As a good business¬

man and a conscientious bank president, Willing was well aware of his responsibilities, and the line that he took with Wilson had been friendly but firm.

The directors were all Wilson’s friends and several of them had

been at one time or another his business associates; hence they were re¬ luctant to take steps that would endanger his precarious empire.

But as

one note after the other fell due, Willing had finally written to Wilson that “payment will be insisted [upon].”

Although he felt “much anxiety”

on his friend’s account, he found the directors immovable.20 It was the end of July, 1784, before Wilson managed to straighten out his affairs with the Bank and then the respite was only a temporary one. He offered the directors a group of co-signers to his note that included Samuel Caldwell, Captain John Barry, and Benjamin Rush.21 Thus the Bank was not only, in part at least, Wilson’s brain child; he was under heavy obligations to it.

The directors must have been con¬

fident of success when they directed Thomas Willing to commission Wilson to make an eleventh-hour appeal to Congress.

He was to be paid $400 for

a tract, which was intended, as Willing wrote to Bingham, “solely for Congress and the Assembly—other fugitive and weekly pieces will directly follow to suit the people at large.”22 Thomas Willing wrote to Wilson in May to urge him to do his best in behalf of the institution.

He had devoted much to the Bank.

my pride, it is my greatest glory that it has thus far succeeded.”

“It is

He wished

nothing else but to preserve it from falling a sacrifice “to the delusion of Party, or to the insiduous designs of Torys and British Emissaries ... To prevent it, I conjure you by every tie you have to the institution of which you was an early protector ... to exert every Nerve in its defence. . . .”23 To Wilson, as he began to compose his tract, the fate of the Bank itself was almost incidental to the central issue involved.

He was, to

CHAMPION OF THE BANK

I5I

be sure, in debt to the Bank, but beyond the personal concern and beyond the question of the value of the Bank to the economy of the state and nation, lay the issue posed by the avowed intention of the Pennsylvania Assembly to abrogate the charter that it had granted.

In doing so the

enemies of the Bank were determined to disregard the fact that the Bank operated also under a charter from Congress.

In the first instance, the

validity of a charter or, as the federalists preferred to call it, a contract, was brought into question; in the second, the authority of Congress itself.

If

the individual states could undo the acts of Congress at their pleasure, all order and good government would be at an end. It was to these two aspects of the controversy that Wilson addressed himself in his defense of the Bank before Congress. He began, of course, with a survey of the history of the Bank—how it had developed, and the role it had played in providing funds for a hardpressed army. was this:

But the real question which he asked Congress to consider

“Is the Bank of North America legally and constitutionally in¬

stituted and organized, by the charter of incorporation granted by the United States in congress assembled?” To answer this question it was necessary to ask another.

“Had the

United States in congress assembled a legal and constitutional power to institute and organize the Bank of North America, by a charter of in¬ corporation?” Here some will cite the second of the Articles of Confederation:

“Each

state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not, by the confederation, expressly delegated to the United States in congress assembled.”

Since no mention is made in

the Articles of power to incorporate banks, this clause would seem on the surface to deprive Congress of this power. Wilson argued, is unacceptable.

But such an interpretation,

No single state can charter a national

bank for all the states; therefore this is a function that must be exercised by Congress on behalf of the states.

“Whenever an object occurs,” Wilson

continued, “to the direction of which no particular state is competent, the management of it must, of necessity, belong to the United States in Con¬ gress assembled.” There are “many objects of this extended nature. The purchase, the sale, the defence, and the government of lands and countries, not within any state, are all included under this description.” of course, falls into the same category.

A bank,

Furthermore specific authority is

to be found for this position in the fifth Article of the Confederation which

JAMES WILSON

I52

states “that for the more convenient management of the general interests of the United States, delegates shall be annually appointed to meet in congress.” The United States, Wilson insisted, “have general rights, general powers, and general obligations, not derived from any particular states, nor from all the particular states, taken separately; but resulting from the union of the whole. . . .” In other words the whole, represented by the union, is greater than the sum of its parts, and has higher duties and responsibilities than can be deduced by simply designating certain powers as gifts of the sovereign states. To most champions of the states such doctrine was mystical nonsense. Sovereignty was in the states or in Congress.

It could not be in both.

Every practical man knew that it was vested in the states, and they were free to apportion as much power to Congress as suited their own rather parochial interests.

Wilson’s argument was an effective statement of the

aspirations of the nationalists—the men who were determined to do all in their power to create a strong and effective union. It was, moreover, the first expression of the doctrine of dual sovereignty which Wilson was to de¬ velop most eloquently two years later in the Federal Convention. Here also lay the seeds of the doctrine of implied powers that has played such an important part in American constitutional development. The action of Congress in chartering the bank had received the tacit, and in some cases the active, approval of all the states.

Is it then “wise or

politick in the legislature of Pennsylvania, to revoke the charter which it has granted” to the Bank? law.

Such action would be without the effect of

Pennsylvania cannot repeal the charter issued by Congress, and

there is a serious question whether the Assembly had indeed the right to repeal its own charter. At this stage of his argument, Wilson adumbrated another great constitutional principle, the obligation of contracts, which was to be as¬ sured by a clause in the Federal Constitution, largely as a result of the controversy over the charter of the Bank of North America. “It may be asked,” Wilson admitted, “has not the state power over her own laws?—May she not alter, amend, extend, restrain, and repeal them at her pleasure?”

He had no intention of denying the legislative

authority of the state, but there were many kinds of laws passed as acts by legislative bodies:

some to incorporate a congregation or other society,

some to confirm an individual in the possession of his property.

“Surely

it will not be pretended,” Wilson argued, “that, after laws of those dif-

CHAMPION OF THE BANK

153

ferent kinds are passed, the legislature possess over each the same dis¬ cretionary power of repeal.” Laws passed affecting the rights and properties of all the citizens of a state may of course be repealed because the interests of those who make the law (the Assembly and its constituents), and of those who repeal it (also the Assembly and its constituents), are the same. But the case is very different with a law passed in respect to a society or a congregation. interests subsist.

“Here two parties are instituted, and two distinct

Rules of justice, of faith, and of honor must, therefore, be

established between them:

for, if interest alone is to be viewed, the

congregation or society must always lie at the mercy of the community.” The same applies to an individual confirmed in his estate by the legislature. If the legislature may then quite capriciously and without stated reason “devest or destroy his estate, then a person seized of an estate in fee simple, under legislative sanction, is, in truth, nothing more than a solemn tenant at will,” and there is nowhere security for property. Thus acts such as Wilson has described, concerned with societies or individuals must be considered to have the character of compacts and must be governed by “the rules and maxims by which compacts are governed.” If such acts “may be repealed without notice, without accusation, without hearing, without proof, without forfeiture; where is the stamp of their stability?

Their motto should be ‘Levity’.”

Reminding his listeners again of the great services performed by the Bank in the darkest hours of the Revolution, Wilson pleaded for its pres¬ ervation.

Sir James Stewart had called banking “that branch of credit

which best deserves the attention of a statesman.”

If war came again

only a bank would be able to offer a ready means of meeting government expenses. the Bank.

Peacetime prosperity is equally dependent on the operations of To destroy it will be to invite disaster.24

The Bank men stepped up their barrage of propaganda as the As¬ sembly convened for its fall session to complete its destruction of the Bank. “Fugitive pieces” appeared weekly in the Pennsylvania Gazette, and Wilson’s “Considerations on the Bank of North America,” prepared for Congress was printed as a supplement to the Gazette in early September.

The As¬

sembly, once convened, consented to hear the Bank’s case, and Wilson was chosen by the directors to make a final plea. As usual Wilson kept careful notes of the arguments advanced by his opponents and answered them explicitly and in detail.

He spoke himself

for a day-and-a-half, and in the course of unfolding his case, he employed

I54

JAMES WILSON

most of the arguments that were to be used to support a national banking system for years to come. One of the most serious charges leveled against the Bank by its enemies was that it attracted all the specie in the country and shipped it to Europe to pay for European goods. addressed himself.

It was to this charge that Wilson first

In the present state of our trade, he confessed, this

process was indeed taking place, but the fault was not that of the Bank. Our imports of foreign goods exceeded our exports to “a shameful de¬ gree.”

Sir James Stewart was free to admit that if the balance of trade

ran constantly against a country “the whole Property of it would, by de¬ grees, be transferred to Foreigners.”

But in the short run a national bank,

even in the face of an adverse balance of trade, can borrow in foreign countries on the security of imported merchandise and thus prevent complete stagnation.

“Suppose the Bank destroyed, and the present State

of our Trade to continue,” Wilson asked, “will not Great Britain still draw off our Cash?

She did it before the Revolution, when we had no Bank:

She will do so still, while she enjoys, through our Weakness and Folly, the same Monopoly which she formerly enjoyed by her own Regulations.” Control of commerce in the name of the common good of all the states is the only effective answer. The bill to repeal the Bank’s charter, Wilson declared in one of his favorite rhetorical figures, “involves the Interests of Citizens of this State— of Citizens of the other United States—of Foreigners—of Myriads yet unborn.”

Always these imagined, unborn millions rising as in a dream

from the vast, stretching, yearning, empty reaches of the continent obsess Wilson. These, native fruit merging with the dispossessed of other lands, are the constant subjects of his vision. The progressive stage of American civilization will endure for a long time, Wilson prophesied, because it would take many years to settle the whole country.

Consequently, if a stagnation is not to set in that will in¬

hibit all growth and progress, the government must devise ways and means to keep money increasing “in Proportion to the progressive Improvements in Society.”

Roads, inland navigation, canals, communication with the

Western Country, all these enterprises will take such accumulations of capital as only a bank can properly provide. If the Bank were destroyed, the money shortage, now severe enough, would become acute.

Much of the capital remaining in the state would

migrate to Europe and elsewhere in search of profitable investments, and

CHAMPION OF THE BANK

155

“all Classes of Citizens would feel the Effects.” England would be strengthened in her efforts to reduce the United States to economic vas¬ salage; joy would be diffused in that Kingdom, “and Grief in all the friendly States of Europe.”25 Nevertheless the Bank must go. There was no sign of relenting in the impassive faces of its enemies. The charter of the Bank of North America was repealed. The effect on the Bank seemed to confirm the worst fears of its ad¬ herents. Stock which had been above par almost from the first, fell below at once, and cash resources shrank from a high of $59,570,000 to $37,000,000 early in 1786. The action of the Assembly proved, as Wilson had predicted, a strong deterrent to European investors, and the Dutch minister, Van Berkel, joined four New York shareholders in writing Thomas Willing that the “very existence of the institution has by this proceeding been drawn into controversy.” The writers demanded a test case before the Supreme Court to determine whether Pennsylvania law still recognized the Bank as a corporate body. If not, the money of its investors and stock¬ holders should be returned at once.26 The Bank for its part refused to give up the fight. Application was made to the State of Delaware for a charter, and when the application was successful in January, 1786, the Bank considered moving across the river. Numerous letters were printed in the Gazette reporting the effect of the Assembly’s action on friends of America in Europe. “An American Gentleman, now at the Hague,” wrote that the repeal of the charter had “done more mischief to our country than you can conceive. Hundreds of people ... in England were preparing to embark for America; others . . . were about to invest their cash in our lands; and a few were about to lodge money in your Bank, when the tidings of the attack upon it reached London. They have all changed their minds, and now consider nothing as secure in the new states.”27 In February America’s most formidable pamphleteer entered the lists on the side of the Bank. Tom Paine’s famous pseudonym appeared under a series of scathing attacks on the anti-Bank men. His Dissertations of Government dealt primarily with the Bank and the dangers of paper money. The Assembly was upbraided for assuming a judicial function, for “want of moderation and prudence, of impartiality and equity, of fair and candid inquiry and investigation, of deliberate and unbiased judgment.”28

i56

JAMES WILSON The Bank was the principal issue in the fall elections to the As¬

sembly, and when the returns were all in, it was apparent that the proBank group had gained ground.

All but six of the supporters of the

Bank were returned and there were nineteen new members who had cam¬ paigned primarily on the issue of restoring the institution.

Robert Morris,

Thomas FitzSimons, and George Clymer at once took the lead in at¬ tempting to win back the charter. A flood of petitions poured into the Assembly, “praying that the charter of the bank of North America may be revived,” and its future existence determined “by the laws of the land administered in the courts of justice and not otherwise.”

“Sundry inhabitants of Chester,” struck

the same note in a petition to the Assembly which declared that for “any house or assembly to proceed ... to the injury of the property of our fellow citizens, without evidence had and defence heard is unconstitutional.” No law so passed “can be operative, because it is repugnant to the principles of justice and the constitution.”

By such means “the paper money of one

house may be voted down by the next; and the engagement of one as¬ sembly superseded by its successors.”29 A committee of the house appointed to consider the petitions brought in a report attacking the action of the previous Assembly.

“In their

partiality,” it read, “they [the delegates] appear to have manifested a predetermination to condemn.” The gage was thrown down.

Whitehill and Smilie, the radical leaders,

picked it up and the debate began. positors.

Both sides mustered their ablest ex¬

The galleries of the house were packed daily with spectators, and

Tom Paine reported that “No subject of debate that has been agitated before the legislature of Pennsylvania, ever drew such crowded audiences.”30 The debate lasted four days.

Wilson did not take the floor himself,

but sat in the wings ready with arguments and advice when they were needed. FitzSimons, Morris, and Clymer carried the Bank’s standard. John Smilie struck an acrimonious note at once with his charge that “the influence and terrors of the Bank” had been used to secure signatures on the petitions favoring it.

Morris replied heatedly that the memoralists

included “the most respectable characters amongst us.” This was an error.

Smilie seized upon it at once.

Such a statement,

he said, presents “an aristocratical idea. ... An honest man is the noblest work of God.

A democratical government like ours admits of no superior¬

ity. ... If we inquire what constitutes the respectability” that the Bank

CHAMPION OF THE BANK men have spoken of, “we shall probably find it riches.

157 They have more

money than their neighbors and are therefore more respectable.” The radicals, dramatic and perfervid, pressed the attack so relentlessly that Robert Morris was moved to protest that “the gentlemen from the country, by fixing such short adjournments, make this a hard service.

They

scarcely allow us time to take a comfortable dinner and a glass of wine.”31 The debate dragged on to a bitter end.

When the question was put

to repeal the revocation of the charter on April 1, the motion was de¬ feated 28 to 41.

The radicals again prevailed and the forces of the Bank

suffered a second stinging defeat. There were still weapons left in the armory of the Bank party, how¬ ever, and their determination to fight the issue through was undiminished. Pelatiah Webster was added to their ranks and produced a treatise for economic abecedarians which depicted the Bank as the fountainhead of all welfare and prosperity.

Plans were laid to overturn the radical balance

in the fall elections, and the tide of campaign literature increased in volume and virulence. In Smilie, Paine had found an opponent who was worthy of his most brilliant invective.

Common Sense accused the Westerner of being simply

a tool of wealthy men who wished to destroy the Bank for selfish reasons, and Smilie replied that Paine’s tracts were a pack of lies that smelled of “the cask.”32 The autumn elections augmented the ranks of the Bank men with eight new members. vote.

Thus the Morris-Wilson faction held a margin of one

More important, the Bank group now felt that the people of the

state had expressed themselves conclusively on the issue.

John Smilie lost

his seat and was replaced by Hugh Henry Brackenridge, a conservative Westerner. Benjamin Franklin contributed his bit by helping to prevail upon the Supreme Executive Council to approve the renewal of the charter.

A

compromise proposal was worked out limiting the capital of the Bank to $2,000,000 and the term of its charter to thirteen years.

The road seemed

cleared for its re-chartering. Wilson was called in by the directors and expressed the opinion that “the modification of the bank charter as to limitation of time or capital will not affect the Congress charter.”33 Clymer and Brackenridge in the Assembly made a last-minute effort to have the original charter restored, but the delegates preferred to limit

158

JAMES WILSON

the capital and duration of the Bank and approved the compromise charters by a vote of 38 to 33. It was thus the spring of 1787 before the Republicans finally rammed the charter through the Assembly against the bitter, last-ditch resistance of the radicals.

For almost three nerve-wracking years, the champions of

the Bank had fought tooth and nail for its existence.

Their victory, though

partial, was sweet, but sweeter was to come. Tom Paine gleefully hurled a few last poisoned darts at his enemies, “the crazy brained politicans who began and promoted the attack on the Bank.” “Intoxicated with power, government-mad, too blind to foresee the consequence, and too confident to be advised,” they had gone down to defeat before that very arbiter they so confidently evoked—the people.34 In his role of champion of the Bank of North America, Wilson es¬ tablished himself as the country’s leading apologist for a system of national finances based on a national bank. The relation between Wilson’s economic ideas and those later popularized by Alexander Hamilton is patent.

As

though to symbolize the influence of the theories of Wilson on his younger colleague, a copy of Wilson’s plan for the Bank of North America, in his own handwriting, lies among the Hamilton papers in the Library of Con¬ gress, while the New Yorker’s “Plan for a National Bank,” in his hand, is among Wilson’s papers in the Historical Society of Pennsylvania.

CHAPTER XI

Speculators and Engrossers

Speculation in land was one of the great currents in post-Revolutionary

America. land.

Almost without exception the Revolutionary leaders dabbled in

With commerce crippled and its future uncertain as a result of the

post-war depression and inter-state rivalry, and with manufacturing in its infancy, land offered the principal field for adventurous capital.

George

Washington was but the most prominent among many who buttressed or risked uncertain fortunes in the fascinating game of buying and selling land. That speculation was, on the whole, a creative expression of the American spirit can no more be doubted than the fact that it deeply modified the whole pattern of the country’s development.

From 1750 on

a process was taking place in America, analogous, in many ways, to the colonial enterprises of England two hundred years earlier.

The promise

of large returns in land speculation schemes attracted aggregations of capital and schooled a new class of capitalists in techniques of large-scale finance.

“Successfully to preempt huge areas of virgin territory and control

its distribution required combinations of capital and unified control. . . . The organizations created to meet the unique situation were completely the result of the planning and decision of business leaders who accepted the challenge of opportunity.”1

Just as the English, faced in the late sixteenth

century with the problems of exploiting vast new areas, improvised finance techniques like the merchant adventurers and the joint stock company, the early American entrepreneurs, of whom Wilson was one, developed a corporate structure independent of political ties and legal restraints to exploit the resources of the West.

i6o

JAMES WILSON Soon after Wilson established himself in Reading he began, like most

of his fellow lawyers, to buy up choice parcels of land as he rode about on circuit.

The Revolution interrupted most land purchases, but as soon

as hostilities were at an end, Wilson resumed his acquisition of western acres.

Indeed, even before the war was over, he became involved in the

affairs of the Illinois-Wabash Company, one of the largest land enter¬ prises in America.

The company, formed by the union of two pre-Revolu-

tionary land ventures, laid claim to a vast area of western territory, and its claims were pushed by an influential group of stock-holders—men like Silas Deane, Chaumont, the French banker, Robert Morris, and John Holker, purchasing agent for the French navy.

Wilson’s friend George

Ross was president of the reorganized company and Bernard Gratz, a Philadelphia merchant and speculator, served as secretary.

On the death

of Ross in 1780, Wilson was elected to succeed him. The Illinois-Wabash lands, embracing some 60,000,000 acres, were divided into eighty-four shares, ten of which, as Wilson wrote to James Madison, had been set aside, “for purposes most conducive to [the com¬ pany’s] general interest.”

In other words, for distribution among men

who would help the cause of the speculators.

The company’s only hope

of profit lay in validating the vague terms of Indian purchases made before the Revolution; and its principal activity consisted of petitions to Congress for recognition of its claims.

Under the Articles of Confederation, the

claims of the land companies were left open, due to a considerable degree to the efforts of the speculators themselves, but Congress seemed little inclined to parcel out its hard-won acquisition to land-hungry entrepreneurs. The extent of Wilson’s activities in the company can perhaps be judged from his holdings.

A half share—some 400,000 acres—had been given him

for his services as the company’s lawyer, and this plus a share of his own gave him a potential holding of over a million acres.

In addition to his

share and a half, Wilson was lawyer for four Maryland shareholders who held a share between them and he exercised proxies for them as well as for the estate of Ross.

He might therefore be said to have controlled three

and a half shares—the largest unit of stock under the control of a single individual, although the Gratz brothers, Bernard and Michael, held four shares between them, and the Franks, a merchant family of London and New York, controlled eight shares.2 In the summer of 1783 Wilson extended his business activities on every side.

Already involved with his brother-in-law, Mark Bird, in several iron

SPECULATORS AND ENGROSSERS

161

furnaces and forges, and intent on building the Delaware Works, which the two men owned jointly, into one of the largest nail manufactories in the country, Wilson searched for means to finance his ventures.

At the

advice of Robert Morris and Van Berkels, the Dutch minister in Philadel¬ phia, he drew up a letter “to certain Dutch Capitalists” setting forth his monetary needs. “I am engaged, along with Colonel Mark Bird,” he wrote, “in a very extensive System of Works, consisting of Rolling and Slitting Mills, Grist Mills, Saw Mills, and a Forge on the River Delaware. . . . Many Parts of them and those the most difficult, are already finished, and do honour to Mr. Bird’s Judgment and his great mechanical Abilities. ... In order to finish the whole Works and to stock and employ them fully and vigorously when finished, it will be absolutely necessary for us to be in pos¬ session of still larger Sums.” There is, moreover, no time to be lost.

Much of the land that Wilson

and his partner intend to offer as security is constantly rising in value. “From the progressive Rise of the Price of Real Estates in this Country (which in many instances is very rapid) they will, without any Money being expended on them, become more valuable every Year.

The Force

of this Remark is well known in Pennsylvania.”3 The Dutch capitalists preferred to put their florins in land ventures of their own, and Wilson’s application came to nothing. William Bingham, sometime partner of Robert Morris, had laid the foundations for one of the largest fortunes in the country while acting as agent for Congress in the West Indies.

Wilson turned to Bingham for

help in capitalizing the Delaware Works through European loans.

Bing¬

ham promised to do what he could, and then offered Wilson a proposition of his own.

While land was hard to come by in Pennsylvania, the New

York land office would soon be opened.

Bingham suggested that Wilson

supervise the formation of a company to purchase land on the Susque¬ hanna River in southern New York.

Wilson considered the proposal for

several days, and then outlined his own ideas for Bingham. have, for his trouble, a fourth part of the lands.

“The Capital appropriated

for the Purchase ought to be /ioo,ooo Sterling. £60,000 Sterling.

He must

It must not be under

The whole must be deposited in Philadelphia. ... I

would not wish more than three Persons to be joined with me in the Adventure, because a Partnership composed of a great Number is . . . inconvenient.”

JAMES WILSON

i62

Wilson will keep the books and do all the business, but he must employ a clerk for writing deeds and keeping accounts and must sacri¬ fice some of his flourishing law practice.

Finally, he writes, if such a

company is to be formed it should be formed at once.

The moment is

propitious for land ventures.4 The Canaan Company was the result of these negotiations.

Mark Bird

and Robert Lettis Hooper, a prosperous New Jersey speculator, became partners with the aim of purchasing 100,000 acres.

Hooper and Wilson

gave much attention to the affairs of the company, but the only partner to profit was Bingham himself who retained control of his share and gave his name to the town of Binghamton.5 Besides the Canaan Company undertaking, Hooper enlisted Wilson in a plan to buy land in northeastern Pennsylvania near the junction of the Lackewaxin and Delaware rivers.

These were, in part, lands that had

been claimed by the Delaware Company of Connecticut.

A survey of the

lands was completed in 1784, although the Penns, charging that the lands fell within a former Penn manor, tried to block the issuing of warrants. The warrants secured by Wilson and Hooper included 8,334 acres.

The

New Jerseyite made a visit to the area and sent Wilson a glowing re¬ port.

The land was richly timbered with white and yellow pine, hemlock

and wild cherry.

It was ideally situated for a saw mill, and the soil was

deep and fertile.6 In addition to these undertakings, when the Pennsylvania land office opened in 1784, Wilson promptly obtained warrants for several thousand acres and began buying up hundreds of additional warrants that had been sold to individuals or purchased by men acting as agents for Wilson. The procedure followed by Wilson generally took this form.

A small

down payment made by Wilson or his agent secured a preliminary warrant from the land office.

This warrant authorized its possessor to proceed with

the costly and complicated business of running surveys.

To procure the

services of a top-notch surveyor was a difficult job in itself.

Such a man

must be as hardy and enduring of the hazards of frontier life as a border trapper or hunter; he must have technical skill, good judgment, and per¬ haps above all, complete loyalty to his employer, for where speculators were searching out choice lands like bloodhounds, there were numerous opportunities put in the way of a not too scrupulous surveyor to choose lands for his own employer that were not quite the best, leaving choice sections for a rival survey and in this way doubling his fee.

Men who

SPECULATORS AND ENGROSSERS

163

were able and incorruptible were hard to find and their services came high.

Frequently Wilson suffered when the lands surveyed for him were

located in rocky, inaccessible country, remote from the more desirable bottom lands that lay athwart streams or along the banks of a river. When the surveys had been completed, plats or small maps showing the location of the various warrants were deposited in the land office, and, upon payment of the balance due on the land, clear titles were issued. Much of Wilson’s financial difficulties stemmed from the fact that his optimism and the constant rise in land values induced him to buy up warrants and begin surveys on larger tracts of land than he could possibly redeem.

He was, therefore, constantly faced with the danger of losing

his original investment and seeing what he considered desirable land lost to another speculator. Sometimes his surveyor would write him that the land was occupied by squatters who refused to allow the surveys to be run.

On other oc¬

casions rivals filed claims to land for which Wilson already held warrants, hoping that he would default on his final payments or that the threat of litigation would frighten him off. The business ran much in this fashion:

Wilson would contract to buy

sixty thousand acres of land at three shillings an acre—nine thousand pounds or so.

By borrowing, bringing in well-heeled partners, or mortgag¬

ing lands still perhaps not fully cleared, he would raise three thousand pounds to purchase the preliminary warrants.

The surveys would cost

four or five hundred additional pounds, subject to numerous hazards and uncertainties.

The survey completed, Wilson would find himself in

need of an additional six thousand pounds to complete the transaction and receive clear title.

To fail to raise the money meant to lose the lands and

the cost of the preliminary warrants and the survey.

Lands that he had

expected to sell at a profit were perhaps still in the process of being sur¬ veyed, or purchasers could not be found who would offer a good price. These crises, more frequent each year as Wilson became more heavily involved, stirred him to increasingly feverish activity. While the Canaan Company was in the process of formation, Wilson bought warrants for 56,000 acres in Virginia, paying four pounds per hun¬ dred acres.7 In addition to this venture, he joined with Michael and Bernard Gratz, Levi Hollingsworth, Charles Willing, and Dorsey Pentecost to buy a tract of 321,000 acres south of the Ohio, “near the Tract owned by His Ex¬ cellency General Washington.” The cooperation of John Harvie, who was in

164

JAMES WILSON

charge of the Virginia land office, was of material aid to the partners in securing these choice western acres at the very time when the Virginia delegates in Congress were fighting to defend their state’s western lands.8 Dorsey Pentecost had been an official in Virginia’s West Augusta County during the bitter Virginia-Pennsylvania border controversy.

Mak¬

ing a survey of the partners’ purchase in the summer of 1783, he wrote to Wilson describing the land fever in the Indian country.9

Everywhere set¬

tlers, pseudo or bona fide, were staking out claims and making “im¬ provements” in order to profit by the Congressional resolve declaring that when states were formed out of the Indian territory “all persons found . . . settled on such lands . . . shall be confirmed in their Titles.” Congress, wrote Pentecost, should make a treaty with the Indians or suppress them, and set aside the lands north of the Ohio “for the Sole Purpose of Accommodating, and fulfiling our engagements to our Patriotic Army to whom we owe our Existence as a People.” The next objective should be to provide a government for “the settle¬ ments at Detroit, Niagaria, Port Vincennes, and the Illinoise . . . there¬ fore, the sooner Tracts of Country are laid out to those Settlements Sufficient to form States, and they are taken into the Federal Union, the better.” Although Pentecost confessed that he blushed at the thought of the ridiculous figure he would make “in the great School of Wisdome and politics” by offering advice to a statesman as experienced as Wilson, he had set out to give his whole “Ohio opinion,” and would therefore pro¬ ceed. For his part he would lay out the rest of the country into “convenient” states and set a price on the land so “very moderate that the Price and the Soil would Invite people from all parts of the world to Come and Settle them.” Silas Deane had just written Wilson that “adventuring in lands and procuring inhabitants from England and Germany to settle them,” should be the most promising activity in America.

Pentecost’s scheme thus

doubtless found Wilson in a receptive mood. Pentecost was of the opinion that “no person Should be Intitled to Lands but those who Become Settlers, but let those have a Competency, which Would totally Prevent Monopolizing, and would strengthen our hands against all around us, you know,” he adds, “that Monopolizations is the bane of Popularity and it ought to be guarded against as much as is Consistent with our Freedom, True Policy, and Common Prudence.” Otherwise large tracts of land will “fall into the hands of Individuals,

SPECULATORS AND ENGROSSERS

165

which is always injurious to a Commonwealth, particular in its Infancy. . . Congress must also take a firm stand, “forbidding in the most premptory and positive manner all persons from taking possession of any part of the country ... for if something of this kind is not done the people will run into the Country, and one Example will produce another . . . the end of which will be Anarchy and Confusion, and Consequently the destruction of the People.”

The Virginian ended his long letter by expressing the

hope that a tax would be placed on imports so that the debt can be met and the Ohio lands thus distributed cheaply. The letter is a remarkable one, coming as it does from one land speculator to another in connection with large-scale land operations.

Pente¬

cost’s statements seem hard to reconcile at first with his role as an “ad¬ venturer” in western lands.

The letter is the more revealing because of

its apparent ambiguity and its lack of self-consciousness. had no reason for any pretense in writing to Wilson.

The writer

And Wilson, read¬

ing the letter, undoubtedly agreed with his frontier correspondent in most of his conclusions.

The fact was that Wilson and many of his fellows

considered themselves as much promoters of their country’s interest as of their own.

They expected to act in the role of middlemen, dealing in

hundreds of thousands of acres, and promoting the swift and orderly settlement of the west.

They intended to make money, of course, but not

as “engrossers” or monopolizers who bought large holdings and sat on them, preventing settlement and waiting for land values to rise. Pentecost, Wilson viewed such “land hogs” with suspicion.

Like

The two

men envisioned a large turnover with a small profit per unit—the mass production of western settlements.

Far from seeing themselves as enemies

of the actual settler, the speculators believed themselves to be his truest friends, though for his part the frontiersman was seldom inclined to accept them at their own evaluation. In his efforts to recruit settlers for his western acres, Wilson wrote a tract in the early 1790’s “On the Improvement and Settlement of Lands in the United States”10 which shows clearly his concept of the role of the land speculator.

The opening paragraphs presented his main thesis in

dramatic form. In the United States, [he wrote] there is an immense Quantity of Land, rich, well-situated, and in a salubrious Climate. This Land lies useless and unimproved from the Want of Labour and Capital and Stock. In Europe there is an Abundance of Labour and Capital and Stock;

x66

JAMES WILSON

but rich and well-situated Land cannot be obtained, unless at a very high Price. A Plan by which the surplus Labour and Stock and Capital of Europe would be employed on the unimproved Lands of the United States, must be eminently advantageous to both. The prospects of profit are immense; in addition such a plan which would unite Europe’s peoples and America’s fertile acres, would relieve much misery and poverty.

The government of the United States “in its

stability and its flexibility” is ideally suited to such a scheme, since it has been constructed “to expand in just and accurate Proportion to the Setdement of the Country.”

As new settlements were formed new states would

be added to the Union, the equals in every respect of the old.

Those of

humble condition in Europe will find that “their Talents and Virtues, may, in the Course of a few Years—much fewer than is generally imagined— fill the first Offices in the States, which they shall have contributed to found and form.” What are the impediments that lie in the way of such a venture at present?

The European emigrant must embark on a long voyage in a

ship whose master may be hardhearted and mercenary and whose ac¬ commodations may be wretched, where sickness and disease may ravage the passengers and where bad food and polluted water sap their strength and weaken their morale.

Then on landing in a strange country the im¬

migrant is uncertain as to where to turn for help and advice.

With

“neither House nor Home, where shall [the immigrant] find a Place for his Wife and Children?

How, in a frontier or unsettled Country, and,

perhaps, at an unfavourable Season of the Year, shall he provide for them, till he can build a House and raise the Means of their Subsistence on the Land, which he has purchased?” It is such obstacles as these which prevent the most stable and de¬ sirable Europeans from migrating to America, but those impediments can be readily removed by a plan, “a secure and easy Plan, by which an Emigration from Europe to the United States can be begun, carried on and completed, and by which the Ends of an Emigration can certainly and successfully be accomplished. . . .”

It is such a plan that Wilson now

offers. “Large, and well-situated, well-selected, and well-located Tracts should be accurately surveyed, and purchased. . . . The best Parts of those Tracts

SPECULATORS AND ENGROSSERS

167

should be subdivided into Surveys of one, two or three hundred Acres each.”

These should be set aside for the European setders.

The “first axiom” of the entire plan must be “never to be in Want of Money.”

It was this dreadful, continual want of money that clipped

Wilson’s own wings, kept him involved in a maze of debts and loans, of hasty expedients and frantic last minute measures, that prevented him from breaking free into a kind of economic stratosphere where he could move freely, buying and selling, colonizing and developing the millions of acres of land that his dreams called for.

“Never to be in Want of Money”

—the phrase was a fateful one. The capitalists who invest in Wilson’s plan will receive generous portions of land, commissions from the sales of farms to immigrants, and the passage-money from the vessels which will be provided to carry the settlers to America. The ships themselves should be stout and seaworthy, “abundandy supplied with every Thing necessary and comfortable: They should be under the Command of Officers distinguished for their Humanity as well as their nautical Abilities.” Having arrived by sound ship in command of humane officers, the immigrants are to be immediately provided with pleasant accommodations, and, after a rest “from the Fatigues of the Voyage,” they are to be trans¬ ported to their new homes where each family will find “a House already built, a Garden already made, an Orchard already planted, a Portion of Land already cleared, and Grain already growing or reaped.

For all

these Conveniencies they should pay at a reasonable Rate.” Nothing was overlooked in Wilson’s elaborate plans for the comfort and convenience of the immigrants.

A line of inns where the newcomers,

on the way to their farms, may be housed and refreshed is to be established every ten miles. And “towards the Western End of it,'they should find, at reasonable Prices, a Supply of Horses, Oxen, Cows, Sheep, Hogs and Poultry, all of the best Breeds; and farming Utensils of the best Kinds and Construction.” That Wilson should find a sympathetic ear for such a venture was not as improbable as it might seem.

He lived in an age of great dreams.

The Holland Company was soon engaged in a similar project on lands sold by Robert Morris and his partners. Wilson’s scheme, so rational, so logical, and so visionary, was never brought to the test, and it is safe to predict that in this world of finite possibilities, of complexity, and in¬ herent disorder, it would have failed as completely as the Holland under-

168

JAMES WILSON

taking.

But such failures, epic in their conception, seeming often like

unsubstantial images of the minds that envisioned them, were the stuff of which the economy of nineteenth-century America was fashioned. The society so practical or so mundane that it is lost to such ex¬ travagant visions is in a sorry state.

The whole history of the Revolution

and of the nation that sprang from it was a story of imaginative daring in the face of the seemingly impossible—an impossible that could not forever withstand the assaults of faith. If Wilson was eventually the victim of his ambition and of his greed, he was also the victim of his dreams.

We are the legatees of his dream of

a united democratic republic, secure under the law in the possession of human rights and dignity.

This, the last of a multitude of earlier dreams

by other dreamers, was a dream ready to find a political form and enter into history.

If Wilson’s land dream was less noble, it was no less Amer¬

ican and no less a part of the future.

In Wilson, as in Robert Morris, the

spirit that could later be isolated and identified as American capitalism surged so strongly that it finally tore him asunder, and utterly destroyed him.

This side of Wilson is not the one that evokes much sympathy in

the present day, and it is not meant to convert his weakness into strength, or to obscure by rhetoric the gradual loss of his inner integrity under the pressure of his consuming vice.

But Wilson deserves to have his land

speculations considered against the background of his age.11

CHAPTER XII

Better Men in Better Times

In

the

fall

of 1781 while Wilson and Morris struggled to bring order

out of the chaotic finances of the loosely united states, great things were afoot for the Continental cause.

Cornwallis after campaigning in the South

fell back toward Yorktown, followed closely by General Greene.

Wash¬

ington, hearing of the position of the British army, dispatched a message to Count De Grasse, commander of the French fleet, requesting him to patrol the capes of the Chesapeake and thwart any effort by the British to relieve or evacuate Cornwallis’ army. De Grasse reached his rendezvous off the Chesapeake, and Washington, hearing the news, danced for joy and waved his hat.

The trap was sprung.

The lines of French and Continental troops drew the noose tighter.

The

allies vied with each other to take the outworks, and young Alexander Hamilton cut a fine figure leading his men in a sally against the British entrenchments.

De Grasse turned back Rodney and the British fleet off

the capes and the issue was decided.

For Cornwallis a determined and

honorable resistance was only the prelude to inevitable surrender.

Colonel

Tilghman, Washington’s aide, brought Wilson a note from St. Clair with news of the British capitulation at Yorktown.1

Soon the whole city was

exulting over the greatest triumph of colonial arms.

The citizens of

Philadelphia abandoned themselves to an orgy of celebration and merry¬ making.

Every house was illuminated—those of the Quakers by force

if necessary. When General Washington and his lady arrived in Philadelphia a month later, his reception was, quite properly, that of a conquering hero, and the hostesses of the city vied with each other to provide sumptuous

170

JAMES WILSON

entertainment for the Washingtons.

The presence of French officers and

their wives made the city shine with cosmopolitan brilliance.

Things

French, from cooking to coiffeurs, were all the rage. The victory at Yorktown provided only a temporary respite for Con¬ gress.

Accompanied as it was by an inevitable let-down in the war effort,

it made the task of those who were anxious to construct a permanent base for the government of the United States more difficult than ever.

The war

was not over and although everyone persisted in behaving as though it were, Congress was duty-bound to try to hold the increasingly reluctant states to their obligations, lest the cause disintegrate at the moment of victory. General Washington, with his headquarters in Philadelphia, wrote Wilson in March, 1782, asking him to take his young nephew, Bushrod Washington, as a law student and inquiring about his fee.

Wilson, busy

with his own multitudinous business ventures and perhaps hoping to discourage the prospective student, replied that his charge would be a hundred guineas.

The General wrote back at once to commend his

nephew “not only as a Student . . . but to your attentions as a friend.” Necessity forced the General to send a promissory note instead of cash for the fee, but he promised full payment with interest.2 Bushrod found Wilson an excellent mentor, and, as Washington hoped, a friend.3

When Wilson died, his place on the Supreme Court was taken

by Bushrod Washington.

He would hardly have been Wilson’s student

and his uncle’s nephew if he had not strongly supported the doctrine of nationalism which John Marshall was fashioning out of materials which Wilson, more than any other justice on the first Court, had placed ready to his hand. During the winter of 1781-1782 the Thermidorean reaction, led by the Republicans, gained strength in Pennsylvania.

The elections that were

held in the fall of 1782 returned a clear majority of Republicans to the Assembly and to the Executive Council for the first time in six years. “Better men” and “better times,” at least by Robert Morris’ definition, were at hand.4

John Dickinson, chosen President of the Supreme Executive

Council, promptly appointed Wilson as one of the lawyers for the state in its controversy with Connecticut over the Wyoming Valley in north¬ eastern Pennsylvania.

Connecticut claimed a considerable chunk of Penn’s

province on the basis of its colonial charters, and open warfare had been

BETTER MEN IN BETTER TIMES

171

waged in the region for years between Pennsylvania settlers and invaders from Connecticut. The outbreak of the Revolution had brought an uneasy truce between the rival claimants of the Valley, but as early as 1780, the Pennsylvania delegates, acting on instructions from the Assembly, had requested Con¬ gress to give a judgment in the Wyoming dispute.

Congress procrastinated,

anxious to avoid involvement, but when the Articles of Confederation were at last adopted in March, 1781, means of settling the Pennsylvania-Connecticut conflict seemed at hand in the provisions of Article IX.

Groping

for some formula for settling the acrimonious inter-state controversies that plagued the Confederation, Congress, in Article IX, declared itself “the last resort on appeal in all disputes and differences now subsisting or that may hereafter arise between two or more states concerning boundary, jurisdiction, or any other cause whatever.” The Connecticut land speculators of the Susquehannah

Company

who had promoted the invasion of the Penns’ lands did their best to block Congressional adjudication, but the delegates nonetheless approved the appointment of a court of commissioners, as provided in the Articles of Confederation, to decide the dispute.5 Wilson, retained with Joseph Reed, Jonathan Dickinson Sergeant, and William Bradford, the attorney-general of the state, to argue the case for Pennsylvania, was in Hartford in July to defend a client in the Con¬ necticut Court of Appeals, and at the request of Bradford he used the op¬ portunity to search Connecticut records for evidence that could be used against that state in the forthcoming trial.6 The agents for Connecticut were Eliphalet Dyer, a tendentious, prolix man who had been one of the guardians of the Susquehannah Company from the first and who was now called upon to defend what was, at least in part, his handiwork; Jesse Root, an experienced Hartford attorney; and William Samuel Johnson, one of the ablest lawyers and politicians in Connecticut. Article IX of the Confederation provided that in territorial disputes between states, Congress should name three persons from each state as arbiters, and from the resulting list of thirty-nine names each party to the dispute should alternately strike out one name until the number was re¬ duced to thirteen.

From these remaining names not more than nine or less

than seven should be drawn by lot and these men would constitute a court to settle the dispute.

The article was apparently modelled on George

i72

JAMES WILSON

Grenville’s famous act of 1770 for deciding disputed elections in the House of Commons, and the process of alternately crossing out unacceptable mem¬ bers was referred to cynically as “knocking the brains out of the committee,” since each side tried to remove men of force and persuasion who might be opposed to their interests.7 In practice the agents of Pennsylvania and Connecticut, apparently by mutual consent, departed from the procedure laid out in the Articles.

The

agents of both states met in Philadelphia at the house of Joseph Reed on the 24th of July and drew up a tentative list of possible commissioners. Two days, later they met at Wilson’s home, and each group presented, from the original list, the names of seven commissioners that it would consider ac¬ ceptable.

Another meeting at Reed’s and a final session at Wilson’s on the

2nd of August brought agreement on seven commissioners in all—Welcome Arnold of Rhode Island, William Whipple from New Hampshire, Thomas Nelson, Cyrus Griffin, and Joseph Jones of Virginia, David Brearly and William Houston of New Jersey.

There were thus three small-state men—

Arnold, Brearly, and Houston—who might be expected to oppose territorial ambitions on principle; and three large-state men—the Virginians, Griffin, Jones, and Nelson—who might be counted on to look indulgently on Con¬ necticut’s claim.

William Whipple of New Hampshire was perhaps con¬

sidered a neutral member.8 At the end of August Congress confirmed the commissioners, and November 12, 1782, was set for the beginning of the hearings which were to be held at Trenton, New Jersey.

The decision of the commissioners,

Congress emphasized, was to be final. David Brearly and William Houston, the Jerseyites, meeting in their own bailiwick, were promptly on the scene, but Jones refused to serve, and Thomas Nelson never responded to his notification of appointment. There was an awkward week when Brearly and Houston and the Connecti¬ cut and Pennsylvania agents wondered if there were going to be any court at all.

The withdrawal of Nelson and Jones upset Dyer because the court

thereby lost two men who had been counted on to favor Connecticut’s claim. While the commissioners and agents at Trenton waited for the court to fill up, word reached Wilson that a Republican Assembly had chosen him to represent the state once more in the Confederation Congress.

With

Wilson were Thomas Mifflin, Thomas FitzSimons, his Carlisle friend, John Montgomery, and Richaid Peters

a thoroughly conservative delegation.

BETTER MEN IN BETTER TIMES

173

When the arrival of Whipple, Arnold, and Griffin on the 18th of November gave the commissioners a quorum, the Trenton Court was con¬ vened.

From the first the Connecticut men played a delaying game.

A

recess was requested until the Wyoming settlers could present their case in person, and when this was rejected there were references to mysterious documents that were still in England, but which would soon arrive and vindicate Connecticut’s claim beyond all cavil.

At this argument by Dyer,

Sergeant suggested that he look in his own voluminous pockets for the missing documents. As the hearings progressed Dyer provided the principal comic relief for the Pennsylvanians.

“Our cause at present stands fair enough,” Reed

wrote to George Bryan, “But I forsee it will be very tedious.

Colonel Dyer

will submit to no order; he speaks twenty times a day, and scarcely ever finishes one sentence completely.”9 In place of a lost Indian deed, Reed wrote, the Connecticut agents offered a copy, but when this was rejected by the court, the original at once appeared. Jesse Root gave the formal opening argument for Connecticut, and at least to Reed’s ear was “very dull,” covering the complex issues of his state’s claim in two hours where he might better have employed two days. Sergeant followed for Pennsylvania, and after him came Dyer, from whom, wrote Reed, “we expect much amusement, though little information.”10 The tedium of the hearing was somewhat relieved for Wilson by a long letter from Thomas Smith. Smith had tried to see Wilson in Philadel¬ phia before he left for Trenton, he wrote, “but you were so assiduously engaged in sowing the spot from which you are to reap a golden harvest, that I had no opportunity ... in which I could freely converse with you.” Smith asked Wilson to advise him about some law cases pending in Bedford County and then offered to regale his friend with “here and there an episode of politicks, and a delectable description of the Skunk As¬ sociation.”

The “Skunk Association” in Smith’s pungent phraseology

was the Constitutional Party.

“These people,” Smith wrote, assured of a

sympathetic ear, “resemble the fallen spirits in Milton and what they could not regain by force, Satan will attempt by stratagem; curse on their system to divide and inflame the minds of the people.”

Smith fears that

Wilson’s old mentor John Dickinson, newly elected President of the state, may toady too much to the “Skunks” in order to hold their favor. But he pulls himself up in his tirade with the rueful remark, “whenever

i74

JAMES WILSON

I begin politicks I am like a horse, or perhaps you will say an ass, running a race, I cannot stop when I please.” What Smith most desires is a long and discursive letter from Wilson, and he suggests the best time to write such a communication.

Smith, as

a recent delegate to Congress was thoroughly familiar with Eliphalet Dyer’s loquaciousness.

Wilson must write his letter when Dyer has taken the

floor, “has pulled up his breeches, surveyed his shoebuckles with great accuracy, and has spit first at one side and then at the other—has ad¬ dressed the President and then taken another look at his buckles.” is

the time for Wilson to take pen in hand.

This

“Suppose,” writes Smith,

“that you are sitting at your ease and looking at him through your spectacles, like a surveyor through a compass, with a good-natured smile upon your countenance, so that all the house may see what excellent and white teeth you have,” Wilson should then take a “quire” of paper and devote two or three hours to writing a letter.

By the time he has used up the quire of

paper, Dyer will be drawing near the end of his “intelligent, melodious and well arranged oration,” and Wilson will be able by listening to the “re¬ capitulation by which a great orator never fails to bring the whole argu¬ ment to a focus,” to tell whether Dyer has been for or against “the measure then in discussion, which your dull apprehensions would not otherwise have enabled you to discover, had you listened all the time, in which you have written a long elaborate letter.”11 Wilson followed Dyer in his argument, and it fell to him to sustain the principal weight of the Pennsylvania cause.

He began, as always,

with a reference to the larger implications of the case before the com¬ missioners.

“We have the pleasure,” Wilson told the commissioners, “to

meet your Honours upon a very important Contest.

You are now to

decide a territorial Controversy, which with other Nations would have been decided by the Sword.

This being a Court of the first Impression

in any Part of the Globe—and the subject of Litigation being of con¬ siderable Value—I hope the honourable Court will pardon the tedious Discussion I am now to make.” This was an effective opening that put the issue in its proper per¬ spective.

By placing his finger upon the true meaning of the Court’s re¬

view, Wilson raised the case to the highest level of dignity and significance. It was certainly not a quality unique with Wilson—this capacity to evoke from the event its highest consequence.

His great contemporaries con¬

stantly dared to speak as though their voices were the voices of enlightened

BETTER MEN IN BETTER TIMES

175

mankind, as though the scenes in which they were acting were of unparalled importance for the present and for future time.

This instinct

for greatness was a mark of the leaders of the Revolutionary generation. Their faith in the uniqueness and the transcendent importance of the events in which they participated did much to give those events their mean¬ ing. After his introduction Wilson proceeded to review Pennsylvania’s case with painstaking detail.

His brief took three days to deliver.

Reed

wrote Bryan that Wilson’s argument was “both laborious and judicious, he has taken much pains, having the success of Pennsylvania much at heart, both on public and private account.” This was high praise from Reed, who had no affection for his colleague.12 Unfortunately Wilson’s meticulous presentation was interrupted by the weather.

He had found congenial quarters in Morrisville, the town

founded by his friend Robert Morris.

From there he was able to maintain

some contact with his business affairs at Philadelphia, only some thirty miles away, and he could also give attention to the iron foundry on the Delaware in which he was a partner with Mark Bird. The Court, however, had to pay a heavy price for Wilson’s trans-river location.

Between the

second and third days of his argument a storm so choked the Delaware with ice that it was impossible for Wilson to get to the Court from Morris¬ ville, and the commissioners and agents were obliged to wait for three days until the ferry could resume its crossings.

When Wilson appeared

on Thursday, ruddy and braced by the sharp morning cold on the river, he must have been aware of a certain resentment at his determination to rest on the Pennsylvania shore.13 Wilson traced the development of the two colonies from their original setdement, reinforcing his arguments with innumerable citations in law and history. Against the two dubious Indian deeds offered by the Connecti¬ cut claimants, Wilson placed thirty-nine Indian deeds and papers plus treaties of ratification.

As the climax of a carefully marshaled array

of arguments, the Pennsylvanian presented evidence that settlers from the Quaker colony had established themselves in the disputed territory twenty years before the Connecticut vanguard appeared.

The proprietors

had clearly owned the land in question and all the “Estate, Title and Interest of the Proprietors is now vested in the Commonwealth of Pennsyl¬ vania.”

i76

JAMES WILSON William Samuel Johnson followed Wilson to conclude the Connecticut

case.

He rested his argument primarily on occupancy.

“Cultivation or

industry,” he told the commissioners, “appears . . . the only just criterion of property.”

Outweighed thirty-nine to two in Indian documents, Johnson

abandoned the Indian deeds and concentrated on the charter of 1662 as confirming Connecticut in the disputed lands.

He was not an unworthy

opponent of Wilson, and his brief was studded with almost as many learned quotations as the Pennsylvanian’s.

However, the bulk of the evidence was

clearly against the Connecticut claim, and Reed, who concluded the case for his state, wrote to George Bryan, “We have little doubt of a favourable decree.

Decency and propriety require our staying here until the affair

is finished; but we are all extremely impatient to return.”14 On Monday, December 30, 1782, the impatient Pennsylvanians heard the verdict of the Court.

“We are unanimously of opinion,” the Com¬

missioners declared, “that the State of Connecticut has no right to the lands in controversy.

We are also unanimously of opinion, that the juris¬

diction and pre-emption of all the territory lying within the charter boundary of Pensylvania, and now claimed by the State of Connecticut, do of right belong to the State of Pennsylvania.” merely the decision itself.

There was no supporting opinion,

The Connecticut agents went home empty-

handed; the Pennsylvanians returned to Philadelphia with a pleasant sense of vindication. The decision at Trenton, important as it was, attracted little attention at the time and it has failed to become embedded in the history of the formative years.

There is little question that it possessed a much greater

importance than history has accorded it.

The decision, as Wilson himself

pointed out, marked the first time that disputes between states had been settled in the newly and uneasily United States of America by a judicial body.

The lesson was not lost on one of the principal protagonists.

James

Wilson was certainly strengthened in his ideas about a high court of last appeal in matters affecting the states.

The Court pointed very clearly to

the need of such a “function” as a permanent part of any coherent and settled frame of government.

Article IX, with its absurdly cumbersome

provisions, was a half-way house on the road to the Supreme Court of the United States.

In the Constitutional Convention, Wilson was to work

tirelessly to promote the concept of a federal judiciary. Although Congress accepted the verdict of the Trenton Court over the captious objections of Eliphalet Dyer, the unhappy ghost of the Wyoming

BETTER MEN IN BETTER TIMES controversy was by no means laid to rest.

177

Jurisdiction over the Valley had

been decided, true enough, but the question of who owned the disputed acres—the rights of soil, so-called—kept the settlers in a constant ferment. As long as Wilson was in Congress he was able to block the efforts of Connecticut to reopen the issue, but as soon as he withdrew the New Englanders renewed their agitation. Wilson took his seat in Congress on the 2nd of January, 1783. been absent for over four years. revival.

He had

Congress was itself enjoying a brief

There were a number of familiar faces among the delegates, and

some that were new to the Pennsylvanian.

He had not escaped Eliphalet

Dyer’s diffuseness. The Connecticut delegate was much in evidence. Oliver Ellsworth, also from Connecticut, was a spare man with a bull-dog jaw, dark brows, and a determined mouth that showed a trace of sternly sup¬ pressed humor.

A confirmed snufftaker, Ellsworth was often surrounded

by a fine film of powder, and his doggedness made a friend remark that if Ellsworth had spelled God with two d’s it would have taken three weeks to expunge the superfluous letter. Roger Sherman, another Connecticut man and a Congressional veteran from the Homeric days, appeared in the middle of January and remained until June, giving sturdy support to the nationalists.

Alexander Hamilton

was a delegate from New York, an intense, brilliant, mercurial young man, still wearing the aura of a dashing military career. In the New Jersey, North Carolina, Maryland, and Georgia delegations there was hardly a familiar face.

John Rutledge from South Carolina was a survival from the

early days, but he was no friend to the plans of the nationalists. If many familiar faces were missing, often replaced by men of lesser ability, Wilson found a congenial spirit in one of the Virginia delegates, a shy young man with a weak voice.

James Madison had been in Congress

since March, 1780, and his ability had marked him at once as a most promis¬ ing politician. As perhaps the two ablest delegates in Congress and sharing many ideas on the nature of government, Wilson and Madison formed an im¬ mediate alliance that was to have important consequences for the new nation. Continental affairs were in an uncertain state at the beginning of 1783.

Since Yorktown there had been an uneasy and undeclared truce, but

i78

JAMES WILSON

no treaty of peace; instead, the threat of renewed hostilities.

Washington’s

army grew restless at Newburgh; officers quarreled and fought duels. There had certainly been darker hours for the cause of American independ¬ ence, but never such weariness of spirit, and never had the morale of the people been so low, their temper so bootless.

French loans and the newly

formed Bank of North America had kept the thinnest trickle of gold circulating to sustain the country’s economy. Rumors of a treaty concluded with Great Britain were followed close on by rumors of a new campaign by the enemy.

An army that need not

fight could not be disbanded, but must wait while operations of foreign navies in remote waters decided the issue of war or peace. Congress turned, doubtless with a spasm of distaste, to the question of money.

The delegates responded to the pressing need for currency

by drawing on French loans that were in the process of being negotiated. When this word reached Robert Morris, he informed a committee of Con¬ gress that he had already been forced to overdraw' on France to the extent of three and a half million livres and must draw more, without that country’s knowledge or consent, to meet the pressing debts, hoping that France would honor the drafts.

When Dyer protested such action as

“an unwarrantable and dishonorable presumption,” Morris replied that “mortifying as it might be ... it was a mortification which could not be avoided without endangering our very existence.”15 The most pressing problem was that of raising money for the soldiers of the Continental Army, waiting uneasily for their back pay.

If Congress

had hopes that the superintendent of finance would work another of his bits of financial legerdemain and produce a new supply of funds, they were soon disillusioned.

The Financier gave them blunt words.

There

would be no money for the army until Congress raised it. Congress had pulled itself together long enough to pass a bill calling for a five percent ad valorem tax on all foreign goods coming into the United States.

The Articles of Confederation, however, provided that no

such bill could become law unless ratified by all the states.

Rhode Island,

always recalcitrant, refused to comply with the recommendation of Congress —for it was no more than that.

Even Tom Paine’s agile pen, enlisted in

behalf of the impost, failed to sway the Rhode Island men.

Madison, who

had labored hard for the measure long before Wilson’s appearance in Congress, persuaded the delegates to dispatch a committee to answer the objections of the Rhode Island assembly and to “describe in the most pointed

BETTER MEN IN BETTER TIMES

179

Language the unhappy Consequences, That would probably result from their Denial of the solicited Impost.”11’

The Rhode Island mission had

not even reached its goal when word came that Virginia had voted to repeal its earlier approval of the impost.

Edmund Randolph suspected

that the blow had been aimed by Arthur Lee at his arch-enemy, Robert Morris.

For the moment, Congress was forced to abandon its hopes

for the revenue measure. The only alternative seemed the cumbersome land evaluation system prescribed in the Articles of Confederation as the means of raising revenue. Madison wrote to Randolph that “the difficulties which attend that rule of apportionment seem on near inspection to be in a manner insuperable.”17 The more prosperous states opposed such a tax scheme through fear that they would bear a disproportionate share of the financial burden.

Never¬

theless in its dilemma, urged on by Hamilton and Wilson, the delegates attempted to find some acceptable plan of land evaluation. Wilson proposed that a system of taxation be worked out on the basis of both land and inhabitants, and he, Charles Carroll, and Madison were appointed to a committee to confer with Morris in an effort to work out such a program. A sense of urgency was imparted to the committee’s deliberations by the appearance of a deputation of Continental officers petitioning Congress for their promised half-pay for life.

General McDougal, spokesman of the

officers, told the delegates “that the most intelligent and considerate part of the army were deeply affected at the debility and defects of the federal Govt., and the unwillingness of the States to cement and invigorate it.” If it was allowed to disintegrate, he warned, the benefits of the Revolution might be lost and state turned against state.18 In the debates that followed, the three federalist leaders—-Wilson, Madison, and Hamilton—looked beyond pay for soldiers and officers alike. They were unanimous in desiring to use the crisis over the pay issue to force through Congress an adequate over-all revenue bill that would provide funds to pay interest and principal on foreign loans and on domestic obligations, as well as the operating expenses of government.

Therefore

when Wilson entered the debate he began with “some judicious remarks” on the necessity of substantial permanent funds.

“The United States had

in the course of the revolution,” he pointed out, “displayed both an un¬ exampled activity in resisting the enemy, and an unexampled patience under

180

JAMES WILSON

the losses and calamities occasioned by the war.

In one point only . . . they

had appeared to be deficient that was a cheerful payment of taxes.” In free governments, as a rule, taxation had been more patiently borne “than in States where the people were excluded from the Govts.,” since free people considered themselves “the sovereign as well as the subject; and as receiving with one hand what they paid with the other.” The repugnance of the people of the United States toward taxes had historical origins, Wilson pointed out.

The controversy with Great

Britain which centered on the issue of taxation had placed all taxes in an “odious light.” The country had ample resources.

What was needed was simply “some

more effectual mode of drawing forth the resources of the Country,” Wilson declared.

Since Congress had been under the necessity of con¬

tracting a large debt, justice required that the delegates take the necessary measures for discharging it.

Funds were also urgently needed to carry

on a war that was not yet officially over. At present Congress could neither pay debts already contracted or provide for future exigencies.

It was the

duty of the delegates, Wilson insisted, to lay this situation quite frankly before their constituents, and at least “come to eclaircissement” on the subject. “The establishment of certain funds for paying,” Wilson declared, “would set afloat the public paper. ... A public debt resting on general funds would operate as a cement to the confederacy, and might contribute to prolong its existence,” when “the foreign danger” was no longer a pressure to prevent its dissolution. Wilson finished his appeal for the establishment of a sound financial system by making a motion that it be resolved, “it is the opinion of Congress that complete justice cannot be done to the Creditors of the United States, nor the restoration of public credit be effected, nor the future exigencies of the war provided for, but by the establishment of general funds to be collected by Congress.”19 Such logic was hard to meet.

The opponents of nationalism twisted

and turned, searching for a way out of the coils of Wilson’s dialectic. When the debate was resumed the next day, the champions of the states concentrated their fire upon the idea of having a national tax collected by agents of the confederacy rather than by the states themselves.

To have

Congressional tax collectors smacked to them of the worst kind of Oriental despotism. But Wilson rose at once to defend the principle.

He considered

BETTER MEN IN BETTER TIMES

181

such a mode of collection “as essential to the idea of a general revenue. Since without it the proceeds of the revenue would depend entirely on the punctuality energy and unanimity of the States.”

It was the lack

of these very qualities in the states that had led to the present desperate situation.20 Alexander Hamilton backed Wilson up vigorously, but Arthur Lee, of course, sniffed a conspiracy.

Such a measure, by placing the sword

and the purse in the same hands, he declared, probably with gestures, would be “subversive of the fundamental principles of liberty.” Again Wilson was on his feet to explain that his motion simply called on the states to invest Congress with the required powers.

Indeed, he

told the delegates, “the Confederation was so far from precluding, that it expressly provided for future alterations.”

The power of Congress under

the Articles was too small, its prerogatives too closely and narrowly de¬ fined.

The power must be increased, for, as he had pointed out before,

“there was more of a centrifugal than a centripetal force in the States, and that the funding of a common debt in the manner proposed would produce a salutary invigoration and cement to the Union.” Hamilton, attempting to bolster Wilson’s arguments, showed his po¬ litical inexperience and rashness when he declared that Congressional tax collectors, “interested in supporting the power of Congress,” would do everything they could to strengthen and maintain a strong central govern¬ ment, as opposed to the interests of the states.

The New Yorker’s state¬

ment followed logically, if tactlessly, the implications of Wilson’s argument, but in politics what is said is often less important than how it is said. Madison noted severely that “this remark was imprudent and injurious to the cause which it was meant to serve.

This influence was the very

source of jealousy which rendered the States averse to a revenue under collection as well as appropriation of Congress.” The champions of state sovereignty smiled at the naive disclosure of the impetuous Hamilton. Madison’s Virginia colleagues, Theodorick Bland, an unamiable mediocrity, and Arthur Lee, ever ready to hunt out con¬ spiracy, “took notice in private conversation, that Mr. Hamilton had let out the secret.”21 To the imputation that the advocates of a “general revenue” were inspired by hidden motives, Wilson replied that his motion was not the result of any preconceived plan, either of his own or of others.

It was

simply motivated by “the deplorable and dishonorable situation of public

^2

JAMES WILSON

affairs.”

If agreement could be reached on a principle, he would be glad

to join in any suitable plan for raising revenue. By January 29 the delegates had pulled and hauled Wilson’s original motion into the form that they desired, calling for “permanent and adequate funds on taxes or duties which shall operate generally and on the whole in just proportion throughout the U. S.” Wilson then rose to give his ideas in detail on the subject of a continental revenue.

He estimated the internal debt, liquidated and unliquidated, at

twenty-one million dollars, the foreign debt at eight million; the deficit of the past year at four million, and the probable deficit for the current year of 1783 at four million, making in all thirty-seven million dollars, “wdiich in round numbers and probably without exceeding the reality can be called 40 Million.”

The interest on the debt at six per cent is 2,400,000 dollars,

“to which it will be prudent to add 600,000, which if the war continues will be needed, and in case of peace may be applied to a navy.

An annual

revenue of 3 Million Dollars is the sum to be aimed at, and which ought to be under the management of Cong.”

Three million bushels of salt were

imported into the United States yearly and if these were taxed at a rate of one third of a dollar per bushel, it would yield a revenue of a million dollars. Because salt was used in large quantities in the fishing industry this tax would press hardest on New England. A land tax of a dollar per hundred acres would produce another million dollars. “This tax,” Wilson declared, “could not be deemed too high, and would bear heaviest not on the industrious farmer, but on the great land¬ holder^].” Of whom Wilson, of course, was one. This tax would fall most heavily on the middle and southern states. “The impost on trade was another source of revenue,” Wilson em¬ phasized,

which altho’ it might be proper to vary it somewhat in order

to remove particular objections, ought to be again and again urged upon the States by Congress.”

The superintendent of finance had estimated

that an additional million dollars might be raised in this way, and with the other revenues it would make up the needed sum of three million per annum. If any of these proposals were objectionable to Congress, there is the matter of an excise tax that may well be considered.

An excise on wine

and imported spirits or on coffee might be a good source of revenue.

In

closing, Wilson acknowledged his “hints and remarks ... to be extremely imperfect.”

He had been led to make them by a desire to contribute “his

BETTER MEN IN BETTER TIMES

183

mite towards such a system as would place the finances of the U. S. on an honorable and prosperous footing.” Wilson’s “mite” was, as he undoubtedly knew, much more than that. It was the first concrete and comprehensive proposal on the subject of a national revenue to be laid before Congress, and as such it deserved a better fate than it met.

Before the new republic was firmly established it

became necessary to employ most of the sources of revenue that Wilson had suggested in his speech, but for the moment the program was far too radical for most of the delegates.22 The committee appointed to work out a “mode of estimating the value of land through the U. S.” for the purpose of taxation, brought in its report, but Wilson tried to have it tabled until some conclusion had been reached on his proposal for an adequate over-all system of taxation. Hamilton and Madison opposed him.

Hamilton wished to have the

land valuation report taken up so that its “futility might become manifest,” and Eliphalet Dyer, discovering unexpectedly that brevity was the soul of wit, proposed that it should be left to- the states to devise a method of land valuation, so that “each of the States should cheat equally.”23 When Congress met on Tuesday, February 14, the debates veered to the question of commuting the permanent half-pay of the Continental officers to an obligation that might be more quickly and cheaply met. The half-pay controversy dated back to the Valley Forge days when Wash¬ ington’s unpaid officers were threatening to resign en masse.

Congress at

this critical juncture had voted them half-pay for seven years after their discharge.

Two years later, alarmed by Arnold’s treachery, Congress had

extended the half-pay provision to life.

Now many of the delegates showed

reluctance to provide the promised retirement pay.

Wilson, whose Scot’s

temper was wearing thin at the maddening procrastinations of Congress, spoke sharply of states that would contravene the “most preemptory and lawful engagements of Cong. ... If such a doctrine prevailed,” he warned, “the authority of the Confederacy was at an end.”24 Discouraged by the interminable haggling, Alexander Hamilton wrote to Washington to try to enlist the support of the General in achieving “the great desideratum,” the establishment of “general funds, which alone can do justice to the creditors of the United States. . . . This is the object of all men of sense; in this the influence of the army, properly directed, may cooperate.”25

And Gouverneur Morris wrote the same day to General

Knox, probably at Hamilton’s urging, declaring that Congress “will see

184

JAMES WILSON

you starve rather than pay a six Penny Tax,” and suggesting that the dis¬ gruntled soldiers bring pressure to bear on the legislators.26 On Wednesday, February 12, Madison presented a resolution to the delegates calling for “permanent and adequate funds on taxes or duties . . . to be collected under the authority of the U. S. in Congress assembled.” The phrase “and to be collected under the authority of the U. S. in Congress assembled” was too strong for the particularists and it was crossed out.2' Hugh Williamson, with his term drawing to an end, told his friend James Iredell, a staunch North Carolina federalist, that he did not envy his successor.

“We borrow money,” he wrote, “and have not the means

of paying sixpense.

There is no measure, however wise or necessary, that

may not be defeated by any single State, however small or wrong-headed. The cloud of public creditors, including the army, are gathering about us; the prospect thickens.

Believe me, that I would rather take the field

in the hardest military service I ever saw, than face the difficulties that await us in Congress within a few months.”28 On Monday, February 17, the motion on the valuation of lands which had been voted down was revived, reconsidered, amended, and passed over the strenuous objections of Madison, Wilson, and Hamilton.

It seemed

to the harried delegates the only way out of their financial morass. Having settled on a system of land evaluation, Congress was driven by Madison and Wilson back to a consideration of the five cent impost. Rutledge, fighting to prevent the formation of a permanent revenue, wished to have the proceeds of any such tax earmarked for the payment of the army exclusively, but Wilson, equally determined in his efforts to create a permanent revenue, declared that while he was quite sensible of the merits of the army’s claim, he felt that there was no justification for dis¬ crimination on its behalf.

The ability of the public was equal to the whole

public debt; therefore efforts should be made to provide for it in its entirety. The champions of the states were determined to keep requests of the army and of the “public creditors” separate, taking care of the one under the pressure of necessity and abandoning the other, thus blocking the creation of any system that could strengthen Congress at the expense of the states. The nationalists left no stone unturned to apply pressure to recalcitrant delegates.

Congress was memorialized by public creditors from Pennsyl-

BETTER MEN IN BETTER TIMES

185

vania to provide an adequate revenue to meet its obligations.

Robert

Morris announced his intention to resign as superintendent of finance if Congress failed to take decisive action on finances and then let word of his decision leak out in order to bring increased pressure to bear.

Finally

Wilson and Hamilton made a motion to throw the doors of Congress open to the public during the debate on the debt.

Clamorous Philadelphia

creditors packed in the gallery might sway some of the more timid delegates. Congress, however, “generally disrelished” the idea, although Wilson ex¬ plained that he merely wished to vindicate himself before his constituents whom he had dissuaded from taking measures to provide for Pennsylvania creditors by assurances that Congress would soon adopt “a general pro¬ vision.”

Since Congress refused to act, the Pennsylvania members wished

their constituents to “see the prospect themselves and to witness the conduct of their Delegates.”29 Gorham of Massachusetts, irritated beyond endurance by the ob¬ structionist tactics of “Messers Lee & Mercer,” declared angrily that “if Justice was not to be obtained through the federal system ... it was time this should be known that some of the States might be forming other con¬ federacies adequate to the purposes of their safety.”30

And Madison wrote

gloomily to Randolph that unless speedy action was taken “for adjusting all the subsisting accounts, and discharging the public engagements, a dissolution of the union will be inevitable.”31 On February 19 Wilson dropped out of Congress for a few weeks to attend to his own affairs, apparently convinced that things were at an impasse and that nothing could be done for the time being to bring order out of the tangled finances of the United States.

When he returned to

Congress on March 5 he joined forces once again with Hamilton and Madison to carry on the fight for a sound system of national finances.

The

delegates could find nothing better than the already rejected five per cent ad valorem tax on all imports, but an effort was made to render the impost less impalatable by providing that the tax be limited to twenty-five years, and that the collectors be appointed by the states themselves.

The impost

was to be used solely to discharge “the interest or principal of the debts which shall have been contracted on the faith of the United States, or for supporting the present war.”32

Wilson and Hamilton fought to strike

out the limitation of twenty-five years and the clause which bound the revenue to war debts.

Such a reservation of course prevented the use of

the impost to establish a permanent revenue that could be used to provide

i8 6

JAMES WILSON

for the public creditors and for the operation of government.

When their

motions were narrowly defeated, they tried to amend the bill so as to place the nomination of the collectors in the hands of Congress, leaving their actual appointment to states. the tax bill hung fire.

Once more their efforts were defeated and

CHAPTER XIII

The Twilight of the Confederation Congress

On March 13, 1783, the delegates were distracted from all thoughts of taxes.

The preliminary treaty of peace with Great Britain reached Congress on that day.

The great moment, so long, so eagerly and yet so uneasily

anticipated, so often rumored in the past months, had at last arrived. But even this moment contained its bitter lees.

The treaty, principally

because of John Jay’s suspicions of the French, had been negotiated without the knowledge of America’s ally. Congress, whose instructions had been explicitly to the contrary, was at once racked with doubts. The terms of the treaty were to many eyes, “extremely liberal,” and to denounce the ministers publicly for their lack of candor would be to imperil the treaty and discredit the negotiators.

To accept it would be to betray the trust of

France.1 Mercer, though reluctant to provide for the obligations of Congress, was quick to resent any fancied slight to its authority.

To smite Jay,

Franklin, and John Adams with the same stroke was an opportunity he found irresistible.

With ornate metaphors he “reprobated the chicane and

low cunning” of the American negotiators.

They had behaved like a

viper “which was ready to destroy the family of the man in whose bosom it had been restored to life.”

They had stooped to “lick the dust from the

feet of a nation whose hands were still dyed with the blood of their fellow citizens. Wilson replied with a plea for moderation.

Much could be done, he

declared, to disarm anger on the part of France by a “candid and open” declaration from our Ministers “of the circumstances under which they acted and the necessity ... of pursuing the course marked out by the best

x88

JAMES WILSON

interest of their Country.”

The ministers should be treated “in the mildest

and most delicate mode,” and left to make their own peace and their own apologies to the French.3 Winding up the debate on the treaty the delegates committed “all the despatches and the several propositions which had been made” to a com¬ mittee composed of Wilson, Gorham, Rutledge, Clark, and Hamilton. The committee’s report, when it was submitted several days later, combined tact with firmness.

The ministers were to be thanked for their

zeal and at the same time gently rebuked for their double-dealing.

They

were, as Wilson had suggested, to be left to explain their actions to Count Vergennes as best they could. Meanwhile pressure continued to build up on the tax question. General Washington forwarded to the harassed delegates “two anonymous and in¬ flammatory exhortations to the army to assemble for the purpose of seek¬ ing, by other means, that justice which their country shewed no dis¬ position to afford them.” The papers from Washington were referred to a committee composed of the principal obstructionists in Congress. Wilson, Hamilton, and Madison were the prime movers in the scheme of confronting these gentlemen with the poisoned fruits of their recalcitrance. To Gilman, Dyer, Clark, Rutledge, and Mercer, as the chief procrastinators, went the task of con¬ sidering the threatening flyers.4

The strategy was effective.

On March

22 the delegates gave way and voted commutation of half-pay for life to full pay for five years. The tangled financial situation, the delicate question of the peace treaty, and the impending resignation of the superintendent of finance all combined to throw Congress into a degree of “anxiety and distress” which, as Madison put it, “had scarcely been felt in any part of the revolution.” was no surcease.

And there

The delegates were sent some home truths to ruminate

on by Count Vergennes, the French foreign minister.

Vergennes confessed

himself surprised that the delegates, while importuning France for enormous loans, “paid so little attention to doing something for themselves.

If they

could not be brought to give adequate funds for their defence during a dangerous war, it was not likely,” he wrote, “that so desirable an end could be accomplished when their fears were allayed by a general peace.” The letter closed with an allusion to the “great indelicacy” of the American commissioners who had signed the preliminary treaty of peace without consulting their allies.

This was indeed heaping coals on the collective

THE CONFEDERATION CONGRESS head of Congress.

189

The members listened in embarrassed silence to the

reading of the letter.5 When Wilson took his seat again, he promptly requested that a com¬ mittee be appointed “to consider and report to Congress the measures proper to be taken with respect to the Western Country.”

This irm

portant territory, he warned the delegates, was in danger of being lost through the vacillations of Congress.

The delegates must act to take care

of the “federal interests in the formation of new States which could not take place by the authority of any particular States.” Madison rebuked Wilson.

First things first, he urged.

To take up

the question of western lands before the cessions were made by the states would only arouse irritation and create jealousies that might frustrate the cessions entirely. But Wilson was determined to press the issue. be too late.

Tomorrow might

While the states haggled, the western lands would slip away.

All the land over which particular states had not actually exercised juris¬ diction—surely this was United States territory, the common property of all the states. The Virginians disputed his arguments heatedly.

The exercise of

jurisdiction was not the real measure of territorial rights and if it were, Virginia could claim much of the Illinois region.

Furthermore, it was by

no means certain that the treaty with Great Britain ceded any territory to the United States beyond the claims of the individual states.6 Wilson, in reply, “went largely into the subject.”

“If the investigation

of right” was to be the basis of the Virginia argument, he declared, the United States had much more of a right to make cessions to the individual states than to receive cessions from them.

If Virginia wished to argue her

case on narrow legalistic grounds, a good brief could be presented in law for the position that the Allegheny Mountains marked the true western boundary of the states, and this “could be established without difficulty be¬ fore any Court, or [before] the Tribunal of the World.” considerations must prevail.

But broader

National policy required that a western

boundary be established that would give the interior access to the Missis¬ sippi. As for Virginia’s claim to the Ohio county, Wilson spoke so scorn¬ fully of it that Joseph Jones, president of Congress and delegate from Vir¬ ginia, called the Pennsylvanian severely to order, and the delegates turned their attention once more to the means of raising a revenue.7

I9o

JAMES WILSON Nine states went on record in support of the power of Congress to

levy an impost as a measure “indispensably necessary to the restoration of public credit, and to the punctual and honorable discharge of the public debts.”

A schedule of specific duties was attached; all others were to have

a five per cent ad valorem tax. The enemies of central power succeeded in reserving the subsequent revenue exclusively for the payment of principal and interest on the debts incurred in “supporting the war,” and in limiting the operation of the revenue to a twenty-five-year period. The states were then urged to provide an additional $1,500,000 in any way they wished on the basis of a quota that allowed for war damage in some states and large holdings of government paper in others. The resolution adopted by Congress further provided that in place of the scheme for raising revenue on the basis of land valuation as provided for in the 8th Article of Confederation, there be substituted a system based on proportionate population “of white and other free citizens and in¬ habitants, of every age, sex and condition, including those bound to servitude for a term of years, and three-fifths of all other persons not comprehended in the foregoing description, except Indians, not paying taxes.”

By such

ingenious circumlocutions did these men of the Enlightenment avoid the odious term “slave.” Hamilton cast a quixotic negative vote, Higginson stood out from his Massachusetts colleagues, and Rhode Island, as always, clung to its narrow particularism.

All the other states voted unanimously in the affirmative.

Stamped with Congressional approval and accompanied by an eloquent plea, the bill went out to the state legislatures for ratification.8 To Congress, waiting anxiously for the states to take action on the revenue bill, came two sharp reminders of its responsibilities.

Benjamin

Franklin had had great difficulty in obtaining the most recent French loan. “Our people certainly ought to do more for themselves,” he wrote with asperity.

“It is absurd the pretending to be lovers of liberty while they

grudge paying for the defence of it. . . . The foundation for [public] credit abroad should be laid at home; and certain funds should be prepared and established beforehand, for the regular payment of at least the interest.” With Franklin’s letter came one still more emphatic from Luzerne. “I am commanded to inform you, in the most positive terms,” the French¬ man wrote, “that it will be impossible for the king, in any case whatever, to obtain new advances for Congress for the next year.”

Applications else-

THE CONFEDERATION CONGRESS

191

where would fare no better, he warned. Indeed “without a speedy establish¬ ment of solid general revenue, and an exact performance of the engagements which Congress have made, you must renounce the expectation of loans in Europe.”9

In short, the Old World could not be counted on to finance

the innovations of the New. Congress was still debating the land question when its deliberations were shattered on the 19th of June by word from the Executive Council of Pennsylvania that a group of disgruntled soldiers were on their way from Lancaster to Philadelphia to demand justice from Congress.

The alarmed

delegates conferred at once with President Dickinson, who turned them away with the opinion that the Philadelphia militia could not be trusted to take up arms against the intruders unless “their resentments should be provoked by some actual outrage,” such, it may be presumed, as hanging some of the delegates. gress.

This was understandably cold comfort to Con¬

If the officers who had gone out to meet the soldiers and dissuade

them from their mission failed, there was no way to bar their entry into the city.10 The next day the soldiers arrived, very bland in their announcement that they came simply to place their case respectfully before Congress, but on Saturday, soon after Congress had assembled, they appeared in the streets outside the State House.

President Dickinson, again being im¬

portuned by the delegates, again declared that “without some outrages on persons or property, the militia could not be relied on.” A proposal that Congress should adjourn was met with the argument that to do so would reflect on the delegates’ courage, and would seem like giving way to threats.

Congress therefore remained in session and

took no steps to appease the soldiers.

If Congress often seemed ridiculous

in its self-importance, it was not without a strong sense of the high ideal that it embodied, and it showed no inclination to yield an inch to soldiers characterized by John Montgomery as “the offscourings and filth of the earth.”11 Outside the State House the soldiers stood about, awkward and selfconscious.

Lacking a Camille Desmoulins or even a Sam Adams to as¬

sume leadership, they could not well abandon their vigil, their claims un¬ requited, without being objects of ridicule.

So they satisfied themselves

with occasional obscene shouts that reached to the delegates, or by pointing their muskets at the windows of the room where the apprehensive members of Congress sat.

i92

JAMES WILSON “Spirituous drink” from nearby tippling houses nourished their sense

of embarrassed frustration.

By three o’clock when Congress adjourned,

whiskey and the late June sun had addled their senses and dulled their nerves.

As the delegates filed out, many doubtless trembling in their

shoes, the soldiers raised a derisive shout, some of the bolder standing as though to bar their passage but giving way as the indignant delegates bore down upon them. Congress assembled again in the evening.

If no assurances could be

wrung from the Executive Council of the state that the mutiny, as they called it, would be suppressed, and the “Public authority” supported, the president of Congress was empowered to call the delegates to adjourn to Trenton or Princeton.

Thus the situation remained over Sunday.

Further

meetings with the Executive Council indicated that body was unable or unwilling to act, and as reports of the growing anger of the troops ac¬ cumulated, President Boudinot called Congress to meet at Princeton on the 26th of June. The departure of Congress, unrepentant, to Princeton, and word of the approach of regulars to subdue the mutineers, brought most of them quickly to their senses.

They laid down their arms, passed the blame to

two of their officers who fled precipitantly, and then to prove repentance turned on the astonished Lancaster troops who were slower to abandon their small rebellion.12 At least one observer watched the humiliation of Congress with pleasure.

“The grand Sanhedrin of the nation,” John Armstrong, Junior,

noted, “with all their solemnity and emptiness, have removed to Princeton, and left a state, where their wisdom has long been question’d, their virtue suspected, and their dignity a jest.”13 When Congress convened at Princeton, several days late as usual, Wilson was not present.

He lingered behind in Philadelphia to care for

the affairs of the forge at Somerset, and to supervise his rapidly expanding land operations.

John Montgomery and Richard Peters were left to repre¬

sent Pennsylvania in the debate over the Swedish Treaty negotiated by Benjamin Franklin, and to try to assuage Congressional bitterness over the hegira to Princeton.

Montgomery, who was an engagingly phonetic

speller, wrote to Rush urging that “Congrass” be invited by the Supreme Executive Council to return to Philadelphia so that the delegates might again “strut on the pavements of the grand metroplaiss. ... and Congratulate

THE CONFEDERATION CONGRESS

193

Each other on the mervolous Esscape we made and the great Wisdom and prudence in Conducting affair(s) to a happey Esue.”14 Wilson arrived in Princeton the first week of August and was promptly appointed to a committee to confer with General Washington on the “peace arrangement” of the armed forces.

Congress itself spent much time

discussing the tortuous question of the Virginia land cession and its eight inhibiting conditions.

Wilson was not in Congress when condition num¬

ber seven came under fire in the report of John Rutledge’s committee. This condition stipulated that all Indian purchases “made for the use or benefit of any private person or persons whatsoever” within the ceded territory “should be deemed and declared absolutely void and of no effect.” To this provision the committee replied that it would be “improper for Congress to declare the purchases and grants therein mentioned absolutely void and of no effect.”

The seventh clause was aimed at the land

companies, perhaps most directly at the Illinois-Wabash Company. Wilson’s absence from Congress during the September debates was perhaps due to a feeling that his own involvements in the affairs of the Illinois-Wabash Company and similar ventures precluded him from participating actively in the debate. The committee also objected to the eighth condition, which asked that, in return for the Virginia cession, Congress confirm the state in the possession of all land within the north and south boundaries of the state extending as far as the southeast side of the river Ohio.

Without these two conditions

Congress would have been glad to accept the Virginia cession.15

Things

had reached another impasse. The next day the “committee on a military peace arrangement,” of which Wilson was the only original member (Madison, Ellsworth, Hamilton and Holten were the new members), brought in its lengthy report which, with its tables of organization, takes up twenty-two pages of the printed journals.

Fortifications, arsenals, military academies, arms industries, gen¬

eral staff functions, hospital services and the militia were all considered. The report also took pains to point out that the sixth Article of Confedera¬ tion, which some delegates interpreted as a prohibition against any kind of peace-time naval or military establishment, was meant to apply only to individual states.

If the article was interpreted to mean that only state

militia could be maintained in time of peace, the country would be left dangerously exposed to foreign attack.

As the report expressed it, “When

the forces of the Union should become necessary to defend its rights and

I94

JAMES WILSON

repel any attacks upon them, the United States would be obliged to begin to create, at the very moment they would have occasion to employ a fleet

and army.”

The commander-in-chief, the secretary at war, the inspector

general and the chief engineer all agree “not only that some military establishment is indispensable, but that it ought in all respects to be under the authority of the United States as well for military as political reasons.”16 The report listed six reasons why the peace-time military establish¬ ment was indispensable to the United States and recommended a modest quota of four infantry regiments, one regiment of artillery and a corps of engineers. Having received the fruit of the committee’s deliberations, Congress resolved itself into a committee of the whole to debate the report in detail. Only one state voted in the negative on the vague resolution which emerged —that the United States should maintain “certain garrisons” in time of peace.

There the matter rested.

Particularism again carried the day.

Wilson took the occasion of Congress’ adjournment at Princeton to withdraw from the Pennsylvania delegation. The move led his old antago¬ nist, Joseph Reed to “wonder at Mr. Wilson.

His age and ascent in life

are not such as to justify a retreat from actual weariness.”17 far from weary.

Wilson was

His head indeed was full of schemes for expanding his

Delaware Iron Works and launching new land ventures. gress without regret.

He left Con¬

The delegates seemed reconciled to a do-nothing

policy, the nationalist cause was in eclipse, and Wilson’s term had been marked by a series of frustrations.

It seemed to him more sensible to

employ his time in making money rather than making speeches to apathetic politicians. But before he could submerge himself completely in his business enterprises there was an urgent call for his services. Trouble was brewing for Pennsylvania in Congress when that body convened at Annapolis late in 1783.

With Wilson out of the way, the

Connecticut delegates renewed their agitation over the Wyoming Valley. The Trenton Court, they declared, had merely decided the jurisdiction of the region.

Connecticut, bowing to that decision, had renounced all claim

to govern the settlers there. But the matter of possession remained unsettled, said the Connecticut men.

This was a different issue.

Settlers had bought

land in the valley, paid for it, settled, and cultivated it.

These people

had a legitimate claim to the peaceful possession of their acres, and this problem the Trenton Court had not decided upon.

Impressed by the

Connecticut case, Congress appointed a committee consisting of Jefferson,

THE CONFEDERATION CONGRESS

195

a delegate once more after seven years’ absence, Arthur Lee, and Hugh Williamson to consider the question, and the committee reported in favor of a new court to try the rights of soil. Seeing how the wind blew, John Montgomery sent off an alarmed word to President Dickinson, and Dickinson at once summoned James Wilson, Pennsylvania’s leading expert on the Wyoming lands.

In spite of the

fact that Wilson had just withdrawn from Congress, Dickinson prevailed upon him to return to protect the Trenton decision and block any further moves by Connecticut. Under the circumstances there was no difficulty in persuading the Assembly to appoint Wilson, and Dickinson wrote off at once to the Pennsylvania delegates, instructing them to resist the “very extraordinary” claims of Connecticut “with the most persevering vigilance.

We wish

you by all means to prevent any step being taken by Congress, that may in the smallest degree lead toward a revision of the cause determined by the Court at Trenton.” Wilson is being dispatched to reinforce the Pennsylvania delegates, Dickinson pointed out, “by his professional knowledge and laborious preparation for the late trial.

With the mutual information and assistance

which you give each other, we do not question, but the design of our opponents will be properly encountered.”18 The word of Wilson’s return to Congress was good news to John Montgomery, often a little out of his depth amid the maneuverings of his colleagues.

“There are so many matters now Coming before Congress

which are of the greatest importance to the whole union as well as to every individual State,” he wrote Dickinson, that “I . . . sincerely wish if he is not already set out on his journey that he would hasten here as soon as possible. . . .”19 Wilson’s appearance in Congress was a brief one.

He had hardly

gotten settled on the Severn when he was summoned home again to act, with Attorney-General Bradford, as counsel for the state in the ticklish Marbois-Longchamps affair. Charles Julian de Longchamps was a French adventurer who had married a Philadelphia Quakeress.

To establish his place in French

society, Longchamps called on Chevalier de la Luzerne, the French minister to the United States who referred him to his secretary, the consul-general, Barbe-Marbois, who turned him away curtly.

When the two Frenchmen

met on Front Street near the Coffee House a few days later, Longchamps,

JAMES WILSON

!9e

once more rebuffed, abused Marbois loudly and ended the tirade by striking the consul-general with a cane. The incident touched off an immediate flurry of protests from foreign representatives in Philadelphia who declared that the United States govern¬ ment seemed powerless to protect the agents of friendly powers.

Van

Berkel, the recently arrived minister from Holland, wrote President Dickin¬ son, that he would leave the country unless Longchamps was punished for his crime. Since there was no national court to exercise jurisdiction over the case, it had to be entrusted to the Pennsylvania court, and since no Pennsylvania statutes applied to the alleged crime, Wilson and Bradford were forced to base the case for the prosecution on international law.

Arguing before

a jury of Philadelphia citizens, Wilson dwelt on the importance of vindicat¬ ing the honor of the United States before a watching world.

Unless

Longchamps were promptly and effectively punished, foreign nations would hesitate to send official representatives to the new republic.

There was

a tense moment when the jury brought in a verdict which found the prisoner guilty only of the first part of the charge of assault and battery. McKean at once urged them to reconsider their decision, and this time a verdict of guilty as charged was returned.

Longchamps was promptly

fined a ioo crowns and costs, sentenced to twenty-one months in jail and placed under bond for seven years for good behavior.20 Congress could breathe easier for the moment.

But if the Marbois-

Longchamps case had a happy outcome for everyone except Longchamps, it nonetheless added another to the growing list of inadequacies that could be charged against the Articles of Confederation. Wilson did not return to Congress.

By the time he was through with

the Marbois-Longchamps affair, Congress had decided to recess for the first time in nine years, providing a “stand-by committee” of states to act in its absence as the nominal head of the Confederation. The delegates from the nine states charged with this responsibility proved dilatory in the extreme.

Congress adjourned on the 3rd of June,

and it was not until more than a month later that the Committee of the States assembled a quorum at Annapolis. John Mercer, coming to relieve a Virginia colleague, could find no trace of the committee that was supposed to represent the dignity and unity of the states and wrote to a friend berating the “Confoederal Govern-

THE CONFEDERATION CONGRESS

197

ment (if it is not a prostitution of the name of Government to apply it to such a vagabond, strolling, contemptible Crew as Congress).”21 At Trenton in November, the delegates to Congress were slow in assembling.

Seven delegates represented five states on the first day of

the month, and ten days later only two additional delegates had appeared. Was the Confederation, launched with such high hopes only four years earlier, to die of inanition?

The delegates on the scene discussed how

“energy, effect and vigor” might be infused into Congress, talked of revising the Confederation, and even spoke of calling a convention of the states for that purpose.

It was the end of the month before seven states

were represented in Congress. By Christmas nothing had been accomplished except a tormented decision to remove to New York for the winter. Shuttling between New York and Philadelphia, fighting a skirmish with the radicals in the Quaker City and hurrying back to Congress to keep an eye on the Connecticut delegates, Wilson had little time to devote to his own enterprises.

He was reappointed to Congress on April 7, 1785,

but it was almost three weeks before he took his seat again. The delegates were debating a land ordinance for the Northwest Territory when he joined them.

Northern and Southern members clashed

over the exact terms of the bill.

“Some gentlemen,” as William Grayson

wrote Washington, “looked upon it as a matter of revenue only.”

These

men were willing to sell western lands in order to raise money to meet the obligations of Congress, trusting that emigration to the new lands would be too slow to affect the value of land in the seacoast states.22 The New England delegates wished to sell “the Continental land, rough as it runs,” and David Howell, the Rhode Island maverick, observed that “a certain sett of men vulgarly called Land robbers, or Land-Sharks” were trying to establish a system that would enable them to engross the best lands.23

Wilson himself was not involved to any extent in the lands

of the Northwest Territory.

These had already been marked out as the

special preserve of the New England speculators.

The fact that the

Ordinance was at last passed was due, in Grayson’s opinion, to the reluctance of Congress to levy any taxes, direct or indirect, to pay the public creditors.

Without this spur the delegates would perhaps never

have been prevailed upon to accept the Ordinance.

The sale of lands,

the members hoped, would raise sufficient temporary funds to allow the haunting issue of a permanent revenue to be pushed back into the Congressional closet among certain other spectres.24

I98

JAMES WILSON Wilson spent a few days in Congress and then withdrew.

When he

returned to his duties in early July, he was promptly placed by his oven worked colleagues on a number of committees.

In his absence the delegates

had become deeply involved in a debate over the regulation of commerce. The New Englanders, led by the Boston merchants, wished Congress to exercise control over trade, and many of the delegates from the middle states supported the plan in the hope of raising a permanent revenue. Wilson and his friends turned to the commerce issue as a means of strengthening the Confederation government.

The Massachusetts legisla¬

ture had already issued a call for committees of correspondence to be established in the states.

The committees were to work for federal con¬

trol of commerce through an amendment to the Articles.

Under the

proddings of Wilson and his fellow Republicans a general town meeting of the citizens of Philadelphia, the Northern Liberties, and the District of Southwark was held at the State House in June.

A resolution was

passed by those present declaring that “nothing but a full power in Con¬ gress over the commerce of the United States can relieve it from its present oppressions.”

It was therefore, “Resolved, That to withhold from Con¬

gress the full constitutional powers for this purpose would be greatly in¬ jurious to the common interest; and from the necessity that would then be imposed on the states of referring to its own independent powers might induce a dissolution of the common government of the United States.”25 The southern delegates, led by that indefatigable champion of particular¬ ism, Richard Henry Lee, opposed every move to extend Congressional control over commerce.

Lee suspected a plot of the northern states to

“fix a ruinous monopoly upon the trade and productions of the staple states that have not ships or seamen for the exportation of their valuable productions.”

The charge would be heard again.

It was Lee’s classic

southern conviction that “the spirit of commerce is the spirit of avarice.” Congress should have no such dangerous power over the nation’s trade. It should simply recommend to the states that they take the proper action.26 Wilson, of course, threw his weight with those who advocated control of commerce, but it was to little purpose.

A determined minority blocked

all efforts to reform the rickety Articles of Confederation. Congress indeed was almost moribund.

In the preceding nine months

there had been fourteen occasions when that body failed to muster a quorum and on only six days during the entire period were as many

THE CONFEDERATION CONGRESS as twelve of the thirteen states represented.

199

For the most part there were

nine states or less in attendance.27 Wilson left Congress early in August to be on hand for the bank fight in Philadelphia, and after that bitter but futile campaign, he returned September 16, three days after the Assembly had repealed the charter of the Bank of North America. There he found that the Connecticut delegates were at last making their move to open up the question of land rights in the Wyoming Valley. Wilson spoke emphatically in defense of Pennsylvania’s rights to the soil as well as to the jurisdiction of the disputed valley, and succeeded, for the moment, in blocking the Connecticut plans.28 He spent only a week in Congress—enough, he thought, to dampen the fuse on the Wyoming bomb—and when he departed, left a handful of delegates conducting an elaborate exercise in futility.

Little had been ac¬

complished toward constructing a rational financial system—the same resolu¬ tions, the same reports, the same weak palliatives were being proposed by men too bemused by the spectre of federal despotism to take determined steps for away.

bringing order

out of chaos.

Discouraged

delegates

drifted

By December Congress could not muster a quorum for days on

end and met only to adjourn. Wilson was re-elected by the Pennsylvania Assembly to another term on November 11, 1785, but it was months before he took his seat.

He had

undoubtedly given up hope of any positive achievements by Congress and looked, like Madison and Hamilton, for a convention to frame a new constitution.

With this in mind he perhaps was glad to see Congress

slowly expiring of the twin maladies of inertia and ineptness, thus leaving the way clear for the formation of a new government.

David Ramsay,

the chairman of Congress, wrote gloomily to Benjamin Rush, “There is a langour in the States that forebodes ruin.

The present Congress for

want of more States has not power to coin a copper.

In 1775 there was

more patriotism in a village than there is now in the 13 states.”

The

unanimous consent of nine states was required for the passage of revenue bills and only seven states were represented in Congress.29 While Wilson lingered in Philadelphia to help manage the campaign of the bank men, Stephen Mix Mitchell, elected to Congress from Con¬ necticut put new energy into his state’s delegation.

The Trenton Court

had declared that Connecticut’s claim to the northern third of Pennsyl¬ vania was invalid.

But the decision of the Court had left unsettled the

200

JAMES WILSON

question of Connecticut’s claim to land west of the western boundary of Pennsylvania, running presumably to the “South Sea.”

Connecticut’s claim

had much the same merit as Virginia’s and was pressed with, if anything, even more determination.

As sentiment grew for cession of the western

land claims to Congress, Connecticut gave way in the matter of jurisdiction, ceding that authority to the United States in Congress assembled, but a powerful group of Connecticut speculators was determined to cling to a portion of the state’s western claims.

The Connecticut delegates thus had

two primary objectives in Congress—to secure a new court that would pass on the right of Connecticut settlers to possession of the Wyoming Valley (the rights of soil as opposed to those of jurisdiction), and Con¬ gressional approval for the state to reserve a portion of her ceded western lands for her own citizens. Stephen Mix Mitchell, having relieved William Johnson in February, 1786, wrote him shortly, urging him to return.

Wilson was expected within

the week, he noted, “so you see your return speedily is indispensible.” Mitchell wanted Johnson’s permission to “besiege” Wilson “on the score of our western cession, as soon as I can feel out his hobby horse.

You know,”

he added, “we are twa bonny scotch Lads and very national; . . . would it be amiss to obtain his influence in our favor, even by a little verbal abuse of Wyoming?”30 Mitchell’s

letter indicated

that

its

writer

was

willing to abandon

the Wyoming claim to win Pennsylvania’s support for the western reserve of Connecticut.

In return Mitchell was prepared to offer his support to

Wilson in the fight for a strong national government. Wilson returned to Congress in May.

A few days later a committee

brought in a report that recommended the acceptance of the Connecticut cession of lands to the United States. delegate of Wilson’s,

seconded

his

Arthur St. Clair, now a fellow-

friend’s

proposed

amendment that

nothing in the committee’s report “be construed or understood to affect the decree of the Court of Commissioners holden at Trenton, on the 12 day of November, A.D. 1782,” but the amendment was lost.31 Wilson then prepared a motion, seconded again by St. Clair, declaring that the “United States cannot accept the cession of the claim of the state of Connecticut to western land territory . . . because the acceptance of that cession, in its present form, might be construed to apply the approbation of Congress, of claims not ceded.” to

“establish

and

secure

the

Since the object of the cessions had been tranquility

of

the

United

States,”

Con-

THE CONFEDERATION CONGRESS

201

necticut should cede “to the United States, and to the States of New York and Pennsylvania, respectively, all the claims of the said State of Connecti¬ cut, to jurisdiction and property of territory westward of the eastern boundary of the State of New York.”

This done, Congress would “grant release and

confirm” to Connecticut the property, but not the jurisdiction, of the socalled Western Reserve.

This was the deal.

Mitchell’s blandishments

had apparently succeeded, for Wilson noted on the back of his first motion, “Connecticut not impeaching the Decree [of the Trenton Court]. Pennsylvania jealous of its validity.”32

In exchange for Wyoming the

Susquehannah and Delaware Company investors were to receive the western reserve. To the Virginia delegation it appeared that Congress already owned the disputed territory through the cessions of Virginia and New York.

To

them, as Grayson put it, Connecticut’s cession “was nothing but a state juggle contrived by old Roger Sherman to get a side wind confirmation to a thing they had no right to.”

Some of the states, “particularly Pennsyl-

vany, voted for them on the same principal that the powers of Europe give money to the Algerines.”33

In other words Connecticut practiced

a now familiar form of political blackmail.

But the desire for “Peace

and Harmony” induced the other states, though well aware of the bargain between Pennsylvania and Connecticut, to acquiesce.34 Wilson put in an appearance in Congress on the 21st of June for a few days, took the pulse of the patient, found it feeble indeed, and de¬ parted.

He kept in touch with the proceedings, ready to be called back

at any sign of a revival.35

Yet he was more convinced than ever that if

the “imbecility” of the Confederation was to be mended, the work must be done elsewhere than in the halls of Congress.

CHAPTER XIV

James Wilson, Citizen of Philadelphia

James Wilson was a familiar figure in Philadelphia—a tall, solid man,

thick-muscled, inclining a little to stoutness, with a ruddy complexion, a neat white wig, and thick-lensed glasses. stiffness in his manner.

There was an unbending

With strangers he was generally ill-at-ease, and

this shyness cloaked itself under an aloofness that was attributed by his enemies to arrogance.

Otto, the usually perceptive French charge d’affaires,

called this son of a Scots farmer “haughty” and “aristocratic” but added that he was “intrepid, energetic, eloquent, profound, and artful.”1 Wilson felt himself more at home with women than with most men, and to women he was courtly and attentive, valuing, as he had written in earlier years, the conversation of an intelligent and gracious woman more than that of a philosopher. masculine vitality.

And women liked him and felt his force and

He had a reputation for eccentricity; people whispered

about his occasional social lapses or gaucheries, which to the snobbish suggested his humble background.

Yet even his enemies were not in¬

clined to take him lightly, and he had many loyal friends. Through business and political ties Wilson was perhaps closest to Robert Morris.

Morris had married Mary White, the sister of Billy White

and a lifelong friend of Rachel Wilson.

The intimacy of the two women

reinforced the friendship of the husbands, and the Wilsons were frequent visitors at the handsome Morris home at Sixth and Market where Constance, the French butler, presided over a large staff of liveried servants. Wilson and Billy White, having shared the confidences of anxious suitors, remained fast friends and their families were constantly together. The mercurial Benjamin Rush was the Wilsons’ physician, and Wilson

CITIZEN OF PHILADELPHIA and Rush joined forces in a score of political battles.

203

John Dickinson, who

had guided Wilson's first steps in the law, maintained a close bond with his former pupil.

Wilson also counted William Smith, Francis Hopkinson,

Thomas Willing, and William Bingham among his personal friends and political allies. From his days as a young Cumberland County lawyer Wilson re¬ tained warm ties with Jasper Yeates, John Montgomery, and William Thompson.

Thomas Smith with his rough humor and outlandish dress

was a valued friend, and Wilson did much to advance the military career of Arthur St. Clair.

It was doubtless in the company of his Cumberland

companions that Wilson fished Le Tort Creek, the swift Conedogwinit, and the Conewago, drifting a delicate May-fly down the fast, clear water, or gently dippling the surface of a shaded pool with a grey hackle.2 Between James Wilson and James Iredell, the jovial and warm-hearted North Carolinian who sat with Wilson on the Supreme Court, a deep friendship developed, and in the tragic last months of his life, Wilson, fleeing Philadelphia, turned to Iredell.

John Rutledge, the South Caro¬

linian, was another intimate friend who stayed with the Wilsons during the early days of the Federal Convention. James Wilson’s place in the life of his city is perhaps best indicated by the groups to which he belonged.

The pattern of what historians have

called American associational activity had begun to manifest itself even before the Revolution.

After the war ended new benevolent and learned

societies appeared in Philadelphia by the score.

Whenever a few congenial

and like-minded individuals met, another such organization was born. There were groups for improving manufacturing and agriculture, for “elevating” the arts, science, and literature, for combating the Hessian fly, and for raising money for indigent seamstresses.

Some of these groups cut

across class lines, but there were others whose membership was restricted to the city’s elite.

The Hand-in-Hand Fire Company, which had been started

by Franklin before the Revolution included George Clymer, Francis Hop¬ kinson, William Smith, Benjamin Rush, Thomas Willing, William Bing¬ ham, and James Wilson among its members. The regulations of the Com¬ pany required each member to keep several baskets in which to carry articles from burning homes or stores and a supply of leather buckets with strong handles. If a fire occurred in their district the Hand-in-Hand would turn out day or night to help extinguish it.

The members met every

month or so for the ostensible purpose, in Franklin’s words, of “discoursing

204

JAMES WILSON

and communicating such ideas as occurred to us upon the subject of fires as might be useful in our conduct on such occasions.”

The character of

these meetings was primarily social and enough Madeira was doubtless consumed in the course of a year to put out any number of dangerous blazes.3 In 1786, Benjamin Franklin, an indefatigable organizer and joiner, collected a group of his fellow citizens to form the Society for Political Inquiries.

This organization was founded to discuss, in the words of its

constitution, “general politics only.”

James Wilson, Gouverneur and Robert

Morris, Tom Paine and Benjamin Rush were charter members of the group which met once a week in Franklin’s library. Some meetings were given over to the reading of prepared papers— Paine produced an unexpectedly mild one on the inexpediency of in¬ corporating towns.

Other meetings were devoted to the discussion of

topics selected by Franklin.

In these sessions Benjamin Rush with his

ready tongue and argumentative zeal “commonly took the lead.”

Gouver¬

neur Morris was “intelligent, sarcastic, and abrupt,” valuing the epigram more than the truth, while Franklin, having launched the debate, was generally content to act as moderator. The Society for Political Inquiries found, however, that history traveled too fast for its leisurely disputations to keep pace.

Many of the members,

Wilson among them, soon moved from the congenial circle in Franklin’s library to the floor of the Federal Convention and there employed their talents in trying to fit political theory to political fact.4 The outstanding learned society of the day was the American Philo¬ sophical Society, Held at Philadelphia for Promoting Useful Knowledge. Dating from 1769 and numbering in its company many of the most dis¬ tinguished men in the country, the Society elected Wilson a member in 1786.

He might well have regarded his certificate of membership, signed

by William White, John Ewing, and Benjamin Franklin, as recognition of his eminence as a political and economic theorist. Although Wilson held a commission as a militia colonel during the O

Revolution, he had been elected to Congress before his battalion was mustered and he never saw service.

In 1789, however, the Philadelphia

chapter of the Society of Cincinnati, a fraternal and patriotic association of Revolutionary officers headed by George Washington, invited Wilson to become an honorary member.

The Society, a stronghold of political

conservatism, doubtless wished to honor Wilson for his service to the

CITIZEN OF PHILADELPHIA

205

cause during the Revolution and his role in framing and securing ratifica¬ tion of the Federal Constitution.5 James Wilson’s principal social activity during his years in Philadelphia centered on the St. Andrews Society. St. Andrews was a company of Scotsmen banded together as a social and philanthropic association. Their grandiloquent preamble declared the Society’s general purpose to be the pur¬ suit of “universal good.” A more modest aim was to give assistance to “our indigent country folks,” by acting presumably as a kind of Traveler’s Aid for destitute or improvident Scotsmen. Since such individuals were notably rare, the social aspects of the Society were more conspicuous than the philanthropic. The members met four times a year, sang Scots ballads to a bagpipe accompaniment, had a Scots repast with bannock and haggis, and drank numerous toasts, beginning with “the sons of St. Andrew” and “the land of cakes,” moving through many similar salutations, and generally ending in a fraternal spirit with toasts to “the sons of St. George,” “the sons of St. Patrick,” and “the sons of St. Tammany.” Wilson who joined the Society in 1767, probably on the recommenda¬ tion of William Smith, served as President from 1786-1796, and presided over many such genial feasts. Typical of the Society’s gatherings was the meeting of December, 1788. Forty-five gentlemen sat down at the City Tavern to an elaborate dinner in the course of which they consumed 38 bottles of Madeira, 27 of porter, 8 of port wine, two of cider, and two large bowls of punch. The bag piper was paid seven shillings six pence for an inordinate amount of blowing, and the diners were presented with a bill for forty-five pounds.6 In addition to his organizational ties, Wilson, although generally deep in debt, gave generously to good causes. He was one of the principal sub¬ scribers to the first Bank of Pennsylvania. He contributed handsomely to Rachel’s campaign to raise money for the Continental Army in the winter of 1780, and when funds were solicited to start an academy in Kentucky, Wilson with $300 was the largest single subscriber.7 In 1783 Benjamin Rush enlisted Wilson’s legal and political help in securing a charter from the Assembly to establish a frontier college at Carlisle. Few lists of con¬ tributors to charitable causes in the city of Philadelphia appeared without Wilson’s name. The life of James Wilson was in its essence a life of the mind. Al¬ though he was deeply involved in the dramatic events of his age, his

206

JAMES WILSON

greatest adventures were intellectual and his principal achievements were those of an extraordinary mind.

With all but his friends and family, he

was emotionally inept, cold, and unresponsive. ity of the accomplished politican.

He lacked the easy familiar¬

He had none of Robert Morris’s genial

heartiness, none of Jefferson’s charm, John Adams’ mordant wit, or Gouverneur Morris’s conversational brilliance and cosmopolitan airs. ideas, not men, that he was most at home. his avocation.

It was among

Books were his allies; reading

He had written St. Clair how, amid the press of business

in Congress, he had longed for the quiet of his library. Wilson’s political writings, his law lectures, his speeches, all give evidence of his insatiable reading of history, philosophy, and political theory. His fame as a scholar was, indeed, widespread.

William Pierce in his

sketches of the delegates to the Federal Convention wrote, “Mr. Wilson ranks among the foremost in legal and political knowledge. . . . He is well acquainted with Man, and understands all the passions that influence him. . . . All the political institutions of the World he knows in detail, and can trace the causes and effects of every revolution from the earliest stages of the Grecian commonwealth down to the present time.”8 The Marquis de Chastellux, traveling in America during the Revolu¬ tion, met Wilson, “a celebrated lawyer,” and noted that he had in his library “all our best authors on public law and jurisprudence . . . and he makes them his daily study.”9 So formidable was Wilson’s reputation for erudition that when William Findley, in the Pennsylvania Ratifying Convention, bested him on an obscure point about the constitution of Iceland, Wilson’s enemies gloated over the triumph for weeks. Like most literate men of his day Wilson read widely in the classical authors.

Cicero, Seneca, and the Roman poets and historians were a

constant resource.

Like Jefferson and John Adams, Wilson read Lord

Bolingbroke for his style, his biting humor, and his political ideas.

But

of first importance to him were the philosophers of the Scottish Renaissance. Henry Home, the eccentric Lord Karnes, was one of Wilson’s favorite authors.

The Pennsylvanian’s interest in theory of knowledge led him

to Archibald Campbell from whose Inquiry into the Origins of Moral Virtue he drew ideas which he made his own.

Francis Hutcheson, pro¬

fessor of philosophy at Glasgow, David Hume, James Stewart, the political economist, John Millar, a kind of early cultural anthropologist, and finally Thomas Reid, the father of Common Sense philosophy, influenced Wilson’s

CITIZEN OF PHILADELPHIA thought.

207

But he was no facile borrower of other men’s ideas.

His pains¬

taking efforts to integrate his thinking with that of the men he had chosen as his preceptors is indicated by several pages of diagrammatic notes among his papers in the Historical Society of Pennsylvania.

On the right of one

of these sheets Wilson placed three modes of learning—experience, analogy, and testimony. After each of these he listed page references from Campbell, Reid, and Kames, collating the three authorities to draw from them a single valid interpretation of the knowing process.

Experience, analogy, and

testimony were then drawn together under the heading “induction,” which in turn is shown to be of two kinds, moral and probable, again with sup¬ porting citations.

In the upper portion of the first sheet, Wilson wrote

“analysis,” and, following out his chart, moved from analysis and in¬ duction to deduction. Another page, fitting to the first, shows the “moral sense,” and the “sense of liberty and power” constituting part of the “internal senses.”

The

notes reveal the care with which Wilson attempted to work out his own psychology.

When he came to address his law students on the nature

of man, he confessed that the formation of his philosophic system had “cost him some trouble.”

Nonetheless, he added, “I thought it my duty to

make and communicate it; because without it, any superstructure of system which I could build would not satisfy me as resting on a solid foundation. Could I have been justified in palming upon you a system leaning on such principles as do not satisfy myself?” Politics and law must, in Wilson’s view, stand upon a proper metaphysic.10 Lawyer, political theorist, politican, financier, business man, and land speculator, Wilson was perhaps best known to his fellow Philadelphians as an orator.

Whenever a public occasion called for an important ad¬

dress, or an issue needed elucidation, the task was apt to be passed on to him.

His speech in Philadelphia in the fall of 1787 urging ratification of

the Federal Constitution was widely reprinted and hailed by the Federalist press as being of extraordinary brilliance and persuasiveness.

Francis

Hopkinson wrote Jefferson that in the Pennsylvania Ratifying Convention a few weeks later Wilson showed “the powers of a Demosthenes and a Cicero,”11 and Robert R. Livingstone spoke of the same speech as com¬ bining “information, logic, and eloquence with resistless effect.”12

William

Pierce had already noted in the Federal Debates themselves that “no man is more clear, copious, and comprehensive” than Mr. Wilson.13

208

JAMES WILSON At the 4th of July celebration in 1788, Wilson was chosen to give the

oration of the day—the highest forensic honor that the city could bestow— and his ornate imagery and rolling periods were everywhere acclaimed. The leading magazines of the day, Mathew Carey’s American Museum, Noah Webster’s American Magazine, and the Columbian Magazine all carried excerpts, and many newspapers printed the speech or portions of it. Critics unanimously pronounced the style felicitous and the sentiments noble and republican. Wilson’s speeches were, to be sure, encrusted with a kind of rhetorical embellishment that is uncongenial to us today.

They were often prolix and

pedantic by modern standards, and his more sophisticated critics deplored his “brilliant conceits” and “occasional simplicities.”

Yet he appealed not

only to popular audiences; Alexander Graydon in the Pennsylvania Con¬ vention of 1790 confessed himself swayed from his conservative learnings by Wilson’s eloquence.

To Graydon, although Wilson “appeared studious

to avoid the beaten road ... he never failed to throw the strongest lights on his subject, and thence rather to flash than to elicit conviction.”14 Much of the effectiveness of Wilson’s orations came from the force of his character. of the man.

More than one critic spoke in terms that suggest the power Awkward, rough, physically imposing, he swept his listeners

along on a tide of rhetoric. His oratory was described by contemporaries with such words as “force,” “compel,” “illumination,” “flash,” and “blaze.” Here was a mind that eschewed the “beaten road,” that hurled ideas like bolts of lightning, ideas which through familiarity have lost their power to dazzle us, but which to his auditors disclosed hitherto unperceived land¬ scapes with startling clarity.

In Graydon’s opinion, Wilson “produced

greater orations than any other man I have heard.”15 The American Revolution destroyed the rigid order of provincial society.

Many of the colonial ruling class—such families as the Chews,

the Allens, and the Shippens—had supported the Crown and thereby for¬ feited political authority and lost the reins of social power. A loyalist who fled Philadelphia in 1776 remarked bitterly upon his return fifteen years later that he found the city full of upstarts.

Enough of the old guard retained

their positions to preserve the outward structure of social life in the city, but dozens of able and ambitious men who had won their spurs in the Revolution climbed to the higher ranks of Philadelphia society.

If the

Revolution gave the lawyers access to political power, it also enabled them to penetrate social circles that not many years before would have been

CITIZEN OF PHILADELPHIA

209

closed to them. Prominent among the lawyers were men like Joseph Reed, William Bradford, Charles and Edward Biddle, William Lewis, William Rawle, and, of course, Wilson himself.

Wilson’s marriage to Rachel Bird

had allied him with that segment of provincial society which, though established in the frontier counties, preserved numerous ties with the colonial ruling class in Philadelphia.

The Birds had connections which

reached indirectly into some of the oldest and most powerful families in Pennsylvania—the Willings, the Rosses, the Francises and the Binghams. Through his own conspicuous abilities, his Federalist principles, and Rachel’s connections, Wilson and his wife had entree to the inner circle of Philadelphia society. Much of the city’s social life revolved around the dancing assemblies —the Old Assembly, reserved for the elite, and a newer one for the am¬ bitious wives of tradesmen and merchants who- were barred from the highest spheres. In addition to card parties, balls, and dancing assemblies, Philadelphia offered a wide variety of diversions. equestrian acts.

Rickett’s Circus was famous for its

Athletically inclined gentlemen could practice fencing

at Le Maire’s Academy.

The Presbyterian ban, imposed in 1779 on stage

performances, would seem to have deprived smart Philadelphians of the pleasures of the theatre, but ingenious ways were found to avoid the pro¬ hibition.

Richard III was advertised as a “series of historical lectures in

five parts on the fate of tyranny” (which gave it a patriotic slant), while She Stoops to Conquer was billed as “a lecture on the disadvantages of

improper education.” When the ban was removed in 1789, the Old American Company presented a new comedy each night—such fare as The Clandestine Marriage with a prologue called High Life Below StairsH The summer estates of prominent Philadelphians lined the Schuylkill, and before General Mifflin’s defection to the radical cause Wilson was a frequent visitor to his handsome home at the Falls.

Greenhouses, elegant

gardens, and a fish pond stocked with gold fish were among the features of Robert Morris’s country home, the Hills.

It was in the attic of the

Hills that Wilson took refuge from the wrath of the Philadelphia mob in the fall of 1779. Nearby on the river was Gray’s Ferry, a favorite spot for excursionists from the city.

There, after a leisurely ride, Philadelphians had the choice

of renting tackle to fish for shad, bass, or perch; enjoying iced drinks, tea,

2io

JAMES WILSON

or wine; or listening, every Thursday evening during the summer months, to an outdoor concert that lasted from four in the afternoon until nine at night.

The Ferry featured rustic gardens, exotic plants and shrubs,

groves, arbors, secluded summer houses, and shaded seats by the river. Although the Wilsons often rode out to the Schuylkill to visit, to listen to the concerts, or to stroll through Gray’s Gardens, James Wilson established his own country seat at Somerset on the Delaware near the iron works which he and Mark Bird owned. At Somerset, Wilson could also keep in touch with his little industrial empire at Wilsonville on Wallenpaupack Creek. The Wilsons had no reputation for elegant parties, but they were gracious hosts.

The Marquis de Chastellux, invited to dinner, found the

fare “excellent” and was pleased by the “plain and easy politeness” of his host.

“Mrs. Wilson,” Chastellux noted, “did the honours of the table with

all possible attention,” and retired tactfully at the end of the meal, leaving the gentlemen to their port and tobacco.

Richard Peters, a Philadelphia

lawyer and delegate to Congress, then entertained the guest by singing a ribald song of his own composing which the discriminating Marquis pro¬ nounced “very excellent.”

Peters followed this with another song “more

chaste and more musical, and a very fine Italian contabile.” charmed with the humor and good spirits of the company.

Chastellux was “One cannot

lose a \ingdom more gaily, but, it is impossible to be more gay in forming a republic,” he wrote of the occasion.1'

The circle of Wilson’s friends was a close and congenial one.

Silas

Deane, in Paris, recalled nostalgically the evenings he had spent in the Wilson household, and Bushrod Washington, taken into the family during his law apprenticeship, wrote of his affection and gratitude for the Wilsons’ kindness to him. In the fall of 1786 Wilson and Rachel and the children were living on Chestnut Street, between Fourth and Fifth, a block from the State House.

The house was a handsome one and richly furnished.

pianoforte sat in the drawing room.

Rachel’s

A red turkey carpet made a bright

spot of color in the cool interior, and ribbons of sunlight, filtering through Venetian blinds, struck sparks from the massive brass andirons in the living room.18 The family was absorbed in the new baby, the infant Charles, born in August. The newcomer brought the number of children to six.

Mary,

CITIZEN OF PHILADELPHIA

211

the eldest, called Polly, was thirteen, not a pretty girl but gay and af¬ fectionate.

William was eleven, a reckless, headstrong boy.

Bird Wilson

was nine, a quiet, rather frail child who favored his mother. James, Junior, was seven.

Three-year-old Emily, with her bright eyes and curly hair,

had the looks of the family, but Bird was his father’s favorite.

Only Bird

had the privilege of bringings his books into his father’s study and reading there while his father worked, and James Wilson often took the boy with him when he went about the city on business or to confer with Republican politicians.19 With his family in Fifeshire, Wilson maintained a fitful correspondence. It was his mother’s constant complaint that she seldom heard from her oldest son.

His letters were infrequent and were seldom more than formal

obeisances.

The mails were slow and uncertain and it was safer to send

word by a friend or relative returning to Fifeshire than to launch a letter through the primitive postal system.

When Robert Annan’s brother

David, who had come to America to attend the little Presbyterian College of New Jersey at Princeton, returned home in 1769, he carried word from Wilson and collected a little packet of letters to bring back to his cousin in Pennsylvania.

Receiving word of Wilson’s success, Andrew had written

for his mother a mother’s doubts and pride.

“Mother says it would give

her more pleasure to see evidences of your being bound on the way to Zion and set out for the Celestial Country than to hear of your purchasing the greatest fortune while at the same time she thinks she has reason to bless God for countenancing you in your secular affairs.”20 “The way to Zion” was the career of a Presbyterian minister in the Associate Church that Alison and William Wilson had envisioned for their son.

Wilson’s failure to write his mother more often was doubtless due,

in a considerable measure, to the knowledge that she would take no pleasure in the triumphs of his “secular affairs.” John Balfour, Wilson’s brother-in-law, who had helped to finance his departure from Fife, had written by the same messenger with news of Wilson’s sister and his young nieces and nephews. “Elley is a stout Wifee. Willie is a tumbling Doeg running about and lisping out very Diverting. Jenny is Doing pretty well. Coul is Doeing Brauley.”21 The Fifeshire clan, watching the progress of their nonpareil, was both dazzled and dejected.

As the years passed they felt him, always somewhat

of an enigma, grow ever more strange and unfamiliar, more remote in spirit than in space, and, yearning to be drawn into this alien world, they

JAMES WILSON

2i2

wrote letters suggesting wistfully that they too might make their humbler way in this great new country where their kinsman had mounted so high. In the spring of 1786, after Charles’ christening, James Wilson left Philadelphia to take his seat once more in Congress, now meeting in New York.

Reluctant to leave Rachel, still weak and unwell, and distracted

by the illness of young James, he left his formal commission in his desk. He wrote his wife on his arrival in New York, asking her to forward it and inquiring anxiously about the invalid. “Kiss the dear children for me,” he added.2" A few days later word reached him that Rachel was sick. in nursing young James she had caught the boy’s malady.

Apparently

Wilson hurried

home to be with his wife.

He found the household hushed and frightened.

Rachel was seriously ill.

Benjamin Rush, called in for consultation with

the outstanding physicians of the city, could do nothing but bleed her. It was a futile remedy if not a disastrous one. Rachel sank rapidly and with her husband and her children beside her she died on the 14th of April, 1786, at the age of thirty-nine. The burial service was held at Christ Church.

As Wilson stood

with the bewildered children beside the open grave, his thoughts could hardly have escaped the memory of Rachel Bird’s misgivings about the married state, doubts that had so perplexed him and been for so long a barrier to his hopes. Rachel had been a devoted wife and her husband’s stiff spirit in¬ clined to her as to no other. She had borne him six children, the youngest an infant in his cradle. singlemindedness.

She had shared his ambitions, his restlessness, his

In Carlisle she had played gracefully the role of wife

of a rising young frontier lawyer, often left to nurse her loneliness and find companionship with kindly Mrs. Thompson or the Montgomerys while her husband rode circuit, gone days on end.

Then in the frightening

and uncertain days when the colonies were taking their stand, full of fears and misgivings at their own audacity, against the mother country, she had shared the misgivings and the anxiety.

She had seen Wilson ride off to

the Continental Congress leaving her behind with Polly and little Billy. She had run the farm and cared for the children, waiting anxiously for word from the city, not knowing whether her husband was to be a continental statesman or a proscribed traitor to the Crown. There had been the time that a Wilson cousin from Fife with an out¬ landish burr that she could not understand had come looking for his

CITIZEN OF PHILADELPHIA

213

kinsman and Rachel had directed him to Philadelphia.

A client from

Baltimore, a Dutchman, had appeared with Wilson’s note for 19 pounds, eleven shillings, and Rachel had paid it, in a woman’s way, out of her meager household funds, rather than endure his surly mutterings.

And

the funds themselves were often down to a few shillings which must be stretched by a hundred small expedients to feed the children and provide simple necessities. The hard, grey winter days had been desolate for the young wife. She had missed her tea especially—a small ritual act against the loneliness. When a rumor reached Carlisle that Congress was planning to release English tea confiscated before the war, and intended to let “all the tea be drunk that is in the country,” she wrote wistfully that she’d like a tin to comfort gloomy days if the story was a true one.

While she wrote little

Billy clutched her knees, lisping his father’s name.

“Poor lad,” she added,

“he knows little but his name.”23 Rachel had also to endure alone her husband’s growing unpopularity in Cumberland County.

Wilson’s opposition to the Constitution of 1776

was increasingly resented in the western parts of the state, and in Carlisle Rachel was made conscious in small ways of local resentment towards Wilson’s apostasy. Then after the move to Philadelphia there had been the terrifying episode of the riot when Rachel and the children found a dangerous refuge in the Morris’ house. Later, while her husband and Robert Morris were busy devising means to bolster up the tottering continental economy, Rachel had helped to launch another patriotic venture.

With Polly Morris, Mrs. Joseph Reed,

Mrs. Charles Thompson, and a number of other Philadelphia wives, Rachel had gone from house to house carrying an inkstand, a quill, and paper to secure private pledges of money for Washington’s ragged soldiers.

The

indefatigable ladies did not let “the meanest ale house” escape their solicitations, and Rachel was quite ruthless in her insistence that no proper gentleman could refuse a feminine request, especially in such a cause. Through persistence and charm, she managed to collect 63,561 /2 dollars of continental money which, with her own contribution of a thousand dollars, made her the city’s largest fund raiser.24 Such pictures as these obsessed Wilson.

His life had been interwoven

with Rachel’s in a hundred small, sustaining ways.

Now she had been

214

JAMES WILSON

torn out by death’s impatient hands and everywhere he turned his loss faced him bleakly. The ritual language of her death notice in the Gazette gave no savour of her life.

“Died on Friday morning last, Mrs. Rachel Wilson, the wife of

the Honorable JAMES WILSON, ESQUIRE; . . . her remains were deposited in Christ Church yard, attended by a numerous train of re¬ spectable citizens and sorrowing friends. “The religious and social virtues of her heart were manifested by a uniform and exemplary exercise of the important duties of mother, wife, and friend. . . .Well may the tears of sorrow flow for the loss of one so valued and so beloved. . . . Her elegy is written in the hearts of her friends.”25 Wilson, facing the greatest hours of his life, was left without the heartening assurance of his wife’s strength and devotion.

CHAPTER XV

The Federalists Attack

Everywhere, in the view of men like Washington, Madison, Hamilton, Jay, John Adams, and Wilson, there were signs of the disintegration of the Confederation under the inadequate Articles.

State legislatures ignored

the importunings of Congress for money, or where they paid, paid only in part. States were engaged in bitter trade wars with each other—New York with Connecticut and New Jersey, Maryland with Virginia, Pennsylvania with New Jersey. Rival states had placed discriminating tonnage taxes on each other’s ships, and these taxes were sometimes as great as those im¬ posed on foreign vessels. Lord Sheffield, the cynical British foreign secretary, agreed in his Observations on the Commerce of the United States that England had

only to play off the cupidity of one state against that of another to re¬ gain all the commercial advantages she had lost by the Revolution and more besides. Quite as alarming as the commercial situation, in the minds of lawyers and merchants, were the attacks of the western radicals on the credit system of the country.

In every state frontier farmers and the city poor—the

debtor classes—had reached for power, and wherever they had grasped it, they had used it to undermine hard money, seeking by an avalanche of paper currency, to free themselves from their bondage to the seacoast business men. Rhode Island offered a horrible example. There debtors had captured the government, and with their reckless abuse of the currency brought local trade and ocean commerce almost to a standstill. In Massachusetts rebellious western farmers, unable to secure redress of their grievances were on the verge of armed revolt under the leadership

216

JAMES WILSON

of a veteran officer of the Revolution, Captain Daniel Shays.

Foreclosures,

scarcity of money, the ruthlessness of the courts to small debtors—all these complaints had their roots in real hardships.

But rebellion—no govern¬

ment could tolerate riot and insurrection, whose only issue could be dis¬ respect for all government and eventual anarchy.

Yet rebellion was the

only alternative to oppression, if the federal government was without power. George Washington wrote to Madison that “without some alteration in our political creed, the superstructure we have been seven years raising at the expense of so much blood and treasure, must fall.

We are fast verging to

anarchy and confusion!”1 Anarchy would destroy liberty by winning people to any tyranny that could establish order, and the hard-won ideals of the Revolution would be in the end defeated.

A new despotism would rise

in the place of the old. The Virginia Assembly, under the prodding of Madison and Randolph, responded to the growing confusion by proposing a meeting of representa¬ tives from all the states to “consider and recommend a Federal Plan for regulating commerce.”

Five commissioners were to be appointed by each

state to take into consideration the trade of the United States, to report propositions for a uniform system of commercial regulation, and finally to arbitrate the Virginia-Maryland dispute over the Potomac. Responding to the pressure of Wilson and his allies, the Pennsylvania Assembly approved the plan for a convention, and on the nth of May, 1786, appointed five commissioners—Robert Morris, George Clymer, John Armstrong, Jr., Thomas FitzSimons, and Tench Coxe. While plans were being made for the general convention to meet at Annapolis, the New England states, acting on their own, began to confer on means of protecting themselves against the stifling commercial competi¬ tion of Great Britain.

They spoke of forming a union of their own that

would exclude the Southern states.

However, the “Eastern” men felt that

the adherence of Pennsylvania was essential to such a scheme.

James

Monroe, hearing rumors of the plan, expressed his concern in a letter to Patrick Henry.

He was afraid that Charles Pettit and James Bayard,

two of the Pennsylvania delegates to Congress, were “under the influence of eastern politicks.

It would be better, Monroe wrote, if three confedera¬

tions were formed, with the middle and southern states constituting separate groups with varying interests.

In any case every effort must be made to

keep Pennsylvania aligned with the South, or at the least, to prevent its union with the New England states.2

THE FEDERALISTS ATTACK

217

Early in September, Monroe wrote to Madison in Philadelphia, again ex¬ pressing his fears over the possible dismemberment of the Confederation. The New Englanders were still trying to win Pennsylvania to the idea of a union of northern states.

“A knowledge that she was on our side,”

Monroe wrote, “wo’d blow this whole intrigue in the air.” Wilson and St. Clair could be counted on to oppose the New England confederation, and Monroe advised Madison to go to see them in Philadelphia and enlist their support.3 With many of the Pennsylvania radicals yearning after “Eastern poli¬ ticks,” Wilson threw his weight behind the idea of drafting a new and more vigorous frame of government.

The Pennsylvania federalists, led

by Wilson, seemed to hold the balance between union and dismemberment. There was no doubt where Wilson’s sympathies lay.

He watched the

Annapolis Convention hopefully. When the convention met in September 1786 at the little Maryland town only five states were represented, but among the delegates were Hamilton and Madison, two of the most astute and able advocates of a strengthened union.

Acting in concert with Madison, Hamilton persuaded

the delegates that the problems of trade and commerce could not be solved piecemeal but required a general reconsideration of the Articles of Confederation. The resolutions of the Annapolis Convention therefore recommended a general convention of delegates from all the states to meet in May, 1787, in order “to devise such further provisions as shall appear to them necessary to render the constitution of the Foederal Government adequate to the exigencies of the Union.”4 On December 29 a caucus of Pennsylvania Republicans met at the tavern across the street from the State House and selected a panel of delegates to the proposed convention for the Assembly to pass on.

The

caucus chose General Thomas Mifflin, Robert Morris, Jared Ingersoll, George Clymer, Thomas FitzSimons, and James Wilson.

Gouverneur Morris, the

urbane New Yorker, had recently made his home in Philadelphia and the Pennsylvania federalists, recognizing Morris as a valuable ally, added him to the delegation.5 The next day the Assembly voted to accept the seven nominees. Wilson, elected on the third ballot, polled fewer votes than any of the other delegates with the exception of Gouverneur Morris.

2i8

JAMES WILSON Seven states had taken action to be represented at the “federal” con¬

vention when Congress took the matter up.

William Irvine, sitting as

a delegate from Pennsylvania, wrote to Wilson that “it was with difficulty Congress carried the recommendation for a convention.

The Eastern

delegates were all much against the measure—indeed I think that they would never have come into it but that they saw it would be carried with¬ out them.”

The resolution in favor of the convention is thus a “piece of

patched work,” but this, to Irvine’s mind, was better than giving “the smallest appearance of opposition.”6 After Congress had given its grudging approval to the convention in March, five more states elected delegates to meet in Philadelphia.

Only

Rhode Island, recalcitrant to the end, refused to participate. The Pennsylvania delegation was, of course, on hand from the first, and Madison, arriving more than a week ahead of the time scheduled for the convening of the convention, undoubtedly conferred with Wilson and the other Pennsylvania delegates.

While the caucus of Federalist

leaders, early on the scene, mapped strategy, the delegates from the states filed into Philadelphia and found lodgings as near as possible to the State House. The fever of spring mixed with the excitement of the coming con¬ vention to produce a kind of light-headedness in the city.

Mr. Peale

opened to public view his “large and elegant” collection of Italian paint¬ ings, imported, it was said with awe, at a cost of three thousand pounds sterling.

Smart Philadelphians flocked to the exhibition in Mr. Peak’s

fascinating museum, overlooking his radical politics to gaze at snakes in jars and stuffed birds, Italian art treasures and rococco marble statues. A flurry of social activity greeted the delegates, some of whom brought their wives with them, and Philadelphia hostesses put their best feet forward—feet usually shod in elegant French slippers. On May 13 General Washington arrived.

He was met at the out¬

skirts of the city by a procession of admirers who escorted him to Robert Morris’ house on the corner of Market and Third Street where the General was to stay during the months of the convention. Monday, the 14th, was the day set for the opening of the convention, but many delegates were still absent, and no further effort was made to convene for eleven days.

On Friday, May 25, Wilson and his fellow

delegates took their seats in the Assembly Chamber of the State House. Nine states were present—enough to muster a quorum—when the mem-

THE FEDERALISTS ATTACK bers of the convention filed into the Chamber.

219

If there is a relation be¬

tween men's environment and their responses, the clean, gracious lines of the Assembly Chamber can hardly have failed to exercise a beneficent effect on the deliberations that took place there. The tall wide windows flooded the room with light; the high ceilings added to a pleasent sense of spaciousness.

The moulding that arched the doorway and encircled

the room was carved with a severe and simple grace. The first business of the delegates was to elect a presiding officer. George Washington was unanimously chosen, and Robert Morris

and

John Rutledge conducted the General to the chair, where Washington spoke briefly to thank the delegates and ask their indulgence for any errors he might make through inexperience. Sitting with his colleagues in this first session of the Federal Con¬ vention,

Wilson

delegates.

was

certainly

aware of

the

challenge that faced

the

If some members were beguiled by the idea that the inept

Articles could be reshaped into an effective “frame of government,” Wilson had no such illusion, and indeed no such wish. For ten years he had been fighting, in Congress and out, for a strong and energetic national govern¬ ment with power to carry out its resolves.

The opportunity was now

at hand and, if it was lost, it would hardly come again. The days that lay

ahead, the months

of the Federal

Convention

stretching from June to middle September, were the greatest of Wilson’s life.

Here his mind, honed by the minds of his adversaries, dealt day after

day with the fundamental issues of government.

Forced in the convention

to speak extemporaneously or with a minimum of preparation, he was driven from the elaborate manner of his formal orations to a spare and agile style. James Madison, diffident and halting in speech, his voice often so low as to be almost inaudible, teamed with Wilson on many issues.

The

two men made the ablest allies in the convention, although their dif¬ ferences were not infrequent. On the 28th of May additional delegates arrived and a form of procedure was adopted.

The records of the convention were to be secret; members

were limited to speaking twice on a particular question without special permission; they could not absent themselves from the sessions without leave; nothing spoken in the chamber was to be repeated out of doors; seven states would be required for a quorum; and votes would be by states rather than by individuals, with a simple majority deciding all questions.

220

JAMES WILSON After the rules of procedure had been adopted, the convention came

immediately to the very heart of the problem that it had met to consider. Edmund Randolph, governor of Virginia, rose to present the “Virginia Resolves.”

Randolph was thirty-three years old, tall, with a pleasant voice

and a charm of manner that was very winning.

His resolves bore the

mark of James Madison’s incisive mind, as did much of the reasoning that supported them.

As they stood, they were a considered expression of

the aspirations of the large states, who felt it only fair that they should be represented in any new government in proportion to their size. Edmund Randolph’s task was to ease the delegates into their ap¬ pointed job, establishing their common language and opening the way for the real work of the convention—the framing of a new constitution. He proposed, as might have been expected, a two-house legislature the lower house to be elected by the people of the states, the upper house in turn to be elected by the lower.

The new legislature ought to possess

all the powers vested in Congress by the Confederation, Randolph de¬ clared, and be empowered, in addition, to act in all cases where the in¬ dividual states were unable to act effectively. The executive officer in the new frame of government was to be elected by the national legislature.

A

national judiciary would be established with judges holding office during good behavior.

Provision should be made for the admission of new states;

a republican form of government should be guaranteed to every state and territory. Randolph concluded with an exhortation to the delegates to make good use of their opportunity to frame a strong and rational government, and, after he had seated himself, the House resolved to form itself into a Committee of the Whole “to consider the state of the American Union.” Next day, the 30th, the convention began its consideration of the Virginia Plan. One of the issues that caused immediate friction was the matter of representation in the national legislature.

Large-state men were determined

to have representation allotted according to population.

Otherwise a big,

populous state like Pennsylvania would have no more weight in national councils than small, sparsely settled Delaware.

Delaware, on the other

hand, was equally insistent upon retaining the equality of representation that she enjoyed under the Confederation.

The large states had enough

votes to push through a proposal to apportion representation by “the num¬ ber of free inhabitants,” but they were stopped in their tracks by the mild

THE FEDERALISTS ATTACK voice of another Delaware man, George Read.

221

Read was a rich merchant,

the political boss of his state, a “man of low stature and weak constitution.” He announced that if the delegates persisted in their intention of changing the basis of representation, the Delaware contingent would be forced to withdraw. Gouverneur Morris and Madison showed immediately that although they were loath to pick up the apple of discord so early in the debates, they had no intention of giving way to the small states on the matter of representation.

Madison pointed out that under the Confederation the

power of the states was so hampered that they actually exerted influence according to their size.

In a “general government” which acted directly

and not through state legislatures, this would not be true. large and small, would have equal power.

All states,

This was not to be endured by

the larger states. George Read was not persuaded.

The question of representation, so

central to the form of the new government, was postponed, and the con¬ vention adjourned till the next day. On Thursday, the 31st, the Randolph resolution that the legislature ought to consist of two houses was agreed to without dissent.

But his

proposition that “the members of the first branch of the National Legislature ought to be elected by the people of the several States,” was objected to. Roger Sherman of Connecticut with his rough-hewn face and nasal voice rose to protest.

He urged that “the people immediately should have as

little to do as possible with the government, for they were ignorant and liable to be misled.”

The fact that Sherman had started his career as a

shoemaker did not make him a champion of democracy. Elbridge Gerry of Massachusetts reinforced Sherman.

In his state the

instability of the people had recently been demonstrated by Shays’ Re¬ bellion.

“The evils we experience,” he declared, “flow from the excess of

democracy.”

He had been, he confessed, too republican in his sentiments.

Now, though his heart was still republican, experience had taught him the dangers of that leveling spirit which was hardly to be distinguished from anarchy. George Mason answered Sherman and Gerry.

As one of the elder

statesmen of the convention he was always heard with respect. for the election of the larger branch by the people.

He stood

“It was to be the grand

depository of the democratic principle of Government.”

He admitted

222

JAMES WILSON

that the country had become too democratic, but he feared that, in reaction, the delegates might dash to the opposite extreme. Wilson followed Mason. Where Mason’s arguments had urged human¬ ity, Wilson placed his emphasis on the proper operations of government. Comparing the government which he hoped to see created by the convention to a pyramid which would rise to noble heights, he completed his metaphor by insisting that it must have as broad a base as possible.

“No government

could long subsist without the confidence of the people,” he declared. is on the people that the new government must rest.

It

Wilson’s metaphor

of the pyramid was a striking one and he often referred to it in later years. The statements of Wilson and Mason on the one hand and Sherman and Gerry on the other marked the basic division between those who wished to have the constitution emerge as an essentially aristocratic docu¬ ment and those who championed the principle of democracy. The convention next moved on to a consideration of the method of selecting the members of the second branch of the national legislature. Those delegates who were jealous defenders of the rights and powers of the states protested that here at least the state legislatures should have the right of election. Wilson listened impatiently to the misgivings of the state sovereignty men.

He was opposed to Randolph’s plan whereby members of the upper

house would be nominated by the state legislatures and elected by the first branch.”

And he stood up to say so.

If the two-branch system

was to be more than a formality the second branch must be as independent of the state legislatures as the first.

For his part he was sure that both

houses should be elected by the people.

He made his pronouncement

with an edge of defiance in his strong voice. from the delegates.

There was little response

Washington, seated in the president’s chair, gave

him the same polite attention he accorded all the delegates. face, bent over his notes, was undecipherable.

Madison’s

Wilson could expect no

help from Robert Morris, sitting near him, his handsome, florid face wear¬ ing its familiar expression of imperturbable good humor.

He concluded

his plea a little lamely with the confession that he had not hit on a plan by which the second branch could be directly elected.

Perhaps special

electoral distiicts could be formed, including, in some instances, several small states, or a small state and a large one. On Friday, June i, the convention took up consideration of the national executive.

Wilson immediately took the lead in urging that the executive

THE FEDERALISTS ATTACK authority be exercised by a single person.

223

He denied being influenced in

his preference for a single executive by the example of the British monarchy, but

the situation of this Country . . . was so great and the manners

so republican, that nothing but a great confederated Republic would do for it.”

And the Republic could only realize true unity through a single

executive. Randolph challenged Wilson, declaring that a single executive was “the foetus of monarchy.”

Wilson’s motion was thus postponed, and the

cautious sparring, the slow, hesitant searching out of grounds for agreement went on. Wilson had supported direct election of both houses of the national legislature.

He now rose to make what was, for most of the delegates,

an even more radical suggestion.

It was, perhaps, he confessed, chimerical,

but he was for direct election of the executive by the people.

This was

carrying the pyramid principle a good deal further than most delegates cared to go.

There were raised eyebrows.

The surprised glances of a

number of members fastened on the stiff figure of the Pennsylvania delegate. Roger Sherman was quickly on his feet to refute him, arguing that the executive should be absolutely dependent on the legislative branch.

An

independent executive was, in his honest Yankee mind, “the very essence of tyranny.” After a brief discussion by the delegates of the proper term of office for the executive, Wilson resumed his argument for direct election by the people.

He wished to derive not only both branches of the legislature from

the people but also the executive, in order to make all three as independent as possible of each other as well as of the states.

Mason considered Wilson’s

ideas on direct election of the president impractical.

He urged, however,

that Wilson be given an opportunity to cast them into more definite form. Thus the question of the method of election for the executive was for the moment postponed, and the convention adjourned. On Saturday, June 2, Wilson was ready with his proposal for electing a president by the direct vote of the people.

He suggested “that the States

be divided into districts: and that persons qualified to vote in each district for members of the first branch of the national Legislature elect-mem¬ bers for their respective districts to be electors of the Executive magistracy.” The motion was defeated, only Maryland and Pennsylvania voting for it. It was, nevertheless, to reappear again in the final draft of the constitution.

224

JAMES WILSON A motion by two of the South Carolina delegates to establish the

executive as a single person was again postponed, and the first week of the constitutional convention came to an end.

Almost every fundamental

issue had been touched on and then laid aside for later consideration.

To

those delegates like Madison, Wilson, and Gouverneur Morris who were irrevocably committed to creating an effective national government, the first week had been tense and somewhat nerve-wracking; a series of cautious probes and quick withdrawals, of tentative proposals, of careful soundings, for who knew how much of what was hoped for might be accomplished by these contentious gentlemen representing, as everyone well knew, any number of conflicting attitudes and interests? Sunday was a fair, warm day.

The delegates walked through the

quiet morning streets to the churches of their choice.

Some went to

the Second Presbyterian Church to hear Dr. James Sproat, who had studied divinity under the great Jonathan Edwards.

Most of the delegates

were Episcopalians and many of them crowded into Christ Church to hear Bishop White, the first Episcopal bishop of Pennsylvania, conduct his first ordination of two young ministers. The bishop in his lawn sleeves and rich vestments made a fine figure, and the occasion served as a happy reminder of the hard-won independence of the American Episcopal Church. That evening with the fine spring air drifting through the windows, Wilson sat in the library of his house on Market Street preparing notes for his speech in the convention next day.

Vattel, Montesquieu, Locke,

and Burlamaqui were at hand for ready reference.

Reid, the Scottish meta¬

physician, and James Burgh, the political theorist, were rich sources of inspi¬ ration. Wilson worked carefully through these authorities and through others, noting down quotations that would give force to his own disputations.7 The delegates assembled Monday morning, June 4, at the State House, walking down Chestnut, enjoying the fresh, light air, or turning from Third or Walnut toward the graceful Georgian building whose tower overlooked the city.

Meeting, they stopped to talk, or finish a cigar, the

early arrivals rallying the late-comers, and then going indoors by twos and threes, climbing the stairs to the chamber above. When the convention was brought to order, Wilson rose to summarize the arguments in favor of a single executive.

It was important from

the start to overthrow the unhappy analogy between a single executive and a king.

The prejudice dated back to colonial days, but the real danger

was that an executive power divided among several persons would be

THE FEDERALISTS ATTACK

225

without clearly defined responsibility and would inevitably dissipate most of its energies in bickerings and debates. The motion for a single executive was then carried in the affirmative, and the idea of a council of revision was taken up.

Here Wilson urged that the executive and the judiciary

be given a joint absolute negative on acts of the legislature.

This was

an extreme position, one taken by the champions of strong government, and Doctor Franklin pointed out how the executive veto had been used by royal governors in colonial days to extort money and drive hard bargains with the legislatures.

An executive under the new union might abuse the

negative in the same manner. Elbridge Gerry’s motion which called for a two-thirds vote in the legis¬ lature to override the executive veto was accepted in place of Wilson’s proposal. Tuesday, June 5, was devoted to the problems of a national judiciary, and here again Wilson was on his feet at the start of the session to oppose the appointment of judges by the national legislature. The spokesmen of unrestrained popular government wished

for

a

legislature

completely

dominating both executive and judiciary.

Wilson, backed by Madison,

stood stoutly against the principle of appointing judges by “numerous bodies” where responsibility was not fixed and the way was open, as Wilson expressed it, to ‘intrigue, partiality and concealment.”

The question

was postponed and the balance of the day was consumed in the same cautious sparring that had marked every session.

Wilson and Madison

both urged that the new frame of government be submitted to conven¬ tions called especially for the purpose of ratifying the constitution, and both men urged that “the National Legislature be empowered to institute inferior tribunals.” On Wednesday, June 6, the convention again took up the question of the mode of election for the first house.

Elbridge Gerry offered the Mas¬

sachusetts legislature as an example of the evils of excessive democracy. “Several members of that Body,” he argued, “had lately been convicted of infamous crimes.

Men of indigence, ignorance and baseness, spare no pains

however dirty to carry their point against men who are superior to the artifices practised. ... he wished the election ... to be so modified as to secure more effectually a just preference of merit.” Wilson answered him.

He wished for vigor in the Government, but

he wished that vigorous authority to flow immediately from the legitimate source of all authority—the people.

“The Government ought to possess

226

JAMES WILSON

not only ist the force, but 2ndly the mind or sense of the people at large. The Legislature ought to be the most exact transcript of the whole Society. . . . The opposition was to be expected from the governments, not from the Citizens of the States.”

Mason buttressed the Pennsylvanian and Madison

threw his weight also with Wilson.

He expressed much of the political

philosopher that underlay the practical schemes of the principal actors in the convention when he declared that “all civilized Societies would be divided into different Sects, Factions, and interests, as they happened to consist of rich and poor, debtors or creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district, or that district, the followers of this political leader or that political leader, the disciples of this religious sect or that religious sect.” “The landed interest has borne hard on the mercantile interest. . . . The Holders of one species of property have thrown a disproportion of taxes on the holders of another species. . . . The lesson we are to draw from the whole is that where a majority are united by a common sentiment and have an opportunity, the rights of the minor party become insecure.”

Madi¬

son’s solution was to enlarge the sphere of government to include so great a number of interests and parties that no one group could form an alliance with others long enough to constitute an oppressive majority. The weight of argument mustered by three of the ablest and most learned members of the convention carried the day for the direct elecdon of the first branch. On June 7, the convention having moved rapidly over the broad out¬ lines of the new government, turned back to take up disputed points in detail.

The question of the method of election of the second branch, the

Senate, was next before the delegates. Having acquiesced in the motion to have the lower house elected directly by the people, the delegates were in the mood to allow the state legislatures the election of the second branch. up arms again for direct election of the Senate.

Wilson nevertheless took In taking such a radical

position he was motivated, at least in part, by his desire to strengthen the national government at the expense of the states, but at the same time his belief in popular government was deep-rooted. John Dickinson had listened to his friend and ex-student with min¬ gled feelings.

Pride warred with alarm.

The Farmer, his thin, fine¬

boned face flushed with annoyance, rose now to accuse Wilson of plot¬ ting to extinguish the states and give all power to a central government.

THE FEDERALISTS ATTACK

227

Dickinson was a delegate from Delaware, and he had promptly adopted the attitude of a small-state man toward a national government.

The

government should in fact, he declared, resemble the solar system with the states moving in their own orbits. spectfully. culties.

Wilson replied mildly and re¬

The problem was, indeed, surrounded by doubts and diffi¬

We could not, however, turn to the British for a model.

“Our

manners, our laws . . . the whole genius of the people, are opposed to it,” he declared.

He confessed that he could not see the danger of

the states being devoured by the national government.

On the contrary

he wished to keep them from swallowing up the national government. And he certainly had no intention of extinguishing these planet states. Within their own orbits, they must be permitted to act for subordinate purposes made essential by the large extent of the country.

A large, in¬

directly elected Senate would be more apt to protect special business interests than one elected directly by the people. were deaf to Wilson’s arguments.

The delegates, however,

Dickinson’s proposal to leave the elec¬

tion of senators to the state legislatures was adopted unanimously by the convention. On Saturday, June 9, a formidable adversary for the Federalists ap¬ peared.

Luther Martin of Maryland took his seat.

Martin was an un¬

couth, untidy man, short, misshapen, enveloped in the sour-sweet smell of good Maryland rye. He spoke in a rambling, prolix, colloquial style; he was coarse and rough in language as in appearance, but his mind was brilliant; he turned a phrase like a knife and clung like a bulldog to what he conceived to be the true interests of his constituents. Gerry moved an ill-considered and promptly rejected proposal to have the chief executive elected by the governors of the states.

The convention

then moved on to what was in many respects the most critical issue before the delegates—the question of the system of representation in the national legislature.

Should the states be represented equally or should wealth and

population be the basis?

The delegates had been in session for two weeks;

a certain tender spirit of unanimity seemed to have been established.

The

time had come to join the central problem that sat like a ghost at the banquet table, incorporeal but immanent.

Paterson of New Jersey, a

small man with a quiet, modest manner and no oratorical pretensions, rose to make a stunning attack on the proponents of a strong government. The convention had no authority, he declared, to do more than revise the Articles of Confederation.

The delegates were not empowered to go

228

JAMES WILSON

beyond the limits of the Confederation.

The people of the states wished

no sweeping changes, and “we must follow the people, “the people will not follow us.”

Paterson insisted;

Is a man, he asked, who has forty times

as much property as another to have forty times as many votes?

No.

Yet this was a legitimate analogy to the demand of the large state for proportional representation. “Let [the large states] unite if they please,” he declared, “but let them remember they have no authority to compel the others to unite. will never confederate on the plan before the Committee.

N. Jersey

She would be

swallowed up,” and for his part he would rather submit to a despotic monarch than to the extinction of his state.

He would not only oppose

the plan here, but on his return home he would do everything in his power to defeat it there. As the leading spokesman, with Madison, of the large-state bloc, and as a determined advocate of proportional representation, Wilson under¬ took to answer Paterson.

He attacked first the New Jersey delegate’s

analogy between the wealthy and the poor man and the large and the small state.

People should exercise influence in the government in proportion

to their numbers, otherwise the interests of a hundred and fifty Pennsyl¬ vanians would be outweighed by fifty New Jerseymen. justice in this?

Where was the

Inflexible and dogmatic, he picked up the gauntlet that

Paterson had flung down.

“If N. J. will not part with her Sovereignty

it is in vain to talk of Government.

A new partition of the States is

desireable, but evidently . . . totally impracticable.” The dreaded crisis had finally arisen, the immanent had become actual, the ghost of separatism had assumed a visible form, and who was to exorcise this demon?

Before the question could be put and the division

sealed beyond redeeming, Paterson proposed that the vote be postponed until Monday. When the delegates convened Monday morning, June n, Roger Sher¬ man, the homespun Connecticut Yankee, proposed that representation in the first house be in proportion to the numbers of free inhabitants of the respective states, and that each state have one vote and no more in the second branch.

The logic of this suggestion was not at first obvious; de¬

bate would continue; hot June weeks would fade into July before the con¬ vention would finally come back to Sherman’s almost unnoticed proposal. In the meantime the acrimonious dispute went on, both sides harden¬ ing against each other in the mortar of their particular logic.

Again the

THE FEDERALISTS ATTACK

229

venerable Dr. Franklin, too uncertain of leg and tongue to essay a speech before the convention, committed his thoughts to paper and entrusted its reading to his colleague, James Wilson.

He reminded the delegates gently

that they had been sent to “consult and not to contend."

“Declarations

of a fixed opinion, and of determined resolution, never to change it, neither enlighten nor convince us,” he declared.

And finally, the Doctor came

out for representation by states. By Wednesday after hurrying through a number of votes on

the

minimum age for members of the two houses, salary, terms of office and eligibility for reelection, the delegates made an effort to sum up the fruits of their deliberations on the Randolph Resolves or, as it came to be known, the Virginia Plan.

The plan as modified after almost three weeks of de¬

bate was a distinct triumph for the strong government wing.

The dele¬

gates had gone so far as to agree to the right of the national legislature to negative all laws passed by the states that were in opposition to the articles of the union or any treaties made under the authority of the union. Representation in both branches was to be proportional.

A judiciary had

been approved and a single executive with a modified veto requiring a two-thirds vote of both houses to override it had been accepted by a majority of the delegates.

The powers of the legislature had been established

as both broad and vague, and the terms of office of the senators and the chief executive had been fixed at seven years. Thus by the middle of June the rough-hewn framework of the new government had been shaped by the large-state men.

From this point

on, the struggle of the nationalists would be directed primarily to with¬ standing the onslaughts of the opponents of federal power.

The strong

government men had come to the convention with plans and arguments well matured.

Their opponents were, for the most part, without a co¬

herent common philosophy or campaign of action.

They had been caught

unawares and had been driven by weight of numbers and the force of finely wrought, long-prepared logic into a desperate delaying action.

They

now set about to salvage as much as they could from their initial rout. The early campaign of the Federalists had been a masterly one.

They

had carefully sounded out the general sentiments of the delegates, de¬ layed and postponed on delicate issues, and, when the tide ran their way, thrown all their force and guile into carrying point after point in their program.

23o

JAMES WILSON

In this fight Wilson and Madison stood together for a strong central government—one that was to be established at the expense of state power. Wilson had championed a democratic foundation for the constitution, advancing in this respect well beyond his fellow delegates. Because he supported a government that was both popular and strong, Wilson placed the states rights delegates in a difficult position. Arguing for more authority for the states, they were forced to advocate a less democratic national government; one with “controls on the unchecked democracy of the people.” Thus they found themselves standing as the conservatives, the defenders of the existing order. But the split was not fundamentally between con¬ servative and liberal; it was rather between those who considered them¬ selves guardians of the states—and in this camp were most of the smallstate men—and those who insisted that the states must surrender a major part of their sovereignty if an effective national government was to be constructed. The first engagement had been won by the adherents of strong government. The victorious forces dug in, erected their defenses, and awaited the counterattack which was not long in coming.

CHAPTER XVI

Counterattack and Compromise

At the beginning of Thursday’s session, June 14, Paterson announced

that the New Jersey deputation wished to have time to prepare a set of counter proposals that would be more acceptable to the small states than the Virginia Resolves.

The convention thereupon promptly adjourned

until Friday to give Paterson and his colleagues time to complete their plan. On the 15th the offensive of the small states was launched in earnest when Paterson presented the New Jersey Plan, which called for a re¬ vision of the Articles of Confederation rather than the formation of an entirely new frame of government.

The powers of the existing Congress

would simply be augmented by the authority to levy duties and control trade and commerce. The unregeneracy of the small-state champions and the transience of the large states’ victory was immediately revealed by the new resolves. They were not in any real sense a compromise with the Vir¬ ginia Plan. They constituted rather an all-out attack on those proposals and bore no evidence of having been drawn up with any reference to the majority sentiments that had been expressed in the first three weeks of the convention. Under Paterson’s plan, Congress would be authorized to elect a federal executive which would consist of an undetermined number of persons, ineligible for succeeding terms and removable by Congress on the application of a majority of the state governors. In his sixth resolve, Paterson, having vested in a Congress of the states virtually all federal power, conceded that the acts and treaties of Congress should be the supreme law of the respective states, and that the judiciary

232

JAMES WILSON

o£ the various states “shall be bound thereby in their decisions, any thing in the respective laws of the Individual States to the contrary notwith¬ standing.” The Federalists were stunned at the divergence from their own concepts of government as expressed in the Virginia Plan.

The convention ad¬

journed without debate after receiving the new proposals, and met on Saturday, June 16, in an atmosphere of barely suppressed tension and hostility. Most alarming of all Paterson announced himself ready to reapportion the thirteen states, equally, like a giant pie.

“A confederacy supposes

sovereignty in the members composing it and sovereignty supposes equal¬ ity,” he declared. If we are to be considered as a nation, all national dis¬ tinctions must be abolished, the whole must be thrown into

Hotchpot,

and when an equal division is made, then there may be fairly an equality of representation. “The doctrine advanced by a learned gentleman from Pennsylvania, that all power is derived from the people, and that in pro¬ portion to their numbers they ought to participate equally in . . . the rights of government,” Paterson declared, “is right in principle, but . . . wrong in the application to the question now in debate.”1 Wilson spoke in rebuttal.

As to the power of the convention, he

agreed with the New Jersey delegate that it could “conclude nothing,’’ but he considered it “at liberty to propose any thing!’

And “with regard to

the sentiments of the people,’’ he very much doubted his opponent’s pre¬

tension to know exactly what those sentiments were. “Those of the par¬ ticular circle in which one moved,” he pointed out, “were commonly mistaken for the general voice.

He could not persuade himself that the

State Governments and sovereignties were so much the idols of the people, nor a National Government so obnoxious to them, as some supposed. Why should a National Government be unpopular?

Has it less dignity?

will each Citizen enjoy under it less liberty or protection?

Will a Citizen

of Delaware be degraded by becoming a Citizen of the United States?” If an antipathy to national government does exist among the people, so much more reasQn to submit a new constitution directly to them for ratification. As for Paterson’s attack on a two-branch legislature, Wilson reminded the delegates that a single legislature has often been an instrument of tyranny. “Despotism,” he declared, “comes on mankind in different shapes; sometimes in an Executive, sometimes in a military, one. Is there no danger

COUNTERATTACK AND COMPROMISE of a Legislative despotism?” proclaim it.

233

On the contrary, theory and practice both

“If the Legislative authority be not restrained, there can be

neither liberty or stability; and it can only be restrained by dividing it within itself, into distinct and independent branches.

In a single house

there is no check, but the inadequate one, of the virtue and good sense of those who compose it.” The New Jersey plan had further proposed to divide the executive. Wilson repeated his warning: thority, you must divide it. unite it.”

“in order to controul the Legislative au¬

In order to controul the Executive, you must

He would have continued his instruction in the principles of

government, but the time was hardly opportune for pedagogy, and Wilson may have sensed a certain restlessness among the delegates.

Perhaps

Madison caught his eye and by a discreet lowering of his gaze suggested an end to Wilson’s excursion into Greek and Roman history. The smallstate men can hardly have failed to grow impatient at the constant evoca¬ tion of Clio as an oracle on questions that were to them of an eminently practical nature. Pinckney, following Wilson, made a rather rude and cynical analysis of the cause of New Jersey’s recalcitrance.

“The whole comes to this. . . .

Give N. Jersey an equal vote, and she will dismiss her scruples, and concur in the National system.”

It was simply polite blackmail.

Randolph in turn urged the delegates to seize the favorable present moment and act boldly.

“After this select experiment,” he declared, “the

people will yield to despair.”

On this sombre note the convention ad¬

journed until Monday, June 18. Alexander Hamilton had done as much and perhaps more than any other individual to engineer the Federal Convention.

As one of the

most important members of the Federalists’ general staff, he had kept in close touch with events in Philadelphia, although his political activities in New York delayed his joining the other delegates.

Now, recently

arrived from New York, he rose to speak for the first time in Monday’s session. The New Yorker voiced the general view of the convention when he stated that “two Sovereignties cannot co-exist within the same limits.” Therefore as power in the states was full of dangers to the stability and welfare of the country, the full powers of government must be lodged in a central authority.

The country seemed too large to sustain a truly

republican government.

A monarchy seemed to him the only practical

234

JAMES WILSON

solution.

In his opinion “the British Government was the best in the

world: and that he doubted much whether any thing short of it would do in America. ... In every community where industry is encouraged,” he declared, “there will be a division . . . into the few and the many. Hence separate interests will arise.

There will be debtors and Creditors etc.

Give the power to the many, they will oppress the few. the few they will oppress the many.

Give all power to

Both therefore ought to have power,

that each may defend itself against the other.” People are talking foolishly about democracy, Hamilton observed, but popular tumults and the breakdown of the Confederation will “soon cure the people of their fondness for democracies” and make them more amenable to good government.

At the end of Hamilton’s lengthy address,

he offered his own plan for the government of the United States and the house adjourned. It is hard to estimate the effect on the convention of the young lawyer’s abortive scheme.

Certainly it confirmed some of the worst fears

of the small-state delegates. aristocratic plots.

These were already inclined to suspect dark

Madison and Wilson must have been acutely discomfited

to have a man they considered an important ally sail forth under colors that would be immediately identified as those of monarchy.

On the other

hand, Hamilton’s statement of the most extreme conservative position made the system of government backed by Madison and Wilson seem in¬ nocuous by comparison.

Therefore in the sense that it placed the Virginia

Resolves in the middle ground between the plans of Paterson and Hamilton and drew off some of the animus of the states righters, the ultra-conservative plan may, in the long run, have served the cause of strong government. The convention now entered into a phase of longer and more elaborate oratory.

The basic positions of the delegates had been revealed.

would be seen what could be worked by logic and persuasion.

Now it Luther

Martin and Roger Sherman took up the fight against a strong government; Madison, Mason, and Wilson undertook to rebut them.

Sherman and

Martin made a formidable pair, commanding attention by their very od¬ dity:

Sherman’s prognathous face, his huge rough hands, his awkward,

powerful gestures, his coarse voice; Martin flushed with good whiskey, rambling, discursive, tenacious. They carried the battle to the small, gentle¬ manly, almost shy Madison, and his ally Wilson, stiff and “aristocratic” as his enemies said, coldly logical and inclining to pedantry.

COUNTERATTACK AND COMPROMISE

235

Sherman again offered his earlier compromise-—a two-branch legisla¬ ture with proportional representation in one of them; “provided each State had an equal voice in the other.”

Again his suggestion was ignored.

When Sherman finished speaking, Wilson took the delegates to school once more.

Two legislative branches were necessary for the United States

though other confederacies may have had only one.

“The Amphyctionic

and Achean were formed in the infancy of political Science. . . . The Swiss and Belgic Confederacies were held together not by any vital principle of energy,” but by the pressure of formidable neighbors.

Recalling the

weaknesses and inadequacies of Congress, he had often wondered, he told the delegates, if that body had not more often impeded than aided the prosecution of the war. John Rutledge argued that the distinction between mediate and im¬ mediate election by the people was an illusory one; election by the legislature would be more “refined,” he declared, and return “fitter men” than the people at large. To Wilson, however, the election of the first branch by the people was “not only as the corner stone, but as the foundation of the fabric,” and he declared emphatically that the “difference between a mediate and im¬ mediate election was immense.” On the vote only New Jersey held out against the direct election of the first branch, with Maryland divided.

One of the most important

principles of the new constitution seemed definitely established.

Madison,

Mason, and Wilson could share credit for the victory. Monday, June 25, Wilson took up once more his fight to have the second branch of the national legislature as well as the first chosen directly by the people. “When he considered the amazing extent of the country— the immense population which is to fill it, the influence which Govt . . . will have, not only on the present generation of our people and their multiplied posterity, but on the whole Globe, he was lost in the magnitude of the object.”

Henry IV’s great project for the union of Europe was a

minor enterprise in comparison.

He was opposed to the election of the

Senate by the state legislatures.

“In explaining his reasons it was neces¬

sary to observe the twofold relation in which the people would stand.” First, as citizens of the general government; second, as citizens of their particular state.

The general government was meant for them in the

first capacity; the state government in the second.

“Both Govts, were

derived from the people—both meant for the people—both therefore ought

236

JAMES WILSON

to be regulated on the same principles.”

In forming the general government

therefore, “we ought to proceed, by abstracting as much as possible from the idea of State Governments.

With respect to the province and objects

of the General Government, [the state governments] should be considered as having no existence.

The election of the 2d. branch by the Legislatures,

will introduce and cherish local interests and local prejudices.

The General

Government is not an assemblage of States, but of individuals for certain political purposes—it is not meant for the States, but for the individuals composing them: the individuals therefore not the States, ought to be represented in it:

A proportion in this representation can be preserved

in the 2d. as well as in the 1st. branch; and the election can be made by electors chosen by the people for that purpose,” if the delegates wish to establish a somewhat different basis for the second house. The plea fell on deaf ears.

Wilson’s motion was not seconded.

His

fight for direct election of the second branch of the national legislature was a losing one from the first, but in the course of that fight he made one of the convention’s most important contributions to political theory—the concept of a sovereignty divided between state and national government— a kind of dual sovereignty.

Traditional political dogma had held as a basic

tenet that sovereignty was indivisible.

In the struggle between England

and the colonies that had culminated in the Revolution, this axiom had been disputed.

To the English, Parliament had supreme power in all

things, or it had not.

To the extremists in the colonies the issue appeared

in much the same light. or be entirely subservient.

The colonies must have complete independence The colonial moderates wished for a system

that would allow certain powers to each sphere of government, reserving some to the Parliament, others to the colonies themselves.

Now the states

rights dialecticians insisted that sovereignty, being indivisible, must be lodged in the state governments to prevent the tyranny of an ambitious and aggressive national government.

Wilson did more than any other man in

the convention, Madison included, to enunciate the rather novel theory that both state and national government might be supreme within their respec¬ tive orbits

that sovereignty might indeed be divided.

On every occasion

he fought the contention of certain delegates that the states were the champions of the true interests of the people as opposed to the national government.

The relation, as Wilson pointed out, was the same; both

state and central government received their authority directly from the people and owed responsibility immediately to them.

A general govern-

COUNTERATTACK AND COMPROMISE

237

ment was no monster set in motion by a few master brains, but a living instrument of the popular will, amenable to it.

Federalists struggled

to disengage themselves from the semantic tangle, and Wilson led the way out of the maze. Shortly after the opening of the session on Saturday, June 30, Ells¬ worth again offered his motion to give each state an equal vote in the second house and Wilson rose to reply to him.

Ele hoped that the smaller

states would not “abandon a Country to which they were bound by so many strong and endearing ties.

But should the deplored event happen it

would neither stagger his sentiments nor his duty.” One-fourth of the people of the United States should not, if he could prevent it, impose their will on the other three-fourths.

“If issue must be joined, it was on this

point that he would chuse to join it. . . . Can we forget,” he asked the delegates, “for whom we are forming a Government? the imaginary beings called States?

Is it for men, or for

Will our honest Constitutents be

satisfied with metaphysical distinctions?”

If the government is not laid

on the basis of proportional representation, “it can be neither solid nor lasting, any other principle will be local, confined and temporary.”

And

as for the loose and vapid talk of the large states’ tendency to aristocracy— what did it come to? Was anyone able to show that the people of the large states were more aristocratic than those of the small ones? the danger of aristocracy from their influence?

“Whence then

It is all a mere illusion

of names,” Wilson declared. With all the pother about large-state tyranny, it smacked more of tyranny that the small states wished to impose their will on the big ones. The debates had indeed reached a point where speeches had little meaning.

However eloquent, the orators could not change the basic align¬

ment of forces in the convention.

The leaders on both sides continued,

nevertheless, to dispute warmly as though their logic could affect the out¬ come.

Madison showed shrewd insight when he pointed out that the

basic division of interests was sectional and had little to do with size.

The

real opposition of interest, he declared, lay between the North and South, and if defensive powers were given they ought to be granted to these great divisions. William Davie of North Carolina, who had said little in the con¬ vention, rose after Madison and scored an effective point for the states righters by reminding the delegates that if proportional representation were followed in the Senate, that body, instead of being a small group

238

JAMES WILSON

with greater dignity and stability than the lower house, would be itself large and unwieldy, and, subject thus to many of the same inconveniences as the first branch, it could not fulfill its classic role as the wiser and more cautious body. The point was an important one. embarrassment.

Wilson, replying, confessed his

He would be willing to accept a compromise that would

keep down the number of members to a level consistent with the function of the second house.

This was the undefended flank of the large-state

men; once it had been turned, logic and the tide of opinion ran against them.

Complicated schemes for maintaining the principle of proportional

representation in a small chamber were hastily thrown into the breach, but they were too illogical and too late. Monday, July 2, the delegates resumed their efforts to grasp the nettle of state equality.

General Pinckney suggested that a committee, consisting

of a member from each state, should be appointed to devise some com¬ promise and report it to the convention, and Gouverneur Morris rose to add his support. Morris, with his wooden leg and cosmopolitan airs, with the manners of a dandy and a reputation as a lover, was somewhat of an exotic in the convention, but his silver tongue charmed birds off the trees and came near turning good republicans into monarchists.

He was, perhaps of

all the delegates, the most untiring spokesman for the theory, held by a majority of the members of the convention, that since men were by nature selfish and greedy, the interests of one group must be balanced by those of another, so that no one segment would swallow up the others.

Hamilton,

Sherman, and even, to a degree, Mason, espoused similar views of the nature of man and society.

Wilson indeed was one of the few leaders in the con¬

vention who took his stand on basically different grounds. Although he was unaffected by the spirit of the French philosophes, Wilson believed in the political capacity of the people, and was anxious to have them exercise political power directly rather than filtered through various political mediums designed to sift out “ignorant passions.” Far more than most of his colleagues Wilson stood in the main current of what was to become the American democratic tradition. Having backed General Pinckney’s motion to deliver the convention’s dilemma into the hands of a committee, Morris outlined some of his own ideas on the proper function of the new government. be opposed to another interest.

“One interest must

Vices as they exist, must be turned against

COUNTERATTACK AND COMPROMISE

239

each other. . . . The aristocratic body, should be as independent and as firm as the democratic. ... To make it independent, it should be for life.” Thus entrenched, it would not hesitate to defend its own interests.

“The

Rich will strive to establish their dominion and enslave the rest.

They

always did.

They always will.

The proper security against them is to

form them into a separate interest. each other.

The two forces will then controul

Let the rich mix with the poor in a Commercial Country, they

will establish an Oligarchy.

Take away commerce, and democracy will

triumph.” There was, in Morris’s addresses, a wit and cogency that few of the other delegates could equal.

He had a gift for the incisive phrase and an

artist’s eye for effect, and he was thus led to take extreme positions, per¬ haps enjoying, as he spun his webs, the disapproving looks on the faces of many of his fellow delegates.

Such naked cynicism, while not in fact

remote from the attitude of perhaps a majority of the members, seemed somehow a little indecent. Edmund Randolph chided him:

a government must be founded on a

spirit of conciliation, not regularized dissension.

Madison and Wilson

chose to ignore their colleague’s flight of fancy, but they opposed the ap¬ pointment of a committee which, as they must have seen, could at best only produce a compromise that would further weaken their position. The committee was nonetheless duly appointed.

Its composition was

a warning of defeat for the Madison and Wilson forces.

Gerry from

Massachusetts was the only dependable enemy to equal representation on the committee.

The other members—Ellsworth, Paterson, Franklin, Bed¬

ford, Martin, Davie, and Baldwin—had already expressed their preference for or acceptance of equal representation in the second house.

Mason and

Rutledge could be counted on as neutral but they were flexible and inclined to compromise. After the convention had surrendered its destinies temporarily into the hands of the committee, the members residing at the Indian Queen played hosts to Dr. Franklin, who, for all his admonitions to a temperate and abstemious life, took immense pleasure in good venison and fine port. The delegates must have welcomed the brief vacation.

The weather

was hot, with the steaming humidity of a Philadelphia July.

Excursions

were made to the Schuylkill; delegates visited Peak’s museum, threading their way between stuffed turkeys and Greek statuary, or shopped for gifts for home in the fine Philadelphia stores.

Some met in informal

JAMES WILSON

24o

caucuses at hospitable taverns.

Wednesday was the 4th of July and the

delegates participated in the parade and ceremonies which marked that great occasion, marching in a body to the new Reformed Calvinist Church on Race Street to hear an oration “well-adapted to the occasion.” When the convention reconvened on Thursday, July 5, Elbridge Gerry read the report of the committee. and Wilson.

It confirmed the worst fears of Madison

Proportional representation was accepted as the rule in the

first house, equal representation in the second.

As a consolation to the

enemies of equal representation, the first house was given the right of originating all bills for raising or appropriating money and the Senate was forbidden to alter or amend such bills. Wilson was immediately on his feet to protest that the committee had exceeded its powers.

Luther Martin showed how far the report had gone

in the direction desired by the small-state group when he urged that it be accepted in toto.

In the midst of an increasingly bitter wrangle George

Mason made an appeal for compromise, declaring dramatically that he would “bury his bones in this city rather than expose his Country to the Consequences of a dissolution of the Convention without any thing being done.” On Saturday, July 7, Gerry confessed himself ready to accept the principle of equality for the second house, and Roger Sherman added his weight, though his arguments were on this occasion more notable for obtuseness than common sense.

But Wilson stood firm, professing that

while he was not “deficient in a conciliating temper . . . firmness was some¬ times a duty of higher obligation.”

The convention nevertheless voted

to retain in the committee’s report the clause recommending equality for the states in the Senate. the issue.

For more than a week the delegates avoided

Meanwhile the leaders of the two factions fashioned the con¬

ditions of a compromise and on July 16 the states, by a vote of 5 to 4, ac¬ cepted the principle of equality in the second branch. But Randolph, irreconcilable, took the floor to point out that the powers which had been granted to the upper house had been given under the impression that the principle of proportional representation was to prevail there as in the first house.

Since this was no longer the) case,

he moved that the convention adjourn so that the large states could con¬ sider the proper steps to be taken “in the present solemn crisis of the business,”

COUNTERATTACK AND COMPROMISE

241

Paterson, angry at the refusal of the large states to accept defeat, rose at once to agree that it was high time the convention should be adjourned, the rule of secrecy rescinded, and the people consulted as to their sentiments on the matters before the convention.

If Mr. Randolph would move for an

indefinite adjournment, the New Jersey delegate “would second it with all his heart.” This was a most alarming reaction.

Randolph protested immediately

that he had never entertained for a moment the idea of an indefinite ad¬ journment.

He “was sorry that his meaning had been so readily and

strangely misinterpreted.

He had in view merely an adjournment till

tomorrow in order that some conciliatory experiment might if possible be devised, and that in case the smaller States should continue to hold back, the large might then take such measures, he would not say what, as might be necessary.” After some further wrangling the motion to adjourn until the following day was passed, and the delegates left the State House, their ears ringing with John Rutledge’s declaration that he could see no hope of compromise. A caucus of the larger states, early the next morning, July 17, before the hour of the convention, proved the adjournment to have been another tactical error by the federalist camp.

It was at once evident that the op¬

ponents of equality differed so in the reasons for their hostility that no concerted plan of action was possible.

When the delegates met later in

the morning, the victory went to Martin and his allies by default.

The

Senate was to represent the individual states; the lower house was to be established on the basis of proportional representation. After touching on the powers to be granted the national legislature, the convention moved on to take up the question of an executive.

By this

time, there was common agreement that the office should be vested in a single person.

However, the motion to have the executive elected by the

national legislature brought an immediate protest from Wilson.

To leave

the choice completely in the hands of Congress would result in the executive being too dependent “to stand [as] mediator between the intrigues and sinister views of the Representatives and the general liberties and interests of the people.” Mason spoke in opposition.

To depend on the people to elect the

executive would be, in the words of the Virginian, like “referring a trial of colours to a blind man.”

242

JAMES WILSON But Wilson would not grant it so.

It was well known that a legislative

body was more inclined to corruption in the matter of high appointments than in any other respect.

He would not retreat from his position that the

people were the proper electors of the chief magistrate.

A vote on the

motion was lost, with nine states voting against Wilson and only Pennsyl¬ vania upholding him. On Wednesday, July n, Pierce Butler’s taunting prophesy that “the people and strength of America are evidently bearing Southwardly and S. westwardly,” brought into focus again the problem of the western frontier. On this issue Wilson and Mason strongly opposed Rutledge’s motion to impose restrictions on the admission of western states to the union, but Gouverneur Morris, with the tenacity of a bloodhound, summoned up once more his frightening vision of a democratic West unseating the East.

“The

Busy haunts of men not the remote wilderness, was the proper School of political Talents,” he told the delegates.

The uncouth and democratically

inclined frontiersmen must be barred from seizing the reins of government. An acrimonious dispute followed.

When Wilson at last rose to speak

adjournment was already near, the day had been hot, tempers were frayed and nerves strained. His words were wise and moderate.

Since to him “all

men wherever placed have equal rights and are equally entitled to con¬ fidence, he viewed 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 they will not only have the right, but will avail themselves of it whether we will or no.”

This same jealousy of a

rapidly growing frontier “misled the policy of G. Britain with regard to America.

The fatal maxims espoused by her were that the Colonies were

growing too fast, and that their growth must be stinted in time. were the consequences?

What

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.” Wilson’s wise and generous views on the western question were in harmony with his general convictions on the nature of government.

None¬

theless his attack on all plans to limit or control the participation of the western states in the new government was probably influenced to some de¬ gree by his own vast land speculations. Certainly the Confederation Congress, gently prodded by Cutler and Duer, was even then in the process of enacting the fair and liberal North-

COUNTERATTACK AND COMPROMISE

243

west Ordinance of 1787, for which much credit must go to those land speculators in and out of Congress who wished to make the western areas attractive to prospective settlers, and to those Congressmen who sought to raise government revenues by land sales under the Ordinance of 1785 with¬ out resorting to a general system of taxation. Human motives are rarely pure, and even when it is possible to precipitate out of them the ideals, interests, and ambitions which have shaped those motives, we can seldom determine the relative weight of each.

Wilson showed himself on occasion to be far from disinterested,

and was not above turning political situations to his own material advantage. However, in the Federal Convention he played a role remarkable for its consistency and one that cannot justly be attributed to any spirit of narrow self-interest. Wilson’s championing of democracy was the more impressive as he had fought an unceasing war, almost since his entrance into political life, against the radical democratic elements of the Pennsylvania frontier.

He had re¬

fused, with the same dour determination, either to accommodate his views to those of the radical westerners, or to conform to the conservative prej¬ udices held by most of his political allies. When the convention assembled on Saturday morning, July 14, Gerry and King revived the motion to limit the number of new states to be admitted to the union “in such a manner, that they should never be able to outnumber the Atlantic States.”

Roger Sherman backed Wilson in op¬

position to Gerry’s resolve and it was lost on a vote, five to four—a slim margin indeed. On July 19 Gouverneur Morris spoke in support of Wilson’s earlier proposal for an executive directly elected by the people.

He saw, he

confessed, no way to make the “Executive independent of the Legislature but either to give him his office for life, or make him eligible by the people.” Morris’s speech produced some effect.

Rufus King and Paterson sup¬

ported the motion for direct election of the executive, inducing Wilson, who had led the fight from the earliest days of the convention, to observe that the idea of an election by the people, directly or through electors, was gaining ground.

Indeed

the convention seemed ready to accept the

principal of direct election of the executive by the people, when Ellsworth proposed that the presidential electors be appointed by the state legislatures. This proposal immediately won the fancy of the states rights element and all

244

JAMES WILSON

those delegates who were inclined to recoil at the prospect of granting too much power to the “democratical” portion of the population. It was on Thursday, July 20, in the midst of hot debates over the executive branch, that the Pennsylvania Packet reported that “so great was the unanimity . . . that prevails in the convention upon all great federal subjects that it has been proposed to call the room in which they assemble— Unanimity Hall.”

Perhaps in a relative sense the Packet was right.

Certainly the tensions of the preceding weeks had lessened perceptibly.

If

it was not immediately apparent, it soon became obvious that the major crisis had passed.

The debates themselves revealed a new spirit of tolerance

and accord; among the delegates there was a pervasive feeling that, al¬ though much tedious detail lay ahead, the vast majority of the delegates were thoroughly committed to the task of fashioning a new and effective govern¬ ment. The small-state men, having won their cherished equality, looked with a more indulgent eye upon the horrors of “big government.”

With their

own interests in commerce and more especially land well protected, they stopped seeing an assassin behind every large-state arras. On Saturday, July 21, Wilson brought up once more his pet design to have the judiciary and the executive together exercise a “Revisionary power.” He was of the opinion that “the Judiciary ought to have an opportunity of remonstrating against projected encroachments on the people as well as on themselves. . . . Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect.”

Madison immediately seconded the

motion, but it was lost by the margin of one vote. Monday’s session, July 23, was fruitful, resulting in agreement to sub¬ mit the new constitution to ratification by state assemblies elected for the express purpose, rather than to the state legislatures.

At the close of the

session such a spirit of accord prevailed that a motion was made by Elbridge Gerry to appoint a committee on detail to work out the particulars of the constitution in accord with the general sentiment of the convention.

But

before the committee was chosen the troublesome issue of the method of electing the executive was raised again, and for a time the delegates seemed inclined to favor the appointment of the executive by both houses of Congress. Rufus King even went so far as to suggest that the chief magis¬ trate so elected hold office for twenty years. Here Wilson tried to restore a note of rationality to the debates. difficulties and perplexities

“The

into which the assembly had been thrown,

COUNTERATTACK AND COMPROMISE

245

proceeded, he declared, “from the plan to have the executive appointed by the legislature,” which he was sorry had been adopted.

Of course, be¬

ginning with a false principle, the delegates had been driven to excesses to remedy defects inherent in the system of election itself.

“Notwithstand¬

ing what had been done he could not but hope that a better mode of election would yet be adopted; and one that would be more agreeable to the general sense of the House.” In order to allow more time for discussion and sober reflection, Wilson moved that the question be postponed until the next day.

Gouver-

neur Morris reinforced him with a dramatic appeal to history on the dangers of legislative despotism, and Wilson reaffirmed his conviction that “we ought to resort to the people for the election.” The question was postponed and the convention moved on to the im¬ portant business of electing a Committee of Detail.

The members chosen

were John Rutledge, a small-state man, who had been governor of South Carolina and who had served with Wilson in the Continental Congress; Edmund Randolph, governor of Virginia and author of the Virginia Plan, a large-state man and a wavering advocate of Federal power; Nathaniel Gorham, the Massachusetts merchant who had served for three years as president of Congress; Oliver Ellsworth, the Connecticut judge, inclining toward the small-state cause and favoring the supremacy of the legislature, and finally, James Wilson, who had led the fight, with Madison, for a strong federal government.

Thus the committee numbered two federalists,

with Rutledge the most outspoken champion of the small states, Gorham inclined to a position of neutrality, and Ellsworth leaning toward Rutledge.2 The committee waited to begin its work until the desires of the con¬ vention had been determined in regard to the system of election for the national executive.

The discussion dragged on inconclusively for several

days until the delegates wearily offered to leave the issue for the committee to decide. But on Thursday, July 26, after voting by a count of six states to three to have the executive elected by the national legislature, the delegates provided the committee with copies of twenty-two resolutions summarizing their conclusions in regard to the constitution.

The convention then ad¬

journed until August 6 to give the five-man committee time to prepare its report.

The main outlines of the constitution had been blocked out.

Much tedious work remained to be done, but success seemed assured.3

246

JAMES WILSON The initial paragraph in the first draft began, “The people and the

states of New Hampshire, Massachusetts, Rhode Island,” running through the thirteen states.

For the words, “the people and the states,” Wilson

substituted “the people of the states,” prefixing “we,” so that the draft as amended read, “We, the people of the states.”

This was certainly an

improvement in clarity and force, and in the direction of federalist doctrine. From here on the draft, with a few exceptions, followed the resolutions of the convention.

The Senate was given the power to make treaties and

appoint members of the “Supreme National court.” written this provision reluctantly.

Wilson must have

The House of Representatives was to

be “the grand Inquest of this Nation; and all Impeachments shall be made by them.” Between the final draft of the Committee of Detail bearing Rutledge’s notations and the printed copy submitted to the convention, one important change was made, presumably by Wilson, with, of course, the approval of the other members of the committee.

To the clause in an early draft that

gave the legislature the right “to declare it to be treason to levy war against or adhere to the enemies of the U. S.” had been added, in the committee’s final draft, a prohibition against working “Corruption of Blood or Forfeit except during the life of the party [condemned for treason].” The printed version was more precise, more complete, and contained an important additional clause.

“Treason against the United States,” it read,

“shall consist only in levying war against the United States, or any of them [as first phrased it had been left to the discretion of the legis¬ lature to declare what treason was]; and in adhering to the enemies of the United States, or any of them.

The Legislature of the United States

shall have power to declare the punishment of treason.

No person shall

be convicted of treason, unless on the testimony of two witnesses.

No

attainder of treason shall work corruption of blood nor forfeiture, except during the life of the person attainted.” Wilson must have had the events of the Philadelphia treason trials etched vividly in his mind.

When the question of the treason clause came

before the convention, Wilson, while confessing that the subject was an intricate one and that he “distrusted his present judgment in it,” stood for a narrow definition of treason, the crime to be testified to by two witnesses to the same overt act, and prosecuted by the United States alone.

CHAPTER XVII

The Rising Sun

The

convention

reassembled on August 6 to consider the report of the

Committee of Detail, and W. H. Davie wrote the same day to his friend James Iredell that the “great outlines are now marked ... the residue of the work will rather be tedious than difficult.”1 The prediction was an accurate one.

The work that stretched out

over the remaining six weeks was tiresome and exacting.

Lacking the

tension and excitement of the early sessions, the final period of the con¬ vention tried the delegates’ patience and capacity for detail. Wilson’s main work in the convention was done.

He continued to

take an active part, but now that the broad principles of the new government had been established, he was content to see the practical issues worked out by that kind of glorified horse-trading that is characteristic of republican politics.

There were North-South frictions to be smoothed over, and a

heritage of distrust on the part of the small states for their larger neighbors that impeded rapid progress.

Such matters were referred to committees

and there resolved. The Committee of Detail had presented the convention with the first draft of the constitution on August 6.

More than a month passed be¬

fore the second draft, embodying the additions and emendations of the delegates, was offered to the convention.

In the meantime a phrase, for¬

bidding states to “impair” the “obligation of contracts” had crept in all but unnoticed. When this brief clause came, in later years, to have immense sig¬ nificance, its authorship was credited to James Wilson on the grounds that he alone among the delegates was acquainted with Civil and Roman juris-

248

JAMES WILSON

prudence through his study of law in Scotland.

While there is no evidence

definitely disproving Wilson’s authorship, certainly no evidence exists to prove it.2 In the first place, Wilson studied no law in Scotland.

He served his

legal apprenticeship with John Dickinson, and the law available to him was available to every young lawyer in America who had a first-class preceptor and access to a good law library. Wilson had, indeed, in 1785 in his fight for the Bank of North America, argued that a law passed by a state legislature, granting land or charters of incorporation, constituted a compact.

But there was a kind

of natural logic about such a position that could very well have evolved out of the immediate practical needs of the situation.

The common law did

not have any conception of an “obligation” of contract as it came to be interpreted by Marshall and the later justices of the Supreme Court.

What

Wilson and likeminded delegates were ready to call “contract,” English common law would term “conveyance,” a word without the binding im¬ plications of “contract.”

A grant of land or a charter of incorporation

would, under common law, have had the character of a conveyance, but it was a unique feature of American legal and political theory, as opposed to English, to endow such arrangements with the sanctity of a contract.3 Since Wilson liked to support his theories with quotations from eminent authorities, he may well have cited Barbeyrac on Pufendorf in the convention discussion of the contract clause. Barbeyrac, who was available to every American lawyer with an English agent and a few pounds in his pocket, insisted that gifts and grants were included in the category of true contracts. If Wilson read Barbeyrac along with a number of sixteenthand seventeenth-century jurists whose orientation was primarily toward civil law, so did many of his colleagues.4 On the 18th of August Pinckney had offered a number of propositions which were subsequently referred to the Committee of Detail.

One of his

suggestions was for a clause securing “all creditors under the New Con¬ stitution from a violation of the public faith when pledged by the authority of the Legislature.” The “legislature” of Pinckney’s phrase, at best no model of clarity, probably referred to Congress.

The committee, perhaps led by Wilson,

may have remodelled the clause and placed it among those actions pro¬ hibited to the states.

But this is simply conjecture.

In the absence of any

conclusive evidence, it must be assumed that the clause was a joint product,

THE RISING SUN

249

and represented no startling novelty to the delegates who accepted it, ap¬ parently without debate. On August 31 all the unresolved issues of the convention were re¬ ferred to a

Committee on

Unfinished Parts. While this

Committee

deliberated, the question whether the constitution should be ratified by conventions called expressly for that purpose, or by the state legislatures again proved to be a bone of contention.

Luther Martin stood out for

ratification by the state legislatures as being reliable and free from the “commotions” of the people. For his part he had no doubt that in Maryland both legislature and people would reject the constitution. Morris pressed forward urging that every effort be made to have rati¬ fication proceed as quickly as possible to prevent the enemies of the consti¬ tution from “giving it the go by.” But suddenly George Mason, who had earlier been so determined to see the convention through to the creation of a strong and efficient frame of government, turned unaccountably sour on the results in hand and announced himself ready “to chop off his right hand” rather than sign the constitution as it stood. At once Gerry joined in referring to the system which they were fashioning as “full of vices,” and Gouverneur Morris, stung by the at¬ tacks, replied in his own quixotic fashion that he himself was ready for a postponement.

Indeed, “he had long wished for another convention that

will have the firmness to provide a vigorous government which we are afraid to do.” The whole incomplete but laboriously built structure of the new government seemed in desperate peril.

If this body of wise and able men

should fail, what chance would other groups have?

Submerged dis¬

appointments and frustrated hopes, like hidden rocks and snags, threat¬ ened to tear the bottom out of the frail craft that seemed at last so near to shore. go for nothing.

All the zeal and patience of the voyagers was about to Nerves strung taut under the almost unbearable strain

of endless dispute through exhausting heat, through personal inconvenience and loss, through homesickness, through discouragement, through ap¬ parently hopeless impasses, suddenly snapped.

The delegates had stuck

grimly to labors that would have daunted a saint or wearied a prizefighter. Their deep sense of responsibility to their country, to their own constituents, and to the call of greatness had held them to their task.

The brittle nerves

and short tempers of the leaders revealed the strain under which they had

250

JAMES WILSON

labored for so long to reconcile differences, to overcome pettiness, localism and pride, to transcend the limits of self-interest and build a structure worthy of their country’s destiny.

Such are the ambiguities of individual

and political life that they had succeeded only by fits and starts, poorly and in part, yet perhaps better than any other such body of men had ever done before or might do soon again. It was the leaders whose nerves had suffered most, and when the issue of postponement came to a vote the majority of the delegates clung tenaciously to the work that had cost them so much time and labor. Only three of the states voted for postponement.

In the other states a

number of individual delegates voted for the motion but were outweighed by their less precipitate colleagues.

The contagion failed to spread.

The

last crisis was over; it seemed assured that the convention would complete its work. The Committee on Unfinished Parts reported, in the early days of September, for Wilson’s old plan of an electoral college with the president elected for four years and eligible for re-election.

The power to appoint

ambassadors and judges and to make treaties was transferred from the Senate

to the

president, subject to

senatorial approval, and the all-in¬

clusive general welfare clause was rejected in favor of specific enumerated powers with a general welfare “rider,” giving Congress the “power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.” The manner of electing the president caused much discussion.

Few

members were satisfied with that provision of the committee’s report which referred disputed elections to the Senate.

“This subject,” Wilson

confessed, “has greatly divided the House, and will also divide the people out of doors.

It is in truth the most difficult of all on which we have

had to decide. satisfaction.”

He had never made up an opinion on it entirely to his own

George Mason ended the session with a vehement declaration that he would prefer “the Government of Prussia” to the present method of election, which would “fix an Aristocracy worse than absolute monarchy.” The motion to require a two-thirds vote of the Senate for the rati¬ fication of treaties brought strong protests from Wilson.

Such a rule

placed the majority under the sway of a minority—Wilson’s bete noir. “If the majority cannot be trusted, it [is] a proof. .

Wilson declared,

THE RISING SUN

251

“that we [are] not fit for one Society,” but on his motion to strike out the two-thirds requirement, only Delaware supported him. The next significant modification gave the President power to “nominate and by and with the advice and consent of the Senate . . . appoint Am¬ bassadors, and other public Ministers, Judges of the supreme Court, and all other officers of the U. S. whose appointments are not otherwise herein provided for.”

Wilson and Madison at last had their way in the matter

of executive appointments. Alexander Hamilton then moved that the new constitution be first proposed to Congress for its acceptance and then referred to the state conventions for final ratification.

This plan, had it been adopted, might

have destroyed the new government in the womb. to oppose the measure in the strongest terms.

Wilson, therefore, rose

It would be “worse than

folly to rely on the concurrence of the Rhode Island members of Cong, in the plan.”

Maryland had already indicated her intention of rejecting

the new constitution.

To submit if to Congress would be to increase im¬

mensely the chances of its defeat.

Its enemies could there begin attacks

that would sound the keynotes for bitter state battles.

If Congress op¬

posed it, as in a sense they were bound to do, the states would welcome the excuse not to call conventions. “After spending four or five months,” Wilson said, “in the laborious and arduous task of forming a Government for our Country, we are our¬ selves at the close throwing insuperable obstacles in the way of it's success.”

Other voices were added to Wilson’s and the ill-advised motion

went down to defeat. The idea of submitting the constitution to public debate with a view toward calling another convention must have had considerable appeal for many of the delegates. For those who were in sharp opposition to the work of the convention, it meant the possibility of revisions more in ac¬ cord with their own predilections. For those who feared the reaction of angry constituents or shrank from final responsibility, such a solution offered an easy way out.

However, there can be little doubt that such

action would have had disastrous results.

The major issues involved

would have become political footballs; sectionalism and self-interest would have been fanned and the difficulties of finally forming any satisfactory government immeasurably increased.

The failure of the convention would

have meant angry recriminations from all the contending factions among the delegates, and suspicion and despair in the country at large.

Studies

252

JAMES WILSON

of the so-called critical period have shown that economic recovery pre¬ ceded the final adoption of the Constitution by a good many months, but to conclude from this that the establishment of the new government was merely incidental to the achievement of a sound economy, or, as some devotees of economic interpretation have held, that the form of the Con¬ stitution itself mattered very little in the face of favorable conditions for financial growth and development, is to misread not only the critical years of 1785 to 1790 but, in fact, all of history. Had the large-state, small-state and the North-South, East-West prob¬ lems not been settled, at least temporarily, it is difficult to conceive how the nation could have escaped becoming Balkanized.

To say that many of

the issues which divided the convention were not real issues is to beg the point.

If they were treated as vital by the delegates and so considered by

their constituents, that was enough.

Of course the chances of writing

another constitution, in the event that the convention had failed, would not have been improved by the fact that conflicting interests of a very real nature did in truth exist in the country. Randolph’s motion, upon the advice of Mason, was thus left to hang fire for several more days and give to the final sessions an air of tension and uneasiness. On Monday, September 10th, the work of the convention was com¬ mitted to the able hands of Gouverneur Morris, chairman of the Com¬ mittee on Stile and Arrangement, and the delegates adjourned until Wednes¬ day. The version that was placed before the convention two days later was, grammatically at least, much improved.

In addition, it contained a

preamble that set forth in noble terms the aims of the constitution.

“We,

the People of the United States,” it read, “in order to form a more perfect union, to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Con¬ stitution for the United States of America.” Then followed what became, with minor changes, the final draft of the constitution.

Appended was a tactful and diplomatic letter addressed to

Congress, requesting its support for the new government.

The letter

hinted at the clash of interests that had been resolved by compromise. “In all our Deliberations . . . ,” it read, “we kept steadily in our View that which appears to us the greatest Interest of every true American the

THE RISING SUN

253

consolidation of our Union in which is involved our Prosperity Felicity Safety perhaps our national Existence.

This important Consideration . . .

led each State in the Convention to be less rigid on Points of inferior Magnitude than might have been otherwise expected.

And thus the

Constitution which we now present is the Result of a Spirit of Amity, and of that mutual Deference and Concession which the Peculiarity of our political Situation rendered indispensible.” The

delegates now moved

rapidly from

one Article

to another,

clipping an unneeded phrase or a redundant word, adding a clarifying one.

On Saturday, the 15th of September, with the work of the con¬

vention almost at an end, Randolph rose again to voice his objections. Too much power had been given to Congress.

He would never put his

name to the present “instrument” unless a plan was included to call another general convention to consider amendments offered by the states. Mason followed his Virginia colleague. new government.

He too feared the power of the

It would, he predicted, “end either in monarchy, or

a tyrannical aristocracy.”

He would not sign nor would he support the

constitution in Virginia. These were serious defections.

Randolph and Mason were two of

the most prominent and respected members of the convention.

Mason,

in particular, because of his age and his services to the Revolutionary cause, had the status of an elder statesman.

Randolph was governor of

Virginia, and a popular political figure in his state.

The two of them

together made up, in the absence of George Wythe, a third of Virginia’s delegation, and Virginia would be an essential state in any effective govern¬ ment. Elbridge Gerry followed the Virginians with his own attack on the constitution.

He too would refuse to sign without provision for another

general convention.

But the hearts of the delegates were hardened.

They

had no intention of tossing their hard-won frame of government to the wolves of anarchy and contention.

They voted unanimously against the

three dissenters. The constitution was then ordered to be engrossed and the house ad¬ journed to meet on Monday for the ceremony of signing.

It was six

o’clock when the delegates finally rose, tired from their long ordeal, stiff from the extra hours of debate, but most, despite personal reservations and misgivings, with a deep sense of achievement.

All must have been

254

JAMES WILSON

aware that the wings of destiny had brushed them as they sat in the already historic State House. Only madmen and saints are entirely heedless of their own interests. The delegates who met in Philadelphia in the spring of 1787 were neither. They were, as all men, bound in the shell of human frailty, but they were conscious of standing in a special moment of history and they were not unaware of their responsibilities.

They thus managed, being men of

more than average courage and integrity, to transcend, incompletely and spasmodically, their own self-interest and that of their constituents.

Often

their noble phrases were, to a degree, rationalizations of inner desires, but they were sincere rationalizations of the kind that we must all make if we are to live and function in historic time.

To say that they in part

responded to self-interest is only to say that they were human; to say that they went beyond their own interests is to say that they were indeed splen¬ did.

And if they identified their own interest in protecting property with

the general interests of mankind and more particularily with the American people, they cannot be blamed for that either. The delegates achieved what they did, “not from pure disinterestedness but from the provisional coincidence” between their interests and the true interests of the “total community.”5 When the delegates met on Monday, the engrossed copy of the con¬ stitution was ready and a final effort was made to reconcile the dissenters. Doctor Franklin rose with a speech in his hand and, pleading his in¬ firmity, requested Wilson to read it.

The Doctor confessed that the older

he grew, the more apt he was to doubt “my own judgment, and to pay more respect to the judgment of others.”

He was thus willing to give

way respecting some points in the constitution with which he did not agree. Moreover he doubted “whether any other Convention we can obtain may be able to make a better Constitution for when you assemble a number of men to have the advantage of their joint wisdom, you inevitably as¬ semble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views.”

If each delegate

on returning to his constituents reported what he considered the flaws in the new frame of government, “we might prevent its being generally re¬ ceived- Much of the strength and efficiency of any Government...,” Franklin added, “depends on the general opinion of the goodness of the Gov¬ ernment, as well as of the wisdom and integrity of its Governors.” Gouverneur Morris had written the eloquent plea for unity and placed it in the

THE RISING SUN

255

hands of Franklin in order that, in Madison’s words, “it might have the better chance of success.” That the architects of the constitution were desperately anxious to have all the delegates sign the document can be deduced from the final moving struggle to persuade the dissenters to abandon their opposition. Having resisted to the bitter end all the moral pressure that the convention was able to muster, both Randolph and Gerry rose to express their em¬ barrassment and distress at having to abstain; their consciences would not let them do otherwise. And so the issue was concluded. Rufus King at the last raised the question of whether the journals of the convention should be destroyed or placed in the safe-keeping of the president. Wilson confessed that he had first favored their destruction, but it seemed better to preserve them “as false suggestions may be propa¬ gated [about the debates] [and] it should not be made impossible to contradict them.” The members then proceeded to sign the constitution, and New Hamp¬ shire led off with John Langdon’s neat signature preceding all the others. While the delegates were signing, Dr. Franklin, with his love of homily, remarked that during the course of the debates he had often had occasion to speculate upon whether the painted sun on the back of the President’s chair was rising or setting, but he was now convinced that it was a rising sun, a happy omen for the new government. Dickinson, absent sick, had requested his fellow-delegate George Read to sign for him. Luther Martin had already expressed his disapproval of the proceedings by decamping for Maryland. Randolph, Gerry, and Mason held out to the last. Abraham Baldwin’s name completed the roster of those present, and the great work was done. The members who had assembled for the occasion in the room where the Declaration of Independence had been signed, adjourned from the State House to the City Tavern, where, it may be suspected, there was much drinking of toasts and genial gaiety. The members there took cordial leave of each other in the spirit of soldiers who had fought together in a bitter campaign. Indeed the battle was not over, and the soldiers though dismissed would return home to fight an often desperate guerilla war. The Federal Constitution was one of the great political achievements of history. The product of the convention was not an abstract, idealistic document, but rather an intensely practical instrument of government, designed to meet specific needs. With few exceptions, the delegates were

256

JAMES WILSON

not original thinkers.

Wilson and Madison perhaps came closest among

the members of the convention to meriting the name of political philoso¬ phers. On the whole the delegates were practical politicians. They con¬ tributed nothing new to western political thought; the material which they

used

to

build

many other minds.

their

“Federal

Edifice”

had

been

fashioned

by

Their only original contribution was in practice rather

than in theory—the practice of compromise, of modus vivendi in political life, and even this had been foreshadowed by the British. The convention was the central fact in Wilson’s life.

His work there

constituted his greatest contribution to the future peace and stability of his adopted country.

The Constitution was most unmistakably a cooperative

venture; no one man was responsible for the final result.

But Wilson, as

one of the ablest political theorists in the convention, espoused more of those principles which have since become prominent features of American democracy than any other delegate.

This is not to say he was wiser or

more right than other delegates; it is simply to emphasize the fact that his ideas were more in harmony with what would be the future pattern of American social and political development. Wilson’s stand on the big issues in the convention was clearly defined. He was for direct election of both houses of Congress by the people of the United States.

With Madison and Mason he helped to swing the

delegates toward direct election of the lower house, and, this battle won, he fought doggedly for popular election of the Senate as well.

He also

came out unequivocably for the direct election of the executive.

On this

issue he stood virtually alone; as he had predicted, the delegates found his proposal “chimerical,” but conscious that half a loaf was better than none, he worked out his electoral college plan and Madison and Gouverneur Morris supported it as the only acceptable alternative to an executive ap¬ pointed by the national legislature.

The debates reveal quite clearly the

steps by which Wilson, Madison, and Morris brought a majority of the states to accept, in a modified form, the principle of popular election of the executive. Certainly, in all measures, Wilson sought to strengthen the national government by freeing it from the toils of state politics, but the fact that he was willing to pay for a strong national government by the widest kind of political democracy set him apart from the other delegates in the con¬ vention.

For Wilson the comparison of a soundly constructed govern-

THE RISING SUN ment to a pyramid had deep meaning.

257

He reverted to the metaphor time

after time; a strong government must have a broad base. Wilson’s faith in popular government was, in a sense, doctrinaire. It grew out of his reading of Aristotle and Cicero, of Hooker and Locke, but most of all out of the “Common Sense” doctrines of the Aberdeen phi¬ losopher Thomas Reid. It remained unshaken by the excesses of the Pennsyl¬ vania frontiersmen and their abortive Constitution of 1776.

It survived

the strains and stresses of practical politics in a way that the democratic principles of Sherman, Gerry, John Adams, and even to a degree, Madison, did not. Wilson, a speculator, a property holder, a close ally of some of the greatest fortunes in America—Robert Morris, Bingham, Duer—perceived that the protection of property and the creation of fields for private enter¬ prise and capital adventuring were not dependent on the formation of an aristocratic, rigidly hierarchical government, designed to cramp and limit the people, designed to guard against the danger of “agrarian laws.”

Al¬

though he shared the concern of the great financial interests for the estab¬ lishment of a strong central government that would provide a proper medium for the growth of trade, finance, and industry, he split sharply with those interests in his insistence that such a government draw its authority as directly as possible from the people. He took direct issue with those delegates in the convention who held that the defense of property was “the sole or the primary object of Government and Society.”

The

happiness of the governed should be of first importance and “the cultivation and improvement of the human mind was the most noble object”6 of all. Almost alone among his contemporaries Wilson foresaw that America’s commercial spirit was not the exclusive possession of a caste, but the most emphatic expression of a national psyche. In the convention Wilson was also outspoken in his insistence on a powerful executive.

He feared legislative more than executive tyranny, and

he reminded the delegates that after the deposition of Charles I of England “a more pure and unmixed tyranny sprang up in the parliament than had been exercised by the monarch.”7 It was this same suspicion of the legislative branch that led Madison to propose a council of revision, consisting of the chief executive and the justices of the Supreme Court which would pass on all proposed legislation. Wilson backed this plan enthusiastically, indeed going so far as to urge

258

JAMES WILSON

that the executive alone have an absolute negative over the acts of the legislature. Neither Wilson nor Madison was preoccupied with what Stanley Pargellis has called the “unreal symbolism”8 of an exact balance of powers between the legislative, executive, and judicial branches of the government. “Separation of the departments,” Wilson argued, “does not require that they should have separate objects but that they should act separately tho’ on the same objects.”

It was necessary, for instance, that the senate and

the house “should be separate and distinct, yet they are both to act pre¬ cisely on the same object.”9

Wilson and Madison saw no violation of this

principle in having the chief executive and the justices of the national judiciary sit down together to pass judgment on legislative bills. It seems reasonable, in view of our subsequent history, to assume that, unchecked by the other delegates, Madison, Wilson, and Morris might have gone too far in their efforts to create a strong executive. Yet the fact is that the United States has suffered its darkest moments when the executive has been a pliant tool of the legislative branch, and conversely, under strong presidents—men like Washington, Jefferson, Jackson, Lincoln, Wilson, and the two Roosevelts—the country has made its greatest progress or weathered its severest crises. James Wilson, even more than his fellow Federalists, had a clear vision of the chief executive as a national leader, as the representative of all the people against, or above, the interests of particular groups or of the individual states.

Where Madison’s insight into the operation of “pres¬

sure groups” inclined him to favor a government which would play the role of referee between contending factions, Wilson put his faith in the unifying effect of a strong president who would provide leadership trans¬ cending parochial views and ambitions.

Wilson’s view of the functioning

of government was a dynamic one while that of Madison and Morris, too, was much more static. Historians have been inclined to credit those members of the Federal Convention who favored the supremacy of the legislative over the execu¬ tive branch with a greater friendliness to the ideals of democracy than their opponents.

Actually in the Federal Convention there was little

if any correlation between democratic idealism and the fight for legislative supremacy. The small-state men, with few exceptions, wished to see the national legislature dominant, and they had a genuine fear of executive despotism, but it did not follow that they were champions of popular

THE RISING SUN

259

government. Indeed, the records of the debates are studded with their strictures on the dangerous spirit of democracy, and the consequent need for mediate rather than immediate election of Congress and the chief executive.

To claim that the advocates of legislative supremacy were

more “democratic” than those delegates who favored a strong executive is as fallacious as it would be to make the same claim for politicans holding a similar view today. Wilson’s vast land schemes and his manifold business ventures have tempted historians to try to equate his constitutional theories with his own private interests, but in reviewing his record in the Federal Convention a pattern emerges which cannot be reconciled with any idea of narrow self-interest.

There is about all of Wilson’s statements in the convention

an unusual congruity.

He fought ceaselessly for his cherished principle

of proportional representation and even after the issue had been decided in favor of equal representation in the Senate, he could not forebear to chide the delegates for their acceptance of false principles of government. Early in the debates he expressed his conviction that the required terms of residence in the United States for candidates to the House and the Senate should be reduced from seven and nine years to four and seven respectively.

The higher requirements would give an “illiberal complexion”

to the Constitution and would serve to discourage “meritorious foreigners.” Wilson insisted on reading to the unsympathetic delegates the clause in the Constitution of Pennsylvania which gave rights of citizenship to strangers after two years’ residence.10 Similarly Wilson wished to have the minimum age requirements for election to both houses lowered or abolished.

He was, he declared,

“against abridging the rights of election” in any way.

To impose age

restrictions would tend to “damp the efforts of genius, and of laudable am¬ bition. There was no more reason for incapacitating youth than age_”u New states, in Wilson’s view, should be admitted to the Union on a basis of equality with the older ones.

The majority wherever found

should rule and it was futile to try to devise barriers against popular will.

Wilson also wished to have members of Congress eligible for office

in the national government.

But on this issue he was again rebuffed.

To his fellow delegates such a proposal seemed a dangerous extension of executive influence. When the Convention took up the matter of qualifications for electors to the House, Madison argued for a restriction of the suffrage to free-

26o

JAMES WILSON

holders.

Those individuals without landed property should be excluded,

he maintained; otherwise they would, as their numbers increased, threaten the stability of the republic by undermining property and respectability. But Wilson would not stand with his friend.

The requirements for

electors should be the same as requirements for electors to the most numer¬ ous house of the state legislatures. “It would be very hard and disagreeable,” Wilson argued, “for the same persons at the same time, to vote for representatives in the State Legislature and to be excluded from a vote for those in the National Legislature.”12 Taking the small points with the large, the over-all picture of Wilson’s position on the many issues that came before the convention is one of re¬ markable consistency.

Like most of his fellow Federalists, Wilson showed

a deep concern for form—for political order as defined, more or less precisely, by law.

The Federalists were preoccupied with the problem

of structure, and they devoted their talents to creating political forms that would give stability to the social and economic life of their country. Among these men Wilson was an acknowledged leader, one of the master architects of Federalism.

Yet with his concern for form went an extraordinary

awareness of the unrealized potentialities that cannot be contained in the wisest and most artful forms, but that lie always outside them.

Wilson’s

concept of government was, as has been said, a dynamic one—a strong and efficient system based directly on the people of the states—while his fellow Federalists were captivated by the idea of a government that would act as a referee between competing groups or classes.

Having

established basic forms, Wilson wished to maintain as much flexibility within them as possible, and he rarely failed to show a tender solicitude for the unfolding of the new and unanticipated.

He was never, as many

conservatives are, mesmerized by the idea of form in itself, nor was he tempted to look to it as an end.

To Wilson any given form was only

a means or a condition for the richer development of individual and social life. Wilson’s whole generation was steeped in history, but many of his contemporaries, as true children of the Enlightenment, viewed the past as simply the precursor of the modern age, an age which was to witness the fulfillment of history.

It was indeed the illusion of the century that history

could be shaped by reason. But Wilson, though he was in no sense a fatalist, understood the limitations of the individual in the face of the historical dialectic. Fie had the realist s acute awareness of the areas of plasticity

THE RISING SUN

261

in history, and he had no predisposition to assail impregnable redoubts. He thus perceived the secret of the highest politics—to create such forms as give the greatest range to the viability of society without being tempted to impose arbitrary patterns on the flow of history. Whatever Wilson’s own thoughts may have been at the conclusion of the Federal Convention, he had little time to mull them over. The question of ratification was nowhere more critical than in Wilson’s home state. He turned his hand to the new task with all of his immense energy and unflagging zeal.

CHAPTER XVIII

Spokesman of the “Dark Conclave”

As the long drama of the Federal Convention drew to a close, the Penn¬ sylvania Federalists set their local political machine in motion. The struggle in Pennsylvania over ratification would be a crucial one.

One of the

largest and most influential states, Pennsylvania had contributed two of the ablest members of the Federal Convention in Gouverneur Morris and James Wilson.

A defeat for the Federalists here would encourage the

radicals everywhere and doubtless seal the fate of the Constitution. In 1787 the counter-revolution in Pennsylvania was moving slowly toward its crest, sweeping the Federalists into power while the radicals, caught in the ebb tide, were wrenched, one by one, from their positions of authority.

When the Federal Convention adjourned in September the

balance of power hung nearly in equilibrium between the business and financial interests that centered around Philadelphia, and the farmer and frontier party whose citadel was Harrisburg. The Federalists, in addition, had as allies the powerful Pennsylvania Packet and the Journal as well as the Gazette, while the Freeman’s Journal

and the Independent Gazetteer spoke out for their opponents. As in the Federal Convention, the initiative from the first was with the Federalists, who appeared as champions of a specific plan and proceeded with a carefully organized campaign. The ranks of the Federalists included the most powerful and able men in the state. Thomas McKean, who was chief justice of Pennsylvania, had presided at the treason trials of Roberts and Carlisle.

He was an

experienced and resourceful politician and, with Wilson, he carried the fight for ratification in the state convention.

Benjamin Rush was one

THE “DARK CONCLAVE”

263

of Wilson’s most enthusiastic lieutenants; Jasper Yeates was the experienced Federalist boss of Lancaster. The Anti-Federalists, as the enemies of the Constitution soon be¬ came known, found hope in the resistance that the new government en¬ countered in Congress itself.

That body, whiling away its last hours in

New York, turned on the document submitted to it with an unexpected ferocity that must have been most trying to the nerves of the anxious Federalists.

Led by Richard Henry Lee, New York and Virginia set up

a great cry of tyranny and did their best to embarrass the friends of the new frame of government. Madison hurried on to New York to throw his weight with Henry Lee against Richard and swing Virginia into support of the Constitution. Rufus King and Nathaniel Gorham rallied Massachusetts while William Samuel Johnson, Few, Pierce, Gilman, Langdon, and Blount arrived from Philadelphia and lent their support in Congress to the document they had just helped to frame. On the 27th of September, the Constitution was formally dispatched to the states with the reluctant blessings of Congress.

William Bingham,

a delegate in Congress, sent off an express to his Federalist friends with the good news, but the Pennsylvania Federalists, fearful that the Assembly would adjourn before word arrived from New York and that the op¬ portunity to call a state convention might thus be delayed or lost en¬ tirely, acted on their own initiative.

George Clymer, who had been a

delegate to the Federal Convention, rose in the Assembly to urge that a state convention be called to meet in Philadelphia on the date of the meeting of the next General Assembly. opposed the motion.

Robert Whitehill immediately

Whitehill had helped to frame the Pennsylvania

Constitution of 1776 and had served for two years on the Supreme Executive Council.

Now he charged the Federalists with a lack of candor in at¬

tempting to railroad through the ratification of the Constitution before the people might be properly acquainted with the issues involved. His objections were ignored by the Federalist majority, which ap¬ proved a vote on the convention by a vote of forty-three to nineteen. The Assembly then adjourned until the afternoon.

Meantime White¬

hill and his adherents held a hasty conclave and hatched a plan to thwart the Federalists.

Since the Assembly consisted of sixty-nine members, and

forty-six were required for a quorum to do business, the Westerners, by

264

JAMES WILSON

absenting themselves from the Assembly, could prevent any action and force an adjournment. When the Assembly convened again, a roll call showed only fortyfour members present.

The sergeant at arms was sent to round up the

absentees, but he returned empty-handed; the missing delegates refused to attend.

The Federalists, with victory slipping through their fingers,

adjourned until the next day in an angry mood. Word of the action of Congress reached the Assembly the following day, and the sergeant at arms, bearing the resolution of Congress, was dispatched in a final effort to lure back the insurgents.

Two of them,

James McCalmont of Franklin County and Jacob Miley of Dauphin, were discovered in their lodgings.

Resolutions of Congress were read to them

but they remained adamant. Thereupon a group of Federalist sympathizers broke into their lodgings and dragged them struggling and protesting through the streets to the State House. By this time a large crowd of artisans and working people, definitely hostile to the Westerners, had collected. They followed the kidnapped delegates to the Assembly chamber.

Jeering

and shouting, they packed the rear of the room and jammed the doorways. McCalmont and Miley were propelled into the hall, their clothes torn and their faces twisted with rage.

McCalmont offered to pay a fine for his

absence but the crowd laughed at his gesture, and when he attempted to leave the chamber, the spectators called “Stop him,” and self-appointed guardians of the door turned him back.

Thus, with the needed quorum,

the house designated the first Tuesday in November as election day for delegates to the state ratifying convention. In the following weeks both Federalists and Anti-Federalists unlimbered their heaviest artillery of argument and vituperation.

The enemies of the

Constitution found a valuable ally in Eleazar Oswald, editor of the Independ¬ ent Gazetteer or Chronicle of Freedom. Oswald made his paper a vehicle

for the able attacks on the Constitution that were written under the pseu¬ donym of “The Centinel.” The basic position of both parties had already been foreshadowed in the federal debates themselves.

The bitter controversy that raged in the

papers of the opposing camps added little but heat. The Federalists looked for a suitable occasion to push forward a premier orator who might in one grand effort blunt the weapons of the enemy. Wilson was chosen.

He had already given much time and thought to

preparing such an address which, reviewing the whole conception of the

THE “DARK CONCLAVE”

265

new government, would marshal an irresistible array of arguments in its support.

The occasion was found in a public meeting at the State House

yard on October 6 to nominate delegates for the next General Assembly. Since the most violent attacks on the Constitution had been centered on the absence of a Bill of Rights, Wilson went to some pains to explain that in the Constitution every right not specifically given to the federal government was reserved to the state.

Therefore, to have added a bill

of rights would have been simply to duplicate what the state had already provided for.

There was no provision for trial by jury in civil cases

because procedure differed from state to state and it was impossible to impose uniformity upon all. The maintenance of an army in peacetime, the danger to state govern¬ ments of federal authority, the power of direct taxation—Wilson ex¬ plained each point, speaking with directness and vigor. address he struck sharply at his opponents.

At the end of the

It was not extraordinary, he

told his audience, that the Constitution should meet with opposition.

“It

is the nature of man to pursue his own interests in preference to the public good. . . .” Therefore all those who hold offices that may be made obsolete by the new government will naturally oppose it “because it af¬ fects [their] schemes of wealth and consequence.”

Wilson confessed that

he was not a “blind admirer” of the Constitution, but he said, “regarding it . . . with a candid and disinterested mind, I am bold to assert that it is the best form of government which has ever been offered to the world.” His audience, which had expressed its whole-hearted approval by loud applause during the speech, made the State House walls echo as Wilson finished his oration.

Dr. Rush then addressed the meeting in “an elegant

and pathetic style.”

He would, he declared, urge his fellow citizens with

his dying breath to accept and support the new constitution.1 The General Advertiser reprinted the speech in full and someone, doubtless Wilson himself, sent a copy to Washington.

Writing shortly

afterwards to his friend David Stuart, the General enclosed the paper, which, he said, “contains a speech of Mr. Wilson’s (as able, candid, and honest a Member as any in the Convention) which will place most of Col. Mason’s objections in their true point of light. . . . The re-publications (if you can get it done) will be of service at this juncture.”2 The speech was distributed widely by the Federalists, and a correspond¬ ent in New York wrote to the Gazette that “Mr. Wilson’s speech is read

266

JAMES WILSON

with much approbation here, by one party; the other party see nothing but nonsense and contradictions in it.”3 Indeed the “other party” replied with a torrent of abuse.

Wilson’s

arguments, though “extremely ingenious” were “yet extremely futile,” and a “Democratic Federalist” poured the vials of his scorn on Wilson’s de¬ fense of that “great support of tyrants,” a standing army.4 Another writer attacked Wilson’s speech as a “train of pitiful sophistries and evasions.”

Mr. Wilson was a “man of sense, learning and extensive

information” who unfortunately had never “sought the more solid fame of patriotism.” During the late war he narrowly “escaped the effects of popular rage,” the writer reminded his readers, adding piously that “the people seldom arm themselves against a citizen in vain.” Wilson’s political conduct, he continued, “has always been strongly tainted with the spirit of high aristocracy; he has never been known to join in a truly popular

measure, and his talents have ever been devoted to the patrician interest. . . . Despising what he calls the inferior order of the people, popular liberty and popular assemblies offer to his exalted imagination an idea of meanness and contemptibility, which he hardly seeks to conceal.” Having castigated the Federalist leader in these bitter terms, the writer went on to pull out all stops, weeping over the “offended majesty of the people,” and the “thick veil of secrecy” which had been cast over the proceedings of the Federal Convention by “an aristocratic majority.”5 A Federalist replied with “A Receipt for an Antifederal Essay.”

The

ingredients were "Well-born, nine times—Aristocracy, eighteen times— . . . Liberty of Conscience, once—Negro slavery, once mentioned—Trial by fury,

seven times—Great Men, six times repeated—MR. WILSON, forty times— and lastly, GEORGE MASON’S Right Hand in a Cutting-Box, nineteen times—put them all together, and dish them up at pleasure. These words . . . will bear being served, after being once used, a dozen times to the same table and palate.”6 Wilson’s prominence, his reputation as the opponent of the Constitution of 1776, and his cold, stiff manner all combined to make him the special target of the radicals.

A Federalist friend who signed himself “Plain

Truth” explained Wilson’s “lordly carriage” as the result of an effort to keep his spectacles from falling off his nose, and then made a spirited defense of the Constitution itself.7 Much of the note of hysteria in the attacks of the Anti-Constitutionalists was undoubtedly caused by their desperation at feeling the tide of political

THE “DARK CONCLAVE” sentiment running against them.

267

Their own treasured state constitution

was founded on principles of government quite different from those of the Federal Constitution.

A victory for the Constitution would simply bring

closer the day when the Federalists would overturn the Constitution of

1776

-

Much of their virulence also stemmed from the supercilious manner with which the high political moguls of Philadelphia treated the cham¬ pions of the western counties. A spirit of condescension and contempt, according to one observer, was the typical attitude of the Easterners toward the political upstarts from the frontier.8 And so the bitter outcry went on. suffer.

Wilson was not the only one to

Washington and Franklin received their measure of abuse; Robert

and Gouverneur Morris and Thomas Mifflin were all accused of the black¬ est duplicity.

In the face of such wrath the Federalists shrank from placing

the signers of the Constitution on the ticket of Philadelphia delegates to the state ratifying convention. was put up.

Wilson was the only one of the eight who

With him were ranged George Latimer, a merchant of the

city with a good war record, and Benjamin Rush.

Hilary Baker, an iron

merchant of German ancestry who was popular with that element in the city, and Thomas McKean, chief justice of Pennsylvania, completed the ticket. As it turned out, the Federalists need not have concerned themselves about popular reaction to their champions, for they carried all before them in the Philadelphia City and County elections. virtually without opposition. was in the air.

Their slate was elected

However, a feeling of tension and excitement

Federalist sympathizers roamed the streets, challenging

people suspected of anti-constitutional opinions.

After dark, groups still

prowled restlessly through the city, and by midnight a crowd had gathered at the Anti-Federalist refuge of Major Boyd.

“Here the damned rascals

live who did all the mischief,” called one mobster, and the cry was taken up, echoing through the dark streets and arousing the sleeping men inside. Three of the lodgers in the Boyd household were members of the Supreme Executive Council and the rest were members of the General Assembly. All were from the Western counties, all were popular or “democratic” leaders, and, as champions of the Constitution of 1776, they were bitter enemies to the new Federal Constitution.

Eight years earlier a mob had

attacked Fort Wilson and threatened to hang its defenders; now a similar group of rioters eddied around the castle of Wilson’s opponents, cursing and

268

JAMES WILSON

calling for blood.

The door shook under their buffetings, and stones

smashed the windows.

But the mood of the mob was troublesome rather

than dangerous and they soon dispersed, leaving their angry victims to meditate, no doubt, on the frailty of human nature and to reflect on the way the wind was blowing. When the General Assembly met a few days later, the indignant Westerners made loud protests and a reward of three hundred dollars was offered for information leading to the arrest of the “disorderly and evilminded persons unknown” who had so rudely shattered the democratic slumbers of the Anti-Federalists.

The city administration, predominantly

Federalist, failed to apprehend any of the rioters.9 Everywhere throughout the state the Federalists fared well in the election of delegates to the convention. Only in the irreconcilable western counties of Cumberland, Bedford, Berks, Fayette, Washington, and West¬ moreland did the Anti-Constitutionalists elect their tickets.

In the more

heavily represented eastern counties, the Federalists carried everything be¬ fore them. When the convention assembled in Philadelphia on November 21, the friends of the Constitution outnumbered its enemies by two to one, or forty-six to twenty-three, and the vote on every important issue split exactly by this count. The western delegates, most of whom were ScotchIrish Presbyterians, made a colorful contingent. Raised in the rough-andtumble political school of the frontier, they were determined to defend to the last ditch the relative dominance of the West over the East which they had gained with the Constitution of 1776.

Two of the West’s ablest

leaders, John Smilie and William Findley, were natives of Ireland; Smilie had been a house carpenter and Findley a weaver—both were formidable opponents for the Federalists.

Findley, a large, florid man, somewhat of

a dandy in his dress, addicted to handsome white beaver hats, provided— with his genial, breezy manner—a sharp contrast to the cold elegance of McKean, or to Wilson’s aloofness. Almost without exception the western delegates had been the holders of numerous state offices under the “non-self¬ restraining” Constitution of 1776 and represented in their aggregate as much practical political experience as their Federalist adversaries. Mad Anthony Wayne, the hero of the amphibious operation at Stoney Point, was a staunch Federalist delegate

from

Chester

County,

and

Timothy Pickering, a transplanted New Englander, represented the newly formed county of Luzerne in the turbulent Wyoming Valley.

THE “DARK CONCLAVE”

269

Two transcriptions of the debates were made, one by Thomas Lloyd, secretary of the convention, the other by Alexander James Dallas, a young lawyer of Federalist sympathies.

But the Federalists kept a firm rein on

Lloyd and managed to silence the Pennsylvania Herald which had under¬ taken to print the reports of Dallas.

Thus the speeches of McKean and

Wilson which were published after the convention and the notes of Dallas printed in the Herald up to November 30 are all that survive of the threeweek long debate over ratification.

However, through Wilson’s own de¬

tailed notes it is possible to trace the progress of the debates from day to day.10 After rules of procedure had been adopted by the convention, Judge McKean offered a resolution “to adopt and ratify the Constitution of the Federal Government.” James Wilson, as the only member who had par¬ ticipated in the deliberations of the Federal Convention, then undertook to explicate the principles on which the new government had been formed. He dwelt, initially, on the great responsibility involved in framing a gov¬ ernment which, in the phrases he so cherished, would extend not only to thirteen independent and sovereign states but likewise to “innumerable states yet unformed, and to myriads of citizens who in future ages shall inhabit the vast uncultivated” regions of the continent. The duties of the Federal Convention therefore, were not limited to local or partial considera¬ tions, but to “the formation of a plan commensurate with a great and valu¬ able portion of the globe.” Wilson then gave free rein to his oratorical impulses. He pictured the vast extent of the country, the great rivers and the extended coastline, the varied interests of the different states and their passionate devotion to liberty. The learned Montesquieu himself had considered “democratical” governments suited only to a small territory, and monarchies best for large states. How then was the problem of extending a “democratical” govern¬ ment over an immense continent to be solved? The only possible solution was a federal republic. The Confederacy had failed and the high hopes of dignity and liberty engendered by the Revolution had not been realized. “The rock of freedom which stood firm against the attacks of a foreign foe, has been sapped and undermined by the licentiousness of our own citizens. Private calamity and public anarchy have prevailed.” Wilson continued his analysis of the Constitution with the observation that in all governments, however constituted, there must be one central

270

JAMES WILSON

source of authority. Some politicians, “who have taken a faint and inac¬ curate view of our establishments,” if asked where this final authority re¬ sides would probably answer in our state constitutions. “This, however,” Wilson declares, “is not a just opinion; for in truth [final authority] re¬ mains and flourishes with the people; and under the influence of that truth we, at this moment, sit, deliberate, and speak. . . . That the supreme power, therefore, should be vested in the people, is in my judgment the great panacea of human politics. It is a power paramount to every constitution, inalienable in its nature, and indefinite in its extent. For I insist, if there are errors in government, the people have the right not only to correct and amend them, but likewise totally to change and reject its form. . . .” The benefits of democracy were, according to Wilson, “liberty, caution, industry, fidelity, and an opportunity of bringing forward the talents and abilities of the citizens, without regard to birth or fortune; its disadvantages . . . dissension and imbecility, for the assent of many being required, their exertions will be feeble, and their counsels too soon discovered.” The Federal Convention had labored to preserve the advantages and to “avoid all the inconveniences” of the three historic forms of government —monarchy, aristocracy, and democracy. The new government was in its principles “purely democratical,” and when one took “an extensive and ac¬ curate view of the streams of power that appear through this great and comprehensive plan ... we shall be able to trace them all to one great and noble source, THE PEOPLE.” Wilson’s speech made a deep impression on those delegates who were sympathetic to the Constitution, and the Pennsylvania Packet called it one that Cicero “would not have blushed to own.”11 His grand periods, how¬ ever, were wasted on the radicals. Smilie was immediately on his feet to at¬ tack McKean’s proposal for ratification, and to accuse the Judge of trying to railroad his motion through without giving the new Constitution proper examination. Monday, November 26, the delegates engaged in a bitter struggle over Whitehill’s proposal to consider the Constitution in committee of the whole. This would mean delay and an opportunity for the radicals to rally opinion against the new government. Wilson inquired scornfully of the Westerners if they intended while contemplating “a great and magnificent edifice [to] condescend like a fly, with its microscopic eye, to scrutinize the imperfec¬ tions of a single brick.”

THE “DARK CONCLAVE”

271

Findley replied sharply, “Shall we not, Sir, when we are about to erect a large and expensive fabric . . . examine and compare the materials of which we mean to compose it, fitting and combining the parts with each other, and rejecting every thing that is useless and rotten?” Wilson pointed out that Whitehill’s motion, if passed, would force the delegates to “employ the whole winter in carrying on a paper war ... in spreading clamor and dissension not only among our own citizens, but throughout the United States.” Thus when Whitehill’s motion came to a vote, it was defeated forty-four to twenty-four on strictly party lines, with only two minor defections. Al¬ though this vote foreshadowed unmistakably the downfall of the West¬ erners, they continued to fight like good soldiers in a lost cause. Smilie charged that the Federalists with no faith in the proper judgment of the people were committed to secrecy and deception. There was some truth in this charge, for none of the Federalists were popular leaders of the caliber of their opponents. Such men as Findley and Smilie were masters of the fine political art of creating public opinion favorable to their schemes. This was an area of democracy in which the Federalists had much to learn. They were, indeed, more prone to enlighten political gatherings with ab¬ stract speculations about the nature of government than to make stirring appeals to the populace against tyranny. Wilson answered Smilie by pointing out that there were other and more suitable channels through which the people could be instructed than by the official publication of interminable debates. In Smilie, Wilson had his match and perhaps more in the give and take of floor debate. The Fayette delegate was tenacious as a bulldog and fox sly. Whitehill, who followed him, was equally skillful in delaying and harassing tactics. He charged that the delegates to the Federal Convention in framing a new government had exceeded their authority. Their proceedings were extra-legal.

“Instead of transacting the business which was assigned to

them,” and simply revising the Articles of Confederation, “they have pro¬ duced a work of supererogation, after a mysterious labor of three months.” The power and sovereignty of the states, Whitehill declared, would be slowly but surely destroyed by this monster of a national government, and the civil liberties of the people would be swept away with their state governments. Warming to his subject, Whitehill spoke at great length and with much fervor on the evils of the Constitution, and Wilson, carrying as he did

272

JAMES WILSON

throughout the whole convention the principal burden of debate, replied. The ratifying convention was a trying ordeal for Wilson. In the Federal Convention he had, in most controversies, powerful and effective support, and where he stood alone, he was under no compulsion to defend himself against the massed onslaughts of those who opposed him. In the ratifying convention he had a secure majority behind him who were committed to support of the Constitution. But these were, for the most part, silent part¬ ners content to cast their votes and receive instruction on the principles of government, watching like spectators at a metaphysical tennis match while the opposing players rallied furiously. Although the issue was, to a large degree, predetermined, the combat was in a sense moral and mortal. Wilson was the principal expositor and defender of the Constitution.

If he had

dropped his guard, or had lowered in an unwary moment the bright blade of his rhetoric, he would have been routed by one of the indefatigable Westerners. On Friday, Whitehill opened the debate with a sharp attack on his chief opponent. He had hoped, he confessed, that Wilson with “his superior tal¬ ents and information” might cast a “ray of wisdom to illuminate the dark¬ ness of our doubts, and guide us in the pursuit of political truth and happi¬ ness.” “It is no impeachment,” Whitehill said, elaborating his conceit, “of those abilities which have been eminently distinguished in the abstruse disquisitions of law, that they should fail in the insidious task of supporting, on popular principles, a government which originates in mystery, and must terminate in despotism.” While Wilson and his enemies clashed in the convention, the bitter con¬ troversy was mirrored in the press. The Anti-Federalists had enlisted one biting, facile pen which appointed itself “the Centinel of the people’s liber¬ ties.” From the refuge of Oswald’s Independent Gazetteer or Chronicle of Freedom, the Centinel belabored the Federalists with considerable wit and persuasiveness. His barbs, penetrating the thin skins of his enemies, brought howls of pain and rage. A “horrid scribbler,” a “time-serving tool” whose name “will stink in the very nostrils of posterity,” was the way one angry Federalist characterized him. The old tunes were played until the words and melodies were thread¬ bare. Aristocrats, tyrants, plotters against the liberties of the people were the cries raised by the Anti-Federalists; knaves, demagogues, place-men, an¬ swered their opponents.

THE “DARK CONCLAVE”

273

As the debates continued within the State House, Findley undertook to refute Wilson's statement that true sovereignty lay in the people. Sovereignty was in the states; and he proved himself able to quote political scrip¬ ture with the learned Mr. Wilson by summoning to his support Vattel and Montesquieu. “If I am wrong,” he declared, “Vattel and Montesquieu are wrong.” During the debates the points put forth by Findley and his lieu¬ tenants were noted by Wilson under the name of the delegate who of¬ fered them, as, “Smilie—no bill of rights, executive despotism, Confedera¬ tion better altered.” Each objection was then numbered consecutively and an index prepared of them. Thus on another sheet headed “List of Ob¬ jections,” he wrote, “This government is and was intended to be an aris¬ tocracy. No. 34, 35, 38, 82, 115, 134, 148, 150, 151, 219.” His index here re¬ vealed that this argument had been advanced by different radical speakers as arguments number 34, 35, 38, and so on. Almost every argument was re¬ peated innumerable times, indicating the tactics of the radicals, and there were what must have been for Wilson a comforting number of contradic¬ tions, such as the charge, made twice, that the judges were not sufficiently independent, and another, recurring five times, that their powers were too extensive.12 Tuesday, December 4, was largely occupied with another of Wilson’s lengthy disquisitions on the correct principles of government and the na¬ ture of the Constitution. Wilson considered the people of the United States, he told the delegates, as forming “one great community,” and those of the states “as forming communities again on a lesser scale.” The truth was that both parties were trying to maintain their own ab¬ stractions. The “people of the United States” that Wilson referred to with such eloquence did not indeed exist, unless he and his allies could call the abstraction into being. At the time of the Federal Convention the states were supreme, and before the new union could succeed the broader abstrac¬ tion of “the people of the United States” would have to be accepted in place of the doctrine of state sovereignty. At a moment when lines of force meet to produce a kind of precarious equilibrium, the most creative spirits of the age attempt to precipitate out of the solution of general ideas “in the air” the particular combination that promises a working answer to the gravest contemporary dilemmas. These ideas, dealing with the relation of man to his world, are usually embodied in a series of abstractions and put forth as saving truths. The problem is then to win acceptance for die ab-

274

JAMES WILSON

straction, or theory, because until acceptance is won, the political and social energies of the country cannot flow into the new abstraction and give it life and force. The Federalist politicians had the task of winning acceptance for that new abstraction which they so grandly termed “the people of the United States,” so that it might become a political reality in national life. This most truly creative vein in their political thought was carried on for the Federal¬ ists by Daniel Webster, their spiritual heir, and finally received its con¬ summation in the successful conclusion of the Civil War. Old forms that have had a creative and independent life of their own are seldom transcended without sacrifice and suffering. The only abstrac¬ tions that really take their place in history are those for which people are willing to fight. So it was with “the people of the United States.” Wilson spoke until he could speak no longer and then begged that he might be allowed to continue his remarks in the afternoon after a recess of the convention. When the delegates reconvened, Wilson charged that Findley’s “highly refined critical abilities” had repeatedly discovered traces of “aristocracy” in the new government. The word was actually one of those “magical ex¬ pressions” used by demagogues “to conjure up ideas, that may create un¬ easiness and apprehension.” Wilson challenged his opponents to bring their spectre into the light of day and reveal its form. For section nine of the first article which placed a ban on the importation of slaves after 1808, Wilson reserved one of his most elaborate flights of oratory. In his opinion it would lead to eventual destruction of slavery in America. Some statesmen imagine that “every common idea must be a low one,” but these cynics are wrong. The day will come when the Ameri¬ can people “will turn their views to the great principles of humanity,” and demand that all slaves be freed. When Wilson finished his marathon effort, the delegates with his ex¬ hortations ringing in their ears, voted to adjourn. For the next two days William Findley displayed his stamina and logical resources in reply. On went the endlessly reiterated objections, noted in order by Wilson and carefully numbered. The contention that the smaller states, having a majority in the Senate, might lay taxes on the larger was argument number seventy-five (Wilson had only begun to index the argu¬ ments after the 1st of December), and it was noted with nine similar objections.

THE “DARK CONCLAVE”

275

On Monday, December 10, McKean undertook another detailed de¬ fense of the Constitution. The opposition argued from hyperbole and their contentions, according to the judge, amounted to this, “if the sky falls, we shall catch larks, if the rivers run dry, we shall catch eels.” Their vaunted arguments were mere sound, as meaningless as the “workings of small beer in a rebellious stomach.” As soon as McKean had finished his oration, the gallery, packed with friends of the Constitution, broke into loud applause. Tuesday the nth, the day before the final vote on ratification, Wilson rose to summarize the Federalists’ case for the Constitution. The longdrawn-out contest and the character of the debates themselves, which were often marked by irrationality and personal invective, had not provided the most congenial forum for Wilson. His adversaries argued from an emo¬ tional bias that was hard to meet rationally, and Wilson never showed to particular advantage in the rough and tumble exchange that was the breath of political life to his opponents. As chief of staff of the Federalist forces, he had been constantly engaged, as his elaborately indexed system of notes shows, in mapping strategy and preparing, point by point, laborious rebut¬ tals of the western objections to the Constitution. Reading those objections we can feel their elusive and intangible quality; they slipped away like quicksilver when Wilson tried to place a finger upon them and then re¬ appeared with maddening persistence. There was, indeed, a failure of minds to meet on central issues that gave to the whole convention an air of dream¬ like unreality. The Westerners were contending more for their own cher¬ ished state constitution than against the Federal plan; the Federalists were fighting for the new national government, confident that they would soon be able to reform that of their own state. Wilson’s concluding speech was his most ambitious effort. It was at the same time no less futile than all the arguments, pro and con, advanced by both parties during the convention.

There is no indication that it

changed one vote or modified in the slightest the predetermined outcome. Yet it was a necessary gesture; the forms of debate and free discussion had to be observed to the very end.

In addition Wilson unquestionably viewed

his speech as one destined to carry far beyond the walls of the assembly chamber, to enlighten and instruct thousands of his fellow-countrymen and friends abroad. On the morning of December 12, Wilson began his argument for the Constitution. Had not the time come to conclude the debates, he asked the

276

JAMES WILSON

delegates? The discussions had fallen into a wearisome round of repeti¬ tions; the opponents of the Constitution were bent simply on delay, hoping to win time and rally sentiment against the new plan by misrepresenting the motives of its friends. After Wilson had defended the presidency from the charge that it would be simply the tool of the Senate, and rebutted the arguments that the judges were both too independent and not independent enough, he con¬ fessed himself unable to continue his speech without a period of rest. At the opening of the afternoon session of the ratifying convention, Wilson presented the simile that he had first used in the Federal Con¬ vention—a free government, he told the delegates, was like a pyramid. “It is laid on the broad basis of the people; its powers gradually rise, while they are confined, in proportion as they ascend, until they end in that most permanent of all forms. When you examine all its parts, they will invariably be found to preserve that essential mark of free governments, a chain of connection with the people.” The comparison of government to a pyramid was not original with Wil¬ son. Sir William Temple, friend and counsellor of James II, had written in his “Essay on the Original and Nature of Government,” that “the safety and firmness of any frame of government may best be judged by the rules of architecture, which teach us that the pyramid is of all figures the firmest and least subject to be shaken or overthrown. . . . The ground on which all government stands,” Sir William continued, “is the consent of the people or the greatest or strongest part of them. . . . Now that govern¬ ment which . . . takes in the consent of the greatest number of people and consequently their desires and resolutions to support it may justly be said to have the broadest bottom.”13 Sir James Stewart had appropriated the simile in his Inquiry into the Principles of Political (Economy, and James Wilson had employed it effectively and with fresh implications in the Federal Convention.

The

“pyramid” serves as a foreshortened episode in the history of political ideas; it is a useful symbol of the way in which American Revolutionary states¬ men adapted English or Continental ideas to their own use and, by using them in a new environment and a new social and political situation, gave them new and deeper shades of meaning. The afternoon was well on when Wilson moved toward his conclusion. The present situation of the union under the Confederation was pitiable. The new constitution will restore the country’s lost dignity. “As we shall

THE “DARK CONCLAVE”

277

become a nation,” Wilson declaimed, touching what was fast becoming a favorite subject of native oratory, “I trust that we shall also form a national character; and that this character will be adapted to the principles and genius of our system of government. . . . There are not on any part of the globe finer qualities, for forming a national character, than those pos¬ sessed by the children of America. Activity, perseverance, industry, laud¬ able emulation, docility in acquiring information, firmness in adversity, and patience and magnanimity under the greatest hardships; from these ma¬ terials, what a respectable national character may be raised!” Here Wilson turned loose the flood of oratory which led Francis Hopkinson to report to Jefferson that he combined the talents of a Cicero and a Demosthenes.14 The principle of federalism established in the new govern¬ ment, he told his audience, brought to fruition at last the dream of Henry IV and Sully, “a system of government, for large and respectable do¬ minions, united and bound together in peace, under a superintending head, by which all their differences may be accommodated, without the destruc¬ tion of the human race!” There was one final thought that Wilson wished to leave with the delegates. “By adopting this system,” he told them, “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 enlight¬ ened of other nations.” Not just America will profit from the success of the new government. “It will draw from Europe, many worthy characters, who pant for the enjoyment of freedom. It will induce princes, in order to preserve their subjectjs], 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; the multiplica¬ tion of mankind, their improvement in knowledge, and their advancement in happiness.” So the case for the Constitution was closed by the Federalists’ most skillful orator on a note of eulogy and hope. Wilson reaffirmed the war¬ rant, claimed by all true revolutions, to act in the name of mankind for a better world. The Westerners, however, had no inclination to bow before the in¬ evitable. Wednesday was the day appointed by the majority to bring the issue to a vote. From the opening of the session, the three radical musket¬ eers continued their uncompromising resistance. The confidence and self-

278

JAMES WILSON

assurance of the Federalists could not be long restrained, and Findley broke off in the middle of an attack on the Constitution to berate a spectator who was laughing loudly and scornfully at his arguments. In his chagrin he car¬ ried his case to absurd lengths. The present troubles, he charged, were due to the fact that the Confederation Congress had too much power. It was this excess of authority that had brought on a crisis in government. Bitter¬ ness threatened violence. Findley ended his speech with an ominous warn¬ ing, “if this constitution is adopted I look upon the liberties of America as gone,” he declared, “until they shall be recovered by arms.” The final vote on ratification revealed the familiar division, forty-six delegates for ratification, twenty-three against. Philadelphia, city and county, was solid for ratification, led by Rush, McKean, and Wilson. The Bucks delegation was unanimous in support of the Constitution. In Chester, Gen¬ eral Anthony Wayne led the Federalists; Lancaster, York and Northamp¬ ton registered their yeas. Thomas Scott broke from his Washington County colleagues to vote yes, and so did John Neville. Franklin County’s two-man delegation split, with John Allison in the ranks of the Federalists and Rich¬ ard Bard opposing ratification.

Montgomery, Huntington, and Luzerne

completed the roster of yeas. Robert Whitehill carried Cumberland solidly for the Anti-Constitution¬ alists. Lutz and Lincoln put Berks in the radical column. Westmoreland, of course, under Findley’s leadership, was bitter in its opposition to ratifi¬ cation. John Smilie from Fayette and Nicholas Breading and the threeman delegation from Dauphin made up the radical party. Leaving out the special case of Berks, whose historic warfare with Philadelphia threw it into the western column, and the defections of Scott and Neville from Washington County, a line drawn south from Williams¬ port along the Susquehanna would have divided the yeas and the nays quite neatly. It seemed fitting that the ratification of the new government by one of the most important and populous states should be attended by some cere¬ mony, and Judge McKean proposed to the delegates that they meet in a body at the Court House to proclaim the ratification and participate in a procession celebrating the event. The delegates joined with the president and the vice-president of the state, members of the Assembly, the faculty of the University and the city officials and proceeded to the Court House in a grand procession, led by the constables with their staves and the subsheriffs with their wands. In the

THE “DARK CONCLAVE”

279

Court House yard the ratification was read to “a great gathering of people.” There, amid Federalist cheers, thirteen cannon were fired and the city’s bells added their bronze voices to the celebration. The convention then returned to the State House, where Smilie resisted a final plea to accede to the principle that the majority should govern. There was, however, one defection of the radical ranks. John Harris, dele¬ gate from Cumberland and one of the most prominent politicians in the county, although he refused to sign, stated that he would always consider himself bound by the sense of the majority in any public body. From the State House the convention adjourned to high lunch with the Supreme Executive Council at Epple’s Tavern, where the Federalists spent the rest of the day wrapped in a nimbus of good whiskey and self-satisfaction. True to the Revolutionary regard for symbolic numbers, they downed the in¬ evitable thirteen toasts, each more sonorous than the last, beginning with “the people of the United States,” and proceeding grandiloquently through the members and president of the Federal Convention, the president of the State of Pennsylvania, the venerable Franklin, and thence to Order, Justice and Liberty, to Agriculture, Manufactures and Commerce, concluding with the wish that America might “diffuse over Europe a greater political light than she has borrowed from her,” and a final deep draught to “peace and free governments to all the nations in the world.”15 After his tireless labors in behalf of the Constitution, Wilson was en¬ titled to extra potions, and it would be comforting to think that he aban¬ doned his stiff reserve to stagger home in a pleasant haze, glasses askew and dignity all undone, supported by solicitous friends and aglow with rum and victory. The ratifying convention was, in a real sense, a personal triumph. Wil¬ son, as the helmsman who steered the all-important state of Pennsylvania into the harbor of ratification, played a major role in securing the eventual acceptance of the government he had done so much to frame. Even though the Federalists had a safe majority in the convention, the forms of debate had to be strictly observed as much, or indeed more, for the effect out of doors than in, and the main burden of this lengthy forensic struggle fell on James Wilson’s broad shoulders. Although the radicals had no chance of overthrowing the conservative majority, they might, had Wilson wavered, have won a delay that would have been tantamount to victory, or forced the Federalists to a naked and impatient show of force that would have dam¬ aged their cause everywhere in the months that followed.

28o

JAMES WILSON

If Wilson was the leader of the Pennsylvania Federalists, and if Penn¬ sylvania was a vital state, he deserves as much credit as any politician of his day for the final adoption of the new plan of government. That other hands aided him at every turn cannot be doubted. Although excluded from the convention, Thomas Mifflin, Robert Morris, FitzSimons, and Jared Ingersoll were powers in the political life of the city and of the eastern counties. Unquestionably all concerted to map Federalist strategy. But the radicals themselves had no hesitation in identifying Wilson as their prin¬ cipal antagonist. The Independent Gazetteer referred scathingly to “J. W-n, Esquire, without whose direction nothing was done or said.” Lacking the firm hand of the Scotsman “the business would have been lost.”16 Wilson’s performance in the convention was a fitting epilogue to his part in the Federal debates; he labored mightily in a great cause, his mind, as his friend Rush wrote, “one blaze of light.”17

CHAPTER XIX

The Grand Procession

The

Pennsylvania

ratifying convention concluded its debates on the

14th of December. McKean and Wilson had kept things well in hand. Wilson had lectured to the delegates with special attention to the sullen representatives of Westmoreland, Washington, Cumberland, and Bedford, who, though they never had much of a chance and must have known it, fought a resourceful action, selling their positions dearly. The successful Federalists were exultant. For Wilson it was an especially sweet victory. He had routed his enemies from the West, defeated the champions of loose government, and managed the whole performance with the aid of Rush and McKean, making up for a certain lack of flexibility by sheer force and by his almost irresistible intellectual armament. Unable to stem or turn aside the tides of his erudition and painstaking dialectic, his opponents had turned to vituperation, hailing him as James de Caledonia, ridiculing his Scotch manners and his pedantry. Their papers ripped and tore at him—the Centinel, Argus, the whole muster of Anti-Federalist pens, but to no avail. The conservatives, and Wilson in particular, had in the rati¬ fication of the Constitution a sweet revenge for the bank defeat and the lean years under the Constitution of 1776. The reform of the state constitution was next. The radicals knew it and so did the Federalists. They set about at once to map the campaign of ex¬ tinction that would sweep out the “self-restraining” Constitution of 1776 and replace it with a replica of the Federal document. So the radicals returned to their constituents, sore-tailed and rebellious. Be damned if they’d give allegiance to this organ of repression, designed to enslave a free and independent people. Their authority would certainly

282

JAMES WILSON

be challenged in the name of the Constitution; their offices under the state might disappear and would, in any event, diminish in dignity and im¬ portance. Sentiment in the western counties needed little fanning to bring it to open rebellion. Letters from the western delegates full of rumors of plots against the liberties of the people, the secret cabals, of a ruthless aristocratic majority overriding the western representatives, woke old passions and animosities. The eastern nabobs had ratified the new government, now let them try to cram it down western throats. As the defeated radicals rode back to their counties, the Federalists dashed about organizing demonstrations of public approbation for the work of the ratifying convention. In most of the eastern counties such celebrations took place and were reported with delight in the Federal press. But the further west the Federalists penetrated, the more apathy or open hostility they encountered. In Carlisle a group led by Wilson’s old friends, John Montgomery and Robert Magaw, planned to fire a cannon at the Court House to celebrate the ratification, but when they collected in the town square an angry mob armed with staves and ax handles drove the Constitutionalists to cover. “I assure you,” one of the radicals wrote to the friendly Independent Gazet¬ teer, “it was laughable to see lawyers, doctors, colonels, captains, etc., etc.

. . . run some one way and some another. . . .”x Next day the Federalists, although heavily outnumbered, met again, determined to hold their celebration. Their appearance was the signal for a disorderly procession of their enemies, who marched down Main Street with effigies of McKean and Wilson—James de Caledonia as a placard identified him. The crowd again routed the Federalists and, filling the Square in front of the Court House, hurled the figures of McKean and Wilson into a crackling fire “with an indignation suitable to the opinion they entertained of men who could endeavor to undermine the liberties of their country.”2 The sheriff showed courage by arresting a group of rioters, but the arrested men refused to post bail and when the sheriff carried them off to jail, a drum began to beat, calling the radical forces to arms. A Federalist observer noted that a “few creatures of no character and a number of black¬ guard boys” assembled with the avowed intention of rescuing the prisoners. The embattled Federalists collected arms and prepared to defend themselves

THE GRAND PROCESSION

283

and uphold law and order in the town. For a time the insurgents were faced down. But next day at dawn the alarm bell began to toll and armed militia men from adjacent towns poured into Carlisle, where they marched and maneuvered in a thoroughly belligerent manner. Fortunately for the peace of the town, the council of the cooler-headed officers among them prevailed and the men were kept under control. However, since the arrested rioters refused to give bail, the militia removed them from their prison and paraded them through the town, firing guns and shouting defiance to all Federalists. This demonstration having satisfied their zest for action, the militia then disbanded peaceably and headed for their homes. One of Wilson’s Carlisle friends, writing him about the tumultuous days in the town, expressed his belief that the rioters themselves were less to blame than certain “unprincipled and desperate wretches” who worked to enflame the people’s minds and start a civil war by their “impudent declamatory falsehoods.”3 Such episodes took the edge off the Federalists’ triumph. This rioting and disorder, this posture of rebellion, gave alarming evidence of an irrecon¬ cilable temper on the frontier. And it encouraged the Philadelphia radicals in their own agitation. The Centinel continued his fulminations in the Gazetteer directing his attacks principally at Wilson whom he compared,

to his disadvantage, with Tiberius, Caligula, and Nero. Francis Hopkinson drew some of the radical fire with a spirited defense of “James the archi¬ tect,” who, he declared, had been the principal builder of the “New Roof” of government.4 Wilson, long since inured to the brickbats of his enemies took the lead in organizing the Federalist propaganda machine. Strenuous efforts were made to silence hostile newspapers and to block the distribution of radical literature—the radicals indeed charged that even the mails were tampered with by the Federalists. On January 7, Wilson called a meeting at Epple’s Tavern, and after George Clymer had been elected chairman, he made a fervent appeal for redoubled efforts on behalf of the Constitution.

The

friendly press “must be kept groaning with pieces, paragraphs, anecdotes, and skits of all kinds in favor of the new form of government.” Such ac¬ tivities, Wilson pointed out, would require funds, and at his suggestion, committees were organized on the spot to canvass the Philadelphia wards.5 Hardened as Wilson was in bitter partisan warfare, he must have winced when Centinel nominated him for “Chief Justice of the United

284

JAMES WILSON

States” as a reward for his “unwearied exertions in the cause of despotism.” In this office, the Centinel declared, “he may gratify his superlative arro¬ gance and contempt of mankind, by trampling upon his fellow creatures with impunity, here he may give the finishing stroke to liberty. . . .” The Centinel had guessed Wilson’s dearest ambition and soiled it.6 Order and government were the theme of the Federalist pens; freedom and democracy the anthem of their opponents. Anarchy composed a heavy satire on the radicals.

“Every wise politician,” he wrote, “will join with me

in fomenting rebellions at home and wars abroad; for wars and bloodshed are the great sources of national liberty, glory and happiness. . . . The VIL¬ LAINS who formed the new constitution are tones, \naves, rascals, con¬ spirators, jesuits, lawyers, dastardly ruffians, enemies to intestine broils, Negro slavery, and to paper money.”1 Wilson through his Federalist friends in every state kept in close touch with the progress of ratification. At the end of January he wrote Samuel Wallis that “appearances with regard to the new federal convention are very favourable on every side.

Its friends increase in Virginia.

In Maryland

opposition has ceased almost everywhere. ... It is more than probable that, by this time it is adopted by the convention of Massachusetts.”8 Delaware’s ratification had preceded

Pennsylvania’s by a

few

days.

While the Pennsylvania Federalists waited, the other states began to ratify. New Jersey was close on their heels—December 18, a bare week after the Pennsylvania ratification, and what was better, the vote there was unani¬ mous, indicating that the smaller states knew a bargain when they saw one. The Philadelphia junto made good use of the occasion by issuing a volley of encomiums to the wisdom and statesmanship of their neighbors, all praises double-edged, bearing a sharp rebuke to their own insurgents. Other states followed with reassuring speed.

Georgia on the 2nd of

January, also unanimous; Connecticut a week later, three to one for rati¬ fication. In Connecticut Oliver Ellsworth, Wilson’s colleague on the Com¬ mittee of Detail, had done yeoman work for ratification. The winter dragged on, ice and snow hampering communication and increasing the anxiety of apprehensive Federalists. Massachusetts was a cru¬ cial state, and the fight there was a bitter one. The venerable John Han¬ cock was roused from a sick bed to preside and lend his prestige as a democratic leader to the Constitutional cause. Pennsylvania followed the battle closely, cheered or disheartened ac¬ cording to the tide of battle in the convention and their predilections. Then

THE GRAND PROCESSION

285

word came. Massachusetts had ratified the Federal Constitution by a vote of 174 to 155, a margin of ten votes out of a total of 329. The Federalists scribes snatched up their pens to compose eulogies to the wisdom of their New England cousins.

A rash of political verse ap¬

peared—Odes to Massachusetts and a poem entitled Yankee which com¬ pared the noble behavior of the defeated Massachusetts Anti-Constitution¬ alists to that of their Pennsylvania counterparts.

“Boston disagreed,” the

Mercury observed, “but the opposition, perceiving that the Federalists were carrying the day, gave in with good grace and a feast was held in which all joined,” the celebrants singing together:

John Foster Williams in a ship Joined in the Social band, sir, And made the lasses dance and skip To see him sail on land, Sir. Yankee Doodle, keep it up! Yankee Doodle, dandy, Mind the music and the step, And with the girls be handy. Workers, craftsmen and farmers took their place in the procession.

Now politicans of all kinds Who are not yet decided; May see how Yankees speak their minds, And yet are not divided

Yankee Doodle, etc. . . . Then from the sample let them cease Inflammatory writing, For FREEDOM, HAPPINESS, and PEACE Is better far than fighting. Yankee Doodle, keep it up. . . . If the Federalists at first warned against extravagant and violent lan¬ guage, they soon went to school with their radical adversaries and became their rivals in the art of vituperation. After a “Correspondent” urged the public of Pennsylvania to compare “the generous manly conduct of the minority of Massachusetts with the pitiful low indecency of the hated minority of Pennsylvania,” a Federalist poet apostrophized the Anti-Con¬ stitutionalist party as a wicked old woman whom he addressed in these words:

286

JAMES WILSON Thy cruel heart with rancour has its load, Natural to thee as poison to a toad . . . Old drunken pisspot, sink of filth and sin, Plaister without, rottenness within . . . Repent, or know I’ll double every curse; But no, thou canst not mend, nor ’er be worse.9

Four more states were needed in the ranks of the ratifiers to make up the nine required to establish the new government, but almost three months passed before Maryland voted for ratification.

The Maryland convention,

meeting in March, was stacked with an overwhelming majority of Fed¬ eralists, but Luther Martin and Samuel Chase led the determined resistance of a handful of Anti-Constitutionalists. At the end of April word came of Maryland’s ratification of the Con¬ stitution. Luther Martin had gone down to overwhelming defeat, breathing defiance to the end and then taking his knocks with blasphemous goodhumor. At the Federal Convention he had offered his neck as a surety that Maryland would never agree to the Constitution, but nobody claimed the forfeit. Three more states were needed.

Of the states that had yet to ratify,

Virginia was by far the most important. Wilson had sent a copy of the de¬ bates in the Pennsylvania ratifying convention to Washington via James Madison, and the General wrote to thank him and send him the political news from Virginia.

Indeed it was impossible to predict the outcome of

the fight for ratification in that state. The chief strength of the Federalists lay in the northern part of the state, but Washington ended his letter with the gloomy observation that “there will be greater weight of abilities op¬ posed to [the Constitution] here than in any other State.”10 There were other, more hopeful signs, however.

Word from South

Carolina, preparing to meet in convention, assured the Pennsylvania Fed¬ eralists that under the guidance of the skillful and popular Rutledges and the Revolutionary hero Charles Cotesworth Pinckney, the Constitutionalists would carry the state by a safe margin. This prophecy was vindicated on May 23, when South Carolina fell into line by a vote of better than two to one. Federal optimism grew. On June 10 Wilson wrote to St. Clair, far removed in the Northwest Terri¬ tory from the turmoil of Pennsylvania politics, “We expect to hear of the adoption of the new system by Virginia and New Hampshire. New York is certainly anti-federal; but many think that after a ratification by nine states she will not hazard a vote of rejection.”11

THE GRAND PROCESSION Wilson’s intelligence was excellent.

287

New Hampshire, the crucial ninth

state, ratified on June 25, but by an uncomfortably close margin—fifty-seven to forty-six. Five days later, Virginia, after a nerve-wracking period of un¬ certainty, joined the ranks. Patrick Henry had exhausted all listeners with the effusion of his famed oratory. In his sonorous periods kings and tyrants had marched in fearful procession over the broken bodies of the people. It had taken the logic of Madison, the immense prestige of Washington, the labor of Pendleton, and the popularity of Marshall to counterbalance the eloquence of Virginia’s popular hero.

Then at the end he had won all

hearts with his graceful pledge of loyalty to the new Constitution. The joy of the Federalists was complete. The raucous voices of the west¬ ern radicals sank at last to the muttering of gloomy prophecies. Everywhere that a handful of friends to the new Constitution met, bonfires flared and endless toasts were drunk to the Federal document, to peace and prosperity, to freedom and the rule of reason, to France, to General Washington, to each of the ten ratifying states, to justice, to democracy, to equality, until fumbling hands could no longer raise the glasses. The string of spontaneous demonstrations, a little closer in many in¬ stances to drunken revels than was consistent with the principles of a people’s government—these demonstrations were all very well, but the triumphant Federalists felt that it behooved the first true people’s republic in the history of the world to express itself with a dignity consonant to the greatness of the moment. Hardly a week remained before the day that was suited above all others for the celebration of the ratification. The anniversary of the signing of the Declaration of Independence was already a national holiday observed each year with oratory, parades, and fireworks; the 4th of July of 1788 would be a day unique in the history of Pennsylvania, indeed in the history of man. Independence and the new Constitution would be celebrated together, and the Federalists could hardly have failed to appreciate the value of associating be two in the popular mind—the treasured proclamation of freedom and equality and the new frame of government that had been attacked in some ouarters as a treacherous betrayal of the principles of the Revolution itself. There was much more behind the projected celebration than this, of course. The most pervasive thing was the sense of history. No one, even the simplest, could escape it. No orator ever tired of repeating it. For the first time free men, after considering all the lessons that history taught about the science of government, had met, debated, and drawn up a con-

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stitution which was, as Mr. Wilson said, superior to any instrument on earth or in its ancient annals. Plans were hastily drawn up for a monster parade. Francis Hopkinson was appointed marshal of the Grand Procession.

The whole city was in

a turmoil of activity. Under the blazing, relentless eye of the summer sun, carpenters, wheelwrights, cabinetmakers, ship joiners worked all day and far into the night.

The city caught the fever of excitement.

Rumor ran

from trade to trade; the cabinetmakers, a spy reported, would have a float twenty-one feet long drawn by four horses, on which the masters were to ply their trade as the procession moved through the streets.

The news

spurred the painters to new activity, and roused the tailors and brick-makers to rivalry. The small fry of Philadelphia dashed about the streets half out of their minds with excitement, and rumors fled on their heels.

There would be

a ship, some said, a real ship on wheels with a crew. Impossible, a ship on dry land! Who had ever heard of such a thing? Yet, the artisans of Phila¬ delphia were a wonderfully skillful crew. It could, perhaps, be true. To James Wilson, as some said the principal author of the Constitu¬ tion, would fall the special honor of delivering the oration of the day. As he worked in his library writing, cutting, and revising in the days before the Grand Procession, Wilson must have felt, in his stiff Scots heart, a sense of pleasure and triumph almost suffocating in its intensity. He worked carefully, always acutely conscious of the day’s significance, and the honor that had been bestowed upon him.

He would, in the name

of modesty, protest his talents not equal to the greatness of the occasion. And then evoke for his audience the vision of “a people, free and enlight¬ ened, establishing and ratifying a system of government, which they have previously considered, examined and approved!

. . .The most dignified

(spectacle) that has yet appeared on our globe.” “Numerous and splendid have been the triumphs of conquerors,” he wrote, but “they have generally begun in ambition” and “ended in tyranny.” But here in Philadelphia citizens met to celebrate a unique occasion in his¬ tory, “a whole people exercising its first and greatest power-—performing an act of sovereignty original and unlimited.” The pen moved on in the neat, unemotional script. “The greatest part of governments have been the deformed offspring of Force and Fear.” These were waved aside. But then there have been others with “bold pre¬ tensions to higher regard.” Sparta, Athens, and Rome. Even these govern-

THE GRAND PROCESSION

289

ments, the work of wise and learned men, had been imposed on the people by guile. But now “what a flattering contrast arises” with the event we meet to honor.

“Delegates were appointed to deliberate and propose. They ful¬

filled the delegated trust. The result of their deliberations was laid before the people. It was discussed ... in the freest, fullest and severest manner— by speaking, by writing and by printing—by individuals and by public bodies—by its friends and by its enemies.” He would enumerate the sources of the wealth of nations. Agriculture was first and rested upon industry. Greece and Rome offered ideal examples from history. “Only in Liberty will a nation flourish . . . the industrious village, the busy city, the crowded port—these are the gift of Liberty; and without good government Liberty cannot exist.” Industry was the heart of freedom, the soul of government. He would place great stress on the sister virtues of industry, frugality, and temperance. And then it would not be amiss to remind the audience of the respon¬ sibility of the vote. Many were careless and indifferent, many sold their votes for a pot of sour ale or a glass of rum. He must caution them to guard their sacred right dearly and exercise it with wisdom. “Let no one say that he is but a single citizen,” he wrote, “and that his ticket is but one in the box. That ticket may turn the election. In the battle each soldier should consider the public safety as depending on his single arm. At elec¬ tion each citizen should consider the public happiness as depending on his single vote.” And progress and improvement, they must be stressed, too. There was no standing still, one must press ever forward. Then he would add a word about the procession itself. “The bow that is always bent looses its elasticity,” he wrote. “Rest and relaxation are neces¬ sary to our compound nature.” He crossed the paragraph out. The parade was its own justification. Let it go at that. He began to fashion an appropriate ending. When he had finished it, it was in the best and most florid oratorical style. Sentimental, overornate, allegorical—ideally suited for the occasion. Placid HUSBANDRY [he wrote, underlining frequently for emphasis] walks in front, attended by the venerable plough-lowing herds adorn our vallies; bleating flocks spread over our hills; verdant meadows, enamelled pastures, yellow harvests, bending orchards.... PLENTY, with her copious horn, sits easy-smiling and in conscious complacency enjoys and presides over the scenes. COMMERCE next advances in all her splendid and embellished

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JAMES WILSON

forms. . . . The ARTS decked with elegance, yet with simplicity, appear in beautiful variety and well-adjusted arrangement-With heartfelt con¬ tentment INDUSTRY beholds his honest labours, flourishing and secure. PEACE walks serene and unalarmed over all the unmolested regions— while LIBERTY, VIRTUE, and RELIGION go hand in hand harmoni¬ ously protecting, enlivening, and exalting all! HAPPY COUNTRY, MAY THY HAPPINESS BE PERPETUAL! He was pleased with the result, for he was not overly critical of his own work. It was not too long, nor too erudite; it was improving and em¬ bellished with many gracious flourishes.12 The shell of night was cracked by the bells of Christ Church, greeting the dawn and jarring the sleepy city of Philadelphia wide awake. Then as though the excited bells were not enough to shatter the slumbers of those who lay in the Old Burying Ground, the ship Rising Sun, gorgeously decorated with the flags of friendly nations, spoke through the clamor with a salute of cannon. Many had feared the heat, but the day broke cool and overcast with a brisk south wind that set the flags and banners on the ships anchored in the river to dancing gaily. Old men with rheumatic bones, consulted on the weather, promised no rain. The day was ideal for the Grand Procession. Ten vessels, in honor of the ten states that had ratified the Constitution and now composed the new union, were arranged the whole length of the harbor, each ship flying at her masthead a white flag with the name of a ratifying state in bold gold letters. The vessel honoring Massachusetts was anchored opposite Vine Street, that of Connecticut by Race, and Pennsyl¬ vania’s, of course, off Market Street in the berth of honor where any of the multitude that thronged the crowded artery could look up and see the flag with the proud, bright letters. By eight o’clock when the parade began to assemble at South and Third, the city had been stirring for hours. Many indeed had been up the whole night, putting the final touches on the floats that were to be such an impor¬ tant part of the procession. Nine of the city’s first citizens were superintendents of the parade. They wore white plumes in their hats and bustled about officiously assigning units their proper places in the line of march and adjusting innumerable minor mishaps. General Mifflin was conspicous, tall and erect, with his straight dark brows and white wig, moving along the line as it formed and exchanging pleasantries with the tradesmen and artisans.

THE GRAND PROCESSION

291

To avoid confusion the companies of soldiers, trades, and professions had formed early and marched to take their places in line.

All went

smoothly and by nine-thirty the procession had begun to move down Third Street toward Callowhill. In the lead were prominent citizens of the city with a large placard identifying them as “The Declaration of Independ¬ ence." Next came Thomas FitzSimons on Rochambeau’s old horse with three fleurs-de-lis and thirteen stars representing the French Alliance of 1778, and behind him George Clymer, carrying a staff adorned with olive and laurel personifying “The Definitive Treaty of Peace.” Next in the line of march came Chief Justice McKean. Handsome and massive, his large nose and white hair giving him the air, as some remarked, of a Roman senator, the Judge was mounted in a “lofty ornamented car” in the form of a large eagle, drawn by six horses. His hand rested on a staff crowned with the cap of liberty and bearing at its top the Constitu¬ tion framed. Below on the pole’s shaft were emblazoned in golden letters the words, “THE PEOPLE.” The whole together represented the Con¬ stitution. The carriage carrying the huge replica of the national bird was twenty feet long, the rear wheels eight feet in diameter, the front six and a half. The eagle-shaped body, mounted on springs, was a symbolic thirteen feet high and thirteen feet long. On the bird’s breast was a shield with thirteen silver stars on a sky-blue field and thirteen alternate stripes of white and red.

As the procession passed over the rough cobbled streets, the

Judge and the eagle bobbed back and forth with unassailable dignity. Behind the Constitution came ten gentlemen representing the ten states that had ratified the Constitution. Each bore a flag with the name of his state in gold letters, and their arms were linked to symbolize the unity of the new nation. For ten gentlemen, of varying sizes, many of them inclined to corpulence, to march with arms linked, carrying at the same time large flags that snapped in the sharp breeze, proved something of a problem, but the ten states struggled along, the flags swaying and dipping precariously, the linked arms growing cramped and sore. Jared Ingersoll represented Connecticut, Samuel Stockton, New Jersey, John Eager Howard, the Balti¬ more patrician, Maryland, and James Wilson, Pennsylvania. The Wilson children, crowded on the steps of the house under the watch¬ ing eye of Mary, saw their father marching stiff and straight and very red as the procession moved down Market Street to Union Hill. Next in line came Colonel William Williams on horseback and in armor,

292

JAMES WILSON

bearing on his right arm a shield emblazoned with the arms of the newly united states. Behind the Colonel came a handsomely decorated cart carrying the con¬ suls and representatives of friendly nations, each holding his nation’s flag —some amused, some disdainful, all perhaps impressed at this strange democratic procession—France, Sweden, Prussia, the United Netherlands and Morocco. One excellence surpassed another. The New Roof of the Grand Federal Edifice was erected on a carriage drawn by ten white horses. Supporting the New Roof were thirteen Corinthian columns, of which three were un¬ finished. Above the dome the figure of Plenty bore her inexhaustible cornu¬ copia. The whole rose to the dizzy height of thirty-six feet and around the pedestal were inscribed these words, “In Union the Fabric stands firm.” As the builders of the Grand Edifice, the carpenters followed it as it lurched slowly along; then the painters, numbering together a solid phalanx of four hundred and fifty odd, dressed in clean working clothes, carrying their tools. The saw-makers and file-cutters were next, and behind came the Agricultural Society, the Order of the Cincinnati, veterans of the Revo¬ lution, and farmers with hoes and shovels and forks on their shoulders. The Society for the Encouragement of Manufacturers had gone to special pains to dramatize its plea for native industry.

Following the

farmers came a series of large carts on which were revealed to the fascinated eyes of the spectators the mysteries of spinning and weaving by machine. A carding machine in the leading cart was worked by two persons who turned raw cotton into thread with bewildering speed. Another cart car¬ ried a spinning machine of eighty spindles worked by a woman; then a lace loom, and finally Mr. and Mrs. Hewson, the proprietors of the local in¬ dustry, with their pretty daughters, designing and printing gay patterns on chintz and calico and attired in becoming dresses of their own manufac¬ ture. On a tall staff at the rear of the Hewsons’ wagon Hew a flag with the words, “May the Union Government protect the Manufacturers of America.” Behind this manufactory on wheels came a Corps of Light Infantry, marching smartly, all in step, except for a few of the newer recruits. The Marine Society was next, eighty-nine members carrying spy glasses, sextants, charts and all the apparatus of the sea. And then, for the juveniles of the city, the most exciting sight of all— a ship, the Federal ship Union, thirty-three feet long with a crew of twentyfive. Twenty small cannons were mounted at the gun ports and the ship

THE GRAND PROCESSION

293

was as perfect in all its details as the ship carpenters and fitters of Phila¬ delphia had been able to make her. And most wonderful of all, she had been built from stem to stern in eight days. Ten horses drew the land-going ship; and the sails were carefully trimmed according to the line of march. Nautical commands were given, anchor was cast and taken in and all the protocol of sea-going vessels ob¬ served. Around the water line was tacked a broad sheet of canvas painted to represent the sea, hanging in such fashion that it concealed the wheels and body of its carriage, “so that nothing incongruous appeared to offend the eye.” Following the ship Union came the pilots, ship carpenters, joiners, sailmakers, and all those who plied any of the naval trades. Then the trades and professions, the cordwainers, coach-painters, brickmakers, porters, all in their frocks with tools in hand. The cabinet-makers had a large horse-drawn platform on which a master and his journeymen practiced their trade. The journeymen apprentices following six abreast in their leather aprons with buck tails in their hats made a handsome sight. No less the painters with gilded brushes, golden hammers and glazing knives, in immaculate frocks. The bricklayers with their aprons on and trowels in their hands carried a magnificent flag showing a federal city rising out of a forest with the rays of the rising sun illuminating it and beneath the motto, “Both Buildings and Rulers are the Works of our Hands.” So the procession went—wheelwrights, candle-makers—the victuallers, in white gowns, with their motto, “The death of Anarchy and Confusion shall feed the poor and Hungry”—bookbinders, printers, saddlers, distillers, coppersmiths, tanners, engravers, watch-makers, brush-makers. It seemed as if the great procession would never pass. Strangest of all was the fact that the Grand Procession moved in silence through the streets. The “foot-ways,” the windows, the roof-tops and even the fences were crowded with spectators. Temporary scaffolds had been erected at vantage points and these too were precariously crowded.

But

aside from the excited cries of small children at the sight of a father or brother, or some spectacle of special splendor, the procession moved almost in silence, so that the principal sound was the scraping noise of rough shoes on stone, the clatter of the iron-shod wheels of the carriages and the music of bands scattered throughout the procession. “Rational joy” was the emo-

294

JAMES WILSON

tion that moved these republican hearts, and the emotion was more intense for being silent, as though it thus partook of a religious solemnity. As the marchers moved along there were frequent halts. The front of the column moved at first too fast, and then as it suddenly slowed, the rear ran accordion-like against it. Some of the carriages broke down, requiring blacksmith and wheelwright to step into their proper character and repair them hastily before the marchers could move again. On these occasions pretty girls and agile little boys ran out with cooling drinks for the hot marchers. By twelve-thirty the procession had threaded its way over its three-mile course, and the head of the column began to distribute itself on the broad lawns of Bush-hill, the handsome estate of William Hamilton, lent for the occasion, and renamed for it “Union Green.” Tables covered with canvas awnings and “plentifully spread with a cold collation,” formed a huge semi¬ circle, and into the center of this the Federal Edifice was drawn and the ship Union moored with anchor cast and sails furled. The flags of the consuls and the standards of the states were planted around the Edifice. The long line of paraders, quiet, good-natured and hot, slowly filed on the lawn, pressing about the Edifice and the ship Union. The parade marshal estimated that seventeen thousand marchers and spectators crowded the Bush-hill estate when James Wilson mounted the Federal Edifice and, standing before the white columns, began his oration. Tall and stiff, his near-sighted eyes large behind his thick glasses, he began to address the sea of red, upturned faces before him. At this moment, through some unhappy misunderstanding, the guns of the harbor ships began to fire their salutes.

The orator’s words were

drowned in the crash of cannon fire. His face flushed, James Wilson talked doggedly on, and between volleys snatches of his speech reached the vast audience. When he reached his closing paragraphs, the volleys died away and his words at last rolled clear and unhampered over the crowd. While the final sentence still rang in the air, thrilling every susceptible heart, the Light Infantry Companies on a nearby rise fired three volleys, followed by three cheers and tumultuous applause. Then the hot, hungry company descended upon the “cold collation” to eat and to quench their thirst with American porter, American beer and American cider. In these patriotic potions, toasts, announced by trumpet and answered by a discharge from the artillery, were drunk, starting with

THE GRAND PROCESSION

295

one to “the People of the United States” and ending thirteen rounds later with a toast to “the Whole Family of Mankind.” That night the Rising Sun was illuminated as it rode in the harbor, and Nature completed her cooperation by festooning the evening sky with what must have seemed to proud patriot hearts the most beautiful Aurora Borealis of all—a happy omen for the new republic.

CHAPTER XX

“A Scotchman and a Scholar”1

In

the months

that followed the glorious celebration of the 4th of July,

there was much to be done. If the new government were to function effec¬ tively, men sympathetic to its principles must be elected to the houses of Congress, and this was the next preoccupation of the Federalists. The West¬ erners, though defeated for the moment, were by no means subdued. If they could elect a senator and perhaps a majority of the representatives they could impede the establishment of the new government on sound Federalist principles. There was also the matter of choosing the best candidate for the office of President of the United States. On this point the Federalists were virtually unanimous in agreeing on George Washington. Victorious on all fronts, the Federalists had no intention of letting their success turn them for a second from what was in many ways their primary objective—the reorganization of the radical Pennsylvania Constitution of 1776. As a preliminary, plans were laid to restore the College of Phila¬ delphia to its former rights. This action was undoubtedly close to Wilson’s heart. He had remained in touch with Dr. Smith, and now, prompting from the wings, he helped force the University of Pennsylvania to disgorge the College that it had swallowed so precipitously during the Revolution. The act of 1779 was stigmatized as “repugnant to justice, a violation of the Constitution of this Commonwealth, and dangerous in its precedents to all incorporated bodies.” The Reverend William Smith left his Elba to return in triumph to the college that he had helped to found.2 Simultaneously the Federalists secured what they had long desired— the incorporation of the city of Philadelphia, and the organization of a municipal government with trusted conservatives at the helm.

Samuel

“A SCOTCHMAN AND A SCHOLAR”

297

Powel, tarred with the brush of Toryism, was made mayor, and Benjamin Chew likewise emerged from political limbo to take his place as a member of the mayor’s council. The Thermidorean reaction was almost complete. To replace the Constitution of 1776 with a more rational instrument of government was the next order of business. Wilson’s principal energies went into maturing plans for the revision of the Constitution of 1776. Meeting at Benjamin Rush’s house in early spring, a Federalist junto of Wilson, Wynkoop, FitzSimons, and Rush himself, with Maclay as a somewhat skeptical observer, had fashioned, as they may have imagined, the last nail for the coffin of their radical oppo¬ nents. A circular letter was framed, in all probability by Wilson, and signed by William Bingham, Wilson, Rush, Major Sam Hodgdon, William Nicholls, and George Latimer, urging all friends of good government to join in a movement for the reform of the existing state constitution.3 On the night of March 19, 1789, about thirty Federalists met at the City Tavern and laid out the rough outlines of their campaign. Next day in the Assembly William Wynkoop called on the house to approve a con¬ stitutional convention. The Assembly agreed to the motion by a vote of forty-one to seventeen, and the Federalists immediately had handbills printed containing their resolutions which called for a new state gov¬ ernment.4 With the machinery thus set in motion a paper war revived in the journals of the right and left over an issue that had long since exhausted all springs of originality—the aristocratic plots of the Federalists—but by fall a spirit of reconciliation between the two parties was evident. Wilson and his supporters had encountered stiff opposition to their plans for re¬ forming the constitution, and they approached the critical September ses¬ sion of the Assembly in a temporizing mood.5 The radicals for their part had been disconcerted by the remarkable way in which the country had taken the new government to its heart in a few short months. They strug¬ gled against the proposed constitutional convention, but they were heavily outnumbered and their fight lacked the guile and determination that had been so evident on other occasions. When the Assembly met for its fall term the Federalists lost no time in pushing through their plan for a convention to meet in Philadelphia in November. By a vote of thirty-nine to seventeen the way was finally cleared for the destruction of the “self-restraining” Constitution of 1776.6

298

JAMES WILSON

Western opposition to the call for a constitutional convention gave the Federalists a few uneasy moments, but after Gallatin’s abortive attempt to prevent the western counties from sending delegates, resistance sput¬ tered out.

Even Gallatin finally succumbed and allowed himself to be

elected as a delegate, packing off to Philadelphia to add his sharp mind and quick wit to the deliberations.7 As the returns in the elections of delegates to the constitutional con¬ vention trickled in throughout October and early November, the hopes of the Federalists were confirmed. The radical files were thinned again, but the surviving veterans closed ranks and wasted no tears over their casualties. The Independent Gazetteer showed little understanding of the spirit that, to a degree, animated both parties when it branded the convention as a plot engineered by the “turpitude and unprincipled ambition of the ruling Junto ... to subvert that invaluable palladium of republicanism, the Con¬ stitution of this Commonwealth.” The aristocrats wished to “eradicate the constitution’s noble simplicity and genuine republicanism so obnoxious to unprincipled ambition.”

It was undoubtedly Wilson whom the writer

attacked as one possessing “the bewildering eloquence of the bar” and “deeply versed in all the intrigues of ambition . . . whose aspiring and grasping spirit has received a peculiar edge from his pecuniary embar¬ rassments.”8 The delegates who met at the end of November to consider the revision of the state constitution were an accomplished group.

Gallatin in later

years recalled the convention as “one of the ablest bodies of which I was acquainted.” Excepting the names of Madison and Marshall, Gallatin was of the opinion that “it embraced as much talent and knowledge as any Congress from 1795 to 1812, beyond which my personal knowledge does not extend.”

The distinguishing feature of the convention, however, to the

radical young Westerner, was that “it was less affected by party feeling than any other public body that I have known.... There was less prejudice and more sincerity in the discussions than usual and throughout a desire to con¬ ciliate opposite opinions by mutual concessions.”9 It spoke well for the level of political life in Pennsylvania where James Wilson led the party in power, that it could so well stand comparison with the national legislature over a period of seventeen years. The spirit of conciliation was fostered by the slim margin of power held by the Federalists. The national scene moreover encouraged a spirit of toleration and a resolution of old differences.

The Federal Constitution

“A SCOTCHMAN AND A SCHOLAR” was already an extraordinarily popular success.

299

Congress had promptly

passed a bill of rights that did much to put Anti-Federalist fears to rest. Washington inspired confidence. There was a kind of political calm all over the country, with old alliances unsettled and new ones as yet unformed. Parties were still to be precipitated out of the shifting categories of Fed¬ eralist and Republican. The aims of the “outs” or Anti-Federalists varied from state to state and the mass of the people everywhere found favorable auguries for the new government in the economic feast which followed years of famine, and for which the Federalists were quick to claim credit. It was in this atmosphere, local and national, that the Pennsylvania Con¬ stitutional Convention of 1790 met. William Findley reported in later years that he had taken Wilson aside to point out to him a few plain truths about homo politicanus lest his intractability upset the apple cart. He reminded his old adversary, whom he acknowledged as the “most able politician in the state,” that “declamatory attacks on the Constitution [of 1776]

(In

which however he had taken no part) would irritate the Spirit of party and make things worse instead of better.” Findley then protested to Wilson that he had never really approved of the Constitution, but had simply gone along with it for expediency’s sake. He enumerated the changes he was willing to see made, and he warned Wilson that many of the delegates had a senti¬ mental attachment to the existing constitution because it had carried them through the war. “These,” he cautioned, “were not to be irritated but in¬ structed.”

Wilson expressed agreement, and asked Findley to suggest a

method of procedure. “I told him,” Findley wrote later, “that I thought certain resolutions of amendment to the constitution ought to be laid on the table as subject of discussion, but that in debate the present constitution ought to be treated with a delicacy approaching to reverence.” To expect Wilson suddenly to show reverence for the Constitution of 1776 which he had so long and bitterly attacked was asking a good deal, but Wilson agreed and assured Findley that if the Westerner brought for¬ ward the resolutions, Wilson would support them.

But Findley, having

heard it rumored that Wilson had a proposed draft of the constitution in his pocket, deferred to him, and chose as his own role that of supporter of the motions. Leaving the Federalists the job of initiating the resolutions, he pointed out, would “go further to reconcile the parties.”10 Old friends and old enemies filled the graceful chamber on the second floor of the State House above the Declaration Room, where the Penn-

3oo

JAMES WILSON

sylvania Assembly dragged out its dreary term quite eclipsed by the array of political talent above its head. The atmosphere in the convention itself was like that of a gentlemen’s debating society. William Lewis, Edward Hand, William Irvine, Thomas Smith, McKean, Mifflin, and Pickering were prominent among the Lederalist forces. The air was pervaded by the special, warming sense of benevolence and good will that attends the bury¬ ing of old enmities. The radicals doubtless felt their spirit to be purer in defeat, while for the Lederalists there was the pleasant feeling of mag¬ nanimity toward a vanquished foe. The convention promptly resolved it¬ self into a committee of the whole in order that debate might be freer and more informal. One of the convention’s first steps was to elect a committee to “report a draught of a proposed constitution” based on the Assembly’s recommenda¬ tions.

To this committee Wilson, Lindley, Alexander Addison, James

Ross, William Irvine, William Lewis, Edward Hand, and Thomas Smith were appointed.

The committee, predominately conservative, was thor¬

oughly responsive to Wilson’s theories of government. If the atmosphere of the convention was congenial, it was also dis¬ cursive, and the delegates relaxed and enjoyed the debates.

As in the

ratifying convention, the end was foreshadowed in the beginning, but since the Westerners had reconciled themselves to the outcome, the delegates could take pleasure in brilliant displays of political exegesis offered by some of the ablest orators of the day. In addition, it was possible, as it had not been in the ratifying convention, to achieve a genuine meeting of minds, so that opinions were changed and prejudices modified in the course of debate. This is not to say that real issues were not faced and important choices made. There were numerous clashes, but they seldom followed strict party or sectional lines. The members of Wilson’s committee to report an outline of the consti¬ tution clashed sharply in fact on the procedure to be followed in electing representatives to the second house, or senate, of the state legislature. The conservatives, led by William Lewis, reported out a system of indirect elec¬ tion of the senators. Electors were to be chosen and these in turn would select proper figures to occupy the upper house. Having opposed the plan in committee, Wilson took it to the convention floor. The conservatives wished the senate to act as a check upon the more numerous and democratic house. “Through the alembic of electors,” they argued, the senate would be “purged of the impurities of an immediate election by the people.” Thus

“A SCOTCHMAN AND A SCHOLAR”

301

the desideratum would be obtained:—that being chosen by a selected few, it was presumable [the senate] would be more wise, more respectable, and more composed of men of wealth than if chosen by the multitude.”11 To this argument Wilson replied with one of his most sustained flights of eloquence.12 The responsibility of choosing legislators resided directly in the people. “I consider,” Wilson declared, “the Trust, which I place in those for whom I vote to be the Legislators as the greatest that one man can, in the Course of the Business of Life, repose in another. . . . Sir, I will con¬ sider well—I will ponder long—before I consent that Legislators be intro¬ duced in a shape so very questionable. ... I am called upon to transfer a Right—the Right of immediate Representation in the Legislature—a Right which I have hitherto retained unalienated.” Such a right is not to be treated lightly. The creators of governments in the states of America have an immense responsibility.

Few opportunities have been given to the

human mind to advance in the field of political science “by easy and un¬ restrained Investigation. Still fewer . . . have been offered of verifying and correcting Investigation by Experiment.” The discovery of one path leads to others which must in turn be explored. But “if the Discoveries in Govern¬ ment are difficult and slow; how much more arduous must it be to attain, in Practice the Advantages of those Discoveries, after they have been made! . . . Let us ransack the Records of History. . . . How few fair Instances shall we be able to find in which a Government has been formed whose End has been the Happiness of those for whom it was designed? ... In order to impart the true republican Lustre to Freemen, I know no means more efficacious, than to unite and admit them to the Right of Suffrage, and to enhance, as much as possible, the Value of that Right.” Yet Wilson was not blind to the abuse of the right he held in such high regard. “I well know,” he told his fellow delegates, “how shamefully this Right, all important as it is, has been neglected—I well know how often we have seen the Election Ground, thinly frequented, or almost deserted, bear mournful Testimony to the Indolence or to the Indifference of the Electors.” This disregard for “the noblest Right of Men”—the right of suf¬ frage—has not been due to “Defect or Degeneracy” in our citizens, but rather to “the narrow Point of View in which the Right of Election before the Revolution, was considered and by the few Objects to which the Exer¬ cise of it was directed.” From this prologue, Wilson proceeded to examine the right of suffrage in greater detail. “What is this right?” he asked. “Is it to go to an obscure

302

JAMES WILSON

Tavern in an obscure Corner of an obscure District, and to vote, amid the Fumes of spirituous Liquors for a Justice of the Peace? There, indeed, no Lesson would be learned but that of low Vice; no Example would probably be shown but that of illiberal Cunning.” No, the right of suffrage was something far nobler. “When a Citizen elects to Office—give me leave to repeat it—he per¬ forms an Act of the first political Consequence.” Wilson was confident that “the Right of Suffrage, properly understood, properly valued, properly cultivated and properly exercised, is a rich Mine of Intelligence and Pa¬ triotism—that it is an abundant Source of the most rational, the most im¬ proving, the most endearing Connexion among the Citizens, and . . . be¬ tween . . . the Citizens and those whom they select for the different Offices and Departments of Government.” The conservatives had advanced the theory that a college of electors would be more impartial, and Wilson challenged this doctrine in clear and vigorous terms. “Will the Choice of the People be less disinterested than the Choice of the Electors?” he asked. “Interest will probably be consulted in both Choices. But, in the first, the interests of the Individuals, added to¬ gether, will form precisely the aggregate Interest of the whole; whereas, in the last, the interests of the Electors added together will form but a small Part of the Interests of the whole and that small Part may be alto¬ gether unattached, nay, it may be altogether repugnant, to the Remainder.” The “cold Breath of the Electors” must not be suffered to blow between the people and their representatives.

“To render Government efficient,”

Wilson declared, “Power must be given liberally: to render it free as well as efficient, those Powers must be drawn from the People as directly and immediately as possible.” Although to William Bradford, Wilson’s sentiments had sounded “in¬ genious solid and sublime,”13 the conservatives, led by McKean and Mifflin, with able support from that unshakeable enemy of democracy, Timothy Pickering, argued that his proposals would do away with “every purpose of a divided legislature—since the persons composing the two houses, would be precisely of the same character, and too homogeneous to operate as cor¬ rectives of each other; and that unless the elector-system should be adopted the convention had been called in vain.” Wilson replied that the two bodies would be sufficient checks upon each other through “the circumstances of their different spheres of election; of their sitting in different chambers, which would produce, he contended, an

“A SCOTCHMAN AND A SCHOLAR”

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esprit de corps in each; and their being chosen for different periods, the Representatives for one year, the Senators for four years.”14 Alexander Graydon, a member of the convention and an ally of Wilson, reported that “the debate seemed to turn upon the idea that this was a contest between the principles of democracy and aristocracy.” The contend¬ ing parties felt “that great advantages would be gained to either that might prevail.”

Thus tempers suddenly flared and hot words were exchanged.

Wilson “hitherto deemed an aristocrat, a monarchist and a despot, as all the federalists were, found his adherents on this occasion, with a few excep¬ tions, on the democratic or anti-federal side of the house.” Graydon, abandoning the conservative position to follow Wilson’s lead, “was considered by [the Federalists] as an apostate . . . , as a deserter of the federal standard.” Meeting his Federalist friends at taverns about the city, he found himself “treated by them with much unpleasant coldness and neglect,”10 and Wilson and his old friend, William Lewis, exchanged bitter, abusive words on the floor of the convention.16 The debate over the election of state senators occupied three days. Fi¬ nally the democratic leaders made an effort to bring the issue to a vote. The result was an overwhelming victory, thirty-one to thirteen, for the prin¬ ciple of popular election. The conservatives found their main strength in the eastern counties, but the vote was not split on regional lines, and six of the thirteen dissenting votes came from the western counties. Following Wil¬ son’s lead, Hilary Baker, George Gray, Adam Hubley from Lancaster, and Abraham Stout from Bucks added their votes to those of Whitehill, Abra¬ ham Lincoln, Smilie, Gallatin, and, of course, Findley. With this issue decided the debates resumed their leisurely course and the constitution drafted by Wilson’s committee was adopted with few im¬ portant modifications. Alexander Graydon recalled in later years that Wilson was “truly great” in the convention and “enthusiastically democratic.”

It was Graydon’s

analysis that the “symptoms of returning reason, evinced in the adoption of the Federal Constitution, had probably put [Wilson] in good humour with the people,” and made him more than ever in love with free and in¬ dependent man. He drew, to be sure, Graydon confessed, “a picture of a free citizen in the act of disposing of his suffrage, little answerable to the sad realities which are found upon an election ground. . . . Nevertheless, it was a pretty fiction; and I will not deny, that I [listened] to it, with, perhaps, somewhat more than a demi-conviction.”17

3o4

JAMES WILSON

When completed, the new frame of government provided, among other things, for a bicameral legislature, a single executive, tenure of judges dur¬ ing good behavior, and a limited executive veto. On February 26 the con¬ vention ordered the constitution to be printed for distribution to the citi¬ zens of Pennsylvania and adjourned to meet again on August 9. Beside the “new roof” of the federal government stood the “new roof” of the Commonwealth of Pennsylvania, waiting only the formality of dedication. The labor of fourteen years had gone into its planning and construction, and though there were many builders, the chief architect was Jimmy de Caledonia, the Scotsman. Wilson had done as much as any man in the country to give shape to the new national government. He had led the fight for its acceptance in the important state of Pennsylvania, and he had played a leading role in pro¬ moting the concept of an independent federal judiciary. As chief justice of the Supreme Court, he reasoned, he could assure for the judicial branch the vital role that he had visualized for it in the federal debates. A week before General Washington’s inauguration, Wilson took up his pen to press with the new president a matter close to his heart. He frankly confessed that it was his ambition to be the first chief justice of the Supreme Court. He had summoned up courage to write thus openly on such a delicate mat¬ ter because he felt that the new government should be spared the indig¬ nity of appointing to important posts men who would receive the honor with “affected indifference or contempt.” Wilson assured Washington that he need have no concern in his case. If the offer were made to him, he stood ready to accept and thus relieve the President of any possible em¬ barrassment. The letter outrages a modern sense of propriety, but Wilson wrote at a time when no precedents existed in the matter of appointment to high office. Thomas McKean, Wilson’s fellow Federalist and chief justice of the Pennsylvania Supreme Court, also applied for an appointment to the national judiciary. Indeed Washington was flooded with applications from eminent Americans who wished posts for themselves or their friends.18 Washington’s prompt reply was in the nature of a rebuke to Wilson for his importunity. “To you, my dear Sir, and others who know me, I presume it will be unnecessary for me to say that I have entered upon my office without the constraint of a single engagement.” This policy Washington meant to adhere to, acting “in a manner which is befitting an impartial and disinterested Magistrate.”19

“A SCOTCHMAN AND A SCHOLAR”

305

Having received cold comfort, Wilson could only wait impatiently for Washington’s decision. He must have asked himself many times if the tone of the letter implied that his cause was hopeless. Or were its chilly phrases more a formality than a rebuff? Wilson’s friends assured him that he was the inescapable choice for the position he coveted, and Anthony Wayne, writing in his turn to enlist Wilson’s aid in being appointed gov¬ ernor of the Southwest Territory, ventured to congratulate him prema¬ turely on the chief justiceship, “an appointment so generally acknowledged due to your professional and other merits.” Wayne, who had been a dele¬ gate to the Pennsylvania ratifying convention also commended Wilson, “on the adoption and organization of the Federal Constitution—a business in which you took so early—so conspicuous and so effectual a part.”20 As Wilson waited with his ears tuned for a word from New York, Robert Morris wrote him, “I confirm to you my idea that you will be nominated to the bench but I still doubt not to the first seat. The House of Representatives sent the bill on Saturday fixing salaries. The Chief Justiceship was put at $3500 and the other judges at $30oo.”21 And from these rather ambiguous words, evidently meaning that Morris felt the chief justiceship was out of his friend’s reach, Wilson had to assuage his impatient ambition as best he could. On the 28th of September the Pennsylvania Pac\et reported that James Wilson had been appointed an associate justice of the Supreme Court, and a few days later Wilson received his official notification from the President. “I experience peculiar pleasure in giving you notice of your appointment to the office of Associate Judge in the Supreme Court of the United States,”22 Washington wrote. The chief justiceship had gone to John Jay, the able and aristocratic New Yorker. On Monday, October 6, Wilson went to the City Hall at Chestnut and Sixth Streets and had the oath of office ad¬ ministered to him by Mayor Powel. There is no way of knowing Wilson’s reaction to his appointment, but he must have been deeply chagrined, although Morris had done his best to forewarn him. Similarly it is only possible to guess at the motives that lay behind Washington’s choice. As far as personal prominence and pro¬ fessional qualifications were concerned, no one stood higher than Wilson. Certainly in matters of law he was Jay’s superior. But Jay was a popular figure in the wavering state of New York. Alexander Hamilton, who had no special affection for Wilson, may have urged the appointment of his fellow New Yorker. Moreover Jay’s relations with members of the Con-

3o6

JAMES WILSON

federation Congress during his period as secretary of foreign affairs had demonstrated his gift for making friends and his ability to take a firm but gracious line. The chief justice of the new court would require as much tact as wisdom. Wilson’s land speculations and debts were well known, and Washington may have felt that the disinterestedness and integrity of the chief justice should be above suspicion. Then there was the fact that Wilson, the son of a poor Scottish farmer, represented in his personal bearing the odious manners of an aristocrat, while Jay, born of one of New York’s oldest and most distinguished families and allied by marriage with the equally dis¬ tinguished Livingstons, was much less the emblem of a privileged class. At the end of January, 1790, Wilson abandoned the Pennsylvania Con¬ stitutional Convention to its leisurely deliberations and traveled to New York to attend the first session of the Supreme Court. He established him¬ self in the city, and on Sunday, January 31, he attended church and went afterward to call on the President. There is no record of the conversation that passed between two gentlemen, both notably devoid of small talk.23 The Court convened on February 1, in the Exchange Building at the bay end of Broad Street. The Exchange was in the midst of the market district, and the streets had been chained off to prevent the noisy passage of hucksters’ carts while the justices deliberated. When the Court assembled, only Jay, William Cushing, and Wilson were present. Cushing was a staunch Massachusetts Federalist with an enormous nose. He had graduated from Harvard College and served his apprentice¬ ship under the famous Jeremiah Gridley. Almost alone among the leading figures of the Massachusetts bar, Cushing had come forth in 1775 to espouse the Revolutionary cause. His appointment to the Court had been both a gesture to New England and a proper recognition of his legal eminence. The members present not constituting a quorum, the Court adjourned until the following day when the addition of Justice Blair of Virginia enabled it to open formally for the first brief session.

Blair had been a

fellow delegate with Wilson at the Federal Convention, and among the justices he matched Cushing’s outsized nose with an immense expanse of forehead and a pendulous lower lip, protruding like the bill of an aquatic bird. With the addition of Blair, and the presence of the new Attorney-Gen¬ eral, Edmund Randolph, an effort was made to muster some show of cere¬ mony. James Duane appeared with a praetorian guard of city officials and

“A SCOTCHMAN AND A SCHOLAR”

307

“a great number of the gentlemen of the bar” to witness the modest inau¬ guration of the Court.24

The jury from the United States District Court

was also present, and a number of the members of Congress from the other end of Broad Street took a brief vacation from their legislative duties to observe the launching of the judicial branch of the national government.25 First the commissions of the justices and of the attorney-general were read. After the oath of office had been administered the Court adjourned to meet in the evening as guests of the United States Grand Jury at Fraunces’ Tavern in Courtland Street, where the usual republican cere¬ monies were observed, beginning with toasts to the President and VicePresident of the United States, including among many others “His Most Christian Majesty and the People of France,” and ending with the “Con¬ vention of Rhode Island—May their Wisdom and Integrity soon introduce our Stray Sister to her station in the Happy National Family of America.”26 The following day the Court adopted rules of procedure and a seal, and admitted three lawyers as counsellors to practice before it. In the days that followed the justices devoted themselves to matters of detail, and on Wed¬ nesday the Court adjourned until the first Monday in August without having made a single decision or, indeed, having a case presented to it. If most Americans were unaware of the potentialities of the new judicial body that had begun its operation so inconspicuously, James Wilson knew quite well what the Court might become in time by the quiet but persist¬ ent accumulation of power.

CHAPTER XXI

The Nature of Law

While Wilson was pursuing his judicial duties, a young and enterprising Philadelphia lawyer, Charles Smith, son of the Reverend William Smith, unwittingly prepared Wilson’s future. Provost Smith had returned from Maryland to resume his duties and resuscitate the College of Philadelphia. In March, 1789, the trustees, among them Wilson, General Mifflin, Bishop White and Francis Hopkinson, re¬ ceived a petition from a group of law students asking that they be allowed to hold meetings in one of the rooms of the college.

The request was

granted.1 The following year Charles Smith, through his father, placed before the trustees his recommendation that “a Law Lecture or Lectures” be included “among the many other improvements of the plan of liberal education in this college.” The “said Charles Smith,” he added, “is desirous to open a Law Lecture . . . under such regulations as the college may deem proper.”

He

is willing to undertake the course “on his own risque as a candidate for a professorship when it may be thought proper.”2 The application was for the moment ignored, but a few weeks later a trustees’ committee composed of Wilson, Shippen, and Hare, was appointed to consider the question of instituting a law course. Wilson drew up the plan that was submitted to the committee.

It covered constitutional law,

international law, common law, civil law, maritime law, and the law mer¬ chant. The lectures were not to be narrowly technical. Rather, as Wilson put it, “the obvious design of such a plan is to furnish a rational and useful entertainment to gentlemen of all professions; and in particular to assist in forming the Legislator, the Magistrate and the Lawyer.”3

THE NATURE OF LAW

309

The plan was approved, and Wilson himself was elected to give the lectures.

Charles Smith, as far as the record shows, was left without a

word of thanks, to console himself as best he could for having had his brains picked.4 Although young Smith may have formally presented the petition for a law course to the trustees of the college, Wilson must have had some such plan in mind when he wrote to Edmund Randolph during the summer, presumably about a scheme to open a law school at which Randolph and Wilson would lecture.

Replying from New York on August 5, 1790,

Randolph referred to “the association proposed.”

“I am strongly inclined

to think that it will prove mutually advantageous,” he noted.

“Your

absence on the circuits will interrupt you too much in the execution of an entire system. I shall never leave the city in the exercise of my profes¬ sion. The division of the work does not strike me as a serious difficulty. The law of nature, the law of nations and the common law are obviously the three first and are sufficient for one man. If he can go through more, equity and civil law will be an abundant occupation. Even then the greatest task will remain. The Federal laws, examined in all their relations and the comparison of the laws of each state will have enough novelty and difficulty to be the employment of years.”5 There is no indication of why the plan for a joint course was dropped, but the system suggested by Randolph was roughly the one followed by Wilson in his own lectures. The decision of the trustees of the College of Philadelphia did not mark the beginning of the first American law course.

George Wythe, the pre¬

ceptor of Thomas Jefferson, had taught law at William and Mary since 1779, and Judge Tapping Reeve’s famous law school at Litchfield, Connec¬ ticut, had been in operation for six years. Wilson’s lectures did, however, mark the first important law course to be established since the inception of the Federal Government, and thus, with its distinguished lecturer, it attracted special attention as the potential incubator of a new American system of jurisprudence. The law lectures would take their place in the college beside the existing schools of natural, political, and moral philosophy, and of medicine.

By

what was undoubtedly more than happy coincidence, the lectures would begin soon after Congress convened at Philadelphia.

As a result of the

famous horse trade between Jefferson and Hamilton, the government was to make its home in Philadelphia until the new capitol on the Potomac

3io

JAMES WILSON

was ready to receive it.

Philadelphia, suppressing its chagrin at being

spurned as the permanent seat of government, welcomed Congress as a homecoming prodigal. Vice-President John Adams arrived in the city in the middle of No¬ vember and established himself and his family at Bush Hill.

Jefferson

came a week later and set up the office of secretary of state a few doors beyond Wilson’s home, at 307 High Street.

Secretary of the Treasury

Hamilton opened his offices at Third and Chestnut and found a house nearby on Third Street. The President and Mrs. Washington arrived on the twenty-seventh, and the first lady took up housekeeping in Robert Morris’s house below Sixth Street, a block away from “Congress Hall.” Amid the bustle that attended the opening of Congress the announcement was made by the College of Philadelphia that the introductory lecture in a new law course to be given by the Honorable James Wilson, Esquire, would take place before the public in the “Hall” of the main college building at Fourth and Arch Streets at six o’clock on Wednesday, the 15th of December. December 15 was a raw, cloudy day with a northwest wind as sharp as a knife, but the Hall at Fourth and Arch was filled before the hour of six with a distinguished crowd.

The gallery was packed with friends

Wilson who had received tickets from the lecturer himself.

of

The floor of

the hall was reserved “to the Accommodation of Congress

and

other

Bodies.”6 The President and the Vice-President, members of Congress, the officers of the new government, the state senate and house, and the principal local dignitaries filled the main floor, and many of the leading lights of the “Re¬ publican Court” lent style and beauty to the occasion. “Billy” White, now Episcopal Bishop of Pennsylvania, was there with his wife, Benjamin Rush with his lady, the Morrises, and dozens of friends and political allies. Wilson thus rose to address an audience composed of the leading figures of the new nation. The moment was, in a sense, the climax of his public career.

Respected by both his friends and his opponents, loved by few,

locked within the confines of his blazing ambition and his awkward stiff¬ ness of manner—a stiffness perhaps compounded more of painful shyness than of pride—Wilson must have found the occasion a sweet balm to his restless spirit. Facing the crowded hall, Wflson looked beyond the moment to the future, moved by the conviction that he was founding a new school of

THE NATURE OF LAW

311

American jurisprudence. He was not discussing random principles of law, he was laying the cornerstone of a peculiarly American system of law and cutting the umbilical cord which bound the infant “science” to its English mother. A system of law implies a philosophy of life, and so he is brought to deal with the law of nature and of nations, with the character of man as an individual and as a member of the great commonwealth of nations. His words of introduction were courtly and conventional. Accustomed though he was to speaking in public, yet, he confessed the occasion a par¬ ticularly demanding one, for he had never before had the “honor of ad¬ dressing a fair audience.” The history of America, Wilson declared, shall be as illustrious as that of Greece. Indeed that renowned glory will be eclipsed. And why does he dare to assign such a high place to the American character?

Because it

“has been eminently distinguished by the love of liberty and the love of law.” “In free countries—in free countries, especially, that boast the blessing of a common law, springing warm and spontaneous from the manners of the people—Law should be studied and taught as a historical science.” Looking back through time we can see no other nation in the history of the world that has been able to compact originally a government of free men bound by law.7 Wilson then proceeded to explain the necessity for the study of law. “Law and liberty,” he declared, “cannot rationally become objects of our love, unless they first become the objects of our knowledge. . . .

Indeed,

neither of them can be known, because neither of them can exist, without the other. Without liberty, law loses its nature and its name and becomes oppression. Without law, liberty also loses its nature and its name and be¬ comes licentiousness. . . . “The science of law should, in some measure, and in some degree, be the study of every free citizen, and of every free man. Every free citizen and every free man has duties to perform and rights to claim. Unless, in some measure, and in some degree, he knows those duties and those rights, he can never act a just and an independent part.” As a science “the law is far from being so disagreeable or so perplexed a study, as it is frequently supposed to be. Some, indeed, involve themselves in a thick mist of terms of art; and use a language unknown to all, but those of the profession. By such, the knowledge of the law, like the mys¬ teries of some ancient divinity, is confined to its initiated votaries; as if

312

JAMES WILSON

all others were in duty bound blindly and implicitly to obey.

But this

ought not to be the case. The knowledge of those rational principles on which the law is founded, ought, especially in a free government, to be diffused over the whole community.”8 Yet, it will still be asked, how is the average man to acquire mastery over that vast and often obscure area of knowledge called the science of law with¬ out devoting years of his life to the task. In answer Wilson quotes “Lord Chancellor Fortesque’s” opinion that all educated men should have some familiarity with the “principles and the elements” of the law. Wilson then went on to “a question deeply interesting co the American States. . . . Should the elements of a law education, particularly as it respects public law, be drawn entirely from another country—or should they be drawn, in part, at least, from the constitutions and governments and laws of the United States and of the several states composing the Union?”9

He

answered his rhetorical question by asserting that since the principles upon which the Constitution of the United States is formed are different from those of England, so must the law and education therein be different from that of England. Blackstone, Wilson pointed out, refused to accept Locke’s “devolution of power to the people at large,” declaring that government would thereby be dissolved and men placed in a state of nature. “But we have thought, and we have acted,” Wilson continued, “upon revolution principles, without offering them up as sacrifices at the shrine of revolutionary precedents.... A revolution principle certainly is, and certainly should be taught as a principle of the constitution of the United States, and of every state in the Union. “This revolution principle—that, the sovereign power residing in the people, they may change their constitution and government whenever they please—is not a principle of discord, rancor, or war; it is a principle of melioration, contentment, and peace.”10 Wilson then attempted to separate the wheat from the chaff of English law with a view to absorbing the vital and relevant portions into an Ameri¬ can system of jurisprudence.

All experience combines to show that “the

foundation, at least, of a separate, an unbiased, and an independent law education should be laid in the United States,” and it is to this, Wilson declares, that he has dedicated himself. “My house of knowledge is, at present, too small,” he told his listeners. “I feel it my duty, on many accounts, to enlarge it. But in this, as in every

THE NATURE OF LAW

3*3

other kind of architecture, I believe it will be found, that he, who adds much, must alter some.” He does not, for instance, as a judge accept the inherited British em¬ phasis on property rights. “Property, highly deserving security, is, however, not an end, but a means.

How miserable, and how contemptible is that

man, who inverts the order of nature, and makes his property, not a means, but an end!”11 Then followed the appeal to Rome—to Roman virtues—to Cicero and Cato—that was part of the oratorical baggage of all public speakers in the young republic. Wilson now turned to the ladies in his audience and eulogized them in grandiloquent terms.

His tribute to women, voiced in the spirit of the

Visitant and given added poignance by the tragic death of his own wife (he wrote Mrs. White that he had Rachel in mind when he spoke) con¬ tained an appeal to the sex to preserve its womanliness; and a eulogy of the civilizing role of the happy and “accomplished” woman in any so¬ ciety-—the matrix of humane social life. “To protect and improve social life,” he told the ladies, “is . . . the end of government and law. If, therefore, you have no share in the forma¬ tion, you have a most intimate connection with the effects, of a good system of law and government.”12 On this note Wilson ended his introductory lecture. The College Com¬ mencement followed, and Dr. Rush, professor of the theory and practice of medicine, delivered one of his “eloquent and pathetic” addresses.

Candi¬

dates for Doctor’s degrees in Medicine were examined on “the cause and cure of pulmonary consumption,” and in Latin, on “Ailments.”13 After the examination of the candidates, Wilson, Judge Hopkinson and Edward Shippen received Doctor of Law degrees. At least one member of the audience had remained unmoved by Wil¬ son’s eloquence.

Fisher Ames, the high Federalist from Massachusetts,

wrote to a friend enclosing a copy of the lecture and commenting sourly that “the great law-learning and eminent station of the writer had raised great expectations of the performance. Whether there are not many parts that discretion and modesty . . . would have expunged, you will be at liberty to judge. It will be a frolic to the London reviewers to make the Judge’s feathers fly.

He has censured the English form of government,

and can expect no mercy.” Nor, from the tone of the letter, did its Anglo¬ phile author wish him to be shown any.14

3I4

JAMES WILSON

Wilson worked with his usual fierce energy on the preparation of his law lectures. His first drafts were a kind of potpourri of phrases and quota¬ tions—principles of philosophy or law—with careful citations of the sources. In his neat script, he noted endless authorities: “Mont, b 2, c 8; Burl, b 9, c 4; Vat. Ill, 78.” Montesquieu, Burlamaqui, Vattel, Hobbes, Locke, Sid¬ ney, Kames, Paley, Reid, Hutcheson, Shaftesbury, Rutherford, Hooker, Coke, Blackstone, De Lolme, James Burgh, Grotius, Heiniccus, Bolingbroke, Goguet, Neckar, and dozens of others jostled each other in his notebooks. In his second draft Wilson dropped some authorities, quoted others to refute, and made some his own, giving a brief citation to acknowledge his indebtedness to this theorist or that. The final clean copy of his lecture was copied into a fresh book, gen¬ erally by Wilson, but sometimes in a round youthful hand that may have been young Bird’s. Of those lectures that were published posthumously by Bird, only about half were actually delivered. The project was too ambitious to be encom¬ passed in a portion of a single academic year, and for various reasons it was not continued beyond the middle of the next term. The lectures were given on Tuesday, Thursday and Friday at six in the evening, supplemented by moot courts and moot legislatures held on Saturday morning.

In

these, fourteen of the more

advanced

students

participated. Besides Hopkinson and Henry Clymer, son of Wilson’s friend and political ally George Clymer, the students included Caesar Augustus Rodney, young John Dickinson, and William Morris, son of Robert. There were half a dozen other young men drawing their legal pablum from the Judge who would one day occupy prominent places in the American bar. “Hail Columbia,” Joseph Hopkinson’s republican paean, can hardly have been influenced by his mentor, but his arguments as defense counsel for Samuel Chase, when that mad old man was hunted by the angry Repub¬ licans, must have drawn on the training and principles instilled by Wilson. And it was a nice irony that Hopkinson should join forces with Luther Martin, Wilson’s old enemy, to defend the Supreme Court against the assaults of the radical Republicans unleashed by Jefferson and led by the ravening John Randolph. Caesar A. Rodney, too, although attorney-general under Jefferson, gave on several occasions the unmistakable marks of his master. When, as Con¬ gressman from Delaware, he spearheaded the drive to secure approval of

THE NATURE OF LAW

3i5

Jefferson’s great purchase in Louisiana, he began by appealing to the general welfare clause, “a device which the Republican party and all State-rights advocates once regarded as little short of treason.”

But this was not all.

He next invoked the “necessary and proper” clause which even at that time was “familiar to every strict constructionist as one of the most dangerous instruments of centralization.”15 When Wilson began his law lectures to his students at the College of Philadelphia, he was spokesman of a legal tradition that stretched back to the days of the Roman Republic. Roman law, the cornerstone of Western jurisprudence, was released by its contact with Christianity for a new and richer life. The Medieval Church made its most significant contribution to the development of Western jurisprudence through the work of the great Schoolmen, chief among them being Thomas Aquinas.

The Aristotelian

concept of the law of nature thus emerged into modern thought with the unmistakable mark of Christian theology. final, absolute, eternal, and immutable.

Jus divinum was God’s law,

St. Thomas’ great task was to

reconcile the Greek law of nature, discoverable through reason, with the Christian law discoverable through faith.16 The Schoolmen all felt bound to base the State itself upon a foundation of law, and while the State was charged with “a mission to realize the idea of Law ... it was never doubted that the highest Might, were it temporal or spiritual, was confined by truly legal limitations.” Thomistic theories of natural law took root in England through the Church, but it was not until the sixteenth century that they became a central issue in English law and political theory. Two facts combined to place natural law in the fore¬ ground. On the one hand, the Puritans split with the Anglican Church and asserted their claim to find the true law set down in the Old Testament in immutable form.

Courts, lawyers, clerks, priests, history, and precedent

were suddenly threatened by this pretension to discover in the Bible suf¬ ficient law by which to govern societies of men. Jus divinum, divine law, was recorded for all to read. To meet this heresy Richard Hooker wrote his Ecclesiastical Polity, the burden of whose proof was to establish firmly the historical and human character of positive law.

Hooker accepted the

Thomistic hierarchy of laws and charged that the Puritans were endeavor¬ ing to destroy the hierarchy, bring all into confusion, and replace public law with private law.17

He wished for a historical interpretation of the

jus divinum, holding that positive law, as simply an imperfect adaptation

3i6

JAMES WILSON

of God’s law to present human needs, must change.

Human laws were

the “particular determinations” of the law of nature. Hooker’s idea of a hierarchical order of the world expressed in the hierarchy of laws was in accord with the Elizabethan picture of an ordered and graded society. Like Aquinas, Hooker found reason in the very concept of God’s nature.

It

was reason which helped to bridge the chasm between God and man. Although most of the writers on “the law of nations and the law of na¬ ture” who appeared in such profusion in the seventeenth century still spoke of “the law of nature” as God’s law, or law given by God, this was more often than not a token gesture. The complete secularization of natural law followed close upon the discovery of the Newtonian universe.

Newton’s

cosmos was used by the thinkers of the Enlightenment to make reason supreme and reduce God to a first cause. As Parliament in the eighteenth century came to establish its supremacy over the king, English jurists showed an increasing tendency to transform that supremacy into an absolute authority and to reject the idea of natural law as imposing any limits to legislative authority. This movement reached its culmination in Blackstone, the supreme rationalizer of English law, who declared “legislature is the greatest act of superiority that can be exercised. ... It cannot be confined within any bounds.” It was thus left to America to bring about a revival of natural law concepts in the course of the revolu¬ tionary struggle with the mother country. The law carried by the Puritans to the New World was jus divinum, the law of the Bible set down for the Bible Commonwealth. Scholars can of course find many evidences of English common law in colonial New England. It was inevitable that English custom must apply in certain areas, but the survivals were not, for the moment, as important as the rejections. The Puritan migration, if it was an exodus from the land of the Egyp¬ tians, was also a legal revolution.

The Puritans were emphatic in their

rejection of English law and their substitution of Biblical law. With their aversion to English law went an aversion to all its trappings and appurte¬ nances.

Where laws could, willy-nilly, be torn from the Old Testament

and applied to the conditions of a colonial and pioneering people, this was done with results that were sometimes tragic and sometimes comic, but always increasingly incongruous. Where Biblical law did not apply, law was drawn from it in consultation with the ministers.18 Such a program could not, of course, succeed. From the first the colonists brought with them tra¬ ditional ways of viewing personal relationships that made inevitable the

THE NATURE OF LAW

3i7

gradual encroachment of common law practice. Although the experiment failed, as the “judicious Hooker” might have predicted, the attitude of op¬ position to English law which the Puritans carried with them prevailed as the dominant pattern throughout the colonies. Even in those that were by no means

Puritan in their orientation, the same resistance was evident.

Colonial America was, for the most part, anti-legal or a-legal well into the eighteenth century. Lawyers were looked down on and even legis¬ lated against. They had less status than honest artisans, and indeed consti¬ tuted in colonial eyes a pariah caste. The increasing complexity of colonial society, however, forced the grad¬ ual acceptance of common law, and by the middle of the eighteenth century, colonial America was ready for a great legal renaissance. A number of events conspired to abet this flowering.

Chief, perhaps, was the conflict

with Great Britain and the fact that it presented itself in legal and constitu¬ tional terms. America thus received a powerful impetus to supplement the practical growth of native law with vast accumulations of legal theory and history. The problems of law in their broadest implications became the preoccupa¬ tion of the lawyers. Private law grew more and more like English common law, but a superstratum of legal theory remained quite independent. Where the legal revival in England expressed itself in excessive formalism, co¬ lonial law, while by no means unaffected by this English trend, was forced into broader and more democratic channels.

The lawyers who were

under the spell of legal formalism by and large turned Tory at the time of the Revolution, while those who were more flexible, less closely bound to the ruling class, and more sensitive to America’s special situation and unique needs, supported the Revolution—indeed led it. In the lawyers’ task of formulating a theory of law in relation to Ameri¬ can society, the Revolution was both an impediment and a necessary con¬ dition.

They chafed uneasily under the inept Articles of Confederation

and greeted the Federal Constitution with joy as placing the new nation clearly under law.

The Federal Constitution was a great many things

besides, but it was, perhaps pre-eminently, the culmination of the legal revolution which began in America in the early years of the seventeenth century. Every revolution is complete when it has made its peace with the old order of things and is thus ready to enter into history as the old order plus something new. The Constitution was thus the last step of a Revo¬ lution which began with the efforts of the Puritans to found a Bible

3I8

JAMES WILSON

Commonwealth, and ended with the work of the Framers, most of whom were lawyers. The fact that the legal revolution had taken place in America in the seventeenth century had a profound effect on the American Revolution of 1776.

Most of the revolutions in history have had, as one of their

central elements, an accompanying legal revolution.

Because the legal

revolution had already taken place in America, the political revolution could preserve its inherited legal tradition, not only intact, but greatly strengthened and extended. The American Revolution was not only the end of a legal revolution, it was a revolution of the lawyers. Having lived in exile for a hundred years or more, they were able to emerge in a remarkable manner as the leaders of the American Revolution, giving it a flavor quite unique among the revolutions of history. It was this fact—namely that American law had existed in a kind of legal limbo—which caused the legal renaissance to blossom with such splendor, and to draw not simply on Blackstone and Viner, but on all the riches of the English law which were no longer for¬ bidden fruit but full of wonderful potentiality. Probably no creative minority that ever fashioned a revolution was as deeply immersed in history, as widely read, as ably trained in dialectics by generations of theological disputation, or as self-conscious as the small group of men who directed the fortunes of the American Revolution. The discomfort of modern historians in dealing with the significance of the American Revolution is due to the three strands—legal, political and social —that are woven through the events of the years from 1776-1789. Marxist theory, as defined by Charles Beard and his school, read in the Revolution a class struggle, and this, in a sense, it was. It departed even further from the normal pattern of revolution in that it was a revolution against an absentee proprietor in the name of which classes could be united and real conflicts temporarily obscured. The three phases of the American Revolution—the legal, the political, and the social—while closely related were, in important ways, distinct. The legal revolution began in the early seventeenth century and ended, for all practical purposes, in 1789. The political revolution began in 1787 and lasted until the issue of union was finally settled in 1865. The social revolution began in 1776 with the Declaration of Independence and ended with the New Deal.

THE NATURE OF LAW

3i9

Under the pressure of contemporary political events, only one strain emerging from the Revolution is properly assessed today, and that is, of course, the line of so-called Jeffersonian democracy, blending happily with Jacksonian democracy, both reaching fulfillment in the symbolic figures of Lincoln and Franklin Roosevelt. This strain is rationalistic, Deistic, demo¬ cratic, nonconformist, romantic. It exalts the will of the people over every¬ thing, is anti-hierarchical, anti-historical in a deep sense, basically formless, utopian, evolutionary, messianic, progressive. The other strain is legal, historical, hierarchical, classic, Anglican, aris¬ tocratic. That neither is pure is nowhere better illustrated than in Wilson, who, as his work in the convention and elsewhere shows, was influenced by both currents, making him, in many respects, more democratic than the democrats, more influenced by the Enlightenment than the Deists, more orthodox in his jurisprudence than the avowed followers of Coke or Blackstone. Wilson is thus a key figure because he represents the reception into America of a tradition, essentially medieval and Scholastic, that has im¬ portant implications in our history.

Representing both strains—non-con¬

formist and Anglican—he embodies more fully that which has been the more neglected, and that which is perhaps today the more important. He represents, indeed, that strain, which however much its motives have been impugned, made the Revolution and made the Constitution, and then de¬ fended the Constitution during its infancy, against all assaults of its enemies. In Wilson the Calvinist doctrines of his father, with their almost over¬ powering sense of individual responsibility, fused with the Anglican view of an ordered, structured society to create a view of life in which the freemoving, responsible individual was confronted by definite moral choices and liberty was secured through law. In Wilson’s insistence on the moral basis of society and of government— he added “character” to the Lockean trinity of life, liberty and property— he was adumbrating what was to be one of the most distinguishing fea¬ tures of American life in the century that began its course a few years after Wilson’s death. In this respect his lectures may be read as “the best state¬ ment we have of the considered legal theories” of a Founding Father.19 In another important sense Wilson’s lectures bore the impress of the age in which he lived. Wilson and his masters of the Scotch Enlighten¬ ment saw society as offering a clue to understanding man. Law, as one of

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the most important manifestations of man’s social existence, had a place of special importance as an avenue to that understanding. Man, according to the philosophers of the Enlightenment, could only be understood in a social context. This idea was in contradistinction to the nineteenth cen¬ tury fiction of the “rugged individual,” and runs counter to a great deal of our present-day exaltation of “individualism.” Freedom and duty were always paired. Like law and liberty, one was the reverse side of the other. The individual, rooted in his consciousness of God’s superintending power and of the essentially moral basis of political and social life, was never in danger of turning into a mass man, of losing his inner identity in the “other-directedness” that modern sociologists have warned of. Thus, his ventures into society were almost invariably creative and resulted in the enriching of both the individual and society. Wilson and his contempo¬ raries had yet to fall under the spell of a mechanistic or teleological view of social progress; they saw progress as a hard-won, precariously held triumph of the disciplined individual over the disruptive impulses of natural man. By so much—in their perception of the moral bases of social life, and in the acute apprehension of the relation of the individual to society that they display—Wilson’s lectures can be read for insight into an eighteenthcentury American

Weltanschauung of which Wilson’s own mind

and

spirit formed a not insignificant part. But in fairness to Wilson the lectures must also be read for the unique¬ ness of some of Wilson’s insights, and the unusual rigor with which, in an age of amateur philosophers, he tried to probe the deepest levels of under¬ standing. Taking his cue from Bolingbroke, who had declared that the legal scholar must seek knowledge through history and metaphysics, Wilson followed Lord Karnes’ effort to “make a fine sauce” by mixing metaphysics and law. By metaphysics, Wilson meant essentially what we call psychology today. One of Wilson’s greatest appeals is that he tried, awkwardly and often imperfectly—for he was not a philosopher—to find a psychology that would both strengthen and illuminate his political and legal thought, and that was suited to the special conditions of post-revolutionary America. While it is true that Wilson’s ideas, rising from somewhat different soil from that of most of his prominent contemporaries and going, at least on the side of metaphysics, somewhat deeper than most of them, came to many of the same practical conclusions, there were, nevertheless, certain significant differences. And if ideas have future consequences, as well as immediate

THE NATURE OF LAW

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practical effects, Wilson’s ideas, so far as they differed from his fellow the¬ orists, had then and have now, different consequences. Madison, Alexander Hamilton, and Gouverneur Morris, in whatever ways they differed, were at one in their concept of society as a struggle between social classes and between groups representing competing interests. Madi¬ son’s famous Tenth Federalist Paper is the most familiar example of this attitude, but it appeared frequently in the Federal Convention and was elo¬ quently expressed there by both Madison and Morris. This conception of government, which anticipated Marxist criticism in certain respects, is very popular today when we are acutely conscious of class conflicts and of the operation of interested pressure groups. But, for most of the men who ex¬ pressed it, the conception had as a corollary the idea that the great mass of people were dangerous and licentious, inclined to political idiocy and requiring guidance and discreet pressure to restrain their “democratical” impulses. Those people without property were suspect because they had no stake or “interest” in society which could be appealed to. Thus they would be inclined to pass “agrarian laws,” taking property from those who had it and distributing it among the property less; they would be swayed by every gust of demagogic passion, and their instability would be a constant threat to all law and order. Men like Madison and Jefferson softened the harshness of this view by putting great faith in universal education and by pinning their hopes on a very special form of the “people”—the yeoman farmer of Virginia. The competing political philosophy of the age was that stemming from the French philosophes, namely that men were by nature good and that only corrupt institutions and false ideas—among which was usually in¬ cluded traditional Christianity—kept them in ignorance and impelled them to vice. This view of human nature, which, by the end of the nineteenth century under the impact of Marxism and liberal humanitarianism, had come to predominate in America, was held by few, if any, of the men who sat in the Federal Convention. Wilson’s own conception of man and society mediated between these two extremes. His political philosophy was the logical expression of his moral philosophy.

His metaphysic, derived from Thomas Reid, held that the

self-evident truths grasped by common sense are intuitive beliefs implanted in our consciousness by God. Whether, indeed, these truths were simply “innate” or derived from God was disputed by the Common Sense School. However, for Wilson, they were God-given. “Our instincts,” he declared,

322

JAMES WILSON

“are no other than the oracles of eternal wisdom; our conscience ... is the voice of God within us.”20 Thus, as long as the individual, propertyless or with property, heeded these perceptions of “common” sense, available to all, he could function as a valuable and responsible citizen of the republic. This view nerved Wilson to fight, on every occasion, for the broadest pos¬ sible base for the government of the United States and of Pennsylvania. Wilson’s metaphysic saved him equally from the fatuously optimistic view of human nature taken by such men as Condorcet, and from the gloomy picture of “the people” held by most of his Federalist contempo¬ raries. It brought him to a different conception of democracy from that held by men like Jefferson, Madison, and George Mason with their predomi¬ nantly agrarian bias; it made him welcome the emigration to America of Europe’s depressed peasantry, and look forward with hope to the country’s industrial future. The concept of government as a regulatory agency that holds competing class and groups interests in equilibrium is, in itself, in¬ adequate. Another dimension of social life is lacking—the responsible citi¬ zen who gives loyalty to his government on what are essentially moral grounds rather than grounds of self-interest. Having created and defended the new government of the United States, the American lawyers had largely fulfilled their creative role. Kent and Story and Marshall, the leaders of the era of consolidation, were also the twilight of the Gods. These men gave the protection of property a central importance which Wilson had been careful to disclaim. When the alliance of the lawyers with the propertied classes, always implicit but en¬ acted without hypocrisy by the Framers in the name of all the people, could be defended by Joseph Choate as simply, in its highest ideal, protecting property, the creative spirit of the lawyers was spent. From the death of Marshall until the time of Holmes, American law had little claim to its great heritage. Wilson’s law lectures make absorbing reading for anyone who ap¬ proaches him with a concern for the issues as they were defined in Wilson’s own time. Almost alone among his contemporaries he stood for a vital heritage that was lost in nineteenth-century America although it preserved a precarious life in England. The rational spirit of the Enlightenment prevailed unchallenged in America, except by German romanticism and historical relativism, down to the end of the century. Federalism having been compromised out of existence by the Whigs, no real conservative force was left after the death

THE NATURE OF LAW

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of Webster or indeed down to the present hour, and American political life has suffered from this one-sidedness. The legal revolution, which began in the early seventeenth century, ran its course in the eighteenth and achieved its perfect form in the Federal Constitution of 1787. The social revolution that began in 1776 with the Declaration of Independence and the American Revolution, culminated in 1933 with the administration of Franklin Roosevelt, who underlined its significance by trying to pack the Supreme Court in much the same spirit that Jefferson had tried to impeach the judges. The two revolutions—legal and social—overlapped. One finished its creative phase as the other began. The confusion of the two has led to that misreading of our history which blamed the lawyers in the Constitutional Convention for betraying the people and devising a scheme to protect private property. The one tradi¬ tion, Federal or Conservative, finding its expression in the espousal of law and the advocacy of a supreme law to which the state itself was subservient, traces its origins back to the medieval jurists and Schoolmen and was pre¬ served through the Reformation by the work of such Anglican divines as Whitgift and Hooker.

The other, the tradition of democratic social re¬

form, found its champion, of course in Jefferson and later Jackson, and stemmed from the Renaissance and the Enlightenment. The fact, already pointed out, that law was made by lawyers, especially in the last half of the nineteenth century, to serve the purposes of a class of predatory capitalists brought into disrepute the whole profession, and caused a misreading of the preceding one hundred and fifty years of Ameri¬ can history. There is no question that the Founding Fathers promoted a frame of government that was designed to protect their own interests, but they believed that they were doing much more, and so they were. The relationship between the two revolutions whose orbits overlapped in the critical decade between 1776 and 1787 has been further complicated by the third revolution which, beginning in 1787, described an orbit of its own, ending in 1865. It is hard today to conceive how precarious was the idea of union in 1787, and how slight its hold on the popular mind down to the middle of the next century. For raising an optimistic vision of the Founders to the level of a national ideal, Daniel Webster deserves the prin¬ cipal credit. This issue, however, which absorbed the energies of the coun¬ try from 1840 to 1880, and upon the final resolution of which all other issues had to wait, delayed the completion of the social revolution in America until thirty years after it had taken place in England.

CHAPTER XXII

Law and Society

Wilson began his lectures by quoting to his students the great Lord

Kames, “There have been lawyers that were orators, philosophers, his¬ torians: there have been Bacons and Clarendons. There will be none such any more, till, in some better age” (here Wilson paused to remark to his students, “I hope that better age has found you, my young friends”), “true ambition or the love of fame prevail over avarice; and till men find leisure and encouragement for the exercise of this profession, by climbing up to the vantage ground ... of science, instead of groveling all their lives below, in a mean but gainful application to all the little arts of chicane.” One of the vantage grounds to which lawyers must climb is “metaphysical, and the other, historical knowledge.”

By metaphysical, Wilson suggests, his

lordship means “the philosophy of the human mind.” To be true to their high calling lawyers must pry into the secret recesses of the human heart, “and become acquainted with the whole moral world,” he says, quoting Bolingbroke’s Study of History, in order that “they may discover the ab¬ stract reason of all laws: and they must trace the laws of particular states, especially their own from the first causes or occasions that produced them, through all the effects, good and bad, that they produced.” “Those who have written concerning laws,” Wilson declared, “have [too often] treated the subject like speculative philosophers, or mere practicing lawyers. The philosophers propose many things, which, in appearance, are beautiful, but, in fact, are without utility. They make imaginary laws for imaginary commonwealths; and their discourses are as the stars, which give little light, because they are so high. The lawyers, on the other hand, at¬ tached implicitly to the institutions of their country, or to the tenets of

LAW AND SOCIETY

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their sect . . . harangue as if they were in chains.” The lawyer “ought to know men and societies of men, in every state and in every relation in which they can be placed. ... It is an opinion, far from being uncommon, that the only institution necessary for a practicing lawyer is, to observe the practice in a lawyer’s office. No opinion was ever more unfounded: no opinion, perhaps, ever entailed more mischief upon those, who have been its unfortunate victims.”1 Wilson told his students that it was his intention to begin his lectures with a discussion of the general principles of law and obligation, moving then to “a concise and very general view of the law of nature, of the law of nations and municipal law,” and finally to the subject and the author of law—man himself; man as an individual, as a member of society, as a member of a confederation, and as a part of the great commonwealth of nations. The latter part of the course will be devoted to a consideration of the history of governments and to an examination of that of the United States.

Criminal law, the nature of property, pleas, and pleadings will

follow. “The history of a suit at law,” Wilson told his students “from its commencement, through all the different steps of its progress, to its con¬ clusion, presents an object very interesting to a mind sensible to the beauty of strict and accurate arrangement. The dispositions of the drama are not made with more exactness and art. Every thing is done by the proper per¬ sons, at the proper time, in the proper place, in the proper order, and in the proper form.” After his introductory lecture to the students, Wilson, as he had prom¬ ised, took up “the general principles of law and obligation.” His opening words, aspirant and orotund, introducing the theme of his legal symphony, rang with his conviction of a Newtonian Cosmos, governed by immutable laws. Order, proportion and fitness pervade the universe. Around us, we see; within us, we feel; above us, we admire a rule, from which a deviation cannot, or should not, or will not be made. On the inanimate part of the creation, are impressed the continued energies of motion and attraction, and other energies, varied and yet uni¬ form, all designated and ascertained. Animated nature is under a govern¬ ment suited to every genus, to every species, and to every individual, of which it consists. If the concept is Newtonian, it is also in its hierarchical structure, in its per¬ fect ascending order and symmetry, thoroughly Scholastic.

326

JAMES WILSON

Man, [Wilson continues] the nexus utriusque mundi, composed of a body and a soul, possessed of faculties intellectual and moral, finds or makes a system of regulations, by which his various and important nature, in every period of his existence, and in every situation, in which he can be placed, may be preserved, improved, and perfected. The celestial as well as the terrestrial world knows its exalted but prescribed course. This angels and spirits of the just, made perfect, do “clearly behold, and without any swerving observe.” Let humble reverence attend us as we proceed. The great and incomprehensible Author, and Preserver, and Ruler of all things —he himself works not without an eternal decree. Such—and so universal is law. “Her seat,” to use the sublime language of the excellent Hooker, “is the bosom of God; her voice, the harmory of the world; all things in heaven and earth do her homage; the very least as feeling her care, and the greatest as not exempted from her power. Angels and men, creatures of every condition, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their peace and joy.”2 Wilson begged off from giving a definition of the law. He mentioned Aristotle’s division of things into genera and species and pointed out that the simplest things were the hardest to define. Our abstract notions were “the productions of our own minds; we can therefore define and divide them, and distinctly designate their limits.” But the objects of nature “run so much into one another, and their essences, which discriminate them, are so subtile and latent, that it is always difficult, often impossible, to define or divide them with the necessary precision. We are in danger of circumscrib¬ ing nature within the bounds of our own notions, formed, frequently, on a partial or defective view of the object before us.” In an age when every man “of parts and culture” considered it his right to attempt to reduce his experience of the natural and the social world to a theory—a political and moral philosophy—Wilson’s awareness of the arbitrary character of such formulas was a reflection of his respect for the variety and complexity of all experience, political or “natural.” The origin of law, Wilson told his students, is found in custom which by definition has received the consent of its society. Laws may come to us as custom perpetuated in word or writing, “promulgated by reason and conscience.” Indeed, they may be said “to be engraven by God on the heart of man: in this manner, he is the promulgator as well as the author of natural law.” Wilson then attacked Blackstone’s definition of the law— “that rule of action, which is prescribed by some superior, and which the inferior is bound to obey.”

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There is a law, indeed, which flows from the Supreme of being—a law, more distinguished by the goodness, than by the power of its allgracious Author. But there are laws also that are human; and does it follow, that, in these, a character of superiority is inseparably attached to him, who makes them. . . . What is this superiority? Who is this superior? By whom is he constituted? Whence is his superiority derived? Does it flow from a source that is human? Or does it flow from a source that is divine? If we grant law as given from a superior to an inferior, Wilson told his students, we must deny Rumbald’s doubts that the Almighty “intended that the greatest part of mankind should come into the world with saddles on their backs and bridles in their mouths and that a few should come ready booted and spurred to ride the rest to death,” or Bolingbroke’s wry comment that he “would never subscribe the doctrine of the divine right of princes, till he beheld subjects born with bunches on their backs, like camels, and kings with combs on their heads, like cocks; from which striking marks it might indeed be collected, that the former were designed to labour and to suffer, and the latter to strut and to crow.” Despotism, Wilson declared, “by an artful use of ‘superiority’ in politics; and scepticism, by an artful use of ‘ideas’ in metaphysics, have endeavored, and their endeavors have frequently been attended with too much success— to destroy all true liberty and sound philosophy. By their baneful effects, the science of man and the science of government have been poisoned to their very fountains.”

Wilson did not mean to imply that Sir William

Blackstone was a “votary of despotic power.” Nor would he accuse Mr. Locke of being a “friend to infidelity.” But the fact is that the arguments of Blackstone have been used to cloak the designs of despotism, and that “the writings of Mr. Locke have facilitated the progress, and have given strength to the effects of scepticism.”3 Actually the scepticism of which Locke was the father poses a serious threat to law itself, since there is an “intimate connection and reciprocal influence of religion, morality, and law.”

The foundations of idealism,

Wilson told his students, were laid by Plato. On these Descartes and Locke built their structures, and from them, in turn, came, on the one hand, Hume and Berkeley, and, on the other, Hartley and Priestley. One set of philosophers has employed idealism to exalt the mind and destroy matter; others have tried to reduce all life to matter, and a third group has at¬ tempted to annihilate both, leaving only impressions and ideas. Wilson challenged his students to arbitrate between himself and the idealists. “You look at me. . . . Are you conscious that you really see me;

JAMES WILSON

328

or are you conscious that you see, not me, but only a certain image or pic¬ ture of me imprinted on your minds?”4 If the students conclude from this test that they see not a tall, ruddy, short-sighted man with a white wig, but merely an image in their minds they must cast their vote with the idealists, if not, with Wilson. Does the object act on the mind of the be¬ holder, or his mind on the object? For Wilson the answer cannot be in doubt. “I perceive the desk before me; but it is perfectly inactive; and, therefore it cannot act upon my mind.” The principles of the idealist philosophy from Plato to Locke are thus revealed as illusory. Not only is philosophic idealism based on incorrect premises, but it poses real threats to law. We have, in the past, Wilson said, “with unphilosophic credulity,” imagined that thought supposed a thinker, treason a traitor. But to certain enlightened modern thinkers the ideas are the traitors; and we suddenly find the whole structure of obligation and contract tottering, for by this criterion contracts may be presumed to have been made between ideas and not responsible individuals. Lockean episte¬ mology and Humean philosophy will thus cast lawyers, and society with them, adrift on a limitless sea without lighthouses or charts. The contract theory of government propounded by Locke was a desperate effort to find a new sanction for society. Richard Hooker was, Wilson assured his students, a wiser man than the celebrated Mr. Locke. The “judicious Hooker” had pointed out that “over a whole grand multitude, consisting of many families, impossible it is that any should have complete lawful power, but by consent of men, or by immediate appointment of God.”

If the superiority, Wilson in¬

sisted, was humanly derived, it was impossible for authority to become superior to its source. Pufendorf and Grotius have attempted to solve this dilemma by the compact theory whereby subjects place themselves under the domination of a prince. In Pufendorf’s words, “If any person should vol¬ untarily and upon covenant deliver himself to me in servitude, he thereby really confers on me the power of a master.” But such an admission, Wilson pointed out, gives the game away. It is a mere rationalization of tyranny. Nothing is left for the people but slavery since they have no defense against arbitrary power. Their portion shall be that of beasts—“instinct, compliance, and punishment. So true it is, that in the attempt to make one person more than man, millions must be made less.”5

LAW AND SOCIETY

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Hooker has the proper answer to these modern heresies, Wilson told his students. In Hooker’s words, “The lawful power of making laws to com¬ mand whole politic societies of men, belongeth so properly unto the same entire societies, that for any prince or potentate of what kind soever upon earth, to exercise the same of himself, and not either by express commission immediately and personally received from God, or else by authority de¬ rived, at the first, from their consent, upon those persons they impose laws, it is no better than mere tyranny. Laws they are not, therefore, which public approbation hath not made so. . . . Laws human, of what kind soever, are available by consent.”6 Although there are different kinds of law, Wilson declared, all may be arranged in two classes, divine and human. The law of God may in turn be divided into: “that law, the book of which we are neither able nor worthy to open. Of this law, the author and observer is God. He is a law to Himself as well as to all created things. This law we may name the ‘law eternal.’ ” Next, said Wilson, comes “That law, which is made for angels and the spirits of the just made perfect. This may be called the ‘law celestial.’ This law, and the glorious state for which it is adapted, we see, at present, but darkly and as through a glass,” but from the wisdom and goodness of God “we are justified in concluding, that the celestial and perfect state is governed as all other things are, by his established laws.” [Third is] That law, by which the irrational and inanimate parts of the creation are governed. The great Creator of all things has established gen¬ eral and fixed rules, according to which all the phenomena of the material universe are produced and regulated. These rules are usually denominated laws of nature. . . . [Fourth is] That law, which God has made for man in his present state; that law, which is communicated to us by reason and conscience, the divine monitors within us, and by the sacred oracles, the divine monitors without us. . . . As promulgated by reason and the moral sense it has been called natural; as promulgated by the holy scriptures, it has been called revealed law. As addressed to men, it has been denominated the law of nature; as addressed to political societies, it has been denominated the law of nations. But it should always be remembered, that this law, natural or revealed, made for men or for nations, flows from the same divine source: it is the law of God. . . . Human law must rest its authority, ultimately, upon the authority of that law, which is divine.7

33o

JAMES WILSON

Wilson, in his careful division of law into these categories, displayed his indebtedness to the Scholastic-Anglican tradition of Aquinas and Hooker. How closely he followed the Anglican theologian may be seen from the topical index of the first book of Ecclesiastical Polity. Where Hooker speaks of nature’s laws and calls them the second law eternal, the law of “natural things,” Wilson calls them simply the “laws of nature,” but both terms comprehend the same category and stand in the same relation on the one hand to the eternal law by which God guides his own actions and, on the other, to human law. Hooker’s second law, “the law which Angels keep,” is, as we have seen, taken over virtually intact by Wilson. Having established categories of law almost identical with those of Hooker, Wilson relegates law eternal, law celestial and law divine to “the profession of divinity,” and leaves the law of nature, the law of nations, and the municipal law to “the profession of law.” The foregoing discussion, he told his students, should reveal “the principle of connection between all the learned professions” and especially between law and religion. “Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other. The divine law, as discovered by reason and moral sense, forms an essential part of both.” “Some philosophers,” Wilson observed, maintain “that the rules of morality are founded on the nature of things; and are agreeable to the order necessary for the beauty of the universe.” Others hold that man, observing by reason how he may reach a certain end, places himself under an obliga¬ tion or moral necessity of following the rule which relates to the achieve¬ ment of that end. “Reason then,” these thinkers maintain, “independ¬ ent of law, is sufficient to impose some obligation on man, and to estab¬ lish a system of morality and duty.” Most of the seventeenth century writers on natural law and the law of nations, Wilson told his students, fell into this latter group. Certain philosophers indeed go so far as to claim that obligation is founded on utility. “Actions, they tell us, are to be estimated by their tend¬ ency to promote happiness. Whatever is expedient, is right. It is utility, alone, of any moral rule, which constitutes its obligation.” Such are Paley and Fleiniccus. There are those who find the obligation to obey the law of nature in the rule of society “that every one is born, not for himself alone, but

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for the whole human kind,” and those, on the other hand, who discover the sense of obligation in “an innate moral sense.” To answer the question adequately, Wilson says, we must ascertain “the efficient cause of moral obligation—of the eminent distinction between right and wrong.” Wilson says, “I will give it this answer—the will of God. This is the supreme law. ... If I am asked—why do you obey the will of God? I can only say, I feel that such is my duty. Here investiga¬ tion must stop; reasoning can go no farther. The science of morals, as well as other sciences, is founded on truths, that cannot be discovered or proved by reasoning. Reasoning is confined to investigation of unknown truths by means of such as are known. We cannot, therefore, begin to reason, till we are furnished . . . with some truths, on which we can found our arguments. . . . Morality, like mathematics, has its intuitive truths, without which we cannot make a single step in our reasonings upon the subject.”

Truth is inaccessible to logic, to reason uninformed by faith.8

“We discover [the will of God] by our conscience, by our reason, and by the Holy Scriptures. . . . The power of moral perception is . . . totally distinct from the ideas of utility and agreeableness. ... So long as we find men pleased or angry, proud or ashamed; we appeal to the reality of the moral sense. A right and a wrong, an honorable and a dishonorable is plainly conceived.” Language, too, reinforces a moral picture of the universe, for languages were not invented by philosophers, to countenance or support any artificial system. They were contrived by men in general, to express common senti¬ ments and perceptions. “Where all languages make a distinction there must be a similar distinction in universal opinion or sentiment.” If reason alone, as the ancients believed, could decipher God’s will as contained in the law of nature, the plight of the average man would be sad indeed, and the future of democratic governments shrouded in gloom. There must, in morals, be self-evident truths which derive their evidence not from any antecedent principles, but which may be said to be intuitively dis¬ cerned. “The cases that require reasoning are few, compared with those that require none; and a man may be very honest and virtuous, who can¬ not reason, and who knows not what demonstration means. . . . Reason, even with experience, is too often overpowered by passion; to restrain whose impetuosity, nothing else is requisite than a vigorous and command¬ ing principle of duty.”9

332

JAMES WILSON

In affirming his belief in a moral basis of the universe, Wilson offered intuition as the surest avenue to truth. Here he took his clue from the Scot¬ tish Common Sense philosophy which endeavored to fortify reason as an intellectual process with an intuitive apprehension of the world and the moral principles that guided it. Common Sense represented, among other things, a revolt against the philosophical skepticism of Hume and the “barren” metaphysics of the Bishop of Cloyne.

It might indeed be de¬

scribed, at least in the version favored by Wilson, as Presbyterianism’s compromise with Lockean sensationalism, since it acknowledged that sense impressions were an essential part of knowing, but insisted on an active rather than a passive process of perceiving, and placed strong emphasis on the primacy of a moral sense implanted by God. Wilson was careful, however, in his praise of Common Sense not to derogate reason.

Indeed, having been so receptive to Hooker, he was

bound to give reason its due. Reason “determines the proper means to any ends;” he told his students, “and she decides the preference of one over another.” Reason judges “concerning subordinate ends; but concern¬ ing ultimate ends she is not employed.” Opposed to those who exalt reason there are those who attempt to de¬ grade man, Wilson declared, by pointing to the brutality and savagery of primitive peoples as an example of man’s degenerate nature, thus demeaning his instincts as well as his reason. But Wilson found such pictures grossly overdrawn. “In truth, between mankind, considered even in their rudest state, and the mutum et turpe pecus, a very wide difference will be easily discovered. In the most uninformed savages, we find communes notitiae, the common notion and practical principles of virtue, though the applica¬ tion of them is often extremely unnatural and absurd. These same savages have in them the seeds of the logician, the man of taste, the orator, the statesman, the man of virtue, and the saint.”10 Often when we observe inane or harmful behavior on the part of individuals, reason is the culprit for having made “false representations to the moral sense.

And those who argue that brutes are governed by in¬

stinct and man by reason, simply close their eyes to the truth. “Our in¬ stincts, as well as our rational powers, are far superiour, both in number and in dignity, to those, which the brutes enjoy; and it were well for us, on many occasions, if we laid our reasoning systems aside, and were more at¬ tentive in observing the genuine impulses of nature. . . . Our instincts are no other than the oracles of eternal wisdom; our conscience, in particular, is

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the voice of God within us.” Every man who will listen to this inner voice may play a creative role in a democracy. Wilson next moved on to consideration of man “as an individual, as a member of society, as a member of a confederation, and as a part of the great commonwealth of nations.” If, in his consideration of the nature of law, Wilson went back to Rich¬ ard Hooker and a tradition that was both Anglican and Scholastic, he turned, in his examination of individual psychology, to the thoroughly contemporary doctrines of Thomas Reid, the father of the Common Sense School.11 After examining the individual in the light of Reid’s psychology, Wilson proceeded to consider man as a member of society. It was not God’s wish, he told his students, that man should live alone. God had created man a social being, unable to realize his true potentialities except through his relations with others of his kind. Yet he took care to remind his lis¬ teners that while certain philosophers, Bolingbroke among them,12 argued that self-interest was the cement which bound society together, a truer in¬ sight revealed unselfishness and love as more powerful forces. Wilson con¬ fessed to his students that man as a social being was hardly apprehended in all his complexity and variety. Who has, as yet, Wilson asked, really considered or explained that human impulse which leads us to hold to obli¬ gations, promises, agreements, and covenants.

Not self-interest but trust

underlies these relationships, trust which is a moral sense. This same moral sense teaches us “that the innocent have a right to be secure from harm.” The true nature of our social sense reveals itself in a thousand ways: “we possess gratitude and compassion; we enjoy pleasure in the happiness of others ... we feel delight in the agreeable conception of the improvement and happiness of mankind,” and we are bound one to another with the strongest and most delicate of ties. Our feelings are communicated to each other unwittingly, “by aspect: the very countenance is infectious: the emo¬ tion flies from face to face: it is no sooner seen than experienced: like the electric shock, it is felt instantaneously by a whole multitude; though, perhaps, only one of them knows from whence it proceeds.” Such is the force of the passions in society. We see this instinctive social nature of man clearly revealed in the child who is capable of “social intercourse long before he is capable of reasoning. We behold his charming intercourse between his mother and him before he is a year old. He can, by signs, ask and refuse, threaten and supplicate.”13

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JAMES WILSON

Applying this individual psychology to social problems, Wilson de¬ clares that the “wisest and most benign” moral system is that in which the true interest of the individual is synonymous with the greatest interest of society as a whole. “He who . . . operates for the good of the whole, as is by nature and by nature’s God appointed him, pursues, in truth ... his own felicity.” Government is not coeval with society but is simply a means which society employs to secure its own welfare and happiness. Indeed, in civil society, “previously to the institution of civil government,” Wilson says, “all men are equal. Of one blood all nations are made; from one source the whole human race has sprung.” Some have objected to or misunderstood the statement that all men are equal. “When we say, that all men are equal,” Wilson told his students, “we mean not to apply this equality to their virtues, their talents, their dispositions, or their acquire¬ ments. In all these respects, there is, and it is fit for the great purposes of society that there be, great inequality among men.” But however great the variety presented by society, there is among all its members an equality in rights and obligations, “there is that jus aequum, that equal law, in which the Romans placed true freedom. The natural rights and duties of man belong equally to all.” If skill and hard work entitle “the active to great possessions, the indolent have a right, equally sacred, to the little possessions, which they occupy and improve.” Even when a man abuses his freedom it is better that society endure his imprudence, wherein no active injury to others is involved, than deprive him of his liberty and thus endanger all freedom. In his consideration of man as a member of society, Wilson was strongly influenced by such political theorists as Shaftesbury, Bolingbroke, Paley, and Algernon Sidney. To Shaftesbury, Wilson perhaps owed some of his feeling about the pre-eminently moral aspects of the universe.

The philosophic

lord secularized the idea of moral content in the world and, by divorcing it from theology, released it for a new and broadening eighteenth-century development which modified the bleak doctrines of utilitarianism and joined with the ethical optimism of the Enlightenment. It was this spirit that Wilson grafted on his gleanings from Hooker and from Reid to form his own peculiarly American variety of religious optimism. Henry St. John, Viscount Bolingbroke, was the brilliant, opportunistic Jacobite, now chiefly remembered for his polished style and his Idea of a Patriot King. But Bolingbroke did much more than provide a theoretical ideal for George III. He was one of the most widely read political philoso-

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phers of the day in Colonial and Revolutionary America. If Shaftesbury stood closer to the skeptical, rationalistic spirit of his age, Bolingbroke wrote more in the orthodox Anglican tradition, and attacked with the cutting edge of his satire those who wished to divorce the law of nature from its divine sanction and leave it as a kind of denatured social law. “Though philosophers and lawyers collected [the laws of nature] God made them,” he wrote, “and civil laws themselves have no real, no intrinsical authority aside from this.” “Let us take things as we find them,” this early realist urged, “more curious to know what is than to imagine what may be.” Yet even in Bolingbroke contemporary currents ran strong. Time had not stood still since the Anglican apologetics of Hooker. Although Bolingbroke might resist the secularization of political theory, he contributed toward it. To him “sociability is the foundation of human happiness.” Society cannot be maintained without benevolence, justice, and other moral virtues. “These virtues, therefore, are the foundations of society, and self-love underlies them all. . . .”14 Archdeacon Paley was the great Deist who adapted Newtonian physics to moral philosophy and envisioned the universe as a giant watch, wound and set in motion by a God who was then relegated to the role of a first cause.

Paley, in common with Shaftesbury and Bolingbroke, accepted

happiness as the end of individual life, but he was careful to point out, as his contribution to the “Protestant ethic,” that happiness did not lie in the gratification of sensual instincts, but in the “exercise of the social affections” —prudence, health, the pursuit of some “engaging end.” Since men act more from habit than reason, the only hope for society lies in “forming and constructing his habits.” The common denominator among all the English illuminati to whom Wilson turned for inspiration or for confirmation of his own ideas was found in their concern with the organization of society and their agreement on happiness as the end of life and object of government. It is not hard to trace in Paley’s cry of protest for the ninety-nine who labor to create a sur¬ plus for the one tones of social aspiration that will find voice in Marx.15 The ideas of all these men, so much a part of Wilson’s intellectual equipment, partook in a generous measure of the skeptical, adventuring spirit of the age. In the American politician and his fellows they formed an amalgam which entered into history.

336

JAMES WILSON

Anxious to train his students in disputation, Wilson held his first moot court on New Year’s Day, 1791, to discuss the subject of “Legal Counsel.”16 Did the law have the importance and dignity of a profession, Wilson asked his students with perhaps a slightly puckish air.

Young Caesar Rodney

divided his argument carefully into what he considered the principal points. Assigned to the negative, he made the best of his case. “Are Lawyers useful or hurtful?” he asked, and then answered his own question, quoting the great Beccaria, “Happy the Country where Law is not a Science.” Indeed lawyers, far from expediting justice, added to the uncertainty of a crime being punished. “Expense and Uncertainty were the principal Character¬ istics of Law Suits.” Even ancient Greece had been plagued by lawyers, and Demosthenes himself cursed the ubiquitous and persistent breed. Doubtless the students, with one eye on their professor, thoroughly en¬ joyed Rodney’s cutting attack on the tribe of Zernial, and Wilson’s own wry humor was revealed in his choice of a subject for the opening debate of his fledgling lawyers. John Condy undertook the task of refuting Rodney. “When Agricul¬ ture and Manufactures and Commerce are introduced, the Law, like the Soul of Society, becomes a separate Profession.”

The lawyer, instead of

being the pariah, becomes one of the nation’s brightest lights. The fact that Wilson could introduce such a topic with confidence in a favorable verdict was a good indication of the dominant position of the American lawyer in the last decades of the eighteenth century. The next moot court took up the more technical question of profert and oyer. Wilson here led off with an introductory lecture on “Process, Proceedings and Pleadings.” His opening paragraph was a nice expression of the eighteenth-century lawyer’s attitude toward the “mysterious science of the law.

The History of a Suit at Law, from its Commencement

through all the Steps of its Progress, to its Conclusion, presents an Object very interesting to a Mind sensible to the Beauty of strict and accurate Arrangement. The Dispositions of the Drama are not made with more Exactness and Art.” The exactness of science, the beauty of art—that was the law for Wilson and for most of his colleagues: orderly, reasonable, harmonious, of wonder¬ ful symmetry, rising from the simplest detail to a marvelous and intricate height, resting on precedent, animated by the living spirit of history. Like the Baconian science, it gathered its general truths from an infinite number of observations (cases) and like the Newtonian universe, once set in motion

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by the Divine Mechanic, it ran by its own internal laws. Yet for Wilson, of course, there was more. God was to him not merely a First Cause. God’s grace was an active principle in the universe. God’s law was given from above and salvation must be won continually. On January 20, Wilson threw his students another meaty bone to tear at. This was his moot legislature, and it is hard to doubt that it was nearer his heart than “the retail business of the law”—profert and oyer and such. The question was a broad one—“whether the Produce of the Land is to be considered the sole Source of the Revenue and Wealth of a Nation and whether supposing it to be so, it would, upon that Supposition, be proper or prudent to impose Restrictions on Manufactures or Trade.” In his introduction of the subject, Wilson left no doubt about his own feelings on the subject. The students charged with arguing the exclusive rights of agriculture must have found the going difficult after their in¬ structor had taken such an emphatic stand; it was at the same time perhaps typical of Wilson that he could not encourage and draw out the students, remaining himself in the background with his hawk of opinion hooded and quiescent, but must speak out with a heavy parade of dialectic. If understanding is developed between agriculture, manufactures and commerce, “instead of mutual Jealousy, mutual Confidence between the three great Interests will be the beautiful Result,” he told the students. Young Condy drew the negative, and started off bravely enough with good physiocratic doctrine: Agriculture was the true source of wealth, he argued; therefore trade and manufactures should be restrained in the in¬ terest of agriculture. Henry Clymer, son of Wilson’s friend George Clymer, rebutted Condy. The three should mutually assist each other, he declared, perhaps drawing an approving nod from the professor. “The Wealth acquired by Commerce is employed in the Cultivation of Land—so of Manufactures.”

By en¬

couraging all three, you prevent “slavish dependence” on one; each is aided by the other and under the benign influence of all three the “Sciences and the Arts” flourish. Read, upholding agriculture, showed no inclination to retreat.

The

wages of the cultivators were, unhappily, lower than those of the “Artifi¬ cers,” but the artificer was a mere “Automaton” of little value. “The RopeMaker adds nothing to the Hemp,” he said. “A Source is a first cause: The Power producing must be the Source.”

Agriculture was the only truly

338

JAMES WILSON

productive occupation, and so it should be favored over occupations essen¬ tially parasitic. The next moot legislature debated the question, “Should Property be represented in Pennsylvania?” William Morris spoke first in the affirmative. Wealth was the source and object of government. Property should, there¬ fore, be represented, but not solely property. William’s cousin, Robert Morris, rebutted him.

Elections should be

free and equal. Since sovereign power resides in the people, it can be properly exercised only by their suffrage.

If, indeed, the wealthy were

always the most wise, honest, and constant there might be use in a repre¬ sentation of property. But who would care to say as much? As a matter of fact, there were other and greater objects of government than the ac¬ cumulation and protection of material things. “Life, Character, the Rights of Conscience—these are the Properties that ought to be represented,” young Morris declared, paraphrasing his teacher and undoubtedly striking a dramatic pose as he flung the challenge to his cousin. The poor, too, pay taxes on their small consumption. They must not be discriminated against. The affirmative speakers may cite history and precedent till the end of time, but they are of no avail against proper principles. The issue was hotly argued.

When Robert Morris had finished his

speech, Henry Clymer joined the opposition. High words were very fine, but everyone knew that poverty was frequently accompanied by ignorance. The poor were dependent on the rich and would be unduly influenced by them, even bribed on occasion. Liberty was a noble ideal but indiscriminate electors destroyed liberty by choosing glib politicians, “the easy complying and soothing Characters” who flattered their vanity and won them with large promises. Joseph Hopkinson aligned himself with Robert Morris. The interests of the people as a whole must be represented. The argument of their cor¬ ruptibility he brushed aside impatiently.

He knew of more instances of

“abjectness in the Rich than in the Poor. The Poor are corrupted by the Rkhr When Wilson, at the conclusion of the debate, spoke in summary, he left no doubt of his own sympathies. “All Elections should be Free,” he declared emphatically. “All Electors ought to be Equal.”

His approach

was, as always, historical, tracing down the history of suffrage through Greece and Rome to the German tribes described in Tacitus, the Saxon freeholders, and the early French monarchy.

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Meanwhile the lectures themselves proceeded from the law of nature to that of nations. Just as the law of nature stands above municipal law, so the true law of nations stands above the purely voluntary law described by Grotius under that name. The truth is that the law of nations is better termed the natural law of nations and conceived of as an important part of the law of nature. The voluntary law which Grotius elevates to the dignity of the law of nations, Wilson characterizes as simply the positive or “made law” of nations. Although both are derived from the same Supreme Authority, they are quite different in their practical application. The law of nations is the law of the people. By which, said Wilson, “I mean not that it is a law made by the people, or by virtue of their delegated authority. ... I mean that, as the law of nature, in other words, as the will of nature’s God, it is indispensably binding upon the people, in whom the sovereign power resides. . . .”17 When men have formed themselves into a state they may contract new obligations, but they cannot “discharge themselves from any duties they previously owed to those, who form no part of the union. They continue under all the obligations required by the universal society of the human race —the great society of nations.” The law of the universal society in turn requires that each nation should contribute to the perfection and happiness of the others. “Each nation owes to every other the duties of humanity.” These are the duties of the higher law.18 Nations are bound as individuals are bound to offer assistance to their neighbors when they are in trouble, and as with individuals the “offices of humanity” should flow from the pure source of love. At the same time Wilson realizes that love between states is a noble ideal rather than an actuality. Love is nourished by mutual selfsacrifice, but the nation, pursuing the aim of survival and aggrandizement, is in an anomalous position when called upon to love other nations. Never¬ theless, Wilson insisted on his vision of a larger citizenship of men who are not only loyal citizens of a nation but of the world. We can win our way into this great commonwealth through the “power of moral abstrac¬ tion,” which will enable individuals “so unknown, or so distant, as to elude the operations of our benevolence” to become “known to the heart as well as to the understanding.” We have, indeed, no “natural enemy.” “ ’Tis an unnatural expression. The antithesis is truly in the thought: for natural enmity forms no title in the genuine law of nations, part of the law of nature. It is adopted from a spurious code,” Wilson declared.19 Wilson reserved his greatest enthusiasm, however, for “the grand plan of

34o

JAMES WILSON

a general confederacy in Europe, formed by the immense genius of Henry the Fourth of France.” Some writers have considered the plan a “mere visionary project,” but not Wilson.-0 To him it was a daring blueprint of a future Commonwealth of Nations—a confederation of united nations. After an eloquent tribute to the great king and his minister, Wilson came to a not wholly unexpected conclusion. Here, in America, Henry’s “sub¬ lime system ... has been effectually realized—and completely carried into execution.”21 But there is still the troublesome problem of relations between nations. How are international quarrels to be arbitrated? an impartial mediator?

By commissioners?

By

All these methods are of doubtful efficacy, since

minds once inflamed resist reconciliation. Perhaps a guide may be found in the behavior of squabbling individuals.

Individuals united in society

entrust their disputes to the decisions of judges, “that justice may be done and war may be prevented. Are states too wise or too proud to receive a lesson from individuals? Is the idea of a common judge between nations less admissible than that of a common judge between men?” Indeed in the United States this principle has been applied in the Su¬ preme Court which, in effect, carries out the principles of the law of nations and thus incorporates the law of nations into American municipal law, much as England has absorbed a portion of international law merchant into its own common law. In America a new principle has been established in regard to the law of nations. It no longer has to depend on the benevo¬ lence of a ruling sovereign or on the threat of naked power, but can rather be entrusted to a court which will administer it by “impartial, independent, and efficient though peaceful authority.” The Court foreshadows the union of which Henry IV dreamed, since it offers the whole world a model by which discord, devastation, and war may be banished, and Wilson apos¬ trophizes it in ornate phrases, “O most excellent and rare enterprise— Thought rather divine than human.”22 Wilson concluded his lectures with a discussion of man as a member of a confederation and as a member of the great commonwealth of nations. For man as a member of a confederation, he turned to the citizen of the new United States with his manifold rights and obligations, and discussed at length the ideas of government that he had earlier adumbrated in the Federal Debates and in the Pennsylvania Ratifying Convention.

In his

examination of man as a member of the commonwealth of nations, Wilson amplified his plan for an international court of justice modelled on the Su¬ preme Court of the United States.

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34i

The picture of man in his various guises that Wilson offered to his students had been patched together from many sources, as what thought has not. In the timbers that supported his structure it is easy to recognize familiar beams and braces—lumber in common use by most of his educated contemporaries. Yet much was new in American thought, and to each perspective of man—as an individual, as a member of society, as citizen of a confederation, and of the world—Wilson gave his own distinctive touch. He sought, moreover, to reconcile the Anglo-Scholastic concept of natural law with the new Common Sense psychology of Thomas Reid, and thus to place the rationalistic spirit of his age, with its hope, its dynamic social aspirations, its enlargement of the intellectual horizon, in the frame¬ work of a traditional faith and by so doing to strengthen the structure of orthodoxy and deepen the insights of the infant sociology. James Wilson’s law lectures are a landmark in American jurisprudence. As a practical lawyer, Wilson was one of the outstanding legal figures of his day. As a theorist, he had no serious rival. Many of his great contem¬ poraries speculated on the nature of law, of man, and of society. Jeffer¬ son’s library included all the outstanding works on jurisprudence.

John

Witherspoon, president of Princeton College, apparently derived his po¬ litical theory from a metaphysic not dissimilar to Wilson’s. John Jay and Oliver Ellsworth as justices for the Supreme Court wrote important and far-reaching decisions. Edmund Randolph was a keen student of historical jurisprudence. When Wilson began his lectures Judge Tapping Reeve had been turning out lawyers at his Litchfield school for six years and George Wythe had been teaching law at William and Mary off and on since 1779. But Wilson alone of the great political figures of his day spelled out in detail his view of the nature of law, a view so broad that it encompassed philosophy, psychology, and political theory. Nor is Wilson’s jurisprudence obsolete.

Savigny’s nineteenth-century

theory that a people’s legal system expressed their national spirit rather than any archetypal truths was extended by exponents of the sociology of law who argued that law was no more than a reflection of the aims and aspirations of a society at any particular moment. The inadequacy of this doctrine has been suggested by the abuse of law in modern totalitarian countries, and few lawyers today are satisfied with such a basis for law. The rise of the modern philosophic schools of realism, existentialism, and personalism—all of which have something in common with Wilson’s own metaphysic—may bring students of jurisprudence to reexamine the legal the¬ ories of James Wilson with fresh understanding and sympathy.

CHAPTER XXIII

The Business of the Court

James Wilson delivered his law lectures in a winter of unusual severity.

The Schuylkill was frozen deep enough to carry the heaviest carriage with safety, and the hard, clear ice rang with the blades of skaters. Smart sleighs dashed down High and Chestnut streets, raced out to the river with young Philadelphia beaus and their rosy, bundled ladies shrieking at the reckless pace. The presence of Congress and the President, recently removed from New York, added to the hectic social life of the city. The old City As¬ sembly looked disdainfully on the ambitions of the new Assembly. Trades¬ men’s wives, fat and frumpy, or lean and awkward, aped the manners of their betters, the grand ladies said, and the younger Assembly, in turn, sniffed at the Tory aristocrats of Chestnut Street who thought themselves so fine. President Washington, maintaining a careful neutrality, appeared at both functions on successive nights. With the spring session of the circuit courts approaching, Wilson was forced to terminate his lectures. He gave the last one—on “the Study and Practice of law—interspersed with a number of law exercises,” on the 17th of April,1 and hurried off to Trenton to join Judge Iredell on the middle circuit. At Trenton the two justices found so many cases on the docket that they decided to divide their forces, Iredell remaining to preside with the chief justice of the New Jersey Supreme Court, and Wilson going on to the Pennsylvania District. By the second week in May, Wilson and Iredell had joined forces again in Maryland, and the two justices dined together at the home of “the great Mr. Carroll,” where Wilson endeavored to engage the interest and the vast resources of one of the wealthiest men in the country.2 Wilson and Carroll

THE BUSINESS OF THE COURT

343

were old friends. They had been signers of the Declaration of Independ¬ ence, members of Continental Congress, and at the Federal Convention. Charles Carroll, saying little, had helped to counterbalance the recalcitrance of Luther Martin. Now Wilson found Carroll cautious but responsive and the two men laid plans for a joint venture in lands. Wilson returned to Philadelphia from the spring circuit to find the city sweltering in a heat wave. The directors of the Humane Society came forth to advise the perspiring citizens how to beat the heat. Cold drinks were fatal, they warned, giving a solemn accounting of those who had ex¬ pired through drinking chilled beverages.3 The city, despite such prescriptions, sweltered in its own pungent juices and stank to high heaven. Sluggish breezes from the river brought the odor of rotting fish heads and of the entrails of shad and sturgeon from the wharves. Dead cats and dogs, crawling with green flies, decayed vegetables, pulpy and grey in the gutters of Front Street, added their special smells to the thick air. The August term of the Supreme Court met in the City Hall in the midsummer heat, but there was little business before the Court and it adjourned hastily. Wilson, finding himself badly pinched for funds, tried to raise a new loan from the Bank of North America. He was already much in debt and in danger of losing title to some 133,000 acres for which he had preliminary deeds. He was planning, he wrote the directors of the Bank, to go shortly to Europe where he felt sure he could sell his entire holdings at a handsome profit.4 The directors, however sympathetic to Wilson personally and politically, were too familiar with the precarious state of his enterprises to extend further credit.

His request refused, Wilson nonetheless managed by a

series of desperate financial expedients to maintain his vast but flimsy em¬ pire of land holdings largely intact.

But for the moment survival took

precedence over expansion. His gargantuan energies and restless ambition unsatisfied by his role as justice and his endless land schemes, Wilson wrote to his friend William Bingham, speaker of the Pennsylvania House, to outline plans for a digest of the laws of Pennsylvania. As the first step in such an undertaking, the common law “should be introduced, and explained and thus serve the double purpose of a commentary on the code or text and a digest of the common law reduced to a regular system.” After a review of the statutes of Pennsylvania, “alterations, additions and improvements . . . ought to be

344

JAMES WILSON

made and prepared for the consideration of the legislature and the people at large.” Wilson was willing to undertake the vast task for a fee of eight hundred dollars. While Bingham tried to win the approval of the House for Wilson’s scheme, he conceived an even more grandiose plan—a digest of the laws of the United States. He secured an interview with President Washington and laid his project before him. Washington expressed interest and asked Wilson to put the plan in writing. Early in December, Wilson sent a de¬ tailed outline to the President. The government was “new formed and or¬ ganized,” he wrote, and “a good System of Legislation introduced into it now will have a salutory, a decisive, and a permanent Influence upon its future Fortune and its Character. Good Principles, at least Principles con¬ genial to those of the Constitution, should be laid betimes as the Founda¬ tion of subsequent Regulations.”

It is these principles that Wilson will

undertake to elucidate. “The most intricate and the most delicate Ques¬ tions in our National Jurisprudence will arise in running the Line between the Authority of the National Government and that of the several States. ... A Controversy, happening between the United States and any particular State in the Union, will be viewed and agitated with Bias and Passion, like a Question of Politics.” Thus it was important to formulate the principles and rules on which such a clash should be determined “before it arises.’’ The petition ended with a reminder to the President of the writer’s special qualifications for such a task. “In the Formation of both Constitu¬ tions, that of the United States,” Wilson wrote, “and that of Pennsylvania, I took a faithful and an assiduous Part. So far, therefore, as my Abilities can reach, I may be supposed to know their Principles and their Connexion; and their various Relations and Dependencies which their Principles and Connexion ought to produce in different Parts of Legislations. In the Study and in the Practice, too, of Law and systematic Politics, I have been en¬ gaged for a Time considerably Long, and on a Scale considerably ex¬ tensive.”5 The letter to Washington reveals, as clearly as anything that he wrote, a vein of impracticality in Wilson’s nature—his idealism, his restless am¬ bition and boundless energy, his frequent failure of proportion or perspec¬ tive. The codification of over a hundred years of Pennsylvania law, statute and customary, native American and English Common Law, was not a task to be undertaken lightly. To superimpose upon such a program the even more formidable task of digesting and codifying the law of the United

THE BUSINESS OF THE COURT

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States would have been an enterprise to strain the capacities of any man, however gifted. The idea that such a digest of United States law could result in a body of doctrine that would be acceptable to jealous states, suspicious democrats and uncompromising adherents of Federal power was unrealistic to say the least. At the same time Wilson’s letter shows his essentially democratic view of the law. He wrote Washington that one of his principle aims in making the proposed digest would be to reveal the “simplicity plainness and pre¬ cision" of the law. Again his Common Sense metaphysic influenced him. If the average American citizen was to be under law, that law must be, as he had declared in his opening law lecture, “open to the understanding of all.” This position opposed the increasing formalization of legal proce¬ dure that was taking place in America. Strongest before the Revolution among upper-class American lawyers who wished to ape the involved and outmoded procedures of the English Court, the process of formalization was arrested by the general exodus of Tory lawyers who had exemplified this trend. There were evidences already, however, of a new movement to resume the formalization of American legal procedure until it became the exclusive preserve of the initiate.

It was against this tendency that

Wilson spoke with such feeling. This was law, he declared, drawn off from first principles to remote subtleties, to forms as intricate and involved as the steps of a courtly minuet. This was law that formed a barrier be¬ tween the people and their government, between their wishes and the realization of those wishes; it was a law that, with maddening speciousness, wove its spells and magic formulae around a protected few until plain people in their baffled anger wished to pull down the whole structure. Perhaps the basic fallacy in Wilson’s project lay in the fact that it was in distinct opposition to the natural growth of law of which he confessed himself such a whole-hearted admirer. Wilson failed to see that the best hope for the triumph of his political principles lay in the gradual accretion of separate rulings, made here in circuit court, there in a district court, in the Supreme Court itself, vulnerable to attack on political grounds, forced on occasion to give way, but able with remarkable tenacity to maintain their basic position and eventually make their position the nation’s. It is hard to believe that the principles of Federal power laid down in Wilson’s digest would have differed in any material way from the con-

346

JAMES WILSON

cept of judicial power that the Supreme Court came to insist on. Indeed Wilson played a prominent part in formulating that concept. Washington referred the letter to Edmund Randolph, the attorney-gen¬ eral, for his opinion, and Randolph’s comments apparently settled the issue once for all. He argued cogently that no one person, however wise, was suited for such a task as Wilson proposed to undertake. Political bias must infect such a work, however impartial the author might attempt to be; a judge, charged with interpreting the law, should not be entrusted to make it; Congress, hypersensitive to encroachments on its preserve, would be alarmed; and lastly, more pressing issues lay before the country.6 Any one of the arguments presented by Randolph would have carried considerable force, together they were crushing. We hear no more of a plan for the codification of the laws of the United States. The demands of the circuit, of the Supreme Court itself, as its sessions grew longer, and of his own business affairs forced Wilson to abandon his law lectures in the winter of 1791-92. He was not inclined by temperament to bind himself to such a demanding job. He had completed a large part of that legal and political theory which was his principal interest. There remained for the most part “the retail business” of the law, as Wilson called it, a little scornfully—the study of writs, of pleadings, of torts, replevins, contracts. All of this was available in standard texts, through apprenticeships in law offices, through a study of Rlackstone and Littleton. The deep underlying principles of the law, the spirit of the law, and its place in the larger frame of human society, of philosophy, of politics— these were the elements that were perhaps only to be communicated by a teacher who had such a vision and these were, to Wilson, the foundations of the law. Moreover, in a college the size of the University of Pennsylvania it is doubtful whether in successive years sufficient students could be en¬ rolled in a course such as the one Wilson gave to make it worth the teach¬ er’s time, when he must depend for his salary on the fees of his students. For whatever reason, the lectures stopped, and Wilson was probably glad to be free of the responsibility of preparing for three classes a week. The work of the Court was growing rapidly—the circuits alone consumed nearly four months in the year—and there were, in addition, his digest of the Penn¬ sylvania laws, his vast land speculations, and the coming Congressional elections in Pennsylvania to occupy his remaining energies. Before the February, 1792, term of the Court, Washington appointed Thomas Johnson of Maryland to a vacant place on the Supreme bench,

THE BUSINESS OF THE COURT

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but when the Court met the new justice was absent, ill, and Cushing lingered in Boston. “The Judges now in town cannot make a quorum,” Wilson wrote to the Massachusetts justice, urging him to hasten to Philadelphia.7 Waiting for their New England colleague, the judges found before them a

case which seemed bound to draw forth an important statement of prin¬

ciple regarding the delicate subject of state sovereignty. The United States marshal requested a court order for the appearance of New York State in a suit brought against the state by one Oswald. Could a citizen bring suit against a state and summon that state before the bar like a private citizen ? Imbedded deep in popular mythology is the picture of John Marshall as the author of the principle of judicial supremacy—the Supreme Court’s right to declare unconstitutional state laws which conflicted with the Con¬ stitution or with the laws of the national government, or to invalidate acts of the Congress itself which appeared to the Court to conflict with funda¬ mental constitutional law. The fact is that the Court from the very first lost no opportunity to give rulings which made it clear that the majority of the justices conceived of the Court’s role as that of final arbiter between individual states, between states and the national government, and as a court of last appeal from the acts of the government itself. The principal authors of the Constitution were quite clear in their concept of judicial supremacy, both in terms of review of legislation and of supremacy over the states. The Court accepted and developed the intentions of the Framers. While the justices, waiting for the arrival of Cushing, held the case of Oswald v. the State of New Yor\ under advisement, it was voluntarily with¬ drawn and the suit discontinued. The issue of the suability of a state by an individual was postponed to another day.8 In the meantime the even more important question of judicial review of national legislation forced itself to the foreground. Congress had been besieged by petitions from veterans of the Revolution who had suffered injuries in the War for Independence. Their claims for pensions flooded the legislative halls and almost inundated the harassed solons who were struggling to give shape to the young republic. In March Congress, with a sigh of relief, it may be presumed, shifted the load of invalids’ petitions to the Supreme Court justices. They, during their circuits, should hear the pension claims of the Revolutionary veterans, subject to final revision

348

JAMES WILSON

by the secretary of war and Congress. These were the terms of the Invalid Pension Act. The dockets of the circuit courts were already clogged with cases, and the overworked judges were not slow to express their opposition to the thrifty expedient of Congress. The first case under the new act rose in the Federal Circuit Court of New York before Chief Justice Jay and Justice Cushing. The two justices were at pains to make their position clear. The legislative, judicial, and executive branches were separate and distinct under the Constitution, and each was morally obliged to resist encroachments by the others. The justices’ duties under the Constitution were exclusively judicial. To add others of an executive nature was against the express terms of the Constitution and therefore not valid. However, having stated their position, Jay and Cushing declared their willingness to act as commissioners in the pension claims cases out of respect for Congress. Wilson and Blair, both veterans of the Federal Convention, sitting in the Pennsylvania Circuit Court with District Judge Richard Peters, took a more militant stand. They were aware of the danger in precedents, and they both refused to examine the petition of William Hayburn for a pension when the first such case came before them in the middle of April. Wilson framed a letter to the President, presenting their arguments at length.9 The letter reviewed the provisions of the Constitution in detail. Then came the dramatic sentence. “Upon due consideration we have been unanimously of the opinion that under this act, the Circuit Court held for the Pennsylvania District could not proceed.” The business was not, in the first place, of a judicial nature. Beyond this there was the fact that the decisions of the judges on specific claims might be revised or reversed by the executive or legislative branches. This would be an unconstitutional usurpation of power, and might lead to interference with the independence of the judiciary. The last objection showed an acute sensitivity to preroga¬ tive. That non-judicial decision given by judges, sitting not in their judicial capacity but as commissioners, should, in being reviewed by the executive, prejudice their independence as judges could only have occurred to men extremely jealous of their full authority, and bent upon maintaining it at all costs. The reaction of the press and public was at first largely favorable, al¬ though cries for impeachment of the recalcitrant judges arose in Congress. What division of opinion there was took forms that if anything placed Anti-Federalist sentiment with the Court, and Federalist sentiment, at least

THE BUSINESS OF THE COURT

349

in several important cases, in opposition to the justices. Claypoole’s Daily Advertiser was optimistic enough to hope that the Court might in the same

way refuse to approve the legislation that had recently authorized the Bank of the United States. Fenno’s Gazette of the United States, which had the reputation of being the voice of Alexander Hamilton, regretted that the “humanity of Congress has been thwarted by the actions of the judges.”10 Benjamin Franklin Bache’s General Advertiser favored the case of the Court over a Congress that was predominately Federalist. “Never was the word ‘impeachment’ so hackneyed,” the Advertiser declared, “as it has been since the spirited sentence passed by our judges on an unconstitutional law. The high-fliers, in and out of Congress, and the very humblest of their humble retainers talk of nothing but impeachment! impeachment! im¬ peachment! as if forsooth Congress were wrapped up in the cloak of in¬ fallibility, which has been torn from the shoulders of the Pope; and that it was damnable heresy and sacrilege to doubt the constitutional orthodoxy of any decision of theirs, once written on calf-skin!”11 Philip Freneau, the poet-editor of the democratic National Gazette, spoke of the judges’ decision as marking the “first instance ... in which that branch of the government has withstood the proceedings of the others.”12 But Fisher Ames, crotchety arch-Federalist, wrote: “The decision of the Judges, on the validity of our pension law, is generally censured as indis¬ creet and erroneous. . . . When [the Courts] condemn the law as invalid, they embolden the States and their Courts to make many claims of power, which otherwise they would not have thought of.”13 Ames’ arguments re¬ vealed quite clearly the reasons for the apparent paradox of finding AntiFederalists aligned behind the Court, and Federalists in opposition. The Republicans were optimistic enough to hope that they might enlist the Court as the ally of the states in their controversies with the national gov¬ ernment. They understood little of the true temper of the justices. Attorney-General Randolph had a shrewder insight into the implications of the judges’ decision. His only regret was “that the Judiciary in spite of their apparent firmness in annulling the pension law are not, what some¬ time hence they will be, a resource against infractions of the Constitution on the one hand, and a steady asserter of Federal rights on the other.” Ran¬ dolph feared that in view of the crudities of the judiciary system, the jeal¬ ousy of the state judges, and the ambiguities of the Constitution itself, a di¬ vision of opinion by the judges on the role of the Court might prove fatal to the hope of a powerful judiciary. “Many severe experiments, the result

35o

JAMES WILSON

of which upon the public mind cannot be foreseen, await the Judiciary,” he wrote Washington. The status of states as defendants against the complaints of land companies and individuals and the whole question of the British debts, both these critical issues are as yet undetermined. Therefore it would perhaps be advisable to sharpen the points involved in the Hayburn Case to the end that no zealous advocates of state sovereignty can construe the Court’s ruling to their own use, as some indeed have already shown a dis¬ turbing tendency to do. For this reason Randolph planned, he told the President, to try in the August session of the Court to elicit a more positive declaration from the judges by issuing an executive order directing them to sit as commissioners on the pension claims.14 The August term of the Court found Justice Thomas Johnson of Mary¬ land present for the first time. He was sworn in and the justices proceeded to consider the Court’s docket of cases. Edmund Randolph’s scheme to draw a clear-cut decision from the whole Court on the Hayburn Case promptly backfired. It apparently had not occurred to the attorney-general that the justices might be as sensitive to executive pressure as to legislative. He found himself at once on the defensive, trying to justify to the Court his own right to issue a mandamus. He spoke eloquently and at considerable length, but although Johnson, Iredell, and Blair upheld him, Cushing, Wilson, and Jay opposed his right to issue the mandamus, finding it dangerous prece¬ dent for the attorney-general to meddle in cases before the Court.15 The equal division was enough to block Randolph’s intention. He attempted to switch his role to that of counsel for a pension petitioner who wished to appeal a decision of the District Court.

The justices again frustrated

Randolph by postponing their decision until the next term.

Meantime

Congress relieved the judges of their role as pension commissioners and the case was dropped. Randolph vented his irritation against Jay, whom he imagined to be the principal impediment to his plan. In the Chief Justice’s judgments, Randolph wrote to Madison, “there was no method, no legal principle, no system of reasoning!”16 Below the high and relatively dispassionate level of judicial rulings, of magisterial dignity, of momentous decisions, on a less exalted but no less significant level, brutal facts had their way. At the end of March, 1792, William Duer, a speculator on a grand scale, a sometime associate of Rob¬ ert Morris and of Wilson in giant land ventures, failed. The rumor was that his

Six Percent Club

had aimed at buying up all the six percent

government bonds, amounting to seventeen million dollars, and selling them

THE BUSINESS OF THE COURT

35i

abroad for diirty shillings in the pound. To finance this grandiose enter¬ prise, for which ordinary banking channels were quite inadequate, Duer had resorted to speculative borrowings from “merchants, tradesmen, dray¬ men, widows, orphans, oystermen, market women, churches and even com¬ mon prostitutes.”1'

His losses, the story ran, amounted to two and a half

million dollars, and his furious creditors drove him to take refuge in jail. The panic which began in New York spread quickly to Philadelphia and two or three relays of fast horses, “expresses” as they were called, passed be¬ tween New York and Philadelphia every twenty-four hours to carry the latest stock quotations.

Numerous business houses fell in the general

debacle; McComb, a New York merchant and partner of Duer, reputed to be worth a hundred thousand pounds, and Walter Livingston, scion of the great Livingston clan, went bankrupt. Bills of Exchange on London sold for well over twice their value when anyone could buy the precious things, and a visitor from New York reported to Dr. Rush, whose view of the upheaval was one of mingled horror and fascination, that “he scarcely entered a house” in which he did not find a woman in tears and a hus¬ band wringing his hands. An oysterman with the improbable name of Whippo was reported to have run off with half a million dollars in bank notes. Real estate which had risen three hundred percent in Philadelphia since the Revolution dropped to its former level, and exclusive Chestnut Street with its imposing brick houses was nicknamed “Lame Duck Alley.”18 Wilson survived the panic but all his resources and all his ingenuity were strained to the utmost. In such an abrupt crisis, holders of land stood in a somewhat better position than those speculators who dealt in more liquid resources. The land speculators took terrific paper losses, but if they could hang onto their land, if no outstanding loans came due, they had a good chance of riding out the hurricane. When the cry was everywhere for money, land was virtually unsaleable and creditors had little incentive to foreclose land mortgages. Weathering the storm, Wilson worked on his codification of the state laws, and early in April a committee from the legislature was appointed to meet with him and determine whether sufficient progress had been made to justify continuation of the project.

Wilson had accomplished a good

deal. From the records in the rolls office, he had taken “an account of all the Laws made in Pennsylvania from its first Settlement till the beginning of the last Session of the Legislature”—seventeen hundred and two statutes in all.

352

JAMES WILSON

He had entered the titles of these laws in chronological order in a book, and on many of them “made and minuted Remarks.” He had, in addition, compiled an index according to subject, “which Task,” he reported, “re¬ quired a Degree of minute Drudgery.” The acts of the legislature com¬ pose, however, only a portion of the laws of the state. Since, as Lord Coke says, “To know what the Common Law was before the making of any Statute is the very Lock and Key to set open the Windows of the Statute,” Wilson intended to place under each heading of statute law, the common law relating to it. “This,” he told the committee, “would be a useful Com¬ mentary on the Text of the Statute law; and would, at the same Time, form a Body of the Common Law reduced to just and regular System.” The joint committee of the House and Senate which reviewed Wilson’s progress was impressed. His work “if well-executed upon the plan which he has formed will be of extensive and permanent utility to Pennsylvania,” they reported. The committee recommended that the work be continued, and that Wilson be paid a hundred and fifty pounds for his labors. The re¬ port, however, was ordered by the Senate “to lie on the table.” Wilson’s scheme became involved with a question of constitutional prerogative be¬ tween the two houses and the whole project languished.19 On the 18th of April, James Wilson attended the commencement exer¬ cises at the University of Pennsylvania, peacefully wedded to the old Col¬ lege. Bird, now fifteen years old, a studious, rather precocious boy, received his bachelor of arts degree, a handsomely inscribed document, signed by his father as Professor of Law, by Provost Smith, by Dr. Rush, and the other members of the faculty, and festooned with a sumptuous purple ribbon.20 The August, 1792, term of the Supreme Court was concerned principally with the Hayburn Case, and shortly after the Court adjourned Wilson set out for the Eastern Circuit. Judge Iredell, having finally won surcease from the exhausting Southern Circuit, was Wilson’s co-judge.

Wilson’s oldest daughter, Mary, now a

young woman of twenty, accompanied the two justices.

She had been

“ailing” and her father evidently felt that the trip would be a change and diversion for her. Besides she was of marriageable age. Since the circuit would begin at New York, the little party headed north for the opening session. The post road ran through Kensington and Bristol on to Trenton. Past Princeton, an untidy crossroads village, the countryside lay rich and golden and greenish grey in wheat and flax. At Brunswick the

THE BUSINESS OF THE COURT

353

travelers were ferried across the Raritan and from there the stage passed through the Jersey flats of mullein and purple-crested sumac to Rahway, Elizabeth, and Newark. Three tedious ferry crossings at the Passaic, the Hackensack, and across the bay brought them at last to New York.21 New York in 1792 was second only to Philadelphia in size and im¬ portance. A vast, restless activity stirred the city. It had a rough, unfinished air about it. Not all of the streets were paved. Many were narrow and congested and some had no sidewalks at all, the buildings crowding onto the street. Where sidewalks existed cellar openings protruded so far into them that strolling was an impossibility and walking a hazard. The streets themselves, like those of Philadelphia, were full of refuse and pigs wandered about poking through the debris with hungry grunts. New York was a wicked city, too. There were several sections abandoned to prostitutes for the plying of their profession, the most famous known as “the Holy Ground.” In New York the two justices had old acquaintances to renew, and Wilson was anxious to introduce Mary to his New York friends. Mary stayed with the Hammonds and had tea at the Jays with her father and Judge Iredell. The chief justice was himself absent on circuit, but Mrs. Jay was a charming hostess with all the mannered graciousness of a great lady.22 Judge Iredell was, for the moment, brought low with a fever, and Wilson sat alone in the Court of Justice which stood just below the City Hall. The docket of cases offered only brief and routine business. Judge Iredell soon recovered, and by the 20th of September the two judges were traveling on with their young companion to New Haven. The stage left New York at four in the morning, and the travelers huddled together in the chill greyness of the pre-dawn light, waiting to find places in the coach. With their baggage already placed on a carriage, the little party found all seats taken and with difficulty procured an extra stage for themselves, while Peter, Judge Iredell’s Negro servant, mounted guard over the baggage in the first stage. As the grey dawn faded into daylight, the judges noticed that some of their baggage on the stage ahead had broken loose. They hailed the first coach, there was an anxious parley, and the judges and Mary Wilson squeezed into the regular coach while the other went back with Peter to retrieve the lost luggage. After an anxious two-hour wait at Kingsbridge the stage appeared with the trunks. They had been picked up by a farm boy driving a wagon down to market, and Peter had recovered them

354

JAMES WILSON

promptly. The judges, their robes and their judicial dignity intact, con¬ tinued their journey to New Haven. At Wallingford the three travelers stopped to hear a long, dull sermon preached to an uncouth audience.

They dined at Durham, passed on

through Wethersfield, “a pretty little place,” and reached Hartford, where their lodgings were good but cramped.23 There was much court business at Hartford.

Iredell found himself

taken up with the invalid pension claimants whom Wilson still refused to hear. Hartford society, moreover, was, as it is today, closeknit and exclusive. Only Colonel Wadsworth extended hospitality to the two justices, and they looked forward to moving on to more friendly jurisdictions. Wilson, nonetheless, favored the court with “an elegant and pertinent charge to the Grand Jury in which he expatiated with great force and beauty of language upon the excellence of the institution of juries.”24 At Hartford word reached Wilson of a crisis in his financial affairs so acute that he abandoned Iredell and dashed back to Philadelphia with Mary, planning to rejoin his fellow-justice at Boston. It was the 21st of Oc¬ tober before Wilson straightened out his business concerns and caught up with Iredell. The North Carolina justice was staying with Judge James Lowell, and he and Wilson promptly pushed on to Newburyport, where Theophilus Parsons, who, with his careless dress, scraggly hair and knotted purple bandana, looked like a New England Socrates, gave them a warm Federalist welcome. They were in Exeter, New Hampshire, a few days later. Judge Iredell would have been content to linger on and enjoy the friendly spirit and con¬ genial social life of these Federalist strongholds, but Wilson, impatient to be back in Philadelphia, hurried him on. Iredell’s good humor seemed unruffled by his companion’s importunity, but he nevertheless clung to Boston until the first week of November and left with special reluctance. He had come to feel like a member of the family in the delightful home of Judge Lowell. From Exeter Wilson wrote to his agent, Ebenezer Bowman. He had planned to leave Iredell to make the New Hampshire circuit alone, but the illness of the district judge had forced him to continue the circuit and he could not now hope, he wrote, to return to Philadelphia until the latter part of November. He has made an arrangement with FitzSimons to pay for certain warrants “in case of necessity” (this was perhaps the fruit of the

THE BUSINESS OF THE COURT

355

Philadelphia trip), but only severe need will force him to that. If there is a chance of losing the land, FitzSimons is to be called upon.25 Together Wilson and Iredell traveled to Providence to preside at the circuit court of Rhode Island.26 They were a strangely assorted pair. Wilson, tall, reserved with all but his most intimate friends, constantly occupied with his studies, his projects, and his speculations, was often pensive and full of a kind of Scot’s moroseness. Iredell was a shorter, stouter man with a full humorous face, wide mouth, brown eyes more amused than serious, a constant observer and recorder of a host of things about him to which his traveling companion was largely insensitive. The southern judge loved parties, dances, good food, and genial gaiety. Wilson was possessed of too many demons to savor the pleasure and uniqueness of the moment. Although he could be, on occasion, a merry companion, he seldom unbent. By the end of November the two judges had completed the Eastern Circuit and were back in Philadelphia. Arduous as the judicial odyssey had been, Iredell had enjoyed it immensely, while for his companion it had been merely an interruption to his financial and political ventures. The February, 1793, term of the Supreme Court met in an atmosphere of expectancy. The case of Oswald v. the State of New Yor/{, once with¬ drawn, was back on the docket—a threat and a challenge to the judges. Most of the justices were acutely conscious of the hazards involved in forc¬ ing the issue with the adherents of state power, or with those who wished to place supreme authority in the national legislature; they thus un¬ doubtedly welcomed the continuance of the case of Oswald v. the State of New Yor\. But next came another case, equally explosive. The cause of Chisholm v. Georgia had already been continued from the August term in the absence of counsel for the state.27 Attorney-General Randolph himself had urged the Court to postpone action until the February session in order to give Georgia ample time to prepare her case. Jared Ingersoll and Alex¬ ander Dallas were present as counsels for the southern state, but they had been instructed not to argue the case. Georgia took the position that she was a sovereign state, immune to suit by her own citizens. The field was thus left to Randolph, who prefaced his argument for Chisholm by referring to Virginia’s recent denial of the right of an in¬ dividual to sue a state. On ordinary occasions, the attorney-general declared, such an opinion must influence him greatly, “but, on this, which brings into question a constitutional right, supported by my own conviction, to sur-

356

JAMES WILSON

render it would be in me an official perfidy.’ Warming to his task, the Virginian talked for two and a half hours until his own armory of argu¬ ments and the patience of his audience were finally exhausted. The Court adjourned until the following day. Public interest in the case grew rapidly. Rumors spread about the city and there were so many inquiries that Samuel Bayard, the clerk of the Court, issued a lengthy summary to the press. When Randolph resumed his brief, the court room on the second floor of the new City Hall was crowded with attentive listeners. After Randolph had concluded his arguments the justices deliberated for two weeks on the case. On the 18th of February they delivered their opinions separately, before “a numerable and respectable audience,” be¬ ginning with the lone dissenter, Judge Iredell. Although a staunch Fed¬ eralist in most respects, the North Carolina justice gave it as his judgment that the states were independent sovereignties. To support this contention, Iredell harked back to a Blackstonian concept of legislative supremacy that was quite out of harmony with the position of his colleagues on the bench. As for the interpretation of the Constitution given by the attorney-general, it was one that Iredell confessed he had never heard of, “nor can it now consider it grounded on a solid foundation.” Iredell’s argument was logical and consistent—a by no means unworthy expression of the school which holds that the national government has no powers except those which the states have specifically surrendered to it, and can evoke no other law than that portion of the common law which was indeed common to all the states. That Iredell was justified in his appre¬ hension over the Court’s tendency to approach a legislative function through the instrument of constitutional interpretation was demonstrated in the late nineteenth-century development of the Court. If Iredell was right, Wilson was no less so in his argument. He was, in addition, in a much better position to interpret the intentions of the Framers in regard to the Supreme Court. Although some of the delegates to the Federal Convention may have failed to grasp fully the implications of the Court’s powers, certainly Wilson, Madison, and their allies were quite aware of the potentialities of the instrument they had fashioned.

In de¬

livering his opinion, Wilson followed Blair, who had also been a member of the Federal Convention. “This is a case,” the Pennsylvanian began, “of uncommon magnitude. One of the parties who appears before this tribunal is a State, certainly re-

THE BUSINESS OF THE COURT spectable, claiming to be sovereign.

357

The question to be determined is,

whether this State so respectable, whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States?” For Wilson the question came directly to a problem “no less radical than this—‘Do the people of the United States form a nation?’” “The principles of general jurisprudence” must be applied along with “the laws and practices of particular kingdoms,” and finally the Constitu¬ tion of the United States. First, perhaps, should come a definition of the terms “state” and “sovereign.” Man “fearfully and wonderfully made is the workmanship of his all perfect Creator. A State, useful and valuable as the contrivance is, is the inferior contrivance of man, and from his native dig¬ nity derives all its acquired importance. . . . Let a State be considered as subordinate to the people, but let everything else be subordinate to the State.” States, then, are subject to the same rules of morality as individuals, and they lose nothing in dignity by being called upon to fulfill their engage¬ ments in an honorable fashion. Shall the State, Wilson asked, be permitted to “insult justice” by claiming an omniscience which places it above the law? On the subject of sovereignty “the errors and the mazes are endless and inexplicable,” Wilson admits, but the guide through the mazes may be found in the fact that there is no sovereignty save in the people who appor¬ tion it, under God’s law, as they will. Thus it followed that the people of the state of Georgia might give to the national government whatever powers they wished.

The only question which remained was whether they had,

under the Constitution, given the Supreme Court power to decide such cases as the one which now lay before the justices. Wilson, to buttress his argument, quoted the obligation of contracts clause. “What good purpose could this constitutional provision secure if a state might pass a law im¬ pairing the obligation of its own contracts, and be amenable, for such a violation of right, to no controlling judiciary power?”28 Cushing followed Wilson, and after him the chief justice delivered the final opinion, a confirmation of Wilson’s judgment.

Strangely enough,

neither the country as a whole nor the lawyers themselves expected such a verdict. The decision burst on the country like a bombshell and divided public and politicians alike into opposing camps. outspoken in their criticism of the justices.

Many Federalists were

From Anti-Federalist throats

came a roar of protest that shook the foundations of the Court itself. Rockribbed Federalists at once rallied to the Court’s defense, declaring that its

358

JAMES WILSON

decision fixed “the most material and rational feature in the Judiciary of the United States—that every individual of any State has the natural privi¬ lege of suing either the United States, or any State whatsoever in the Union, for redress in all cases where he can present a just claim, a loss or an injury.”29 The enemies of the Federalists denounced the Court’s “extraordinary determination” in dozens of angry editorials, and the Independent Chron¬ icle pointed out with perhaps justifiable bitterness that “when persons in opposition to the acceptance of the new Constitution hinged [their opposi¬ tion] on the Article respecting the power of the Judiciary Department being so extensive and alarming as to comprehend even the State itself as a party to an action of debt, this was denied peremptorily by the Federalists as an absurdity in terms.”

Now, however, “the eloquent and profound reason¬

ing” of the justices had made “to be right which was, at first, doubtful or improper.”30 A violent newspaper controversy raged over the issue.

To one editor,

the decision “involved more danger to the liberties of America than the claims of the British Parliament to tax us without our consent.” To another “the craft and subtilty of lawyers” had introduced the disputed clause into the Constitution as a Trojan horse within whose deceiving form the aris¬ tocrats plotted to reduce the states to mere corporations. Those who dared to defend the decision were stigmatized as members of “the tribe of mon¬ archy men,” old Tories who sought “an opportunity of getting back from the Government some confiscated property”;

sophistical aristocrats bent

on undermining the liberties of the people.31 In the general attack on the Court, Wilson’s own opinion did not escape censure. Iredell’s friend, William Davie, wrote sarcastically that it was too rarified for any but “a jew, a very few comprehensive minds.” Wilson, he declared, had decked out his opinion in “tawdry ornament and poetical imagery,” and no one could argue certainly that the ideas were not “orig¬ inal.” But the truth was that the statement read “more like an epic poem than a Judge’s argument, . . . the rhapsody of some visionary theorist.” And Davie was as firmly set against theorists as against Federal domi¬ nation.32 It remained for the Independent Chronicle, however, to make the most accurate analysis of the reason for the loud outcry that greeted the Court’s decision. “The numerous prosecutions that will immediately issue from the various claims of refugees, Tories, etc. . . . will introduce such a series of

THE BUSINESS OF THE COURT

359

litigation as will throw every State in the Union into the greatest con¬ fusion.”33 And this prophecy was borne out by the immediate institution of such suits against North Carolina, Georgia, Virginia, and Massachusetts. Massachusetts responded by calling a special session of the General Court to urge an amendment to the Constitution, and Virginia followed suit. In Georgia, the lower house, with typical Southern truculence, passed a bill providing that any Federal marshal or other agent of the national government who tried to execute the process served by the Supreme Court should be “declared guilty of felony and shall suffer death, without benefit of clergy, by being hanged.” The urgings of Massachusetts and Virginia were not needed.

The

day after the decision of the Court an amendment was introduced into Congress to make the states immune to suit by an individual of another state or of a foreign state, and after passing through various modifications it was finally ratified and became, in 1798, the eleventh amendment.

CHAPTER XXIV

New Ventures

In the April, 1793, term of the Pennsylvania Circuit Court, Wilson, Ire¬

dell, and Richard Peters, district judge, sat on the case of the United States v. Ravarad The defendant was the consul from Genoa charged with

sending a threatening letter to Hammond, the British Minister to the United States. Wilson and Peters upheld the jurisdiction of the Circuit Court and refused to quash the indictment. Ravara was tried by Jay and Peters on circuit the following year and a jury found him guilty. The case was a minor one but it helped to strengthen the authority of the lower federal courts. After the Pennsylvania circuit was completed, Iredell and Wilson split, the southerner taking the Middle Circuit and Jay and Wilson em¬ barking on the “Eastern” swing through the New England states. Once again, this time under the disapproving eye of the chief justice himself, Wil¬ son abandoned his judicial duties to meet a new financial emergency in his affairs in Pennsylvania, but he was back in Boston in time for the open¬ ing of the session of the Circuit Court for Massachusetts. The Pennsylvanian found Boston a congenial town. It was a stronghold of stout Federalist sentiment and if some of its leaders were attacked for being too “high,” they were, nonetheless, solid and able men. In addition, no town offered more diversion to a visitor. Some of the finest preachers in the country held forth in Boston’s churches. Dr. Peter Thacher was one such, a Harvard graduate and an eloquent and learned minister. Wilson had heard him highly spoken of and on his first Sunday in Boston he walked across the Common to Dr. Thacher’s “meeting” at the Brattle Street Church.

NEW VENTURES

361

The doctor impressed him less than one of the members of the congrega¬ tion—a charming, dark-haired girl who sat in an adjacent pew. the service Wilson contrived to meet her.

After

Her name was Hannah Gray,

a niece of Harrison Gray, the last royal secretary of the Bay Colony and cousin of the rising young Federalist politician Harrison Gray Otis. Several sharp-eyed ladies noticed that Wilson seemed smitten on the spot, and soon the news that the distinguished Supreme Court justice was ardently court¬ ing Miss Gray was the subject of slightly scandalized gossip in Boston drawing rooms. After all, the Judge was said to be fifty-five and Hannah Gray was only eighteen or nineteen, younger indeed than the two oldest Wilson children.2 Let the Beacon Hill dowagers cluck. Wilson made love to Hannah in his courtly manner. She was shy and somewhat embarrassed at attentions from a famous man old enough to be her father. Yet it was quickly apparent to interested observers that the outcome of the Judge’s courtship would not prove “tragical.”

The most authoritative sources had

it that the Pennsylvanian’s “wound” would be healed “and that by the lady giving him her fair hand.” Wilson had to drop his suit to carry on the business of his circuit but he wrote Hannah from Newport asking her to marry him, begging for a speedy and favorable reply.3 While Wilson on circuit was bemused by love, his affairs in Pennsylvania went badly.

Wallis sent a letter after him warning that unless money

could be raised promptly they stood to lose 60,000 acres of excellent land. Only Wilson’s prompt appearance in Philadelphia could ward off disaster.4 Spurred by the alarming news from Wallis, Wilson hurried back to Phila¬ delphia. There, with the help of a loan of ^5,013 from William Bingham and other lesser sums from unwary lenders, he managed to hold things together for the time being.5 Other important matters awaited Wilson on his return to the city— matters of importance to the nation.

President Washington, adhering to

his announced policy of neutrality toward both France and England, ex¬ perienced for the first time the venom of political partisanship and found it a bitter draught.

As custodian of the new government, he had no

intention of risking it among the shoals of international power politics how¬ ever much the Francophiles might snap and snarl. Washington’s greatest gift was to understand instinctively the limitations of any situation, military or political, and work always within the framework of the possible. Know¬ ing his country’s deepest need was peace, Washington indulged himself in

362

JAMES WILSON

no sentiments of personal pride or national honor in regard to America s precarious position between France and England. He would not bluster or threaten or try to beat more experienced hands at their own game of diplomatic intrigue, nor did he try to sweeten the pill with agile explana¬ tions designed to disguise the necessary as the desirable. The President was determined that America should remain free of commitments and alliances with the two warring powers, because the alternative was to imperil all that had been so painfully won—how painfully only he could know—and was now so tender, so easy to crush. Having promulgated a Neutrality Proclamation, Washington was determined that it should be enforced and that friend or foe should find no partiality in its administration. To take such a position in the heat of Republican enthusiasm was to invite attack from the partisans of the French, and the attack was not slow in coming. The anger of honest Republicans at being forbidden by the President’s proclamation to aid their French friends was in no degree lessened by the fact that such aid could prove highly profitable. Privateers fitted out under the cloak of French authority could prey with great profit and a minimum of risk on Dutch and English shipping, making a killing at sea and slipping into the nearest port to dispose of the booty.

Such

piracy carried much higher profits than honest commerce, and in spite of the President’s proclamation the outfitting of privateers and the recruitment of American sailors to man them went on quite openly. George Hammond, the British Minister, had written a sharp note of protest to Jefferson in early May citing chapter and verse on a privateer named the Sans Culotte, outfitted in Charleston and sailing under American officers. Jefferson for¬ warded the note to William Rawle, district attorney for Pennsylvania, ask¬ ing him to prosecute any offenders. Rawle, in turn, received word of the presence in the port of Philadelphia of a Salem man, Gideon Henfield, who was acting as a captain of a privateer, and he immediately instructed the United States marshal to arrest Henfield “so that he may be dealt with ac¬ cording to law.”6 No time was lost.

Rawle’s instructions to the marshal were issued

on the 17th of May and Henfield was immediately placed under arrest. The case was of particular interest to Washington. Not only did it test the President’s ability to issue a proclamation that would have the binding effect of law but it also tested the scope of the judiciary’s jurisdiction in re¬ gard to treaties and to the maintenance of the law of nations. A special

NEW VENTURES

363

court was assembled to seek an indictment and, with Wilson as president, it convened on the 22nd of July. Wilson opened the proceedings of the court by addressing the grand jury on the circumstances which had led to the arrest of the defendant, Henfield. He then proceeded to examine the obligations of states to each other. Should the reckless and incendiary acts of a few persons be allowed to involve a whole nation in warp Both the treaty of amity and commerce with France and that with Britain forbid that the United States should aid one nation against the other. That the actions of a few individuals should negate these solemn commitments was unthinkable. On the basis of Wil¬ son’s charge, the grand jury returned an indictment and the case, amid mounting excitement among the Republican and Federalist ranks, went before a trial jury with Rawle and Edmund Randolph prosecuting for the United States and Peter DuPonceau, Jared Ingersoll, and Jonathan Sergeant acting for Henfield. Rawle received advice from an interested and anxious Alexander Hamilton, and the arguments of Randolph expressed the per¬ sonal feelings of the President himself. Fundamentally, the argument of the government lay on the ground that a nation must have the right to hold her citizens to the observation of international agreements. The defense, arguing on closer and more technical bases, charged that the treaties men¬ tioned were ambiguous and did not specifically preclude such action as Henfield had undertaken. After the counsels for both sides had presented their cases in detail, Wilson charged the jury, stressing the importance of the case and urging the jurors to be immune to popular clamor. While the trial was in progress, Citizen Genet, the rash French Minister, had not been backward in rallying hotheaded Republicans, delivering in¬ cendiary speeches, and writing angry and insolent letters. Threats were made to hang the jury if a verdict was given against Henfield, and the left-wing press was untiring in its fulminations against the workings of Federalist justice. The facts of Henfield’s guilt were, indeed, well known. In view of this and of the popular clamor, Wilson made his charge corre¬ spondingly strong. “Upon your verdict,” he told the already apprehensive jurors, “the interests of four millions of your fellow-citizens may be said to depend.” What Henfield can do any citizen can do. “Thus thousands of our fellow-citizens may associate themselves with different belligerent powers. . . . And will not a civil war, with all its lamentable train of evil, be the natural effect?” It is the duty of the court to instruct the jury on

364

JAMES WILSON

the matter of the law, but Wilson also reminds them that the facts are beyond dispute. “It is the joint and unanimous opinion of the Court that the United States, being in a state of neutrality, relative to the present war, the acts of hostility committed by Gideon Henfield are an offense against this country and punishable by its laws.” Despite the importance of the case and Wilson’s own conviction that Henfield was guilty in law and fact, he was careful to remind the jury of their right to judge of both fact and law. If the vocabulary of politics might be applied to the judicial sphere, Wilson’s theory that juries had the right to pass on law and fact was judicial democracy, an adventure in liberal jurisprudence that was doomed to failure. Juries proved too prone to use their right to pass on law as a loophole by means of which they might deliver decisions in accord with their own predispositions. In any event, it may be suspected that the jury took a similar liberty in the Hen¬ field case. Under the pressure of the noisy Republicans who milled around the Court House, they returned a verdict of “not guilty.” The rejoicings of the Republicans were loud and strident and the ubiquitous Genet, who had bombarded Jefferson with insolent protests at every stage of the pro¬ ceedings against Henfield, issued cards as soon as the verdict was announced inviting selected Republicans to a dinner party to meet “Citizen Henfield,” now under the protection of the French Republic. Gideon, however, had little chance to savor the pleasures of fame; on his next privateering voyage he was captured by a British cruiser. For the Federalists the decision was a nasty blow. Washington was so disturbed at the setback that he wrote to his cabinet suggesting that Con¬ gress be convened earlier than usual to deal with the emergency, and when this seemed inadvisable he issued instructions to the collectors of customs ordering scrupulous enforcement of the Neutrality Proclamation. In an effort to salvage as much as possible from an embarrassing and awk¬ ward situation, the President directed that Chief Justice Jay’s charge to the Richmond Grand Jury in May on the same subject and Wilson’s charge to the Philadelphia Grand Jury be printed and distributed to ministers and representatives of foreign powers as defining explicitly the attitude and policy of the United States government.7 Nations were left to draw their own conclusions from this example of democracy at work—where the settled policy of the government and the proclamation of the President him¬ self were thwarted by twelve private citizens.

NEW VENTURES

365

The summer of 1793 was the hottest, driest summer that Philadelphians could remember. The winter had been full of strange omens; there had been no snow and only moderate frosts. By the first of April, fruit trees were in bloom. Birds had returned early from the South but May had been a dismal month of driving rain and chill winds. Ponds overflowed their margins and the earth was sodden and smelled of mold. Now the heat held the city in its grasp. Breathing was an effort, eating a chore. The papers came out with the usual heat-beaters but they afforded little comfort to the harassed citizens. Flies were everywhere—large, black, and voracious. In the markets they crawled over exposed food and filled the air with their obscene buzzing, brushing against hot faces, arrogant and implacable. To keep them out, the Wilson house on Market Street was sealed like a tomb and its air grew fetid and oppressive. The plague of flies was nothing new. Philadelphians were, if not used to it, at least resigned. The insects, though small, were tangible and might, by skill and persistence, be rebuffed. But there was a deadlier enemy abroad in the summer of 1793. The anopheles mosquito, tiny and anonymous, blown in from the low marshy lands to the west of the city, rising from open gutters and drains, from scum-coated ponds and stagnant pools, came like a cloud of death bearing the terrible yellow fever.8 The city was swept by panic as the epidemic swelled to a plague. Many families began a hasty exodus and roads north and south were crowded by refugees—whole families with much baggage, moving by cart or coach to the country. Those who remained behind cowered indoors, locked and shuttered against the terrible fever which raged like a fire through the city and slipped past all defenses.

Wilson remained in Philadelphia to supervise

the move from the house at 7th and Market Streets to a larger house a block away at 8th and Market. He would soon be bringing a bride home with him. The new house was a handsome structure owned by Thomas Leiper, a wealthy Scots manufacturer of snuff and tobacco. Wilson had become attached to Thomas Jefferson’s ingenious bookcases in the library of the 7th Street house and he offered to buy them from the Virginian so that he could take them with him to his new quarters.

Jefferson quoted

Wilson a price of $91-73. Carstairs, the carpenter, had built the bookcases according to Jefferson’s specifications and if Wilson wished to move them,

366

JAMES WILSON

Jefferson wrote, Carstairs, knowing their intricate construction, would be the best man for the job.9 The August term of the Supreme Court was called off after Judge Paterson of New Jersey, the latest addition to the Court, had appeared and been sworn in. There could be little business accomplished in a ghost city and judges, too, were mortal. Word of Wilson’s land operations reached as far as the Northwest Ter¬ ritory where St. Clair, writing from the wilds of Cincinnati, rallied him about his ventures. “How goes the business behind the mountains?” he inquired. “Does it produce any money yet—for my friend Mac’s sake I hope it does—for you, you are as rich as a Jew already. I wish you had ten times as much,” the General added, “because I think you are one of those folks money would not spoil.”10 When Wilson left Philadelphia at the end of August to begin his tour of the Eastern Circuit, his business affairs seemed to be for the moment in order, but the precarious and irregular nature of his transactions forced him to constantly tread a razor’s edge between affluence and bankruptcy. Wilson was impatient with the law’s delays. He hurried through the routine of his circuit duties in New York and Connecticut and then has¬ tened on to Boston. There Hannah Gray waited to become his bride. Dr. Thacher, who had been the unconscious agent of the meeting, married them in a simple ceremony at the Brattle Street Church on Sunday, September 19, 1793. The day was the twenty-third anniversary of his ordination and he wrote in his diary, “may God forgive the sins of my ministry.” He had preached “at home” he noted, adding, “in the evening I married Judge Wilson and Miss Grey.”11 If some Bostonians disapproved of the disparity in ages between the Pennsylvania justice and his bride, at least one felt it would be “highly flattering to see one of our Boston girls in her Coach and Four rolling the streets of Philadelphia.”12 The Judge and Mrs. Wilson completed the Eastern Circuit through the lovely fall months of September and October and by early December they were in New York. Here alarming news awaited Wilson. Samuel Wallis had written that unless money to pay the expenses of surveys was forth¬ coming at once, some of Wilson’s lands would be foreclosed. Wilson set out for Philadelphia at once but a snow storm pinned him in Elizabeth, and from there he wrote an anxious letter to his agent ordering him not to “foreclose me in any Thing, particularly in the Six Districts.” He assured

NEW VENTURES

367

Wallis that in a crisis he could “come forward in real Force as soon if not sooner than others, on a Scale of great Extent.”13 So the young bride came home to Philadelphia to be mother to six children, with her husband already occupied with matters that were to absorb him increasingly in the years ahead. Christmas, 1793, must have been a strange time for Mrs. James Wilson, so recently Hannah Gray. As for the children, they found her charming and affectionate. They had been too long without a mother. They took the New England girl at once to their hearts. Wilson had condemned slavery roundly but he nonetheless had a slave of his own, Thomas Purcell, who helped to run the rather unwieldly Wilson household. Now, doubtless under the proddings of his Boston wife, he gave Purcell his freedom as a New Year’s gift.14 There was hardly time for Wilson to accustom himself to the new pat¬ tern of his life and to make fresh efforts to bring order out of his land trans¬ actions before the February session of the Court convened. William Brad¬ ford appeared as the new attorney-general in place of Edmund Randolph, who had accepted the office of secretary of state made vacant by Jefferson’s resignation. First on the docket lay the case of Georgia v. Brailsford which had ap¬ peared initially a year and a half before. The chief justice handed down a unanimous opinion of the Court on the law of the case—Georgia could not confiscate the debts due to citizens of another state or another country. Jay then reminded the jury that it was their duty to decide not the law but the facts, and the jury, after some hesitation, brought in a verdict for Brailsford. Another picket was thus placed in the fence which hedged the sovereignty of the states. The next case, Citizen Genet v. the Sloop Betsey,15 was one that involved the admiralty jurisdiction of the Federal District Courts. A French priva¬ teer, the Citizen Genet, has captured the sloop Betsey and sent the prize into Baltimore. There the owners filed a libel in the District Court, claim¬ ing restitution of the ship and cargo as the joint property of Swedish and American owners. The captors then asked the Court to dismiss the case, arguing that it had no jurisdiction. This plea was upheld by the judge of the District Court, and the privateer was left in possession of its prize. The case was an important one to President Washington. Although the real issue had to do with the jurisdiction of the District Court, the refusal of that Court to adjudicate the case would have the effect of making the

368

JAMES WILSON

enforcement of the Neutrality Proclamation vastly more difficult. AttorneyGeneral Bradford immediately received orders from the President to appeal the decision of the Baltimore District Court to the supreme bench. Washington doubtless felt that the Supreme Court would reverse the lower tribunal, and his expectations were not disappointed. The justices were “decidedly of the opinion that every District Court in the United States possessed] all the powers of a court of admiralty.” The case was sent back to the District Court of Maryland with instructions to render a decision. And a firm rebuke was directed to the French consul who had presumed to exercise French admiralty jurisdiction in the United States. If the decision represented a setback for the Francophiles, it failed to dampen their ardor. Citizen Genet, intoxicated by his popular success, car¬ ried his presumptions at last too far by intimating that he would appeal to the American people in behalf of France, over the head of President Wash¬ ington. Washington at once demanded his recall and enthusiasm for the hot-headed Frenchman cooled off rapidly except in Philadelphia where the Democrats, although deprived by the fever of two of their most accom¬ plished leaders—Dr. Hutchinson and Jonathan Sergeant—nonetheless con¬ tinued to lionize the French minister. Throughout January and February, Genet’s Philadelphia friends gave him a series of parties marked by the exchange of congratulatory speeches and republican effusions. The contentiousness of the French party was given fresh impetus by the arrogance of the British. American ships continued to be seized on the high seas, the border posts remained in British hands, and George Ham¬ mond’s lofty scorn was bitter gall to patriots. The British Orders in Coun¬ cil of November 6, 1793, instructed the navy to seize all ships laden with French goods or goods intended for any French colony. The rage of the Philadelphia merchants at this piece of highhandedness was unbounded. Israel Israel, one of the heroes of the yellow fever plague and a fiery demo¬ crat, gave an anti-British party on St. Tammany’s day “to honor the late successes of our French brethren” over the English. Washington, badgered by Tom Paine and harassed by the radical jour¬ nals of Duane and Bache, dispatched Chief Justice Jay to England to ne¬ gotiate a new treaty which would reconcile the major differences between America and Great Britain, and thus strengthen the shaky policy of neutrality. After the chief justice had departed, the Republicans, prejudging him,

NEW VENTURES

369

carried him in effigy about the streets, guillotined him and then, with a kind of superfluous savagery, blew the body apart with gunpowder. To Federalists who watched anxiously from curtained windows, re¬ bellion and civil strife seemed on the march. The makers of the American Revolution had let loose passions in their revolt against the mother country that might now blow up a mighty storm about their ears. Small wonder they speculated about the dangers of democracy and shuddered at glib evo¬ cations of “the people.”

Were these the people, they asked themselves,

this angry, mindless rabble roaming the streets and insulting their betters, this republican pack needing only a Marat to transform it into a Paris mob? Doubtless when Wilson, early in May, dined at Isaac Warner’s fish house with Robert Morris, Richard Peters, Tench Francis, George Latimer, and a number of other equally prominent and conservative Philadelphians, the activities of the Republicans were a principal topic of conversation.16 Wilson had been scheduled to take the unpopular Southern Circuit in the spring, but with Jay’s departure he received an unexpected reprieve. The circuits were reshuffled and Wilson found himself with Philadelphia, Newcastle, Annapolis, and Newport on his judicial itinerary. The switch meant he could take Hannah with him and remain in touch with his busi¬ ness affairs. When Mark Bird’s mortgage on the Birdsborough Iron Works had been foreclosed in 1786, Wilson, through an agreement with Bird, had pur¬ chased the entire works, paid off a prior mortgage, and then mortgaged the estate again to the Bank of North America. In 1794 he owed the bank $33:5653 on a joint note with Colonel Bird and $35,225 on his own note. These notes fell due at the end of January, 1794, and Wilson consolidated them and secured a new note for $71,000 due in six months. The directors warned him that there would be no further extensions. Meanwhile, another project fired his imagination.

The lands on the

Wallenpaupack, near the Lackewaxin River, were ideally suited, Robert Hooper had assured him, for mills. Water power was ample and there was easy access to Philadelphia markets via the Delaware River.

In April,

Wilson launched a plan to build an industrial center at Wilsonville on the Wallenpaupack. James Davenport was a weaver who had plied his trade in Copenhagen and was now a prosperous merchant in Philadelphia.

Wilson made a

contract with Davenport for the construction of sixty-four looms “for the

37o

JAMES WILSON

purpose of weaving sail, duck, and other cloth by means of machinery to be impelled by water.” Davenport, in addition, was to supervise the con¬ struction of machines at Wilsonville to process hemp and flax and oversee the erection of buildings to house the machines. Wilson guaranteed to pay all costs and to give Davenport $10,000 as his commission. According to the weaver’s estimates the sixty-four looms, spinning ma¬ chines, the beating engine, the water wheel, the cog wheels, and the build¬ ings would cost some $17,000.

Initially only sixteen looms turning out

2,400 pieces annually were to be installed. The entire sixty-four when in operation would turn out 9,600 pieces of duck at $11.50 per piece. The gross return Davenport estimated at $110,400 a year, and the net profit at $22,279. Wilson’s plans when carried into full operation would give him control of one of the largest cloth mills in the country.17 As Davenport began construction of the cloth mill at Wilsonville, Wilson drew up a contract for the erection of two sawmills at the Wallenpaupack Falls below the town.

These mills would together turn out

50,000 feet of one-by-eighteen-inch white or yellow pine board per day. John Page, the sawyer with whom Wilson made his contract, was to receive ,£3,000 when the machines were in operation, and he was to sur¬ render to Wilson his patents with the right to build two more sawmills on the same model as the original ones.18 With the threat of yellow fever again in the air and the chief justice absent in England, the August, 1794, term of the Supreme Court was called off. But all Wilson’s efforts to speed the surveys of the western land were unavailing. In addition to recalcitrant settlers, the surveyors encountered Indians on the warpath. Evading St. Clair’s clumsy maneuvers, the sav¬ ages buzzed like angry hornets around the frontier settlements, driving isolated farmers back on Pittsburgh and the larger frontier towns. When Wilson left for the Southern Circuit in September with Hannah, his affairs were as far from conclusion as ever. However, the circuit which he had dreaded turned out to be a triumphal procession. Everywhere the judge and his lady were made welcome by Federalist friends and admirers. Fayette¬ ville, a charming North Carolina town, won the Wilsons completely with its hospitality and graciousness, its handsome suppers and fine balls. Iredell, writing from his home at Edenton to Wilson at Ware, congratulated him warmly on his role in the suppression of the Whiskey Rebellion. “ I am per¬ suaded,” he wrote, “it has added strength and dignity to the Government. We have many discontented people among us, but I think Federalism is in

NEW VENTURES

37i

a state of convalescence; and if Mr. Jay’s mission should be successful, it will keep under the little barkings of ill-humor which are now perpetually assailing our ears.”19 Iredell ended by urging Wilson and his wife to visit Edenton before their return north. The Wilsons found the Iredells’ hospitality most pleasant. Bird joined them in Edenton and they apparently spent Christmas and New Year there and lingered on until the end of January.20 When they finally turned north it was with real regret. William Davie, who had been so critical of Wilson’s opinion in Chisholm v. Georgia, had been quite won over by the Pennsylvanian. “Judge Wilson’s affability and politeness,” Davie wrote to Iredell, “gave great satisfaction to both the bar and the people; a cir¬ cumstance I mention with pleasure, because I have observed its conciliatory effect with respect to the Government.”21 The February, 1795, term of the Supreme Court met in Philadelphia amid signs of an impending political storm. Chief Justice Jay had signed the treaty with England that was to bear his name, and the Federalists, conscious that their enemies were prepared to tear any agreement with the British to shreds, waited with considerable apprehension to hear the terms. Iredell, writing to his wife, expressed their common hope: “God grant it may prove satisfactory and permanent.”22 Only four cases came before the Court in the February term. The first was an aftermath of the Whiskey Rebellion—a treason case. William Lewis, counsel for the defendant, not allowed to smoke his perpetual cigar in the presence of the Court, hopped about like a nervous crane demanding a habeas corpus for his client, one Hamilton, who was being held without

bail on the charge of treason. It was perfectly “cul-lear” to him, he declared, doubtless fastening his sharp eyes on Wilson as though to dare him to dis¬ agree, it was perfectly “cul-lear” that “the prisoner should either be dis¬ charged absolutely, or at least, upon reasonable bail.” The Court knew well how difficult it was to prove a charge of treason. While the defendant had attended meetings of the insurgents, he had used his influence to try to restore law and order. There was, Lewis insisted, no real evidence of trea¬ sonable intent. Wilson, who had fought many fights with Lewis for men charged with treason, wrote the brief opinion of the Court ordering bail.23 The next important case—Penhallow v. Doane’s Admrs.—was a ven¬ erable one dating from Revolutionary days. Two points were at issue be¬ fore the justices: first, whether a state—in this case New Hampshire—had

372

JAMES WILSON

the right to ignore or overrule the decisions of the Special Commissioners on Appeal appointed by the Continental Congress; second, whether the Supreme Court should accept the decisions of the Congressional Commis¬ sioners as having the force of law. Wilson had been one of the Congres¬ sional Commissioners who heard the original case on appeal from the New Hampshire courts in 1776. He was thus disqualified from joining in the unanimous decision of the Court which upheld the judgment of the Con¬ gressional Commissioners and gave the effect of law to their rulings, but extensive opinions of the members of the Court were a welcome vindica¬ tion to Wilson and his fellow Commissioners who had seen their decisions brushed aside, in many instances, by recalcitrant states.24 The decision of the Court, important as it was in establishing judicial continuity between the Revolutionary government and the new United States, attracted little attention outside of New Hampshire. To the angry editor of the New Hampshire Gazette, however, the ruling “completely annihilated the sovereignty of New Hampshire.”20 Chief Justice Jay returned from his mission too late to sit in the Febru¬ ary term, and soon after his arrival in America he announced his candidacy for the governorship of New York. He also returned to face the bitter and unrelenting attacks of the Anti-Federalists who denounced his treaty stri¬ dently. It was indeed defensible only on the grounds of desperate necessity. Jay was elected governor of New York state in June and thereupon re¬ signed, somewhat belatedly, as chief justice. The resignation was a setback to the dignity and prestige of the Court. Washington offered the chief justiceship at once to Hamilton, but Hamilton refused and the President turned to another candidate. Even before Jay had resigned, John Rutledge, who had been offered an associate justiceship when the Court was formed and had refused it, wrote to Washington that he had heard rumors of Jay’s impending resignation and wished to inform the President that al¬ though he had considered the position of associate justice beneath him, since his “pretensions to the office of Chief Justice were at least equal to Mr. Jay’s in point of law-knowledge, with the additional weight of much longer experience and much greater practice,” if the chief justiceship again became available “the duty which I owe to my children,” Rutledge wrote, “should impel me to accept it, if offered, tho more arduous and troublesome than my present station because more respectable and honorable.”26 Rutledge was one of the “old Bolsheviks” of the Revolution. He had been a leader of the fight for independence in South Carolina, had served

NEW VENTURES

373

in the Continental Congress, and in the Federal Convention as a member, with Wilson and Ellsworth, of the important Committee of Detail. He had, in addition, a large and devoted personal following in his state. As soon as Washington received Rutledge’s letter, he wrote offering the appointment to him. However, before Rutledge could arrive in Philadelphia to assume his duties at the August term of the Court, word came of a frenzied and bitter attack by him on the Jay Treaty, which had been ratified by Congress in June amid shrill denunciations from the Anti-Federalists. Strong opposition to Rutledge immediately crystallized among the oldguard Federalists for whom support of the Jay Treaty had been both an ordeal and a severe test of party loyalty. The Court itself and Wilson in par¬ ticular must have felt chagrin at seeing an outsider thus rewarded for apostasy, although the President, of course, knew nothing of Rutledge’s out¬ burst at the time of his appointment. Wilson, widely spoken of five years before as the most likely choice for chief justice, had clung to the hope that with Jay’s resignation he would suc¬ ceed to his place. Cushing and Blair were senior to Wilson by a few days, but neither man was as distinguished in his services to the Republic as James Wilson nor had played as prominent a part in the important decisions of the Court. Perhaps Washington was afraid that in passing over the Massa¬ chusetts man and the Virginian to choose Wilson he might offend both judges and their native states and cause jealousy and discord within the Court. In an aggressive and lengthy political career Wilson had made many enemies and he had never been faultless in tact. But above all, there was the matter of Wilson’s land speculations. The mere fact of the speculations could not have alarmed the President, who was himself a speculator, but the colossal scale of Wilson’s undertakings, his precarious financial position, his constant borrowings, the kind of desperate recklessness which marked his ventures—all these must have been known to Washington. Any or all of these factors may have shaped the President’s decision. The word of Rutledge’s defection roused a storm in the Federalist press. To Edmund Randolph it was confirmation of a rumor that the South Caro¬ linian was slipping into senility. But sane or crazy, Rutledge arrived in Philadelphia and after taking the oath of office, presided at the August, 1795, term then just beginning.27 Wilson had the Middle Circuit in the spring of 1795 and, being close to his base of operations in Philadelphia, continued his efforts to try to

374

JAMES WILSON

bring his land ventures in Pennsylvania to some kind of settlement. He also pushed ahead with his plans for the industrial community at Wilsonville. In March, he decided to add dye works and cloth printing machinery to his venture on the Wallenpaupack. A textile expert named Mort sent Wilson estimates of the cost of constructing and equipping a factory to turn out printed fabrics. To produce a hundred bolts of cloth a week, Mort estimated, would require an investment in machinery of £6,000 and a working capital of ,£15,000.

Fifty printing tables with correspondingly

greater output would require a building three stories high, ninety feet long, and twenty-one feet wide, at a cost of ,£4,500. Mort proposed to sell Wilson a model of his own patented machine for $500, build the works, get them into operation, and “leave the compensation for my services to your own generosity.” The contract was drawn up, presumably on terms a little more definite than those suggested by Mort, and the inventor began at once to collect equipment for the dye works and to complete his machine.28 By July, an agent of Wilson’s, Robert Farmar, was able to report that Wilsonville contained twenty-two houses and shops. The cloth mill, started the year before, was eighty-seven feet long, forty-two feet wide, and four stories high. One saw mill was in operation cutting twenty-two hundred feet of board a day in ten working hours. The farmers in the community had harvested some four hundred tons of good timothy and made twenty thousand pounds of excellent maple sugar.

In addition, Farmar wrote,

there were numerous opportunities for expansion. The flow of water in the Wallenpaupack was sufficient to run a number of mills placed abreast.29 Even while Wilson struggled to bring order out of his sprawling land empire, he was drawn into vast new schemes in the South. William Pierce, a partner with “Light Horse” Harry Lee in several promising speculations, brought a note to Wilson with the offer of some fine southern lands at a bargain price.30 Although Wilson’s affairs were in a tangle, he could not resist Lee’s proposition. With so many irons in the fire, it is not surprising that he was forced into a period of frantic borrowing. John Young, a Baltimore mer¬ chant, lent him $80,000. Samuel Hughes of Hartford County, Maryland, lent him $3,500, and in six months Wilson placed himself in Lee’s debt to the amount of $8,ooo.31 And these were only a fraction of the loans, large and small, that he negotiated in 1795 and early 1796. The popular impres¬ sion that he was immensely wealthy and involved in deals that were to

NEW VENTURES

375

make him even wealthier, helped to loosen purse-strings everywhere and procure him money when there was any money to be had, although often at usurious rates of interest. A vortex of speculation, of which Wilson was the center, drew into its deadly grip dozens of men who hoped to share some of his rumored wealth. With the Holland Company already too deeply involved to be very responsive to new undertakings, Wilson turned to England. He wrote in July to his agents in London giving them his power of attorney, describing the lands available for sale to English investors and doubtless enclosing his tract on settlement. He listed 450,000 acres of Pennsylvania lands in eight counties—25,000 in Northampton, the rest further west. The land varied in price from a dollar to four dollars per acre for the eastern land, with a large portion priced at one-and-a-third dollars per acre.32 Patrick Henry, himself an indefatigable speculator, was associated with Wilson in several land ventures. He wrote him in July that he had been unable to interest Bushrod Washington in “our transactions.” Henry was nonetheless ready to convey to Wilson “the greatest part of the Carolina land with all that I sold you in Virginia.” In a few weeks, he added, “I shall be ready with the residue in Carolina.”33 So it went. Everyone who had land to sell seemed to find a path eventually to Wilson’s door, and very few were turned away.

CHAPTER XXV

The Morass

When the

Supreme Court met in February, 1796, a new member was

present. Judge Blair had resigned, and after some hesitation the President had chosen Samuel Chase of Maryland to take his place. Chase was a high Federalist, a sharp-tongued, violent man, himself full of land schemes. Wilson knew that Chase had been one of the leaders in Maryland’s opposi¬ tion to the Federal Constitution—opposed it, people said, to protect his land ventures and his speculations in currency. Meanwhile the chief justiceship was again proving a troublesome prob¬ lem for Washington. Rutledge’s apostacy had united the Federalist majority in Congress against him. The rumor that he was failing mentally settled the issue. The Senate had refused to confirm his appointment, and Rut¬ ledge went back to South Carolina with bitter thoughts. Wilson’s own hopes at once revived, but the President turned first to Patrick Henry, who refused, and finally to Justice Cushing, whose prin¬ cipal claim to consideration was his slender margin of seniority over the original associate justices. According to Iredell, Washington announced his choice by saying to Cushing at a state dinner, “The Chief Justice of the United States will take his seat at my right.” The selection of Cushing dis¬ tressed at least one staunch Federalist. William Plumer of New Hampshire pronounced the Massachusetts justice a man “I love and esteem . . . but Time, the enemy of man, has much impaired his mental faculties.”1 Cushing, perhaps aware that he was failing, declined the position, and the Court met for the February term without a head. Governor Johnston of South Carolina, Iredell’s father-in-law, regretted Cushing’s refusal.

“I

don’t know whether a less exceptionable character can be obtained,” he

THE MORASS

377

wrote, “without passing over Mr. Wilson, which would perhaps be a measure that could not be easily reconciled to strict propriety.”2 Yet Iredell’s friends continued to hope that the chief justiceship might fall to him. Wilson’s pre¬ occupation with his land and business ventures disqualified him, in the minds of many, from the highest position on the Court. In addition he had by this time lost the reins of political power in Pennsylvania, and had be¬ come, to the Anti-Federalists, a symbol of eastern aristocracy, one of the most controversial figures in the state. But Wilson did not view the matter in this light, of course. The Court was a growing institution, reaching out to establish and consolidate its authority and its independence, laying the foundations of American juris¬ prudence. Wilson felt it, felt the power radiating from the decisions of the Court. He ached to be chief justice. Elective office seemed closed to him. The chief justiceship would be a balm to his pride and his ambition. When Cushing declined, Wilson felt that the honor would surely go to him at last. He waited anxiously for the President’s choice. Even as he looked toward the highest judicial office in the nation, dreams of vast acres, shares of companies, costs of surveys were always in his mind. A few days before the Court convened for the February term he received a letter from Richmond, from a man named Saylor with whom he had contracted to buy large areas around the Dismal Swamp. The letter lay on Wilson’s desk like a serpent, an evil thing conjuring up the whole feverish nightmare of land speculation. Saylor’s first bill, drawn on Wilson for a thousand dollars, had been returned. Wilson had given solemn as¬ surances of his ability to pay, and Saylor in turn had assured the sellers. Now he was pressed to the wall. His fortune and his reputation hung in the scale. “I may, indeed,” he wrote ominously, “while I am sinking beneath the torrent, drag down your reputation with my own by showing that your assurances influenced my conduct.” Wilson read the threatening letter with dismay. A public attack on his financial probity could easily bring his great mansion of speculation crash¬ ing about him. “You will recollect, Sir,” Saylor continued, “that when we were about entering into this business the question was frequently propounded to you ‘are you certain that your funds will enable you to go through with this contract?’ The answer was invariably, positively and with confidence in the affirmative.”

378

JAMES WILSON

It was true. Wilson had let Saylor think he could command unlimited resources. Now he was confronted by the fruits of his deception. “I understand and I know,” Saylor wrote, “that your resources are im¬ mense and that you are able at any moment to exonerate yourself from a breach of contract, and us from disgrace. And when you reflect on the vast consequences of an unsullied reputation to him who practices law, par¬ ticularly with respect to money concerns, ... I am persuaded that no addi¬ tional circumstances be required to stimulate you to exertion.”3 Somehow Wilson met Saylor’s demand for payment. But other debts equally urgent pressed in on him. Hannah was pregnant and unwell, and things were tense and difficult in the Wilson household. And, too, there was the business of the Court. Two big public cases were on the calendar for the February term. The first, Hylton v. the United States, was a tax case, a curious one, brought to test the powers of Congress.4

The Constitution forbade a direct tax except on a proportional basis. Con¬ gress had voted a tax on carriages.

Daniel Hylton, a contentious Vir¬

ginian who owned a hundred and twenty-five carriages, had refused to pay the tax on the ground that it was a direct tax and therefore uncon¬ stitutional. Wilson had been one of the judges who had heard the case in the Virginia Circuit Court in May. He had ruled there that since the carriage tax was not a direct tax but a duty, the question of its constitu¬ tionality was not involved. Nobody denied the right of Congress to impose duties. Hylton appealed Wilson’s decision to the Supreme Court. At the heart of the issue lay the question of whether Congress could lay the very kind of tax that the British Parliament had imposed, with such explosive results, on the American colonies. Alexander Hamilton was counsel for the government, and so many people flocked to hear him speak that Congress was practically deserted. Hamilton, always an artist, gave them a spectacular performance.

He

showed the effects of a recent illness, but his thin, pale face was only the more effective setting for his luminous eyes, and his studied attitudes of weakness gave emphasis to his arguments. He spoke thus for three hours, weaving the web of his eloquence over everyone. The justices, rigorously holding to the issue whether the tax was direct or indirect, decided unanimously that it was an indirect tax or duty and therefore well within the rights of Congress. Since the case was a vital one, the justices delivered their opinions individually. given judgment in the Circuit Court, briefly concurred.

^Vilson, having

THE MORASS

379

The next important case, Ware, Adm. v. Hylton, had knocked about the courts since 1791.6 The Treaty of Paris of 1783 had called for the pay¬ ment by Americans of debts owed the British. This provision had been a hard pill for the states to swallow; most of them had confiscated British and Loyalist property during the Revolution and wiped British debts off their books. The prospect of having to disgorge large sums after a vic¬ torious war caused violent reactions in patriot bosoms. In Virginia alone there were said to be more than two million dollars of such British debts. The case before the Court represented the first significant effort of British creditors to collect a prewar debt. Edward Tilghman and William Lewis were counsel for the creditors. John Marshall appeared for Virginia, the defendant, and argued that a ver¬ dict in favor of the creditors would, in his words, “impair the sovereignty of Virginia.” Lanky, direct, with something of the rural politician about him, John Marshall spoke always “to the judgment merely, and for the simple purpose of convincing,” and out of Court he was followed by a small company of admirers. His neat logic, his personal charm, left the justices unmoved, however. After two weeks of deliberation, they brought in their decision. The British Treaty provisions, as the law of the land, must prevail over state laws, as indeed all treaties made in conformity with the Constitution superseded all state laws in conflict. Iredell when he had heard the case on circuit several years before had decided in favor of the state. Now, although he could not technically de¬ liver an opinion, he gave a long defense of his decision in the lower court. Wilson rebutted his friend. When the United States declared their inde¬ pendence, “they were bound to receive the law of nations, in its modern state of purity . . . ,” and the law of nations had in all civilized countries forbidden the confiscation of debts during time of war. Even if Virginia had possessed such powers, however, the British Treaty annulled them. The state had been a party to the making of the treaty and it was bound thereby. Cushing concurred and Iredell’s judgment was reversed.6 While the Court sat, Washington chose the new chief justice. Again he went outside the Court to pick Oliver Ellsworth, the Connecticut Federalist, who had served with Wilson in the Federal Convention and had later framed the Judiciary Act. The appointment was almost a direct rebuke to Wilson. Iredell noticed his colleague’s chagrin. He wrote his wife that the Pennsylvanian would probably resign from the Court.7 But Wilson did not

380

JAMES WILSON

resign. He clung tenaciously to his office, though his private reflections were undoubtedly bitter. A far worse blow was to follow. Word came that the Bank of England was limiting its discounts. Credit, already tight, grew tighter. American banks and investors called loans; the stream of liquid capital turned to the thinnest trickle. In common with other debtors, Wilson found himself desperately in need of funds. Borrowing frantically at usurious rates of interest, he waited for the storm to blow over, but the money crisis grew more acute through the summer months. Depression, not brief panic, had struck down the country’s economy. The sudden shocks of disappointment, professional and financial, were too much even for Wilson’s stout constitution. He had hardly known a sick day in his life, but now he was constantly ailing. “Mr. Wilson has for some weeks been in very bad health,” Iredell wrote to his wife in March.8 Little was wrong with him physically; he was exhausted in spirit, the whole fibre of his resistance weakened and slack. He attended the last few weeks of the term sporadically. When he did sit on the bench, he looked weary and ill with worry. Hannah was near the end of her confinement. Her sister came down from Boston to be with her, and on the 12th of May a son, her first child and Wilson’s seventh, was born. He was baptized Henry at Christ Church when Wilson returned from the Southern Circuit. By the time the Court convened for the August term under the new Chief Justice, Ellsworth, Wilson’s situation was desperate. Edward Burd wrote to Jasper Yeates with an edge of malice, “Ruin is staring in the face of the land speculators. The day of reckoning is at hand, and no prospect of disposing of their lands. There are a great number of judgments against your friend Wilson lately confessed by him. People speak very freely of the situation he is likely to be in very shortly.”9 As Wilson sat listening to lawyers argue, Philadelphians speculated on how long he could avoid arrest and imprisonment. The last case in which Wilson rendered a decision as a justice of the Supreme Court, was the case of Wiscart v. Dauchy.10 The issue here con¬ cerned the right of litigants to remove admiralty and maritime cases to the Supreme Court on writ of error instead of appeal. Removal on writ of error allowed the Court to review only the points of law involved. An appeal would permit review of both law and fact, thus giving the Court much wider power. The decision of the justices hinged on the correct inter-

THE MORASS

381

pretation of a clause in the Judiciary Act which provided for removing civil cases from the Circuit Court to the Supreme Court on writs of error.

The majority of the Court ruled to limit removal of maritime and admiralty cases to writs of error, outlawing appeals. The new chief justice declared, “this is the opinion of the Court, but not unanimously.” Wilson and Pater¬ son had dissented. Wilson delivered the dissent. He perhaps had in mind the case of Gideon Olmstead and the sloop Active as he prepared his opinion. Then his friend George Ross, Pennsylvania admiralty judge, acting on a statute of the state had refused to accept a review of facts by the Con¬ gressional Court of Appeals. To Wilson an interpretation of the Congressional Act that would allow removal of admiralty cases on appeal, rather than merely on writ of error, seemed essential “to the security and dignity of the United States. And if it is of moment to our domestic tranquillity, and foreign relations,” he declared, “that the causes of admiralty and maritime jurisdiction, should, in point of fact as well as of law, have all the authority of the decision of our highest tribunal; and if, at the same time, so far from being pro¬ hibited, we find it sanctioned by the supreme law of the land, I think the jurisdiction ought to be sustained.” He wished the Court to plot a bold course, making law where needed, placing on ambiguous phrases inter¬ pretations that would strengthen its authority and the power of the federal government. His argument was a coherent and forceful one. Here, indeed, in the robes of his office, Wilson put off despair, the feel¬ ing of a broken, hunted man, and turned back to a better world, the real world of his mind. In this realm noble principles governed action; “the mysterious science of the law” opened out in all its splendor, rising, lucid as sunlight, pure and ineluctable from first postulates to final truths. And above the whole wondrous structure of mundane law, stood God’s law, final and immutable, pervaded by His justice, shaped by His love, lifting man above doubt and confusion into a stable and orderly universe. Ellsworth gave an able answer to Wilson. His painstaking examination of the meaning of the disputed clause in the Congressional Act had, actu¬ ally, more logic to sustain it than Wilson’s, and his remark that it was “of more importance ... to ascertain what the law is, than to speculate on what it ought to be,” was aimed directly at the Pennsylvania justice. It was true that Wilson, to achieve the desired end, was often ready to strain the con¬ struction of a statute.

382

JAMES WILSON

In 1803 Congress vindicated Wilson’s conclusion, if not his logic, by passing an amendment to the Judiciary Act providing for appeals to the Supreme Court in equity and admiralty cases. Had Wilson been alive he would have undoubtedly found in the action of Congress a justification of his dissenting opinion in the case of Wiscart v. Dauchy. But Ellsworth would still insist that it was the proper function of Congress to alter the statute, not of the judiciary to strain the law. When the Court adjourned, Wilson’s personal situation was beyond re¬ trieving. Still he would not let himself think so, and wrote of making ar¬ rangements to satisfy his creditors. He left again for the Southern Circuit, after having tried in vain to trade with one of the other justices. The circuit was a nightmare to him. Every moment he ran the risk of arrest by some angry southern creditor. Somehow he got through the long agony—from Richmond to Charleston to Raleigh, back to Richmond, and then it was over. But the Philadelphia he returned to in the winter of 1796-97 was a city in panic. A hundred and fifty businesses had failed within six weeks and sixty-four people had gone to jail, among them some of the city’s most distinguished citizens. Robert Morris, as deep in disaster as Wilson himself, wrote to his partner, John Nicolson, “I am seriously uneasy, for W-l-n’s affairs will make the vultures more keen after me.”11 Morris, Nicolson, and James Greenleaf, who had ruined themselves by speculations in land at the site of the new capitol on the Potomac, were rumored to have $10,000,000 worth of land between them but their notes sold for fifteen cents on the dollar, a mere speculative value. Desperate men borrowed money at thirty percent per year and more— where they could get it at all—and people with money drew it out of the banks to batten on less fortunate citizens. While fortunes fell and men everywhere were involved in ruin, the speculative fever ravished the city like a terrible disease. Wilson had sustained himself in all his many enterprises through his faith that the United States would have a constantly growing economy. European financiers, attracted by the investment possibilities in America, would water unoccupied lands with pounds, florins, and guilders, and wherever foreign capital fell like a warm rain on American soil thriving communities would spring up, populated by foreign immigrants; land would increase in value, manufactured goods would rise in price, and all those with imagination and daring would reap a golden harvest. The idea that European financiers might invest their capital in the fortunes of Na-

THE MORASS

383

polcon’s armies rather than in American forests, or that the peasants of Europe might march off to war instead of embarking for the United States would have been quite inconceivable to Wilson and his fellow speculators. That prices might fall disastrously instead of rising, that land might not be worth the cost of surveying never occurred to them. The American business cycle had yet to come its first full turn. When it did, no capitalist of the post-Revolutionary period survived the general debacle except Wilson’s friend and sometime partner, William Bingham.

Bing¬

ham’s daughter married young Alexander Baring just in time, and the great financial house of Baring and Sons in London carried Bingham, almost alone of his generation, through the storm. Wilson in the midst of the final wreckage of his dreams was like a som¬ nambulist. The mind that had been “one blaze of light,” that had nour¬ ished itself on Cicero, Reid, and Hooker, took refuge in novels, and to Benjamin Rush, who reported this dissipation, it seemed the final measure of his friend’s deterioration.12 When Wilson went on the spring circuit, he took Hannah with him. Charles was at Mr. Drake’s school at Pottstown. William, lazy and over¬ much inclined to frivolity, had been dispatched to Wilsonville to manage his father’s affairs there and he doubtless managed them poorly. Bird was reading law, and Mary—“Polly,” as the family all called her—was left to look after the house, direct the activities of Elizabeth Nice, the maid, and care for Emily and James, Junior. After the spring circuit, Wilson hid himself away with Hannah at Morris Tavern in Bethlehem, and from there directed the efforts of his lawyer, Joseph Thomas, and of Bird, to satisfy the most pressing judgments against him so that he could return to the city without being at once clapped in jail. Morris Tavern was a dirty, drafty inn, and James and Hannah were poorly equipped for an extended exile.

Hannah had a local seamstress

make her a calico dressing gown, and Wilson wrote Bird, begging first of all for “the newspapers and all the news,” and then asking him to bring out with him when he came “your papa’s black cassimere coat that hangs up in my chamber closet. . . .”13 Instead of coming to Bethlehem, Bird wrote to his father to tell him of the progress in unravelling his affairs. The news was discouraging. Every piece of property was so encumbered with claims that it was almost im¬ possible to straighten out the tangle.

Birdsborough had been sold, but

384

JAMES WILSON

it turned out that a portion, included in the sale, had been sold already and the sale was void. William Lewis had done what he could to help, and Thomas FitzSimons gave counsel and advice, but most of Wilson’s friends found it difficult enough to keep their own heads above water. In the High Street house the rent was in arrears, Elizabeth Nice was unpaid, and the larder was almost empty.

The children were thread¬

bare, and since Mr. Ilhenny’s bill for tailoring was likewise unpaid, no new clothes could be bought to replace their badly worn ones. At the end of June, Bird collected his father’s quarterly salary as asso¬ ciate justice, paid the rent and the tailor, and leaving Polly a little house¬ hold money, caught the stage to Bethlehem, bringing his father the balance.14 From Bethlehem Hannah went to Boston to spend a few weeks with her family, and Wilson made his way to Burlington, New Jersey. At Bur¬ lington a creditor caught up with him. He was arrested and, unable to post bail, was thrown in jail to endure what he once called “the corroding torment of suspense.” James Wilson wrote to his son from jail. He needed three hundred dollars to satisfy the judgment against him, or six hundred for bail. “Bring with you,” he added, “shirts and stockings—I want them exceedingly— also money, as much as possible, without which I cannot leave this place.”15 Somehow Bird raised the money. Wilson was able to extricate himself from Burlington, and from there he fled south. At Raleigh he wrote, in December, to Joseph Thomas and to Bird. He was unable, he told his Philadelphia agent, to give any complete account of the lands he held in North Carolina and Georgia, but he was sure that with twenty thousand dollars he could straighten out his affairs in the South. Even a third of that sum might suffice to free him from his most pressing debts. He had decided, he wrote Thomas, to pass the winter in North Carolina and Georgia in an effort to bring order out of his land purchases in those states. The same day Wilson wrote Bird, asking him to meet him at Edenton and bring “all the Money that shall be possible.”16 Not much was possible. On the heels of his father’s letter, Bird received a bill for his brother Charles’ tuition. Headmaster Drake added a note that Charles was

in perfect Health. He desires a pair of Trowsers, shall

I give Orders for a pair?” he asked.1' Bird did not even reply; there was money for neither tuition nor trousers.

THE MORASS

385

Meanwhile Hannah Wilson, who might have remained in the security of her mother’s house in Boston, came back to Philadelphia to fulfill her role as stepmother and to wait for her husband’s return. But Wilson was not coming back. When Judge Iredell came north for the February term of the Supreme Court, he went at once to the High Street house to carry word from Wilson to Hannah and the children. When Iredell told Hannah that her husband had remained in Edenton, she burst into tears on the Judge’s shoulder.18 Even in Edenton, Wilson was not safe from his creditors. He owed Pierce Buder $197,000. Butler was a South Carolinian and word reached him of Wilson’s refuge. In March he wrote from Philadelphia to his agent William Slade, directing him to start legal proceedings against Wilson.19 Slade secured judgment and Wilson was again arrested and placed in jail. From there he wrote a frantic letter to Bird. He must make some arrange¬ ment to placate Butler. His “malicious creditors” are trying to tear his estate to pieces in order to speculate on his distress. Toward Butler, Wilson felt a special bitterness, because, as he wrote Bird, he had only been co-signer with Governor Blount and another man of a note which “was originally none of mine.”20 Bird’s efforts to secure his father’s release were given an added urgency by the fact that Hannah Wilson, who had no knowledge of her husband’s imprisonment, was about to leave Philadelphia to join Wilson in Edenton. Bird took his father’s letter to Butler, but the meeting was an unhappy one. Butler was offended at Wilson’s bitter remarks about the rapacity of his creditors. He demanded some assurance from Bird that steps would be taken to satisfy the judgment, but this Bird could not give.

Butler re¬

mained adamant.21 Despite the frequent instructions that Wilson dispatched to Bird, his affairs were in such a state that only he himself, working in close proximity to his creditors, could have accomplished anything in untangling them. Bird, young and inexperienced, had been thrown into a position that must have shocked and horrified him.

In addition, in the person of Joseph

Thomas, Wilson had delivered himself into the hands of an agent who was a thief and who deliberately battened on Wilson’s misfortune.22

Com¬

munication moreover was slow and uncertain. Bird misunderstood or ig¬ nored many of his father’s directives—many were indeed impossible to per¬ form. Wilson, for his part, resisted any effort to persuade him to dismem¬ ber his vast land empire, believing that his best hope for extricating himself

386

JAMES WILSON

lay in preserving his principal holdings intact. Thus nothing was done to restore a semblance of order—perhaps nothing could have been done.23 Money was at two percent per month and would remain so for two years. With Hannah Wilson about to set out for Edenton, Samuel Wallis pre¬ vailed on Pierce Butler to give him a power of attorney to arrange for Wilson’s “release and discharge ... the said James Wilson being now in con¬ finement at Edenton.”24 When Hannah reached the little Carolina town she found her husband established in the dreary rooms of the Horniblow Tavern next to the Court House. He was shockingly changed from the man she had last seen. Gaunt, listless, his clothes ragged and stained, he sat staring inter¬ minably out of the window of his room over the waters of Albemarle Sound. To Hannah the flight from Philadelphia had been a tragic mistake. From the day of her arrival she felt the pangs of homesickness for the children and the house on High Street. “I think if I was once at home,” she wrote Bird, “I should be content never to leave it again. . . .” The Horniblow Tavern was bleak and expensive. Wilson seemed un¬ able to rouse himself from an oppressive lethargy, but when Hannah sug¬ gested that he return to Philadelphia and deliver his property to his creditors, he refused to consider it. He had plans to satisfy all his debts without ruining himself and his family—without rotting in jail. Look at James Greenleaf, one of the promoters of the Washington speculation. His money was gone and he was lodged in Prune Street jail. Robert Morris was living barricaded in his house, in a state of siege. When Hannah persisted, Wilson cut her off. He did not wish to hear the subject discussed. Soon after her arrival at Edenton, Hannah wrote to Bird to give news of his father. Through her anxiety and concern for her husband slipped a little of her natural playfulness and curiosity. Bird was, after all, practi¬ cally the same age as his stepmother. “Have you seen the lady with the blue or grey eyes since I left home,” she asked him, “and have you had the courage to speak to her.

She sent her love to Polly and Emily and to James,

who was job-hunting. The girls really ought to send her regularly the news from home.25 Wilson meanwhile wrote Joseph Thomas. “Bird says that contrary to your former opinion [you feel] that I should make a conveyance to trustees in general trust.

As a man of business experience, Thomas should know

that such action leads invariably ment

to universal dissatisfaction and disappoint¬

among all the creditors, except, of course, the trustees themselves.

THE MORASS

387

Some men who are not even Wilson’s creditors have begun speculations on his estate “with an avidity cruel, treacherous and insatiable.” To avoid such consequences, Wilson told Thomas, he preferred to submit “to every per¬ sonal indignity and persecution,” and be hunted like a wild beast. “The last extremity shall never compel my signature to an act which would pre¬ clude me from performing the duty ... of doing full and effectual justice to all. . . . The keenest periods of distress . . . have not driven me to raise money by methods ruinous to those to whom I am indebted.” Even con¬ cern for his family has not induced Wilson “to withdraw a single foot of my property from the sacred fund for discharging all that I owe.” If he can only hold on a little longer he is sure that “the season is approaching when such exertions may be crowned with the most abundant success.”28 He will not surrender his lands. Early in July, Wilson suffered a violent attack of malaria—the inter¬ mitting fever, Hannah called it. For days he lay unable to move, his pow¬ erful frame wracked and wasted by his illness. Weakness troubled him the most, that and the exhausting heat in the little room. Hannah, writing to Bird, had to stop frequently to wipe the perspiration off her face and hands. Sick as he was, Wilson spoke of taking the Southern Circuit—that circuit which he had tried so often to avoid. Hannah had no clothes and could not accompany him. His hat was a ruin of rusty, shapeless felt. To ride cir¬ cuit he would need a small gig and horse, and these would cost several hundred dollars. New clothes would be sixty more and there was not, in truth, enough to buy a hat. Yet Hannah in durance, humored him, and kept silent on the subject nearest her heart—their return to Philadelphia. Some small token of the pleasant comforts of home might help assuage the loneliness of her exile. The calico dressing gown, made when they were in Bethlehem, hung in the corner of her own wide, sunny room in the house on High Street. Perhaps Polly will send it and a pair of shoes to the Iredells. The only shoes she has, she confesses to Bird, are worn through. She cannot even take an early morning walk along the shore before the heat of the day closes down. As Hannah wrote to her stepson, Wilson, still weak from his fever, dropped into a quiet sleep at her side. She looked at his ill, wasted face and then wrote two poignant sentences. “Write me what people say to our not coming home. You need not be afraid of distressing me. . . .” She had strength for no more in the destructive heat of the little room. Besides her pen had quite given out, and she would not wake her husband to have him sharpen it for her. Her thoughts, she wrote, were often with

388

JAMES WILSON

Bird and the children. As she sent her love to Polly, Emily, and James, Wilson woke from his nap and added his love to Hannah’s.-1 Gradually recovering his strength under his wife’s tender care, Wilson wrote to Bird in August with new plans to satisfy his creditors. “The time is opening in which, I think, something very effectual may be done. . . . I am much better but still weak.”28 To Bird came also word from Charles in his round wavering hand. “I seen Hansel this morning who informed me that papa was yet very ill which I was very sorry to hear.” And then, with a child’s keen sense of personal humiliation, “I am hardly fit to be seen my trousers is so bad.”29 Wilson, seeming better, busying himself with schemes to bring order out of his affairs, suddenly relapsed. As it would not be his will, it had to be his mind and body that broke. He had a stroke, and with Hannah at his bedside raved deliriously about arrest, bad debts, and bankruptcy.

The

strong spirit had cracked at last when there was little to be drained of humiliation and despair. His hopes and fears, his failure and degradation, rose up spectre-like about him in the little Carolina inn where he lay dying. In death he clung to life as in life he had clung to his land empire. Hannah, whose marriage had been as bewildering and episodic as a dream, sat far from her New England home and gave love and comfort to the man in frayed linen who night and day told over the last years of his agony in broken sentences. The images of the jails came back again and again. His spirit could not rest. In his rational moments be begged Hannah to remain with him. Her presence meant so much, was such a balm. At last after a three-day vigil, with little food and no sleep, Hannah Wilson was led away from her husband’s bed by Judge Iredell, and soon afterwards James Wilson died—the 21st of August, 1798 at the Horniblow Tavern in Edenton. He was buried in a simple ceremony on the estate of Mrs. Iredell’s father, Governor Samuel Johnston, in the cypress-shaded family burial plot near the dusty country road.30

Epilog ue

Epilogue

Men die but the world goes on, although to those who loved them it

often seems to very little purpose. It is a shock to find that after the final conclusive event people dare to continue living very much as though nothing at all had happened. The seasons complete their cycles, politicians harangue, couples fall in love and marry and beget children. But the sense of outrage, illogical as it is, persists. Somehow the Wilson family made out. Friends and relatives gave help and comfort. The Stedmans took in Emily, James, and Charles, and Polly visited the Chaunceys in New Haven. Hannah Wilson went to the Iredells, a few blocks from the Horniblow Tavern, where another Hannah pam¬ pered her back to health and good spirits. From Edenton she wrote Bird, “If it were not for you children, I think I should feel resigned to know that his suffering is at an end but when I think of your situation, it seems too much, but I hope, my dear Bird, you will exert yourself. Remember you are the only one they have to look up to.”1 James Wilson’s death meant different things to different people. To his fellow justices, whatever their personal feelings, his death was a release from an embarrassing situation. The Court had been virtually short one justice for over a year.

Impeachment proceedings against Wilson would have

damaged its prestige immensely at a time when it was very vulnerable. President Adams lost little time in appointing Bushrod Washington, Wil¬ son’s law student, to the vacant seat. Wilson’s death threw his estate into extended litigation, and his financial collapse brought the collapse of others. Samuel Wallis, Wilson’s partner in the still uncompleted Holland Company venture, and perhaps the only

39o

JAMES WILSON

man who could hope to bring order out of his affairs, came to Edenton to see Hannah Wilson about her husband’s estate. He was thoughtful and gracious, and acting on Judge Iredell’s advice, she turned over to him her powers as administrator of her husband’s will.2 Bird objected to the appointment of Wallis, but before the issue could come to a head, Wallis, who had suffered in mind and estate almost as much as Wilson, died, and Bird, Bishop White, and Thomas FitzSimons were appointed joint administrators of the estate. Wilson’s holdings at the time of his death were extensive. He had con¬ tracted for the sale of the Gibraltar Iron Furnace in Berks County. The sale of the Birdsborough Furnace when completed brought the estate $35,000. The nail and wire factory on the Delaware near Trenton was valued at ,£54,145. His lands in Cumberland and Northumberland County were valued at over ,£10,000; his home at Somerset near the Delaware Works at ,£3,510; his Indian Orchard lands at ,£10,000. The Wallenpaupack enterprise was rated at ,£20,000, and his lands along the Susque¬ hanna at ,£24,000. Together with Mark Bird, Wilson had assets of well over ,£186,000, and this figure, of course, did not include the lands in the South which had evidently gone by default when Wilson could not meet his pay¬ ments on them.3 Bird Wilson met twice with the creditors of his father’s estate at the City Tavern where James Wilson had so often presided genially over the festivities of the St. Andrews Society and plotted political strategy. Auctions of Wilson’s personal belongings were held to cover the costs of administering the estate. Judge Chase bought Wilson’s Supreme Court robe for seventeen dollars. Eight dollars were found in a desk. A case of surveying instruments brought four dollars. Table, tea, and dessert spoons sold for ninety dollars. One hundred and sixty-three volumes from Wilson’s large library brought $253.75. Included were a score of books on farming, the lifelong hobby of a farmer s son, the Prmceps Christianus, the Consti¬ tution of the United States, twelve copies of the Pennsylvania Constitution of 179°? and the debates of the Pennsylvania ratifying convention. A box of forty-five English trout flies, a surveyor’s chain, sixteen tablecloths, and thirty napkins helped to bring the total to $45475-4 There were no testimonials, eulogies, funeral orations for Wilson. Always anathema to his enemies, he had become a political liability to his friends. His death had been a pathetic one without the nobler dimensions of tragedy.

He lay in quiet obscurity besides the waters of Albemarle

EPILOGUE

391

Sound, far from the scenes of his great triumphs. His forgotten bones, mouldering in the little graveyard beneath the cypress trees, symbolized the eclipse of his fame. The very conditions of his death, a fugitive from the law in a shabby Carolina inn, made him an uncongenial subject for the filiopietistic pens of nineteenth-century biographers who demanded of any American hero a spotless escutcheon, or one whose blemishes could be readily obscured with a little patriotic gilt. Lawyers who had known him and felt the full force of his powerful and original mind spoke well of him in the years after his death. Marshall, Story, Livingston, and Kent read his constitutional theories as laid down in his opinions and lectures.

Members of the Supreme Court quoted

him in their decisions; compilers of law books cited his works. There were, indeed, few important facets of the American struggle for independence and the subsequent efforts to establish a new republic— Wilson did not hesitate to call it a democracy—that were not affected by the incisive mind of the Pennsylvania lawyer and politician. On his arrival in the colonies in 1765 Wilson was typical of the able and ambitious young Scotsmen who were pouring into Pennsylvania in the middle decades of the eighteenth century. Not to be confused with the more numerous and better known Scotch-Irish, they came from middle class Scottish families, from the lower ranks of the professional classes, or, like Wilson, from Lowland farms.

An extraordinary number of these

aggressive and capable Scotsmen became prominent in the affairs of their adopted home. Joining with native Pennsylvanians of similar backgrounds, they represented the projection onto the stage of American history of a dynamic and creative class of lawyers and merchants, moving from the shadow of an entrenched social order to take leading places in developing the political and economic foundations of American capitalism.

Among

them James Wilson was pre-eminent. From his Considerations on the Authority of Parliament through the weary travail of the Continental Congress to the establishment of the Fed¬ eral Constitution, James Wilson was in the front rank of the “founding fathers.” His early and persistent championing of a “national” government, and, through the Bank of North America, of an ordered system of finances reveals him as one of the principal theorists of federalism. But it was in the task of framing a sound government for the new republic that Wilson made his greatest contribution to the future welfare and stability of his country. At Philadelphia in the summer of 1787 only James Madison and Gouverneur

392

JAMES WILSON

Morris were his equals as constitution-makers. In the Convention he played the Federalist part with skill and determination, but he also transcended that role and gave unmistakable evidence of his independence and his sympathy with the aspirations of the “commonalty.” Taken as a whole, his record in the debates constitutes one of the most remarkable political per¬ formances in our history. It was Wilson’s vision, more than that of any other single member of the Constitutional Convention, which was ful¬ filled in the next century and a half of American history. His spirit pre¬ sided at the adoption of the Seventeenth Amendment and in the gradual process by which the president came, for all practical purposes, to be elected directly by the people of the states. In the Pennsylvania Constitutional Convention of 1790 Wilson made abundantly clear that the democratic views he had earlier expressed were in no way quixotic or inconsistent, but his settled judgments, the fruits of his carefully developed “metaphysic.” To Wilson must also go much credit for the conception of the Supreme Court. He foresaw its destined role in the American political system from the first, and he never slackened his efforts to help achieve that vision. Both Rutledge and Ellsworth, who had been delegates to the Federal Convention, occupied higher positions on the Court, but neither man had a role com¬ parable to Wilson’s in creating the original conception of the Court or in guiding its first uncertain steps. Wilson’s law lectures, edited by his son Bird and published in 1804, are unique in American jurisprudence. However, although his influence on his contemporaries had been great, his view of the nature of law was soon eclipsed by the emergence of the case system of legal study. In recent years there have been two movements—one in legal education, the other in jurisprudence—that suggest the revival of theories of the nature of law put forth by Wilson. On the one hand there has been an increased interest in natural law and a growing feeling that law cannot simply serve the immediate interests of the dominant group in a society, but must have, to some degree at least, an independent life of its own. On the other hand, at some law schools in the country a movement has developed to .examine law in some such context as that which Wilson en¬ visioned in his own lectures—law as related to individual and social psy¬ chology, law as a symbol of man’s eternal search for justice, of his efforts to develop systems of jurisprudence that give the greatest range to the potentialities of the individual in society.

Lately, too, there has been a

EPILOGUE

393

movement, under the stimulus of the concept of “general education,” to give every college student at least a rudimentary understanding of the nature and the origins of the law under which he lives. These trends have a spiritual ancestor in the stiff Scottish lawyer who gave one of the first series of law lectures in the new nation which he had helped to create. It was perhaps Wilson’s most remarkable quality that with his strong belief in the necessity for form and structure—a belief which he shared with his Federalist colleagues—he also believed profoundly in the mutability of society. Moreover, although he held fast to “first principles,” he was singularly lacking in dogmatism and showed a thoroughly pragmatic atti¬ tude toward the question of how principles were to be translated into prac¬ tice.

This quality was most conspicuous in the Federal debates where

Wilson confessed on a number of occasions that the evidence on some dis¬ puted point was obscure and his own judgment tentative. This attitude was related to his desire for what has been lately called an “open society,” a society responsive to the possibilities of new growth and development, a society flexible and articulate. He had a respect that amounted to reverence for the wholesome complexity and variety that lie at the heart of a creative community. Thus he always spoke for a minimum of barriers and re¬ straints, for the maximum of opportunity, for the generous admission of immigrants, the ready acceptance of new states into the Union, and the most direct expression of the popular will. James Wilson was a conserva¬ tive with boundless faith in the potentialities of a free society under law. Tracing over the events of Wilson’s life, we are impressed by the lucid quality of his mind. With this went a restless energy and insatiable ambi¬ tion, an almost frightening vitality that turned with undiminished energy and enthusiasm to new tasks and new ventures. Yet, when all has been said, the inner man remains, despite our probings, an enigma. We recall Tawney’s words, “The heart of man holds mysteries of contradiction which live in vigorous incompatibility.”

But Wilson’s character is more

than ordinarily baffling. It is no use to wish that for our edification it had been a life more open, persuasive, appealing, richer in intimate detail, re¬ vealing more confidences, crotchets, vanities, and secret yearnings, so that we might, at least in little things, more readily establish its correspondence with our own. We have rather, since lives are not made to the order of historians, a prickly life, a gnarled and knotted life, hard to grasp, yielding its meaning and its humanness with reluctance, a mollusk-like life with an

394

JAMES WILSON

almost impenetrable shell and tough muscles that resist the historian’s shucking knife to the end. It was, one dares to say, a great life, a life that we are scarcely ready to take the measure of, a life with endless challenging dimensions, with innumerable unanswered and perhaps unanswerable ques¬ tions, guarding as all life must its ultimately inviolable secrets with stony reticence—remote, reserved, intractable, the classic American story of a Scottish farm boy who, in seeking his fortune, helped to create ours.

Notes

Notes

I. Fifeshire

This chapter is based primarily on the following materials: For the descrip¬ tion of Fife and the farm life of Wilson’s boyhood: Aeneas J. G. Mackay, A History of Fife and Kinross (London, 1896); Robert Boucher, The Kingdom of Fife: Its Ballads and Its Legends (Dundee, 1899); James Wilkie, Bygone Fife (Edinburgh, 1931); Walter Wood, The East Neu\ of Fife . . . (2nd ed.; Edin¬ burgh, 1887). The descriptions of St. Andrews are primarily from R. G. Cant, The University of St. Andrews; A Short History (Edinburgh, 1946), as well as from other material in the above-mentioned works on Fife. 1. Mackay, History of Fife and Kinross, 170-205. а. Bishop Burnet’s History of His Own Time, cd. by Osmund Aery (London, 1897), I, 524. 3. Mackay, History of Fife and Kinross, 167, 168. 4. There is considerable evidence that Wilson’s father, William Wilson, was the William Wilson of Perth who was one of the leaders in the secession. We know from Wilson’s first cousin, Robert Annan, that he was a “ruling elder” in the Kirk. That the Marrow of Modern Divinity and other works of the Bostons were the principal reading matter in the Wilson home we know from Alison Wilson’s letters to her son in later years. From these letters it is certain that Wilson’s parents intended him to be a minister in the Associate Church. 5. Robert Annan to Bird Wilson, May 16, 1805, Rush MSS, Library Company of Philadel¬ phia. This letter is a valuable source of information about Wilson’s early life. б. James Hervey, Meditations and Contemplations (new ed.; Edinburgh, 1774), I, 36, 47-497. Minutes of the United College, University of St. Andrews Muniments. 8. Thomas Young to Wilson, Edinburgh, Oct. 6, 1783, Montgomery Collection, Hist. Soc. Pa. II. The Province of the Penns

1. College of Philadelphia, MSS Minute Book, I, 309, University of Pa. 2. Pennsylvania Gazette, May 29, 1776. 3. Robert Annan to Bird Wilson, May 16, 1805, Rush MSS, Library Co. of Phila. 4. John Macpherson to William Patterson, Philadelphia, April 9, 1769, Thomas Allen Glenn, Some Colonial Mansions (2nd ser., Philadelphia, 1900), 457. 5. Wilson’s notebooks are in the Hist. Soc. Pa.

NOTES TO PAGES

396

25-61

6. My reconstruction of Wilson’s early days in Reading is based on an examination of the court dockets of Berks County.

See also J. Bennett Nolan, The Foundation of the Town

of Reading in Pennsylvania (Reading, 1929). 7. Stan V. Henkels, Catalogue No. 842 (April 27, 1900), item 503, p. 77.

Fragment in

Wilson’s handwriting.

III. Journalism and Love 1. Pennsylvania 2. John

Chronicle, March

Macpherson

to

William

14,

1768.

Patterson,

Philadelphia,

May

11,

1768;

Glenn,

Some

Colonial Mansions, II, 455. 3. White to Wilson, Philadelphia, Nov. 27, 1768, Gratz Collection, Hist. Soc. Pa. 4. Ibid. 5. J. Bennett Nolan, “Ben Franklin’s Mortgage on the Daniel

Boone Farm,” American

Philosophical Society, Proceedings, 87 (1943-44), 394"3976. The account of Wilson’s courtship, except where otherwise indicated, is

taken from

a letter of Wilson’s to Billy White in which Wilson retraces the events of his courtship. letter is undated but was apparently written in the fall of 1770.

The

Collection of James Alan

Montgomery, Jr., Philadelphia. 7. Wilson to Rachel Bird, Dec.

12,

1769,

Collection

of James

Alan

Montgomery,

Jr.

8. Wilson to Rachel, Nov. 29, 1769, Collection of James Alan Montgomery, Jr. 9. Wilson to White, undated letter cited in note 6. 10. Ibid. 11. Wilson to Rachel Bird, n.d., Collection of James Alan Montgomery, Jr. 12. This reconstruction of Wilson’s purchase of the elaborate bookcase that belonged to him in Carlisle was made with the help of several experts on Pennsylvania furniture.

Mr.

David Stockwell was of the opinion that the bookcase surmounting the desk was the work of Isaac Bachmann of Lancaster. Society,

Freehold,

The desk is now in

the Monmouth

County Historical

New Jersey.

13. John Balfour to James Wilson with message from Alison Wilson, Cameron, July 6, 1770, Montgomery Collection, Hist. Soc. Pa.

IV. Lawyer and Pamphleteer

The material on Wilson’s law practice is drawn from an examination of the Court records of Cumberland and adjacent counties. 1. Dickinson to Wilson, Fairhill, Dec. 28, 1771, Gratz Collection, Hist. Soc. Pa. 2. Alison Soc. Pa.

Wilson

to

James

Wilson,

3. Alison Wilson to James Wilson

Cupor,

June,

1772,

(in the hand of and

Montgomery

Collection,

Hist.

with a postscript by William

Wilson), Monymeal, March 14, 1774, Montgomery Collection, Hist. Soc. Pa. 4. Joseph

Reed’s

Society, Collections

Narrative,

“The

(1878), 269-272;

Thomson also

Papers.

1765-1816,”

New-York

“Early Days of the Revolution

Historical

in Philadelphia.

Charles Thomson’s Account of the Opposition to the Boston Port Bill,” Pa. Mag. of Hist, and Biog., 2 (1878), 411-423. 5. Samuel Hazard, The Register of Pennsylvania (Philadelphia, 1828-35), III, 37-38. 6. Peter Force, American Archives (Washington, 1837-1853), 4th ser., I, 555-559. 7. “Early Days of the Revolution in Philadelphia,” Pa. Mag. of Hist., 2

(1878), 418.

8. Smith to Wilson, Bedford, Jan. 2, 1775, Gratz Collection. 9. Force, Archives, 4th ser., I, 1169-1172. 10. The

Wor\s of James

Wilson,

ed.

by James

DeWitt Andrews

547-565. 11. Wilson to Jasper Yeates, Carlisle, May 9, 1775, Maine Hist. Soc. 12. Commission dated May 3, 1775, Wilson Papers, Hist. Soc. Pa.

(Chicago,

1896), II,

NOTES TO PAGES V.

62-82

397

Continental Congress

1. May 22, 1775, Charles Roberts Autograph Collection, Haverford College, Pa. 2. Gaillard Hunt, ed.,

Journals of the Continental Congress,

1774-1789

(Washington,

1904-37), II, 79, 84. 3. Eliphalet Dyer

to Joseph Trumbull,

Philadelphia,

June

17,

20,

1775,

Edmund

C.

Burnett, ed., Letters of Members of the Continental Congress (Washington, 1921-36), I, 128, 1374. John Armstrong to James Wilson, Carlisle, May 17, 1775, Gratz Collection, Hist. Soc. Pa. 5. Armstrong to Wilson, Carlisle, May 26, 1775, Gratz Collection. 6. Armstrong to Wilson, Carlisle, June 26, 1775, Gratz Collection. 7. Philadelphia, July 23,

1775,

Charles Francis Adams, ed., Familiar Letters of John

Adams to His Wife (Boston, 1875), 84. 8. Journals of Cont. Cong., II, 93. 9. Ibid., II, 175. 10. John Adams to Abigail Adams, Philadelphia, July 30, 1775, Letters of Cont. Cong., I, 183. 11. This account of the treaty negotiations at Fort Pitt is taken primarily from Reuben G. Thwaites and Louise P. Kellogg, eds., The Revolution on the Upper Ohio, 1775-1777 (Madison, 1908).

Light is also cast on the treaty by two letters from Wilson to John Mont¬

gomery, Fort Pitt, Aug. 24, 1775, Sept. 14, 1775, Dreer Collection, Hist. Soc. Pa. 12. Walker’s suspicions are recorded in a letter to Thomas Jefferson, Fort Pitt, Sept. 13, 1775, Julian P. Boyd and others, The Papers of Thomas Jefferson (Princeton, 1950-

), 1,244-

245, and Pendleton to Virginia delegates in Continental Congress, Williamsburg, July

15,

1776, ibid., I, 464-465. 13. Richard Smith, “Diary,” Letters of Cont. Cong., I, 196; Journals of Cont. Cong., Ill, 269. 14. Journals of Cont. Cong., Ill, 318. 15. Ibid., 358; and see also J. Franklin Jameson, “The Predecessor of the Supreme Court,” in J. F. Jameson, ed., Essays in the Constitutional History of the United States (Boston, 1889), 1-9. 16. Smith, “Diary,” Jan. 9,

1776, Letters of Cont.

Cong., I, 304.

17. Robert Alexander to Maryland Council of Safety, Philadelphia, Jan. 30,

1776, ibid.,

33418. Lynch to Philip Schuyler, Philadelphia, Jan. 20, 1776, ibid., 323. 19. The copy, Robert

Logan

in Wilson’s handwriting with Dickinson’s proposed

Papers,

Hist.

Soc.

Pa.

The

text

as

submitted

to

revisions,

Congress

is

is

in

printed

the in

Journals of Cont. Cong., IV, 134-164. 20. Journals of Cont. Cong., 189.

VI.

Independence

1. Force, Archives, 4th ser., Ill, 1793. 2. Nov. 17, 1775, Gratz Collection, Hist. Soc. Pa. 3. William Duane, ed., Christopher Marshall’s Diary, 1774-1781

(Albany,

1877), Feb.

28, 29, March 4, 1776, p. 61. 4. Dr. S. Weir Mitchell, ed., “Historical Notes of Benjamin Rush, 1777,” Pa. Mag. of Hist., 27 (1903), I43-I44. 1475. Reed to Dennis De Berdt, Philadelphia, March 3, 1776, William B. Reed, ed., Life and Correspondence of Joseph Reed (Philadelphia, 1847), I, 153. 6. Duane, ed., Marshall’s Diary, 68. 7. Philadelphia, April 22, 1776, Letters of Cont. Cong., I, 428-429. 8. “Autobiography,” Charles Francis Adams, ed., The Wor\s of John Adams 1856), II, 510.

(Boston,

NOTES TO PAGES

398

82-103

9. Journals of Cont. Cong., IV, 342. 10. Adams, “Autobiography,” Wor\s, III, 46; Journals of Cont. Cong., IV, 357-358. 11. Adams, “Debates of Continental Congress,” Works, II, 490-491. 12. June 20, 1776, U. S. Revolution Papers, Lib. Cong. 13. May 15, 1776, Letters of Cont. Cong., I, 445. 14. “Diary of James Allen,” Pa. Mag. of Hist., 9

(1885), 187.

15. Duane, ed., Marshall’s Diary, 70-72. 16. Pennsylvania Journal, May 22, 1776. 17. Ibid., May 29, 1776. 18. May 23, 1776, Yeates Papers, Hist. Soc. Pa. 19. Force, Archives, 4th ser., VI, 755. 20. Jefferson, “Autobiography,” Paul Leicester Ford, ed., The Writings of Thomas Jefferson (New York, 1892-99), I, 19-20. 21. Draft in Wilson Papers, Hist. Soc. Pa. 22. Pennsylvania Gazette, June 26, 1776. 23. To Samuel Chase, July 1, 1776, Letters of Cont. Cong., I, 522. 24. Caesar Rodney to Thomas Rodney, Philadelphia, July 4, 1776, George H. Ryden, ed., Letters to and from Caesar Rodney, 1756-1784 (Philadelphia, 1933), 94-95. 25. Philadelphia, July 3, 1776, Adams, Familiar Letters, 191. 26. Reed, Life and Correspondence, I, 152. 27. Philadelphia, July 3, 1776, Adams, Familiar Letters, 193.

VII.

Policies and Politics

1. Duane, ed., Marshall’s Diary, 83. 2. Journals of Cont. Cong., V, 532. 3. Adams, “Debates of Cont. Cong.,” Works, II, 493. 4. Ford, ed., Writings of Jefferson, I, 47. 5. Nov. 26, 1776, Gratz Collection, Hist. Soc. Pa. 6. Nov. 28, 1776, Dreer Collection, Hist. Soc. Pa. 7. Summerset, Dec. 8, 1776, Gratz Collection. 8. New Yor\ Mercury, Dec. 23, 1776. 9. William Hooper to Robert Morris, Baltimore, Dec. 28, 1776, Letters of Cont. Cong., II, 196. 10. Journals of Cont. 11. Carlisle, Jan.

14,

Cong., VI,

1041.

1777, W. H. Smith, ed., St.

Clair Papers.

The Life and Public

Services of Arthur St. Clair (Cincinnati, 1882), I, 381. 12. Carlisle, Jan. 14, 1777, New Jersey Hist. Soc. 13. Philadelphia, Jan. 31, 1777, Society Collections, Hist. Soc. Pa. 14. Baltimore, Feb. 1, 1777, Letters of Cont. Cong., II, 232m 15. Feb. 17, 1777, lections, 72 (1917).

Warren-Adams Letters, I, 293, Massachusetts Historical Society,

Col¬

16. Baltimore, Feb. 19, 1777, U. S. Revolution Papers, Lib. Cong. 17. Feb. 1, 1777, “Letters lections (1878), 415-417.

to

Robert Morris,

1775-1782,”

New-York

Hist.

Soc.,

Col¬

18. Journals of Cont. Cong., VII, 124. 19. To Nicholas Cooke, Baldmore, Feb. 15, 1777, Letters of Cont. Cong., II, 255. 20. Thomas Burke, ibid., 274. 21. Ibid., 282-283. 22. Baltimore, Feb. 28, 1777, ibid., 286, lxvi. 23. Morris Town, March 19, 1777, Gratz Collection. 24. Philadelphia, March 27, 1777, Smith, ed., St. Clair Papers, I, 392. 25. Burke to Richard Caswell, Philadelphia, April 29, 345-346.

1777, Letters of Cont. Cong., II,

NOTES TO PAGES

103-117

399

26. Journals of Cont. Cong., VII, 314. 27. This report in the handwriting of Wilson with interpolations by Thomas Burke is in the Papers of Continental Congress, National Archives.

It is printed in Journals of Cont.

Cong., VIII, 397-404. 28. To John Lewis Gervais, Sept. 5, 1777, Letters of Cont. Cong., II, 476-477. 29. Reverend Francis Alison to “Cozen Robert,” Philadelphia, Aug. 20, 1776, Pa. Mag. of Hist., 28 (1904), 379; Sarah Yeates to Jasper Yeates, Sept. 14, 1776, Yeates Papers, Hist. Soa Pa. 30. Burton Alva Konkle, The Life and Times of Thomas Smith, 1745-1809 (Philadelphia, 1904). 7531. Ellis Paxton Oberholtzer, The Literary History of Philadelphia (Philadelphia, 1906), 98. 32. To Jasper Yeates and John Montgomery, Philadelphia, Aug. 10, 1776, Charles Roberts Autograph Collection, Haverford, Pa. 33. St. Clair to Wilson, Ticonderoga, Oct. 21, 1776, Gratz Collection. 34. Aug. 3, 1776, Smith, ed., St. Clair Papers, I, 370. 35. Duane, ed., Marshall’s Diary, 97; Force, Archives, 5th ser., II, 1149-1152. 36. Duane, ed., Marshall’s Diary, 98-99. 37. Nov. 4, 1776, Revolutionary Papers, Pennsylvania State Archives, Harrisburg, Pa. 38. Carlisle, March 13, 1777, Charles Roberts Autograph Collection. 39. Pennsylvania Gazette, April 9, 1777. 40. Montgomery to Wilson, Carlisle, April 21, 1777; Thompson to Wilson, Carlisle, April 14, 1777; Gratz Collection. 41. Carlisle, Jan. 18, 1777, Stan V. Henkels, Catalogue No. 943, part 2

(April 25, 26,

1906), item 534, p. hi. 42. Samuel Hazard and others, comps., Pennsylvania Archives burg,

1852-1935),

(Philadelphia and Harris¬

1st ser., V, 311; Journals of Cont. Cong., VII,

263-264;

Pennsylvania

Gazette, April 23, 1777. 43. Pennsylvania Journal, May 14, 1777. 44. Ibid., May 21, 1777. 45. Ibid., May 28, June 4 and 11, 1777. 46. Philadelphia, July 3, 1777.

Smith, ed., St. Clair Papers, I, 418.

VIII. A

Philadelphia Lawyer

The principal source for the Carlisle trial is the Pa. Archives, 1st ser., VII, 21-58, which contains McKean’s notes and the petitions submitted to the Executive Council in behalf of Carlisle and Roberts.

The material on the

Roberts trial came from the notes of McKean in the possession of Lloyd W. Smith, Morristown, N. }. 30-45.

Both of these sources are supplemented by 1 Dallas

Also helpful was Willard Hurst’s “Treason in America,” Harvard Latv

Review, 58 (1944), and Justice Robert Jackson’s majority opinion in Anthony Cramer v. U. S. A., 325 U. S., 1-77. The account in this chapter of the Olmstead case and the Court of Appeals is taken from: Richard Peters, Jr., The Whole Proceedings of the Case of Olm¬ stead versus Rittenhouse (Philadelphia, 1809); Hampton L. Carson, “The Case of the Sloop Active,” Pa. Mag. of Hist., 16 (1892), 385-398; J. C. Bancroft Davis, “Federal Courts Prior to the Adoption to the Constitution,” 131 U. S., Appendix, xx-xxxii; Jameson, Essays in the Constitutional History of the Supreme Court, 1-9. 1. Chestertown, June 7, 1777, Gratz Collection, Hist. Soc. Pa. 2. Edward Burd to Jasper Yeates, June 2, 1778, Yeates Papers, Hist. Soc. Pa.

NOTES TO PAGES 117-139

400

3. Deed in Gratz Collection. 4. Josiah Bartlett to Colonel John Langdon, Philadelphia, July

13,

1778, Pa. Mag. of

Hist., 22 (1898), 114; Duane, ed., Marshall’s Diary, 189, 190. 5. Journals of Cont. Cong., V, 475. 6. Pennsylvania Evening Post, Oct.

16,

1778.

7. Wilson’s notebook, moot court notes, in collection of James Alan Montgomery, Jr., Philadelphia, Pa. 8. Willard Hurst, “Treason in the United States,” Harvard Law Review, 58 (1944), 404m 9. n.d., Wayne Papers, Hist. Soc. Pa. 10. Draft in Wilson Papers, Hist. Soc. Pa. 11. Arnold to Commissioners, Jan. 3, 1779, Record Group 267, Revolutionary War Prize Cases, Sloop Active, National Archives. 12. Jan. 4, 1779, ibid. 13. Sept. 6, 1779, March 15, 1780, Papers of Cont. Cong., National Archives.

IX.

Fort Wilson

The account of the Fort Wilson “riot” is drawn from the following sources: letter of Samuel Patterson to Caesar Rodney, Oct. 9, 1779, Stan V. Henkels, Catalogue No. 694 (Dec. 6, 1892), item 294, p. 239; “Gibson’s Account,” Pa. Mag. of Hist., 5 (1881), 475-476; Benjamin Rush to John Adams, Philadelphia, Oct. 12, 1779, Lyman H. Butterfield, ed., Letters of Benjamin Rush (Princeton, 1951), I, 240; “Statement of Charles Willson Peale,” and “Philip Haguer’s Nar¬ rative,” in William B. Reed, Life and Correspondence of Joseph Reed (Philadel¬ phia, 1847) II, 149-154, 423-428; Anna Wharton Morris, “Journal of Samuel Rowland Fisher,” Pa. Mag. of Hist., 41 (1917), 170-175; Pa. Archives, 1st ser., VII, 732; Minutes of the Supreme Executive Council, in Colonial Records of Pennsylvania (Philadelphia, 1852-53), XII, 128-152; Letters of Cont. Cong., IV, 468-469, 476-477; “The Reminiscences of David Flayfield Conyngham,” Wyoming Historical and Geological Society, Proceedings, 8 (1904), 208-215. This Chapter is a revision of “The Attack on Fort Wilson,” Pennsylvania Magazine of History and Biography, LXXVIII (1954), 177-188. 1. Pennsylvania Gazette, March 24, 1779.

I have attributed the authorship of this letter

to Wilson on the basis of mannerisms of style and phraseology that appear frequently in his writings, and on the statement of Timothy Matlack that Wilson was the author. 2. Pennsylvania Gazette, March 24, 1779. 3.Ibid., March 31, 1779. 4. Ibid., April 28, 1779. 5. To Dr. James McHenry, Philadelphia, June 2, 1779, Pa. Mag. of Hist., 29 58-59.

(1905),

6. J. T. Scharf and Thompson Westcott, History of Philadelphia, 1609-1884 (Philadelphia, 1884), I, 398. 7. Philadelphia, July 27, Collections (1889). 8. Philadelphia, July 30,

1779, Deane Papers, IV, 24-25, New-York Historical 1779, ibid., 27-30.

9. Undated letter, in collection of James Alan Montgomery, Jr., Philadelphia, Pa. 10. Undated letter, in collection of Dr. Joseph Fields, Joliet, Ill. 11. Undated letter in collection of James Alan Montgomery, Jr. 12. Ibid. 13. Wilson to Morris, n.p., Oct. 7, 1779, Stan V. Henkels, Catalogue No. 1337.

Society,

NOTES TO PAGES 140-146 X.

40i

Champion of the Bank

The material for this chapter is drawn principally from the following sources: Wilson’s own papers in the Historical Society of Pennsylvania. Included in these “bank” papers are: (1) a plan for the original Bank of Pennsylvania; (2) Wilson’s speech to the Assembly in 1781, urging that the state take over the Bank; (3) plan for the Bank of North America; (4) Wilson’s defense of the Bank of North America before a special committee of the Assembly on the motion to start a rival bank; (5) notes of the arguments of the other speakers; (6) draft of Wilson’s “Considerations on the Bank of North America,” (7) draft of Wilson’s plea for the Bank’s charter before the Pennsylvania Assembly. The last stage of the Bank fight is covered by Mathew Carey, Debates and Proceedings of the General Assembly of Pennsylvania on the Memorials Praying a Repeal or Suspension of the Law Annulling the Charter of the Ban\ (Philadel¬ phia, 1786). The MS Minutes and Letter Book of the Bank of North America and the Minutes of the Directors and the Minutes of the Stockholders of the Bank of North America, all in the Historical Society of Pennsylvania, were consulted. The Minutes give a clear picture of Wilson’s long financial bondage to the Bank and the frequent efforts of the Directors to bring him to some kind of settlement. Useful secondary sources are: Janet Wilson, “The Bank of North America and Pennsylvania Politics: 1781-1787,” Pa. Mag. of Hist., 66 (1942), 3-28; F. Cyril James, “The Bank of North America and the Financial History of Philadelphia,” loc. cit., 64 (1940), 56-87; Lawrence Lewis, Jr., A History of the Ban\ of North America (Philadelphia, 1882); Burton Alva Konkle, Thomas Willing and the First American Financial System (Philadelphia, 1937). 1. Wilson to Holker, Philadelphia, December 7, 1779; Philadelphia, Dec. 15, 1779, Yale University Library. 2. Philadelphia, April 20, 1780, Adams Manuscript Trust, Mass. Hist. Soc. 3. Paris, June 24, 1780, ibid. 4. William Graham Sumner, The Financier and Finances of the American Revolution (New York, 1891), I, 226. 5. The arrangements with Deane on the matter of the mast contract and subsequent correspondence between Deane and Wilson may be found in the New-York Historical Society, Deane Papers, IV, 130, Collections (1889); Silas Deane to Wilson, Williamsburg, May 26, 28, 1780, Wilson Papers, Hist. Soc. Pa.; Deane to Wilson, York, June 4, 1780, Deane to Wilson, Williamsburg, May 13, Williamsburg, May 28, York, June 4, Deane Papers, IV, 149-156, 167-168; Wilson to Deane, Philadelphia, Jan. 1, 1781, Deane Papers, IV, 269-273. 6. Aug. 8, 1780, Wilson Papers. 7. Philadelphia, Jan. 1, 1781, Deane Papers, IV, 269. 8. For further material on the mast contract see Pa. Archives, 1st ser., VIII, 541, 543, 552, 614, 615. 9. Scharf and Westcott, History of Philadelphia, I, 408. 10. Pennsylvania Gazette, June 21, 1780. 11. A Plan of the Bank with an Introduction, June 25, 1780, Wilson Papers. 12. Pennsylvania Gazette, June 21, 1780. 13. Observations on Finance Adapted to the Present Conjuncture of Affairs in the United States, and Particularly in the Commonwealth of Pennsylvania, Wilson Papers. 14. Sir James Stewart, An Inquiry into the Principles of Political (Economy (London, 1767), II, 117, 141, 142, 147.

402

NOTES TO PAGES 146-168

15. York, May 24, 1781, Stan V. Hcnkcls, Catalogue No.

1183

(Jan.

16,

1917), item

104, P- 5416. F. Cyril James, “The Bank of North America,” Pa. Mag. of Hist., 64 (1940), 56-87; Lawrence Lewis, Jr., A History of the Ban\ of North America (Philadelphia, 1882), 42. 17. Wilson Papers. 18. Carey, Debates and Proceedings, 38. 19. Pennsylvania Gazette, April 6, 1785. 20. n.p., June 10, 1784, Minutes and Letter Book of the Bank of North America, Hist. Soc. Pa. 21. n.p., July 29,

ibid.

22. Philadelphia, Aug. 29, 1784, Thomas Balch, ed., Willing Letters and Papers (Philadel¬ phia, 1922), 112. 23. n.p., May 12, 1785, Minutes and Letter Book of the Bank of North America. 24. There is a draft of the “Considerations” in the Wilson Papers.

The “Considerations”

was printed in pamphlet form by Hall and Sellers in Philadelphia, 1785, and included in both editions of Wilson’s writings, that by his son Bird, in 1804, and that by James DeWitt Andrews, in 1896. 25. The draft of the appeal to the Assembly is in the Wilson Papers. 26. Stockholders Minutes, Bank of North America, Jan. 9, 1786, Hist. Soc. Pa. 27. Pennsylvania Gazette, Dec. 21, 1785. 28. Moncure Conway, ed., The Writings of Thomas Paine (New York, 1894-95), II, 182. 29. Carey, Debates and Proceedings, 9-10. 30. Pennsylvania Gazette, April 5, 1786. 31. Carey, Debates and Proceedings, 67-77. 32. Pennsylvania Gazette, April 12, 1786. 33. Stockholders Minutes, Bank of North America, Nov. 23, 1786. 34. Pennsylvania Gazette, March 7, 1787.

XI.

Speculators and Engrossers

1. Shaw Livermore, Early American Land Companies (New York, 1939), 7. 2. A list of stockholders is in the Wilson Papers, Hist. Soc. Pa. 3. Paper dated May 12, 1785, Wilson Papers. 4. Philadelphia, May 27, 1783, Gratz Collection, Hist. Soc. Pa. 5. Wilson to Bingham, Philadelphia, May 15, 1784, Anderson Galleries, Catalogue No. 2.201 (Nov. 28, 1927), item 406; Wilson to Hooper, Philadelphia, Aug. 23, 1783; Hooper to Wilson, Albany, Sept. 27, 1783, Wilson Papers. 6. Belleville, Oct. 23, 31, 1783, Wilson Papers. 7. Deed dated May 11, 1783, Gratz Collection. 8. Leon

Hiihner,

“The Jews of Virginia from

Historical Society, Publications, 21

(1911),

101;

the Earliest Times,”

Sept.

13,

1783,

American Jewish

Innes MSS,

Lib.

Cong.;

Willard R. Jillson, comp., The Kentucky Land Grants (Louisville, 1925), 7; William V. Byars, Bernard and Michael Gratz, iy54-iyg8 (Jefferson City, 1916). 9. Washington County, June 26,

1783, Wilson Papers.

10. Wilson’s essay “On the Improvement and Settlement of Lands in the United States” has been printed as a Research Bulletin of the Free Library Company of Philadelphia, ed. by John H. Powell (Philadelphia, 1946) from a copy in the Rush Papers in the Library Company of Philadelphia. Philadelphia. 11. Acre America.

by

There is also a copy in acre,

Wilson’s

the notebooks of James Alan Montgomery, Jr.,

Pennsylvania

lands

became

among

the

most

valuable

He owned, for instance, 21,000 acres of the great Schuylkill coal field.

in

In the

mid-nineteenth century Wilson s lands became once more the object of intense speculation. Eleven thousand acres were sold in 1871 for $3,000,000. Hal Tower’s First Million,” Pennsylvania History, 19 (1952), 308-324.

Bridges,

“Charlemagne

NOTES TO PAGES 169-187 XII.

403

Better Men in Better Times

1. Yorktown, Oct. 19, 1781, in collection of James Alan Montgomery, Jr., Philadelphia, Pa. 2. Philadelphia, Washington

March

22,

1782,

John

C.

Fitzpatrick,

ed.,

The

Writings

of

George

(Washington, 1931-44), XXIV, 88.

3. Bushrod Washington to James Wilson, Mt. Vernon, Feb. 25, 1785, in collection of James Alan Montgomery, Jr. 4. Robert L. Brunhouse in his book The Counter-Revolution in Pennsylvania burg,

1942)

(Harris¬

gives a good account of the Conservative reaction.

5. The material on the Trenton Trial is drawn primarily from the following sources: Wilson’s

own notes

in

the Wyoming Valley

Papers, American

Philosophical

Society;

the

notes of Cyrus Griffin, one of the commissioners, who recorded the arguments of Wilson and William Samuel

Johnson,

in the Jefferson

“Connecticut’s Experiment in Expansion: of Economic and Business History, 4

Papers,

Lib.

Cong.;

and

Julian

P.

Boyd,

The Susquehannah Company, 1753-1803,” Journal

(1931-32), 38-69.

Mr. Boyd’s editorial note on the

Trenton Case in The Papers of Thomas Jefferson, VI, 474-487, is the most complete and discerning

treatment

of

the

Connecticut-Pennsylvania

controversy

in

print.

The

record

of the Court is printed in the Journals of Cont. Cong., XXIV, 6-32. 6. William Bradford to William Moore, Philadelphia, July 6, 1782, Revolutionary Papers, Pennsylvania State Archives, Harrisburg, Pa. 7. Jameson, “The Predecessor of the Supreme Court,” in Essays in Constitutional History, 44-458. The papers indicating the process by which the commissioners were selected are in the Revolutionary Papers, Pennsylvania State Archives. 9. Trenton, Dec. 3, 1782, Reed, Life of Reed, II, 388-389. 10. Trenton, Dec. 13, 1782, ibid., 389. 11. Carlisle, Dec. 9, 1782, in collection of James Alan Montgomery, Jr. 12. Trenton, Dec. 20, 1782, Reed, Life of Reed, II, 390. 13. Ibid. 14. Trenton, Dec. 25, 1782, ibid., 390-381. 15. Gaillard Hunt, ed., Writings of James Madison (New York, 1900-10), I, 307. Madison’s “Debates in the Congress of the Confederation” reveal Wilson’s activities during this period. They are supplemented by the Journals of Cont. Cong, and Letters of Cont. Cong. 16. Samuel

Wharton

to

the

Delaware

Council,

Philadelphia,

Jan.

6,

Cont. Cong., VII, 3. 17. Philadelphia, Jan. 14, 1783, Hunt, ed., Writings of Madison, I, 310m 18.Ibid., 312. 19. Ibid., 328-330. 20. Ibid., 334. 21. Ibid., 334-336. 22. Ibid., 344-347. 23*

Ibid., 355m

24. Ibid., 357. 25. Philadelphia, Feb. 7, 1783, Letters of Cont. Cong., VII, 34. 26. Ibid., 34n. 27. Journals of Cont. Cong., XXIV, 126. 28. Philadelphia, Feb. 17, 1783, Letters of Cont. Cong., VII, 46-47. 29. Hunt, ed., Writings of Madison, I, 373. 30. Ibid., 383-38431. Philadelphia, Feb. 25, 1783, Letters of Cont. Cong., VII, 58. 32. Journals of Cont. Cong., XXIV, 171.

XIII.

The Confederation Congress

1. Hunt, ed., Writings of Madison, I, 403. 2. Ibid., 411-412.

1783,

Letters

of

NOTES TO PAGES 188-206

4o4 3. Ibid., 416, 417. 4-Ibid., 407, 419. 5. Ibid., 427-429. 6. Ibid., 444-445.

7.Ibid., 452-4538. Journals of Cont. Cong., XXIV, 257-260. 9. Passy, Dec. 23, 1782; Philadelphia, March 15, 1783, ibid., 287-290. 10. Madison, Writings, I, 479. 11. Edmund C. Burnett, The Continental Congress (New York, 1941), 37912. Madison, Writings, I, 481-484. 13. To Gates, Philadelphia, June 26, 1783, Letters of Cont. Cong., VII, 200n. 14. Prince Town, July 8, 1783, ibid., 216. 15. Journals of Cont. Cong., XXV, 559-564. 16.Ibid., 722-729. 17. To William Bradford, Jr., London, May 2, 1784.

Reed, Life of Reed, II, 412-413.

18. Feb. 16, 1784, Pa. Archives, 1st ser., X, 204-205. 19. Annapolis, March 7, 1784, Gratz Collection, Hist. Soc. Pa. 20.1

Dallas

m-114;

Alfred

Rosenthal,

“Marbois-Longchamps

Affair,”

Pa.

Mag.

of

Hist., 63 (1939), 294-301. 21. Mercer to Jacob Read, Philadelphia, Sept. 23, 1784, Letters of Cont. Cong., VII, 591. 22. Grayson

to Washington,

New

York,

May

8,

1785,

Letters

of

Cont.

Cong.,

VIII,

117-119. 23. Howell to William Greene, New York, April 29, 1785, ibid., 106-107. 24. Grayson to Madison, New York, May 1, 1785, ibid., 109-m. 25. Pennsylvania Gazette, June 22, 1785. 26. Lee to an unnamed correspondent, New York, Oct. 10, 1785, Letters of Cont. Cong., VIII, 231-232. 27. Secretary of Congress to Certain States, Aug. 3, 1785, ibid., 174-175. 28. Journals of Cont. Cong., XXIX, 727-730. 29. New York, Feb.

11, 1786, Letters of Cont. Cong., VIII, 301.

Nathan Dane com¬

plained to Thomas Dwight of the indolence of the Southerners, ibid., 302. 30. New York, Feb. 21, 1786, ibid., 309. 31. Journals of Cont. Cong., XXX, 296. 32. Ibid., 30on. 33. To Madison, New York, May 28, 1786, Letters of Cont. Cong., VIII, 372-373. 34. Charles Pettit to Jeremiah Wadsworth, New York, May 27, 1786, ibid., 369. 35. Charles Pettit to Wilson, New York, July 2, 1786, ibid., 398-399.

XIV.

Citizen of Philadelphia

1. Max Farrand, ed., Records of the Federal Convention of 1787 HI, 236.

(New Haven

2. The inventory of Wilson’s possessions, drawn up after his death in 45 English trout flies. Register of Wills, Philadelphia County.

1911),

1798, mentions

3. George Cuthbert Gillespie, “Early Fire Protection and the Use of Fire Marks,” Pa. Mag. of Hist., 46 (1922), 250, 251. 4. T. I. Wharton, “A Memoir of William Rawle,” Hist. Soc. of Pa., Memoirs, 4 (1840), pt. 1, 57. 5. Wilson’s invitation to join the Society of Cincinnati is in sylvania Law Library. 6. A

1907-13).

Historical

I.

Catalogue

of the St.

Andrews

Society

of

the University of Penn¬

Philadelphia

(Philadelphia,

14-15. 40.

7. Charles H. Browning, “Isaac Wilson, Head-Master,” Pa. Mag. of Hist., 35 (1911), 354. 8. Charles C. Tansill, comp., Documents Illustrative of the Formation of .. . the American States (Washington, 1927), 101.

NOTES TO PAGES 206-246

405

9. Frangois Jean Chastellux, Travels in North-America in the Tears 1780, 1781, and 1782 (Philadelphia, 1827), 109. 10. Andrews, ed., Worlds of Wilson, I, 246. 11. Jefferson Papers, XXV, 6020, Lib. Cong. 12. Quoted by Lucien H. Alexander, “James Wilson, Nation Builder

(1742-1798),” The

Green Bag, 19 (1907) no. 5, 269. 13. Tansill, Documents Illustrative of the Formation of ...the American States, 101. 14. Alexander Graydon, Memoirs of a Life Chiefly Passed in Pennsylvania

(Edinburgh,

1822), 272. 15. Ibid. 16. Pennsylvania Packet, Dec. 8, 1790. 17. Chastellux, Travels, 146-147. 18. Furnishings indicated by list of articles sold at auction after Wilson’s death.

Philadel¬

phia, Feb. 5, 1800, Wilson Papers, Hist. Soc. of Pa. 19. William White Bronson, Memoir of Reverend Bird Wilson

(Philadelphia, 1864), 42.

20. Coul, July (no day), 1769, Montgomery Collection, Hist. Soc. Pa. 21. Coul, July 3, 1769, Montgomery Collection, Hist. Soc. Pa. 22. New York, March 23,

1786, Collection of James Alan Montgomery, Jr.,

Philadel¬

phia. 23. Rachel Wilson to James Wilson, Sunday, n.d., Collection of James Alan Montgomery,

Jr. 24. Reed, Life of Reed, II, 428-447; Glenn, Some Colonial Mansions, II, 151. 25. Pennsylvania Gazette, April 19, 1786.

XV.

The Federalists Attack

The account of the Federal Convention is taken primarily from Max Farrand, The Records of the Federal Convention. I have relied, unless other¬ wise indicated, on Madison’s notes of the Convention debates. Since a fairly consistent chronology is followed from day to day, I have not cited the sources of every quotation. The reader can locate specific passages in Farrand through date references in the text. 1. Nov. 5, 1786, Writings of Washington, ed., Fitzpatrick, XXIX, 51. 2. New York, Aug. 12, 1786, Letters of Cont. Cong., VIII, 425. 3. New York, Sept. 3, 1786, ibid., 461. 4. Tansill, Documents Illustrative of the Formation of .. . the American States, 43. 5. Jacob C. Parsons, ed., Extracts from the Diary of Jacob Fliltzeheimer (Philadelphia, 1893), in-112. 6. New York, March 6, 1787, Stan V. Henkels, Catalogue No. 1086 (May 20, 1913), item 939, p. 90. 7. This picture of Wilson’s preparation is based on his elaborate notes, drawn up for use in the convention; some of them can be definitely collated with speeches he delivered in the convention.

These notes are in the Wilson Papers, Hist. Soc. of Pa.

XVI.

Counterattack and Compromise

1. Yates’s Notes, Farrand, Records, I, 259. 2. Irving Brant, fames Madison, Father of the Constitution

(New

York,

1950),

111.

Brant says on the straight drafting job this might be called a committee of Wilson and four others.

“With Wilson on, it mattered little that Madison was off.”

3. In the Wilson Papers, Hist. Soc. Pa., there are a number of drafts of the Constitution that were evidently worked out in the Committee of Detail. reprinted in Farrand, Records, II, 129-175. Wilson’s hand.

These documents have been

There are eight drafts or portions of drafts in

NOTES TO PAGES 247-280

406

XVII.

The Rising Sun

1. Farrand, Records, III, 67-68. 2. Hunter in Sturges v. Crowninshield, 2 Wheaton 122.

A number of writers, following

Hunter’s declaration, have credited Wilson with producing the clause.

See S.

G. Fisher,

The Evolution of the Constitution of the United States (Philadelphia, 1904), 263-264; B. A. Konkle, “James Wilson,” Encyclopaedia of the Social Sciences (New York, 1948), XV, 425; J. M. Shirley, The Dartmouth College Causes

(Chicago,

1895), 216-217;

Gustavus Myers,

History of the Supreme Court (Chicago, 1918), and numerous other writers on the Con¬ stitution. 3. Chief Justice John Marshall, Fletcher v. Peck, 6 Cranch 78, The Obligation of Contracts Clause of the

United States

136; Warren Hunting,

Constitution

(Baltimore,

1919);

Lord Wright, “Ought the Doctrine of Consideration to be Abolished from Common Law,” Harvard Law Review, 49 (1935-36), 1225-1253. 4. B. F. Wright, The

Contract

Clause of the

Constitution

(Cambridge,

1938),

8-12.

Wright rejects however the idea that Wilson can be shown to have been the author of the contract clause. 5. R'einhold Niebuhr, Faith and History (New York, 1949), 222. 6. Farrand, Records, July 13, I, 605. 7. Ibid., Aug. 15, II, 301. 8. Stanley considered, ed.

Pargellis,

“The

Theory

of

Balanced

Government,”

The

Constitution

Re¬

Conyers Read (New York, 1938), 37.

9. Farrand, Records, July 21, II, 78. 10. Ibid., Aug. 13, II, 269. 11. Ibid., June 22, I, 375. 12. Ibid., August 7, II, 201.

XVIII.

The “Dark Conclave”

The following account of the Pennsylvania Ratifying Convention is taken primarily from John B. McMaster and Frederick Stone, Pennsylvania and the Federal Constitution (Lancaster, 1888). 1. Pennsylvania Packet, Oct. 10, 1787. 2. Mount Vernon, Oct. 17, 1787, Writings of Washington, ed., Fitzpatrick, XXIX, 290. 3. Pennsylvania Gazette, Oct. 31, 1787. 4. Pennsylvania Packet, Oct. 23, 1787. 5. Independent Gazetteer, Nov. 6, 1787.

6. Pennsylvania

Gazette, Nov. 14, 1787.

7. Independent Gazetteer, Nov.

10,

1787.

8. Charles Biddle, Autobiography (Philadelphia, 1883), 219-220. 9. McMaster and Stone, Pennsylvania and the Federal Constitution, 56-72. 10. Wilson’s notes are in his papers in the Hist. McMaster and Stone, op. cit., 765-785.

Soc. Pa.

and

are also reprinted

in

11. Pennsylvania Pac\et, Nov. 27, 1787. 12. Wilson Papers. 13. Sir

William Temple,

Worlds

(London,

1750),

I,

95-108.

14. Francis Hopkinson to Thomas Jefferson, Philadelphia, Dec. 14, 1787, fefferson Pavers XXV, 6020, Lib. Cong. ' 15. Pennsylvania Packet, Dec. 14, 1787. 16. Independent Gazetteer, Dec. 21, 17. George W. 150.

Corner, ed.,

1787.

The Autobiography

of Benjamin

Wilson “was a profound and accurate scholar.

eloquence

was of the most commanding kind.

according to circumstances with equal effect. of light.”

He

Rush

(Princeton,

1948),

He spoke often in Congress, and his reasoned,

declaimed,

His mind, while he spoke,

and

persuaded

was one blaze

NOTES TO PAGES 281-302 XIX.

407

The Grand Procession

The story of the Federal Procession is taken primarily from Francis Hopkinson’s Account of the Federal Procession, July 4, r/88 (Philadelphia, 1788). Wilson’s draft of his speech at Union Green is in his papers in the Historical Society of Pennsylvania. 1. Independent Gazetteer, Feb. 7, 1788. 2.

Ibid.

3. Undated and

unsigned

letter to Wilson on

the riots, Montgomery Collection,

Hist.

Soc. Pa. 4. Pennsylvania Packet, Dec. 29, 1788. 5. Independent Gazetteer, Jan. 10, 14, 1788. 6. Ibid., Jan. 30, 1788. 7. Pennsylvania Mercury, Jan. 26, 1788. 8. Philadelphia, Jan. 22,

1788, “Washington-Madison Papers”

(Dec.

6,

1892), Stan V.

Henkels, Catalogue No. 6g4, item 391, p. 265. 9. Pennsylvania Mercury, Feb. 21,

1788.

10. April 4, 1788, Writings of Washington, ed., Fitzpatrick, XXIX, 458-459. 11. Northwest Territory Papers, Lib. Cong. 12. Wilson Papers.

XX. “A

Scotchman and a Scholar”

The account of the Constitutional Convention of 1790 is taken from Proceed¬ ings Relative to Calling the Convention of ijj6 and ijgo, and the Minutes of the Convention . . . and of the Council of Censors (Harrisburg, 1825), and from Wilson’s own printed minutes of the convention. These with drafts of several speeches prepared for delivery in the convention are in his papers in the His¬ torical Society of Pennsylvania. Robert L. Brunhouse’s Counter-Revolution in Pennsylvania (Harrisburg, 1942) is a valuable secondary work for Pennsylvania politics from 1776 to 1790. 1. Graydon, Memoirs of His Own Time, 373, referring to Wilson in the Pennsylvania con¬ stitutional convention. 2. Acts of Assembly relating to the University of Pennsylvania . . . (Philadelphia, 1877); Charles J. Stille, A Memoir of the Reverend William Smith, D.D. . . . (Philadelphia, 1869), 27-28. 3. Rush, Autobiography, 178; Edgar S. Maclay, ed., The Journal of William Maclay (New York, 1927), 188 4. Parsons, ed.. Extracts from the Diary of Jacob Hiltzheimer, 151. 5. Brunhouse, Counter-Revolution, 222-223.

6. Minutes

of the . . . General Assembly of the Commonwealth of Pennsylvania (Phila¬

delphia, 1781-1790), Sept. 9, 12, 14, 15, 1789. 7. Russell Ferguson, Early Western Pennsylvania Politics (Pittsburgh, 1938), 102-104. 8. Independent Gazetteer, Sept. 26, 1789. 9. Henry Adams, Life of Albert Gallatin (Philadelphia, 1879), n, 523. 10. Findley’s letter to Plumer on the Pennsylvania constitutional convention of 1790, Wash¬ ington, Pa., Feb. 27, 1812, Pa. Mag. of Hist., 5

(1881), 445-446.

“The well-known judge

Wilson . . . was considered as the most able politician in the state.” 11. Graydon, Memoirs, 362. 12. A draft of this speech is in the Wilson Papers. 13. To Boudinot, Philadelphia, Jan. 10, 1790, Wallace MSS, Bradford Papers, Hist. Soc. Pa.

4o8

NOTES TO PAGES 303-315

14. Graydon, Memoirs, 362. 15. Ibid., 366. 16. Bradford to Boudinot, Philadelphia, Jan. 10, 1790, Wallace MSS, Bradford Papers. 17. Graydon, Memoirs, 372. 18. The application, undated, is endorsed April 21, 1789; Gaillard Hunt, ed., Calendar of Applications and Recommendations for Office under the Presidency of George

Washington

(Washington, 1901), 142. 19. New York, May 9, 1789, Writings of Washington, ed., Fitzpatrick, XXX, 314. 20. Richmond, Ga., May 20, 1789, in possession of James Alan Montgomery, Jr., Phila¬ delphia. 21. Transcript of letter in Konkle MSS, Friends Library, Swarthmore, Pa. 22. Law Library, University of Pennsylvania Law School. 23. William S. Baker, “Washington after the Revolution,

1790,” Pa. Mag. of Hist., 20

(1896), 46. 24. Gazette of the United States, Feb. 3, 1790.

Letter also in Pennsylvania Journal, Feb.

10, 1790. 25. “Minutes of the Supreme Court of the United States,” quoted by Hampton L. Carson, History of the Supreme Court of the United States (Philadelphia, 1902) I, 151. 26. Gazette of the United States, Feb. 10, 1790.

XXI.

The Nature of Law

In Wilson’s law lectures I have given page citations to quotations from James Dewitt Andrews’ edition of his works (Chicago, 1896). These quota¬ tions have been collated with the original edition of Wilson’s Wor\s cited by his son, Bird, and published in Philadelphia in 1804. In the few occasions where variations between the two texts occurred, the Bird Wilson edition was followed. The MSS of Wilson’s lectures are in some sixty notebooks in the possession of James Alan Montgomery, Jr., of Philadelphia. These notebooks also contain early drafts of the lectures. A “spot check” of the MSS and the published texts revealed no significant differences. 1. MS Minutes of the Board of Trustees of the College of Philadelphia, II, versity of Pennsylvania Archives.

171, Uni¬

2. Ibid., 209. 3. Ibid., 211. 4. Hampton L. Carson, A Historical Sketch of the Law Department of the University of Pennsylvania (Philadelphia, 1882), 8-14. 5. William L. Clements Library, Ann Arbor, Mich. 6. General Advertiser, Dec. 15, 1790. 7. Andrews, ed., Works of Wilson, I, 1-3.

8. Ibid.,

6-8.

g.lbid., 12-14. 10. Ibid., 16, 17, 18. 11. Ibid., 24, 26, 27. 12. Ibid., 29-35. 13. General Advertiser, Dec. 15, 1790. 14. Ames to Thomas Dwight, Philadelphia, Jan. 6, 1791, Seth Ames, ed., Works of Fisher Ames (Boston, 1854), I, 91. 15. Henry Adams, Histoiy of the United States of America during the Administration of Thomas Jefferson (New York, 1889), II, 102-103. 16. Alessandro Passerin D’Entreves, Medieval Contributions to Modern Thought *939)» Otto Gierke, Political Theories of the Middle Ages (Cambridge, 1927).

(Oxford,

Notes to pages 315-347

409

17. Ecclesiastical Polity (Oxford, 1820), I, xvi, 6, n. 18. The Body of Liberties of 1641, compiled by Nathaniel Ward, had, of course, much in it besides Biblical law. of early Puritan law.

Nevertheless that document indicates very well the basic motivation

19. Benjamin F. Wright, American 281-286.

Interpretations of Natural Law

(Cambridge,

1931),

20. Olin McKendree Jones, Empiricism and Intuitionism in Reid's Common Sense Philos¬ ophy (Princeton, 1927), 34; Andrews, ed., Worlds of Wilson, I, 118; and see article by Arnaud B. Leavelle, “James Wilson and the Relation of the Scottish Metaphysics to American Po¬ litical Thought,” Political Science Quarterly, 57 (1942), 394-410.

XXII.

Law and Society

1. Andrews, ed., Worlds of Wilson, I, 39; II, 253-254, 257. 2. Ibid., I, 41, 47, 49-50. 3. Ibid., 52, 58-60, 66-67. 4. Ibid., 237-242. 5. Ibid., 78. 6. Ibid., 90-91. 7. Ibid., 91-93. 8. Ibid., 93-94, 102-105. 9.Ibid., 106, 107, 108, hi. 10. Ibid., hi, 112, 116. 11. On Reid see James Feibleman, The Revival of Realism

(Chapel Hill, 1946); and by

the same author, “Reid and the Origins of Modern Realism,” Journal of the History of Ideas, 5

(1944), IIS12. Henry St. John, 1st Viscount Bolingbroke, Worlds (London, 1788), VII, 442. 13. Andrews, ed., Wor\s of Wilson, I, 261, 263-264. 14. Bolingbroke, Wor\s, VII, 369, 378-379, 393. 15. William Paley, The Principles of Moral and Political Philosophy (Philadelphia, 1788),

I, 31, 41-43, 47, 61, 64, 83, 327, 351.

Wilson shared the common view of the time that

governments were instituted to secure the happiness of the governed. Burlamaqui, Principles of Natural and Political Law

(Cambridge,

Also see Jean Jacques

1807), and Bolingbroke,

loc. cit. 16. The account of the moot courts and legislatures is reconstructed from Wilson’s note¬ books in the possession of James Alan Montgomery, Jr., Philadelphia. 17. Andrews, ed., Worlds of Wilson, I, 136. 18 .Ibid., 146-148. 19. Ibid., 152-153. 20. Ibid., 297. 21. Ibid., 307. 22. Ibid., 338-339, 340-342.

XXIII.

The Business of the Court

1. General Advertiser, April 25, 1791. 2. Iredell to his wife, Trenton, April

16, 1791; and Alexandria, May 9,

1791, North

Carolina State Archives, Raleigh. 3. General Advertiser, June 20, 1791. 4. Scrap Book of Howard Edwards, I, 91, Hist. Soc. Pa. 5. Washington Papers, Vol. 116, Lib. Cong. 6. Ibid. 7. Wilson to Cushing, Philadelphia, Feb. 7, 1792, Cushing Papers, Mass. Hist. Soc. 8. 2 Dallas 401.

4io

NOTES TO PAGES 348-366 9. Max Farrand, “The First Hayburn Case,” American Historical Review, 13

(1907-8),

281-285. 10. April 16,

1792.

11. May 9, 1792, quoted in Farrand, “Hayburn Case,” 285. 12. Ibid. 13. Philadelphia, April 25, 1792, Ames, ed., W or\s of Fisher Ames, I, 117. 14. Moncure Conway, Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph (New York, 1888), 144-145. 15.2 Dallas 409. General accounts also appeared in the Gazette of the United States, Aug. 25, 1792, and the General Advertiser, Aug. 16, 1792. 16. Aug. 12, 1792, Conway, Omitted Chapters, 145. 17. Rush, Autobiography, 217. 18. Ibid., 218-219. 19. General Advertiser, April 6, 1792; McAllister Papers, Library Company of Philadelphia. 20. In possession of James Alan Montgomery, Jr., Philadelphia. 21. The description of Wilson’s circuit with Judge Iredell is drawn primarily from the latter’s letters to his wife in Griffith J. McRee, Life and Correspondence of fames Iredell (New York, 1867-68). 22. Hammond was described by Iredell as “a very genteel man, and possessed of a large fortune.”

Iredell to his wife, Hartford, Sept. 25, 1792, McRee, Iredell, II, 360-361.

23. Iredell to his wife, New Haven,

Sept.

23,

1792,

Hartford,

Sept.

25,

1792, ibid.,

359-36o.

24. Connecticut Journal, Oct. 3, 1792. 25. Oct. 25, 1792, in collection of James Alan Montgomery, Jr. 26. Iredell to his wife, Providence, Nov. 5, 1792, McRee, Iredell, II, 373. 27. Among the papers commenting on the case was Dunlap’s American Advertiser, Feb. 21, 1793; The Aurora, Feb. 22, 1793; the Gazette of the United States, Feb. 23, 1793.

Charles

Warren has a detailed discussion of the case in his The Supreme Court in United States History (Boston, 1923), I, 93-102. Wilson’s notes are in his papers in Hist. Soc. Pa. 28.2 Dallas 415-419. 29. Philadelphia dispatch to the Connecticut Courant, Feb. 25, 1793; also letter of “Solon” in the Independence Chronicle, Sept. 19, 1793; Warren, Supreme Court, I, 96, 97m 30. April 4, 1793. 31. Independent Chronicle, July 18, 25, Aug. 1, 15, 1793; Boston Gazette, Sept. 23, 1793; Columbian Centinel, Aug. 3, 10, 1793. 32. June 12, 1793, McRee, Iredell, II, 382. 33. Independent Chronicle, July 25, 1793, quoted in Warren, Supreme Court, I, 99.

XXIV.

New Ventures

1. Ravara Trial, 2 Dallas 297; Francis Wharton, State Trials of the United States during the Administrations of Washington and Adams (Philadelphia, 1849), 90-92. 2. Henry Jackson to General Henry Knox, Boston, June 23, 1793, Knox Papers, Mass. Hist.

Soc. 3. June 20, 1793, Gratz Collection, Hist. Soc. Pa. 4. Philadelphia, June 14, 1793, Gratz Collection. 5. Bond dated July 17, 1793, in collection of Lloyd W. Smith, Morristown, N. J. 6. Wharton, State Trials, 48-89. 7. For the newspaper controversy see Warren, Supreme Court, I, H4n-ii5n. 8. Philadelphia in the summer of 1793 is vividly described by John H. Powell in Bring Out Your Dead (Philadelphia, 1949), the story of the yellow fever epidemic in that city. Moreau de Saint-Mery s account of his stay in the city provides other details: American Jour¬ ney, ed. and trans. by Kenneth Roberts (New York, 1947). 9. Jefferson to Wilson, Philadelphia, April 17, 1793, Jefferson Papers, Lib. Cong. 10. Aug. 10, 1793, Wilson Papers, Hist. Soc. Pa.

NOTES TO PAGES 366-386

411

11. Dr. Peter Thacher’s Diary, Mass. Hist. Soc. 12. Henry Jackson to General Henry Knox, Boston, June 23, 1793, Knox Papers. 13. Elizabethtown, Dec. 4, 1793, Konkle MSS, Friends Library, Swarthmore, Pa. 14. Jan. 2, 1794, Provincial Delegate Papers, Hist. Soc. Pa. 15. 3 Dallas 6-16. 16. Parsons, Extracts from the Diary of Jacob Heltzlieimer, 205. 17. Contract dated April 4, 1794, and Davenport’s estimates in the Wilson Papers. 18. Contract with John Page, dated June 5, 1794, Wilson Papers. 19. Edenton, Nov. 24, 1794, McRee, Iredell, II, 429-430. 20. Iredell to his wife, Bladensburg, Jan. 28, 1795, ibid., 437-438. 21. Halifax, North Carolina, Dec. 15, 1794, ibid., 431. 22. Philadelphia, Feb. 3, 1795,

ibid.,

438.

23. 3 Dallas 17. 24. 3 E>allas 54. 25. Sept. 22, 1795. 26. June 12, 1795, quoted in Warren, Supreme Court, I, 127-128. 27.3 Dallas

121, 133.

28. Mort to Wilson, Trenton, March 4, 1795; Sunday, undated; April 2, 4, 1795, Wilson Papers. 29. July 16, 1795, Wilson Papers. 30. Williamsburg, June 13, 1795, Wilson Papers. 31. Notes dated April 24, July 10, 15, 1795; Jan. 25, 1796, Gratz Collection. The notes to Lee are in the Wilson Papers. 32. To Messrs. Philip Nicklin & Co., London, Philadelphia, July 11, 1795, Wilson Papers. 33. Red-hill, Charlotte County, July 29, 1795, copy in Konkle MSS.

XXV.

The Morass

1. Plumer to William Smith, Feb. 17, 1796, quoted in Warren, Supreme Court, I, 139. 2. Feb. 27, 1796, McRee, Iredell, II, 462; Iredell to his wife, March 25, ibid., 465. 3. Richmond, Jan. 30, 1796, Wilson Papers, Hist. Soc. Pa. 4. 3 Dallas 183-184. 5. 3 Dallas 199-285. 6.3 Dallas 281-284; Warren, Supreme Court, I, 145-146. 7. Iredell to his wife, Philadelphia, March 4, 1796, McRee, Iredell, II, 463. 8. Philadelphia, March 18, 1796, North Carolina State Archives, Raleigh. 9. Edward Burd to Jasper Yeates, Philadelphia, Aug. 4, 1796, Lewis Burd Walker, ed., The Burd Papers (Philadelphia, 1899), 191-192. 10. 3 Dallas 321-330. 11. Robert Morris Letter Book, microfilm, Butler Library, Columbia University. 12. Rush, Autobiography, 237. 13. Morris Tavern, June 9, 1797, Wilson Papers. 14. Wilson to Bird Wilson, June 9, 18, 27, 1797; Bird Wilson to his father, Philadelphia, June 20, 1797, all in Wilson Papers. 15. Burlington, Sept. 6, 1797, Wilson Papers. 16. Raleigh, Dec. 17. Jan.

13,

17,

1798,

1797, Wilson Papers.

Wilson

Papers.

18. Iredell to his wife, Feb. 5, 1798, McRee, Iredell, II, 519-520. 19. Pierce Butler to William Slade, Philadelphia, March 24,

1798, Wilson Papers; same

to same, Philadelphia, May 12, 1798, in collection of James Alan Montgomery, Jr., Philadelphia. 20. Edenton, April 28, 1798, Dreer Collection, Hist. Soc. Pa. 21. Buder to Slade, Philadelphia, May 12, 1798, collection of James Alan Montgomery, Jr. 22. Iredell to his wife, Philadelphia, Aug. 6, 1798, McRee, Iredell, II, 533. 23. James Wilson to Bird, Edenton, April 21, 1798; May 24, 1798, Wilson Papers.

412

NOTES TO PAGES 386-394

24. Power-of-attorney from Butler

to Wallis, dated June

18,

1798, collection of James

Alan Montgomery, Jr. 25. Edenton, June 23, 1798, Montgomery Collection, Hist. Soc. Pa. 26. Edenton, May 24, 1798, Konkle MSS, Friends Library, Swarthmore, Pa. 27. Hannah Wilson to Bird, Edenton, July 28, 1798, Montgomery Collection, Hist. Soc. Pa. 28. Edenton, August 10, 1798, Konkle MSS, Friends Library. 29. Reading, Aug. 19,

1798, Wilson Papers.

30. Iredell to Miss Gray, Edenton, Aug. 25, 1798, North Carolina State Archives; Iredell to Bird, Edenton, Sept. 1, 1798, Montgomery Collection, Hist. Soc. Pa.; Hannah to Bird, Sept. 1, 1798, Wilson Papers.

Epilogue 1. Edenton, Sept. 1, 1798, Wilson Papers, Hist. Soc. Pa. 2. Paper dated Sept. 24, 1798, in the office of the Register of Wills, Philadelphia County Court House, Philadelphia, Pa. 3. Wilson Papers, Hist. Soc. Pa. 4. Register of Wills, Philadelphia County.

Index

Index

Adams, John, 58, 63, 67, 95, 97, 105, 141,

Annan, David, 211

310; appoints Bushrod Washington to Su¬

Annan, Robert, 10, 16, 23-24, 211

preme Court, 389; attends Continental Con¬

Annapolis Convention, 1786, 216-217

gress,

62;

Anti-Constitutionalists of Pa., 117

nental

Congress,

committees 67,

of 73,

Second 101,

Conti¬

119,

125;

favors independence, 81, 82, 87; on inde¬ pendence, 88; joins Congress in Baltimore, 99;

publishes

Washington

Novanglus,

for

colonial

58;

supports

command,

66

Adams, Samuel, 50, 63, 96, 114; attends Con¬ tinental Congress, 62; on business of Con¬ tinental Congress, 95

Anti-Federalists,

oppose

ratification

of

Con¬

stitution, 263; in Pa. Convention of 1788, 267-268 Aquinas, Thomas, influence on Western juris¬ prudence,

315-316;

Wilson’s

indebtedness

to, 330 Aristocracy, debated in Pa. Constitutional

Convention,

1790,

303;

Addison, Alexander, 300

principles of, in Federal Convention, 221-

“Addison” (Wilson pseudonym), 114, 115

222;

Admiralty cases, case of the Active, sloop, 124-

voring, 266

128; case of the Sans Culotte, ship, 362364;

Citizen

Genet v. Sloop Betsey, 367-

368; Wiscart v. Dauchy, 380-382

U.

S.

Constitution

criticized

as

fa¬

Aristotle, 326; and the law of nature, 315 Armstrong, John, 44, 51, 66-67 Armstrong, John, Jr., 192, 216

Admiralty law, 367-368

Army,

Albany Plan of Union of 1754, 68

Confederation

Congress

debates

ne¬

cessity of, 193

Alexander, Robert, 75

Arnold,

Benedict,

Philadelphia,

Allan, Ethan, 64 Allen, Andrew, 80

military

136;

commandant

role in

of

Active appeal,

125-127

Allen, James, 83

Arnold, Welcome, 172-177

Allen, William, 46

Articles of Confederation, 90-92, 103; adopted

Allison, John, 278

in 1781, 171; Art. IX on controversies be¬

American Philosophical Society, Wilson mem¬ American Revolution, background of, 50-65; battles and events of, 66-147, passim; con¬ tinuing impact of, 316-318; effect on land speculation, 160; and law of treason, 119; as

a

pragmatic

tween states, of,

ber of, 204

movement,

64;

See

178;

lawyers’

171-172; financial provisions

and land company claims, attitude

toward,

317;

weakness of, 196-201 Atlee, William, 52-53, 119, 121

also Bache, Benjamin Franklin, 349

gress,

Bache, Richard,

of

Independence,

Constitution of 1776

Pa.

to

charter bank, 151; reconsideration of, 217;

Articles of Confederation, Continental Con¬ Declaration

160;

power

130

Bachmann, Isaac, 41, 396

Ames, Fisher, 313, 349

Baker, Hilary, 267, 303

Anglican Church, 9, 28, 37, 315

Baldwin, Abraham, 255

INDEX

4i4 Balfour, John, 20, 211

Bowman, Ebenezer, 354

Baltimore, in 1776, 95

Brackenridge, Hugh Henry, 157

Banking, under Articles of Confederation, 151;

Bradford,

Dissertations of Government discusses pa¬ per money,

155;

Hamilton’s “Plan for a

William,

367-368;

argues

state’s

case in Wyoming Valley controversy, 171177 and Marbois-Longchamps affair,

195;

National Bank,” 158; influence of An In¬

projects rival to Bank of North America,

quiry into the Principles of Political CEcon-

148; at second Pa. Provincial Convention,

omy on Wilson, 145

59

Breading, Nicholas, 278

Bank of England, 380 Bank of North America,

145-158, 343, 369

Brearly, David, 172-177

Bank of Pa., 142-145

British, debts to, 379

Barbe-Marbois, 195-196

British Constitution, 55-56

Bard, Richard, 278

British Orders in Council, 368

Baring and Sons, 383

Bryan, George, 79, 108, 117

Barry, John, 138, 150

Burd, Edward, 30, 380

Bayard, James, 216

Burgoyne, Gen. John, 106 Burke, Thomas, 102-104

Bayard, Samuel, 356 Beard,

Charles,

on

Revolution

as

a

class

Business ethics, during Revolution, 131-132 Business failures, in 1796, 382.

struggle, 318 Bible Commonwealth, 316, 317-318

See also De¬

pression of 1796-1797

Biddle, Edward, 30, 52, 54, 59, 123

Butler, Pierce, 242, 385, 386

Biddle, Owen, 80 Bill

of

Rights,

absence

from

Constitution,

Cadwalader,

Gen.

John,

on business

ethics,

131

265 Bingham, William,

150, 203,

263, 343;

fi¬

Caldwell, Samuel, 139, 150

Ca¬

Calvinism, 3, 7, 10, 13, 16, 17, 319

naan Co., 162; Philadelphia capitalist, 161;

Campbell, Capt., mob kills, 134-135

urges revision of Pa. Constitution of 1776,

Canaan Co., formed for land speculation, 162-

nancial

strength

of,

383;

partner in

297; Wilson borrows from, 361

163

Bingham, N. Y., 162

Cannon, James, 80, 108, 112

Bird, Mark, 123, 160-161, 369, 390; brother of

Wilson’s

wife,

38;

co-owner

of

Hay

Carlisle, Abraham, treason trial of,

119-122

Carlisle, Pa., 96; Anti-Federalist riots at, 282,

Creek Furnaces, 30; defends Wilson’s home

283; celebrates ratification of Federal Con¬

against mob, 134; at second Pa. Provincial

stitution,

Convention, 59

43-44

282;

college

at,

205;

in

1770,

Bird, Rachel, Wilson’s courtship of, 38-42

Carroll, Charles, 179, 342-343

Bird, William, 30

Chambers, Stephen, mob wounds, 134-135

Birdsboro, family home of Wilson’s first wife,

Chase, Samuel, 91, 97, 314, 390; appointed to the Supreme Court, 376; committees of

38 Birdsboro Iron Works, 30, 38, 369, 390 Blackstone, Sir William, and colonial rights, 55;

on criminal law,

supremacy,

316;

120;

Wilson

on

attacks

legislative his defi¬

Continental Congress, ior,

125

Chastellux, Marquis de, 206, 210 Chew, Benjamin, 23, 297 Chisholm v. Ga., 355-359

nition of law, 326-327; Wilson rejects anti¬

Choate, Joseph H., 322

republicanism of, 312

Christianity, and the law of nature, 315

Blaine, Ephraim, 41, 46, 51, 113

Citizen Genet v. Sloop Betsey, 367

Blair, John, 350, 356, 376;

Civil

appointed asso¬

ciate justice of Supreme Court, 306; atti¬ tude toward Invalid Pension Act, 348 Blount, William, 263, 385 Blue Jacket, Indian leader at Fort Pitt nego¬ tiations, 70

liberties,

threatened

by

Constitution’s

lack of Bill of Rights, 271 Clark, Abraham, 188 Clarkson, Matthew, 126 Class struggle, Revolution as, 318 Clingan, William, 107

Bolingbroke, Lord, 324, 327, 334-335

Clinton, Gen. Sir Henry, 117

Bonham, Mr., militia officer, leads mob against

Clio, Wilson appeals to, at Federal Conven¬

Wilson’s home, 133 Boston, Thomas, 7-9

tion, 233 Clymer, Daniel, 122, 134, 139

INDEX Clymer, George, 80, 107, 114, 123, 139, 156, 314;

commissioner

to

Annapolis

Conven¬

415

Congressional Commissioners on Appeal, 372 Connecticut, controversy with Pa. over Wy¬

tion, 216; defends Wilson’s home against

oming

mob, 134; delegate to Federal Convention,

200-201

217; director of Bank of Pa., 144; dropped

Valley,

170-177;

British

scinding Pa. instructions against independ¬

391; analysis of 54-58

ber of Hand-in-Hand Fire Co.,

203;

re¬

appointed to Continental Congress, 102; re¬ quests state ratification convention in Pa., 263; at second Pa. Provincial Convention,

Constitution.

See

Pennsylvania

Constitutional Convention.

149;

Constitutional

Revolution,

308; revived in 1790, 296; separated from University of Pa., 296;

Wilson’s law lec¬

of

of

Pa.,

1776,

131;

defends opposes

Pa. “un-

American elements” in Philadelphia, 133 Continental

College of Philadelphia, 21; law students at,

oppose revision of Consti¬

Society

Constitution American

See Federal Con¬

Constitutionalists of Pa., attack Bank of North tution of 1776, 129

See

(common¬

vention, and U. S. Constitution America,

background of

89,

wealth), and U. S. Constitution

283 337-338 Coercive Acts.

of,

Parliament, by Wilson, 36-37,

59; spearheads Federalist publicity in Pa., Clymer, Henry, law student of Wilson, 314,

claims

Considerations on the . . . Authority of the

from Continental Congress, 100; favors re¬ ence, 85; in Grand Procession, 291; mem¬

land

143.

Army, financing of supplies of,

See also, American Revolution

Continental abandons

Congress,

62,

Philadelphia,

77,

93,

94;

95-102;

accomplish¬

ments of, 68-69; failures and responsibili¬

tures at, 309-341 College of William and Mary, 309

ties assessed, 93;

Commerce, ad valorem tax recommended by

personnel of, 63; powers upheld in Penhallow

as incentive to union, 216

to Philadelphia, 1778, 117; work of, 63 ff.

rivalries,

between

states

under

Committees of Correspondence, 51. American

See also

Sense

321,

332-333,

Federal tablish

in,

general

Federal

218;

Council of Censors,

109, 130.

state

approves

calling

attempts

to es¬

Crane, Stephen, 73 Credit, public, under Confederation,

178-186; debates regu¬

Creditors, public, under Confederation, 184

under,

178,

198,

requests

215-216;

support

of,

troops,

192;

nationalists

Currency,

committee

Congress, 186,

190,

ment

67;

of Second

under

215;

discusses,

155;

to nationalism in, 180; power to charter na¬

Cushing, William, 63,

tional bank under Articles, 151; problems

appointed

in

Court,

troops,

threatened

by

191; on western lands,

Continental 189,

197,

sion

Confederation

376

of colonies, in

68 Ga.

v.

Brailsjord,

attends

of

problems

178-

Govern¬ in

Revo¬

347, 350, 357, 379; justice

of

Second

Supreme

Continental

Congress, 62; attitude toward Invalid Pen¬

198, 242 Confiscation, discussed

associate

306;

Continental

Confederation,

Dissertations

lutionary Pa., 142

177;

190

Credit, restricted by Bank of England, 380

commerce,

mutinous

Coxe, Tench, 216

favor general revenue, 180-186; opposition

1783,

See also Pa.

181-186;

revenue

Convention

of

252; finances of, 188; flees to Princeton to escape

English

Court of Admiralty and Appeal, 98

advocates

180-186;

Convention,

of

to contract at

Covenanters, of Fifeshire, Scotland, 4-5

Congress,

considers finances, lation

relation

common law, 248

Constitution of 1776

Condy, John, 336 sovereignty

returns

Cornwallis, Gen. Charles, 94, 169

philosophy,

34i Commonwealth of Nations, 340 Confederation

372;

Cornstalk, Shawnee chief, 70

Revolution, background of

Common Sense, by Paine, 76 Common

Admrs.,

Contracts, obligation of, 151-153, 247-248 Conveyance,

Confederation, 215

Doane’s

116;

Confederation Congress, 178; regulation of, Commercial

v.

flees to Lancaster,

Act,

348;

refuses

chief

justiceship,

Cutler, Manassah, 242

367; discussed in Ware, Adm. v. Hylton, 379 Congress.

Dallas, Alexander James, 269, 355 See Confederation Congress, Con¬

tinental Congress, and U. S. Congress

Davenport, James, 369-370 Davie, William, 237, 247, 358, 367, 371

INDEX

416

Ellsworth, Oliver,

Deane, Silas, 132, 141, 164 De

Caledonia,

James,

Anti-Federalist

nick¬

gress,

name for Wilson, 281 132,

134,

Democracy, 258-259, 322; tutional

in Confederation

Federal

Con¬

Convention,

237,

in

debated

Convention,

322-323;

Founding

Fathers

as examples of, 260; and natural law, 316

the American at

1790,

Wiscart v. Dattchy, 381

Enlightenment,

Delaware Iron Works, 161, 390 319;

at

opinion in

136

Delaware Co. of Conn., 162, 201

Revolution,

177;

243, 245; hears appeal in Active case, 125;

De Grasse, Count, 169 Delany, Sharp, 59,

193, 341, 380; appointed

chief justice, 379;

Pa. 303;

Established Church.

Consti¬

Evans, John,

debated

Ewing,

at Pa. ratification convention, 269-280; of

John,

Executive

See Anglican Church

119 137

power,

Continental

Congress

es¬ 96,

tablished

tion of 1776, 108, no; role of juries in

98;

judicial, 364; Wilson’s belief in, 391.

222-224, 233, 241-242, 243-245, 250

See

administrative

departments,

Fifeshire, Scotland, 4, 5; in Pa. Constitu¬

debated

at Federal

Convention,

220,

also Federal Convention, and Popular gov¬ Falmouth, Maine, 74

ernment Depression, of 1796-1797, 380-388; recovery from

post-Revolutionary,

252.

See

also

Farmar, Robert, 374 Faulkner, Capt., leads mob against Wilson’s home, 134

Panic of 1792 Despotism, 245, 327 Dickinson, John, 36, 47, 63, 203;

appoints

Federal, Constitution.

See U. S. Constitution

Federal

accused

Convention,

of

exceeding

Wilson to represent Pa. in Wyoming Val¬

authority, 271; Anti-Federalists criticize se¬

ley controversy, 170; attacks Pa. Constitu¬

crecy

tion of 1776, iii; and colonial resistance to

idealism and executive supremacy interpre¬

of,

2 66;

appraisal

of

democratic

Coercive Acts, 51; drafts Articles of Con¬

tations,

federation,

cated in, 221-222; background of, 215-218;

instructions

68,

90;

favors

against

rescinding

independence,

Pa.

85;

at

258;

aristocratic

Abraham

Baldwin

at,

Committee

Assembly reappoint Wilson to Confedera¬

Committee on Unfinished Parts, 249-252;

tion

compromises

Congress,

195;

moderate

in

Conti¬

in,

255;

advo¬

Federal Convention, 226-227, 255; has Pa.

242;

at,

principles

of

241,

Pierce Butler

Detail, 252-254;

244-249; William

nental Congress, 75, 79-80; opposes early

Davie at, 237, 247; debates admission of

adoption

western states, 242-243; debates methods of

of Declaration

of Independence,

87; president of Pa., 170, Pa.

Provincial

Wilson writes ing

191; at second

Convention,

before

Pa.

Supreme

“Instructions

Revolution,

and

53;

59;

sponsors

Court,

Argument”

writes

Letters

ratifying Constitution, 249-252; debates on democracy,

37;

bates

dur¬

233,

of

a

Pennsylvania Farmer, 28

on

221,

234,

executive

241-242,

238-239,

power,

243-245,

220,

250;

258;

de¬

222-224,

debates

on

judiciary system, 220, 225, 251; debates on legislative

structure

and

power,

220-221,

Dickinson, John, Jr., law student of Wilson,

225-226, 232, 233,

314 Dissertations of Government, by Paine, 155

ereignty,

Drayton, William, 125

Oliver Ellsworth at, 237, 243, 245; Benja¬

Dual sovereignty.

min Franklin at, 254-255; general welfare

See Sovereignty

Duane, James, 67, 75, 306 Duer,

William,

103,

at,

222,

226-227,

333, 255;

250; debates on sov¬ 236;

John

electoral

Dickinson

college,

250;

clause, 250; Elbridge Gerry at, 221, 239,

114,

141,

242;

bank¬

ruptcy of, 350-351

240,243,244,249, 253, 255; Nathaniel Gor¬ ham at, 245; Alexander Hamilton at, 233-

Duffield, Samuel, 107

234,

DuPonceau, Peter, 363

John Langdon at, 255; law of treason con¬

Duty, sense of, 331 Dyer,

Eliphalet,

nates

sidered, 123; James Madison at, 221, 226,

177-178,

Washington

251; Rufus King at, 243, 244, 255;

to

troops, 65

183,

188;

command

nomi¬

235, 237, 244; Luther Martin at, 234, 240,

colonial

241, 249, 255; George Mason at, 221, 223, 234, 235, 240, 241, 242, 249, 250,252-253, 255; Gouverneur Morris at, 221, 238-239,

Edinburgh, Scotland, 4, 5

242, 243, 245, 249, 252, 254; nature of

Eleventh Amendment, 359

the Constitution, 255-256; New Jersey Plan,

Ellery, William, 101, 125

23i_234; obligation of contracts clause, in-

INDEX corporated 248;

in

William

417

draft of Constitution,

247-

Francis, Tench, 146, 369

Paterson

231,

Franklin,

at,

227-228,

Benjamin,

62,

79,

97,

107,

190;

232, 241, 243; Charles Pinckney at, 233,

attends Pa. Constitutional Convention, 108;

248; Charles Cotesworth Pinckney at, 238;

committees

Preamble

73, 125; at Federal Convention, 254-255;

of

Constitution,

246;

Edmund

of

Continental

Congress,

67,

Randolph at, 220, 223, 233, 239, 240, 241,

Indian

245, 252-253, 255; George Read at, 255;

ment, 68-69; organizes Hand-in-Hand Fire

rules of procedure, 219; John Rutledge at,

Co., 203; organizes Society for Political In¬

235,

quiries, 204;

241,

242,

245-246;

Roger

Sherman

at, 221, 223, 228, 234, 235, 243; signing

Commissioner

for Middle

Depart¬

at Second Continental Con¬

gress, 62, 100; votes for independence, 87

of Constitution, 253-254; summary of work

Freneau, Philip, 349

of,

Frontier, Indian warfare on, 370; in Pa. poli¬

254-255;

Virginia Plan, 220, opposed

by small states, 231; James Wilson at, 221-

tics, 46, 78, 267, 278

255; on admission of western states, 242, 243;

advocates

argues tacks

for

direct

single

government,

executive,

unicameral

222;

222-223;

legislature,

233;

at¬

belief

Gadsden, Christopher, 63, 75 Gage, Gen. Thomas, 62-63 Gallatin, Albert, 298, 303

in political capacity of people, 238; defends

Galloway, Joseph, 23, 54

right

Gates, Gen. Horatio, 104-105

to change government,

democracy,

230;

232;

favors

favors direct election of

executive; 242; favors independent Senate, 222;

fears

states

will

government, 227; tracts to

clause,

and

247;

government,

swallow

national

obligation of con¬

on relation

235-236;

on

Genet, Citizen Edmund, 363, 364; Washing¬ ton demands recall of, 368 Georgia, opposes Chisholm decision, 359 Georgia v. Brailsford, 367

of citizen

Germans, in colonial Pa. politics, 78

revisionary

Gerry, Elbridge, 96; at Federal Convention,

power of judiciary, 244; secretary of Com¬

221, 239, 240, 243, 244, 249, 253, 255

mittee of Detail, 245-246; on Senate ap¬

Gibraltar Iron Furnace, 390

proval

of

246;

Gibson, John, 138

urges

executive

over

Gilman, Nicholas, 188, 263

treaties,

250;

and

on

treason,

judicial

veto

legislature, 225; urges journals of Federal

Glasgow, Scotland, 3, 5

Convention be preserved, 255

Gorham, Nathaniel, 185, 188, 263; at Federal Convention, 245

Federalist Paper No. 10, 321 Federalists, fear of civil strife, 369; ratifica¬

Gratz, Bernard, 160, 163

tion strategy in Pa., 262-280

Gratz, Michael, 160, 163

Fife, shire in Scotland, 3-20 Finance, under Confederation, 178-186; under Continental

Congress,

105;

French

loans

to U. S., 178 Findley, William, 271, 273, 278, 300, 303; Anti-Federalist convention,

leader

268;

at

Grand Procession in Philadelphia, 281-294

Pa.

co-operates

ratification

with

Wilson

Gray, George, 303 Gray,

Hannah,

Wilson

courts

Graydon, Alexander, 88, 303; on Wilson as orator, 208 Gray’s Ferry, 209-210

299

Grayson, Col., 134 Grayson, William, 197, 201

Fisher, Miers, 148 Fite, Jacob, 95

Greenleaf, James, 382, 386

FitzSimons, Thomas, 156, 354'355> 3®4‘> commissioner to Annapolis Convention,

Gridley, Jeremiah, 306

delegate

to

marries,

Gray, Harrison, 361

at Pa. Constitutional Convention of 1790,

216;

and

361-366

Confederation

Congress,

Griffin, Cyrus, 172-177 Grotius, Hugo, 339

172; delegate to Federal Convention, 217; in

Grand

Procession,

291;

urges

revision

of Pa. Constitution of 1776, 297

Hamilton, Alexander, 310, 363; in Annapolis Convention, 217; committees of Confedera¬

Few, William, 263 Formalism in law, Wilson opposes, 344

tion Congress, 188, 193; in Confederation

Fort Pitt, Indian treaty of, 69-72

183; counsel in Hylton v. U. S., 378; at

Congress,

177; on Confederation taxation,

“Fort Wilson,” 133-136

Federal

France, American debts to, 188

enced by James Wilson, 158; offered chief

Convention,

233-234,

251;

influ¬

INDEX

418 justiceship,

372;

rashness

of,

181;

votes

against Confederation tax measure, 190

Humphreys, David, 87 Humphreys, Whitehead, 132

Hamilton, Patrick, 13

Hutchinson, James, 133, 368

Hammond, George, 360, 362, 368

Hylton v. U. S., 378

Hancock, John, 62, 63, 65 Hand, Edward, 300

Idealism, philosophy of, 327-328

Hand-in-Hand Fire Co., 203

Illinois country, under Confederation, 189

Harris, John, 279

Illinois-Wabash

Harrison, Benjamin, 63

Co.,

193;

Wilson

president

of, 160

Harrison, Mary, 40

Independence, 88-89; colonial views on, 78-

Hartley, Col., 137

89;

Hartley, Thomas, 52

85; movement for, in Pennsylvania, 78-89;

Harvie, John, 163 Gideon,

Henry

Lee’s

resolutions

Independence,

362-364.

See

also

Ad¬

miralty case of the Sans Culotte

Declaration Day,

Philadelphia,

Henry, Patrick, 67, 376; attends Second Con¬

of,

87;

reception

in Philadelphia, 90 Independence

Henry, John, 125

gala

1788,

celebration

of,

Indian Affairs, 51, 67-68, 70-72; Wilson ap¬ pointed to Committee on, 1775, 67

for Middle Department, 68-69; land specu¬

Indian warfare, on western frontier, 370

lations

Indians,

375;

pledges

loyalty

to

new

Constitution, 287 Henry

IV,

190;

Confederation

Congress

envisions

European

confederacy,

Ingersoll, Jared, 355, 363; delegate to Fed¬ eral

Hervey, James, Meditations, 9, 10

Convention,

217;

in

Grand

America, 148

Hewes, Joseph, 137

Invalid Pension Act, 347-348

Historical knowledge, necessity of, for law¬

Iredell, Hannah, 389

yers, 324

Iredell, James,

Historical relativism, 322 sense of,

in

184, 376-377, 379-380, 385,

388; description of, 355; dissents in Chis¬

Revolutionary

leaders,

318; uses of, 35

holm v. Ga., 356; friend of Wilson, 203; hears Hayburn case, 350; hears U. S. v.

Hodgdon, Samuel, 297

Ravara, 360; hospitality of, 371; rides cir¬

Holker, John, 140, 160

cuit with Wilson, 342, 352-354

Holland Land Co., 167, 375, 389

Iron furnaces, 30, 38, 161, 369, 390

Hollingsworth, Levi, 163

Irvine, William, 44, 51, 52, 218, 300

Holmes, Oliver Wendell, 322

Israel, Israel, 368

193

Hooker, Richard, 323, 333; on positive law, 315;

philosophy

of,

328;

Wilson

influ¬

enced by, 330 Hooper, Robert Lettis, 162, 369 Hooper, William, 75, 125; on Wilson’s char¬ acter,

Proces¬

sion, 291; projects rival to Bank of North

Hessians, 96, 106

Holten, Samuel,

de¬

bates on land purchased from, 193

340

History,

in

287

tinental Congress, 63; Indian Commissioner of,

on,

sentiment favoring, 1776, 74

Hayburn case, 348-352 Henfield,

Richard

100

Hopkinson, Francis, 203, 288, 313 Hopkinson, Joseph, 314, 338 Houston, William, 172-177 Howard, John Eager, 291 Howe, Gen. Sir William, 92, 94-95, 97, 101, 106-107, 112 Howell, David, 197

Jackson, Andrew, 323 James, Negro servant of Robert Morris, 136138

Jay,

John,

65,

306,

341;

appointed

chief

justice of the U. S., 305; attends Second Continental Congress, 63; attitude toward Invalid Pension Act, 348; hears U. S. v. Ravara, 360; mission to Great Britain, 371; opinion in Hayburn case, 350; resigns from Supreme Court, 372; suspicious of French, 187; views on Neutrality Proclamation, 364 Jay’s Treaty, 368-369, 371 Jefferson, Thomas,

58, 314, 322, 323, 341,

365-366; committees of Second Continental

Howell, Samuel, 80

Congress,

Hubley, Adam, 303

Valley controversy, 194; secretary of state,

Hughes, Samuel, 374

3I0> 362;

Humane Society of Philadelphia, 343

writes Declaration of Independence,

119,

125;

considers

Wyoming

tutored by George Wythe, 309: 87

INDEX

4*9

Johnson, Thomas, 65, 73, 346-347, 350

341;

Johnson, William Samuel, 263; in Wyoming

3i4. 392

Valley controversy,

171-177

Wilson’s,

published

posthumously,

Lawrence, Staats, 134

Johnston, Samuel, 376, 388

Lawrence, Thomas, 134

Jones, Joseph,

Lawyers, and American Revolution, 317-318;

172

Judiciary Act of 1789, 379, 381, 382

and Federal Constitution, 317; importance

Jurisprudence, American system of, 309; his¬

of, in Philadelphia, 23;

toric

foundations

contributions lectures

a

to

of,

315-317;

American,

landmark

in

Wilson’s

392;

Wilson’s

American,

341;

Lord Karnes on,

324; status of, in colonial America, 317 Lee, Arthur, 195 Lee, Henry, 65, 263, 374 Lee, Richard Henry, 85, 96, 114, 198; favors

Wilson’s lectures on, 309-341

independence, 82; leads opposition to Con¬ Karnes, Lord, on lawyers, 324

stitution

Kearney, Capt., 138

at Second Continental Congress, 65, 101

263;

at

Congress,

263;

320

Kilbuck, Delaware chief, 70 Rufus,

Confederation

Legal revolution, of eighteenth century, 317-

Kent, Chancellor James, 322 King,

in

Federal

Convention,

Legal training, in eighteenth century, 24-25 Legislative power, debated

243, 244, 255

vention,

Knox, John, 9

in Federal Con¬

220-221, 225-226, 232-233,

250;

of Parliament, 36, 54-57, 316

Kuhl, Frederick, 80

Leiper, Thomas, 365

Kyashota, Seneca chief, 70

Le Maire’s Academy, 209 Land, Confederation Congress passes North¬ west Ordinance, 197; engrossing, 159-168; “On

the Improvement and

Settlement of

Lands in the United States,” tract on, 165167; Pa. Land Office, 162; purchased from Indians, 193; Va. Land Office, son’s plan for controlled 167.

164; Wil¬

settlement,

165-

See also Western land claims speculation,

159-168,

Canaan Co. formed for,

197,

Lewis, William, 134, 371, 379, 384; and case of the

Active,

125-127;

against treason charges,

1790, 300; represents Tories, 118-119

243,

375;

162; collapses in

Livingston, Philip, 67 Livingston, Robert, 86, 119 Livingston, Walter, 351 Livingston, William, 73

Valley

controversy,

171; Wilson’s Pa. holdings, 402; oming Valley, Pa., 171.

Anti-Federalist, 278,

303

ulators

Wyoming

in jail after

Liberty, and law, 311

1796-1797 depression, 382-388; Conn, spec¬ in

defends Quakers 120;

riot, 137; at Pa. Constitutional Convention,

Lincoln, Abraham, Pa.

“Land-Sharks,” denunciation of, 197 Land

Lenox, Maj., 136 Letters of a Pennsylvania Farmer, 28, 35

in Wy¬

See also Holland

Land Co., Illinois-Wabash Co., and James Wilson

Lloyd, Thomas, 269 Locke, John, 327-328 Longchamps, Charles Julian de, 195-196 Louisiana Purchase, 315

Langdon, John, 63, 255, 263

Lowell, James, 354

Latimer, George, 267, 297, 369

Loyalists, debts to, 379; mob action against,

Laurens, Henry, 105 Law,

Biblical,

133

316-317;

celestial,

329-330;

Luther, Martin, 13

development of, in English colonies, 316-

Luzerne, Chevalier de la, 190, 195

318;

Lynch, Thomas, 75

divine, 315-317,

329'33°;

education

in, 312; English, 315; equal (jus aequum), 334; on the frontier, 45; of God, 329-330;

McCalmont, James, 264

hierarchy of, 316; international, in Marbois-

Maclay, William, 297

Longchamps affair,

M’Clenachan, Blair, 143-144

196; and liberty, 311,

320; and Medieval Church, 315; municipal,

McComb, Mr., 351

328-330, 339; of nations, 329-330; nature

McDougal, Gen., heads Army deputation to

of, 308-323, 333; of nature, 330; positive, 316;

Roman, 315;

320'

of trea¬

son, 119-123; Wilson lectures on, 330-340 Law lectures, Wilson institutes series of, 310-

Confederation

Congress on

pay

and pen¬

sion, 179 McKean, Thomas, tion

convention,

278; 267;

attends Pa. ratifica¬ burned

in

effigy,

INDEX

420

282; chief justice of Pa., 118; favors inde¬

Conn.’s

pendence, 84; Federalist leader in Pa. rati¬

defies

fication convention, 262, 269, 275; in Grand

Wilson,

Procession, 291; on law of treason, 121; at

Pa.

Pa. Constitutional Convention of 1790, 308;

172; at Second Continental Congress, 62;

president of Pa. Provincial Convention of

writes of

1776, 86;

tution of 1776, 113

presides at Respublica v. Rob¬

claim

to

Wyoming

Continental 203;

troops,

opposes

delegate

to

with

Moore, William, 100, 102

treason

Moot

national

119;

judiciary,

seeks

appointment

to

304

Wilson

utilizes,

of 51;

Congress,

Pa.

in

Consti¬

his

law

course, 336-338

M’Lane, Allen, 134 Madison, James,

courts,

Acts,

Confederation

dissatisfaction

195;

friend

Coercive

erts, 122; presiding judge at Revolutionary trial,

Valley,

191;

Moral sense, 331-334

177,

189,

219, 322; com¬

Morality, 34

mittee of Confederation Congress, 193; con¬

Morgan, John, 23

cept of society, 321; on Confederation fi¬

Morris, Cadwalader, 144

nance, 178, 184; fears dissolution of union

Morris, Gouverneur, 147-148; on Confedera¬

under Confederation, 185; at Federal Con¬

tion taxation, 183-184; delegate to Federal

vention, 221, 226, 235, 237, 244; supports

Convention,

Federal Constitution in Confederation Con¬

221,

238-239,

gress, 263

254;

member of Society for Political In¬

Magaw, Robert, 30, 45, 51, 59, 282 iron

at

242,

Federal 243,

Convention,

245,

249,

252,

quiries, 204

Man, nature of, 319 Manufacturing,

217;

Morris, Lewis, 69, 71 furnaces,

30,

38,

161,

369, 390; Wilson’s interest in, 369-370

Morris, Robert, 107, 114, 116, 123, 132, 156, 175;

appointed

superintendent

of

Conti¬

Marbois-Longchamps affair, 195-196

nental finance, 146; and Bank of Pa., 144;

Marshall, Christopher, 80

commissioner to Annapolis Convention, 216;

Marshall, John, 322; defends state sovereignty before Supreme Court, 379;

and

judicial

supremacy, 347 Martin,

Luther,

concerned about Continental finances, 142; co-operates with Wilson on Revolutionary finances, 73; defends Wilson’s home against

286, 314;

at Federal

Con¬

vention, 234, 240, 241, 249, 255

mob,

134;

discusses

attorney-generalship

with Wilson, 99; elected delegate to Fed¬

Marxism, 318, 321

eral

Mason, George, 332, at Federal Convention,

nental Congress, 100; favors rescinding Pa.

221,

223,

234,

235,

240-242,

249,

Convention,

217;

elected

to

Conti¬

250,

instructions against independence, 85; fights

Massachusetts, opposes Chisholm decision, 359

382, 386, friend of Wilson, 202; hides Wil¬

Matlock, Timothy, 108, 130-131, 137

son

Mercer, John, 187, 188, 196-197

Washington,

Mifflin, Thomas, 50, 54, 93, 134; advises Con¬

Political Inquiries, 204; partner of Thomas

tinental Congress to leave Philadelphia, 94;

Willing, 62, 73; reports mob seeks Wilson,

252-253, 255

delegate in

to

Grand

for new bank,

Confederation Procession,

Congress,

290;

mob

172;

wounds,

after

145;

riot,

136;

218;

financial distress of, house

to Bank

to Thermidorean

300; at second Pa. Provincial Convention,

to

59

185;

resign

as

votes

of Pa.,

against

vency, 178; on Wilson’s Supreme Court, 305

against

199-201 Wilson’s

133-

Finance,

Congress

of

87; insol¬

appointment to

Mrs.

Robert

(Polly),

solicits

Morris, Samuel, 134

Monroe, James, 216-217 other authorities cited

Morris,

for Revolutionary soldiers, 213

Molder, Joshua, 121 and

threatens

Morris, Robert (younger), 338 home,

136; during Revolution, 132-133

Montesquieu,

Confederation

of

independence,

Miley, Jacob, 264

action,

170;

Superintendent

warns

Mob

143; sympathetic

reaction,

Miles, Samuel, 144

Mitchell, Stephen Mix,

by

138; and Revolutionary finances, 96; sub¬ scribes

136; at Pa. Constitutional Convention, 1790,

Military intrigue, 104-105

occupied

member of Society for

Morris, William, 314, 338 in

Wilson’s law lectures, 314 Montgomery, John, 44, 64, 282; alarmed over

Mort, Mr., inventor, 374 Morton, John, 54, 87, 107 Mutiny of Continental troops, 191-192

funds

INDEX Nationalism,

170;

opponents

of,

180.

See

also Sovereignty Nationalists,

421

mob action, 133; chairman of Pa. Consti¬ tutional

184

Society,

Whigs,

Neill, William, 95

131;

leader

of

radical

112; museum exhibit of, 218; re¬

ports attempt to bribe Paine, 132

Nelson, Thomas, 63, 96, 172

Penhallow v. Doane’s Admrs., 371

Nesbitt, J. M., 144

Pennsylvania

(colony), Assembly debates in¬

Neutrality Proclamation, 362-364, 368

dependence, 78, 82, 83, 84; Assembly ex¬

Neville, John, 278

pires in Sept. 1776, 86; Assembly rescinds instructions

New Deal, 318 New England, land speculators,

197; union

against

independence,

85-86;

boundary dispute with Va., 49, 70; frontier party in, 46, 78; Germans in politics in, 78;

of, discussed, 216 Newton, Isaac, 16, 316, 325

moderate Whigs in, 85; Proprietary party

Nice, Elizabeth, 383-384

in, 30, 45, 47, 78; Provincial Conventions,

Nicholls, William, 297

52-54, 59-60; Quaker party in, 78; radical

Nixon, John, 59, 90, 107, 132, 144

Whigs in, 79; Scotch-Irish in politics in, 78; Tories in, 79

Norfolk, Va., 74 Northwest Ordinance of 1787, 197, 201, 242-

Pennsylvania

(commonwealth),

Anti-Consti¬

tutionalists, hi; Assembly promises canvass

243

on Constitution of 1776, 117; Constitution

Novanglus, by John Adams, 58

of 1776, 100, 107-115, 296-297; Constitution Obligation of contracts clause, 357; attributed

of 1790, 208, 297-304; Constitutional So¬

to Wilson, 247; debated at Federal Conven¬

ciety,

tion, 247, 248

over

Ohio, land speculation in, 163-164 Ohio country, under Confederation, 189 Olmstead, Gideon, legal proceedings involv¬ ing, 124-128, 381.

See also Admiralty case

131;

land

Wyoming

controversy Valley,

with

Conn,

170-177;

politics

during Revolution, m-112; ratifies Federal Constitution, 262-280 Pension

claims,

of

veterans

of

American

Revolution, 347-349 Pentecost, Dorsey, 163-165

of the Active

“People of the U. S.,” new concept of, under

Open society, 393 Oswald, Eleazar, 264, 272

Constitution,

Oswald v. New Yor\, 347, 355

government

273-274.

See

also

Popular

Otis, Harrison Gray, 361

Peters, Richard, 172, 210, 348, 360, 369

Otis, James, 26-27

Pettit, Charles, 216

Otto, Louis Guillaume, 202

Philadelphia, pation,

in

aftermath

of

British

occu¬

117; City Troop of Light Horse,

Page, John, 370

135; in 1760’s, 21-22; social life of, 208-

Paine, Robert Treat, 62 Paine, Thomas, 112; berates enemies of Bank

209; social organizations in, 203-205 Philadelphia

of North America, 155, 157-158; member

vention

of Society for Political Inquiries, 204; op¬

Pickering,

Convention. Mr.,

militia

See

officer,

poses paper money, 155; report of attempt

against Wilson’s home, 133

to bribe, 132; supports Pa. Constitution of

Pickering, Timothy, 268, 300

1776, 115; supports state bank, 145; writes

Pierce, William, 206, 374

Common

Pinckney, Charles, 233, 248

Sense,

76;

writes

Dissertations

Federal leads

Con¬ mob

Pinckney, Charles Cotesworth, 238

of Government, 155 Paley, William, 334'335

Plumer, William, 376

Panic of 1792, 350-351

Political theory, happiness as an end of gov¬ ernment, 55; the people as source of gov¬

Pargellis, Stanley, 258 Parliamentary power, 36, 54-57, 3*6 Parsons, Theophilus, 354 Paterson, William, 366, 381; at Federal Con¬ vention, 227-228, 231,

232, 241, 243

Patton, Col. John, 30, 37, 38; at second Pa. Provincial Convention, 59; witness at mob riot, 138 Peale, Charles Willson, attempts to forestall

ernmental authority, 75, 328-329 Popular government, role of the people in, 231-261, 270, 276, 312, 322 Potts, Jonathan, 59, 117, 123, 134 Potts, Nathaniel, 134 Powel, Samuel, Mayor of Philadelphia, 296297 Presbyterianism, 28

INDEX

422 Privateering,

Renaissance, 323

362-364

Representation, under Articles of Confedera¬

Propertied class, lawyers’ alliance with, 322 Property, distribution

in

Fifeshire, Scotland,

4-5; a means rather than end, 313; rights

tion, 91; and wealth, 337 Republicans of Pa., 117, 149

of, 313; as voting qualification, 259; Wil¬

Respublica v. John Roberts, 121-122

son’s attitude on government’s relation to,

Rhoads, Samuel, 54

257; Wilson’s moot court debates weight to

Rhode Island, debtors abuse of currency in, 215

be given to, 338 Proprietary party in Pa., 30, 45, 47, 78

R'ickett’s Circus, 209

Pufendorf, Samuel, on master-servant relation,

Rights of conscience, and Test Act,

149

Rising Sun, ship, 290, 295

328

Rittenhouse, David, 112; and case of the Ac¬

Purcell, Thomas, 367 Puritans, and divine law, 315; opposition to

tive, 127 Roberdeau, Daniel, 80, 84, 100, 114

English law, 316-317

Roberts, John, treason trial of, 121-122 Quakers,

in

colonial

Pa.

politics,

78;

as

Rodney, Caesar, dramatic vote for independ¬ ence, 87-88

Tories, 118

Rodney, Rail, Col. Johann Gottlieb, 96

Caesar

Augustus,

law

Ramsay, David, 199

Romanticism, 322

Randolph, Edmund, 341, 349-350, 355-356,

Roosevelt, Franklin D., 319, 323

367>

student

of

Wilson, 314, 336

373!

attorney-general of the U. S., on Confederation finance, 179; dis¬

Root, Jesse, argues Conn.’s case in Wyoming

cusses joint law course with Wilson, 309; at

Ross, George, 30, 78, 107, 381; on Admiralty

306;

Federal

Convention,

220,

223,

233,

239,

Valley controversy, 171-177 Court of Pa., 124-125; attends Pa. Provin¬

240-241, 245, 252-253, 255; opposes Wil¬

cial Convention, 52; defends Tories,

son’s

120-121;

codification

of

federal

laws,

346;

prosecutes Henfield. case, 363 Randolph, John,

93;

314

118,

deplores neglect of soldiers, 92-

elected

delegate

to Continental Con¬

gress, 54; president of Illinois-Wabash Co.,

Randolph, Peyton, president of Second Con¬ tinental Congress, 63

160; rejects Congressional reversal of Ac¬ tive case, 126-128

Rawle, William, 362, 363

Ross, James, 300

Read, George, 221, 255

“Rugged individualism,” 320

Read, James, 30

Rush, Benjamin, 107, 132, 150, 278, 313, 351,

Reading, Pa., description of, in 1767, 29

383;

attends

Pa.

Reason, and the law of nature, 315; and mo¬

267;

dropped

from Continental Congress,

rality, 330-332; and truth, 332

ratification

100;

family

212;

member of Hand-in-FIand Fire Co.,

elected to Continental Congress, 107; favors

203;

member of Society for Political

rescinding Pa. institutions against independ¬

quiries, 204; on paper money,

ence,

ports Federal Constitution, 262, 265; urges

Reed,

Joseph,

85;

53,

63,

president

80,

of

135,

second

137,

171;

Pa.

Pro¬

vincial Convention, 59; prosecutes Pa. trea¬ son trial,

119,

121-122; radical leader in

doctor of the

convention,

Wilsons,

131;

202, In¬ sup¬

revision of Pa. Constitution of 1776, 297 Rush, Jacob, 59

colonial Philadelphia, 50, 51; receives hon¬

Rutledge, Edward, 86

orary

order

Rutledge, John, appointed chief justice, 372-

138-139; specu¬

373; attends Second Continental Congress,

lates on Wilson’s retirement from Confed¬

65; blasts Jay’s Treaty, 373; committees of

eration Congress, 194; in Wyoming Valley

Continental

controversy, 172-177

in Confederation Congress, 177, 188, 193;

master’s

degree,

23;

after “Fort Wilson” riot,

Reed, Mrs. lutionary

restores

Joseph, solicits funds soldiers,

for

Revo¬

213

Thomas,

73,

119,

125;

235, 241, 242,

245,

246;

friend

of Wilson, 203; Senate rejects his appoint¬

Reformation, 323 Reid,

67,

favors independence, 82; at Federal Con¬ vention,

Reeve, Tapping, 309, 341

Congress,

ment as chief justice, 376 5,

Wilson, 321 Reiley, Richard, 52

333,

341;

influence

on St. Andrews, Scotland, 3; Society, 205; Uni¬ versity, 12-16

INDEX St.

Clair,

Arthur,

103, 366,

370;

describes

423

Society, moral basis of, 319; mutability of, 393

Washington as field commander, 94; friend

Society for Political Inquiries, 204

of Wilson, 47, 203; secretary at Fort Pitt

Somerset, country home of Wilson, 210

Indian negotiations, 69

Sovereignty, debated

at Federal Convention,

Savigny, Friedrich Karl von, 341

222, 233, 236; divided between federal and

Sawmills, Wilson establishes, 370

state governments, 152, 273; Wilson formu¬

Saylor, Mr., and Wilson’s land speculations,

lates idea of dual, 236 Sproat, Dr. James, 224

377-378

Stamp Act controversy, 22, 26-27.

Schoolmen, medieval, 315 Schuyler, Philip, 67, Scotch-Irish,

in

104-105

colonial

See also

American Revolution, background of

Pa.

politics,

Stark, John, 106

78

State

Scotland, education in, 8

sovereignty,

181;

and

con¬

126;

dis¬

Scottish Kirk, emphasis on education, 5, 7,

cussed

9. 17 Scottish Renaissance,

discussed in Penhallow v. Doane’s Admrs., eighteenth

century,

372;

in

Admiralty

cases,

gressional,

in

in

101-103,

Scott, Thomas, 278

Chisholm

John

v.

Marshall’s

Georgia, 355-357; advocacy

of,

379.

See also Sovereignty

4-5, 16 Sectionalism, and vote in Pa. ratification con¬

Stevenson, George, in, 113 Stewart, Sir James, 145, 153, 154, 276

vention, 278 Sergeant, Jonathan, 119,

171-177, 363,

148,

Stirling, Lord, 94

368 Seventeenth Amendment, 392

Stockton, Samuel, 291

Shaftesbury, third Earl of, 334

Story, Joseph, 322

Shays’ Rebellion, 215-216

Stout, Abraham, 303

Sheffield, Lord, 215

Suffrage,

Sherman, Roger,

289, 301-302 Summary View, by Jefferson, 58

Stoddard, Capt., 138

101, 177, 201; at Federal

Convention, 221, 223, 228, 234-235, 243

Wilson’s views

on

importance of,

Supreme Court, and international law, 340;

Ship masts, 141 Shippen, Edward, 30, 85, 313

Washington’s

Sidney, Algernon, 334

372'373> 37^> 379; Wilson aspires to chief

appointments

to,

304-305,

justiceship, 304, 372-373, 376

“Six Percent Club,” 350

Supreme Executive Council of Pa., 109, 139

Slade, William, 385 Slavery, 91; Wilson

as

a

slaveowner,

367;

Susquehannah Co., 171, 201

Wilson opposes, 274 Smilie, John, 156, 268, 271, 278, 303

Tawney, R. H., 393

Smith, Adam, 145

Taxation,

under

182-184,

of

Smith, James, 52-53, 107

26-28;

Smith, Jonathan, 100, 107

105; in Hylton v. V. S., 378

debated

in

188,

Confederation,

Smith, Charles, 308

Smith, Richard, 73 Smith, Thomas, 58, 123; appointed clerk of

179,

Articles

91,

Taylor, George, 107 Temple, Sir William, 276 Test Act, of Pa., 149

on

delegates

Constitutional Convention,

to

Pa.

108; favors re¬

Test Oath, of Pa. Constitution of 1776, 112

scinding Pa. instructions against independ¬

Thacher, Peter, 360, 366

ence,

Theatre, in Philadelphia, 209

85;

friend

of Wilson, 203;

at Pa.

Constitutional Convention of 1790, 300; on Wilson’s enemies, no; writes Wilson about Pa. politics, 1782, 173

business

170, 297 Thompson,

William,

friend

of Wilson,

44,

Pa.

134, 203; opposes Coercive Acts, 51; op¬

to Coercive Acts, 51; proposes

poses Pa. Constitution of 1776, 113; at Sec¬

Provincial

opposition

Thermidorean reaction, following Revolution, Thomas, Joseph, 383, 385, 386-387

Smith, Rev. William, 21, 203, 205; attends Pa.

Congress,

Taylor, John, acquitted of treason, 121

description

45;

in colonies,

Continental

Bedford County, Pa., 47; Horace Binney’s of,

190;

Convention,

venture

to

Wilson,

53;

leads

116;

returns

ond Continental Congress, 62

as provost of College of Philadelphia after

Thomson, Charles, 50, 51, 59, 63, 88

Revolution, 296

Thomson,

Social classes, 321

Mrs.

Charles,

solicits

Revolutionary soldiers, 213

funds

for

424

INDEX

Tilghman, Edward, 379 Tories, in colonial Pa. politics, 79; in New York City, 94; Whigs attack, in Philadel¬ phia, 118-121 Treason, against U. S., 123, 246; law of, during Revolution, 119-123; Statute of Ed¬ ward III, 120-121, 123; and Whiskey Re¬ bellion, 371 Treaty of Paris, discussed in Congress, 187-188 Trenton, N. J., Washington’s victory at, 97 Trenton Court, adjudicates Wyoming Val¬ ley controversy, 171, 194, 199 Truth, roads to, 328-332 Tyranny, 328 Utilitarianism, 330 “UnAmerican elements,” opposed by Consti¬ tutional Society, 133 United States Congress, assigns pension cases to Supreme Court, 347; power of taxa¬ tion, 378. See also Federal Convention, and Legislative power United States Constitution, Bill of Rights, 265; economic interpretation of, 252; and economic recovery, 252; Eleventh Amend¬ ment, 359; provision on treason, 123, 246; ratification in Pa., 262-280; Seventeenth Amendment, 392; supported by lawyers, 317; Wilson’s drafts of, 405. See also Federal Convention United States v. Gideon Henfield, 362-364 United States v. Ravara, 360 Van Berkel, Pieter Johann, 196 Vergennes, Count, on Confederation finance, 188 Virginia, boundary controversy with Pa., 49, 70; land cession by, 193, 201; land claims of, 189, 200; opposes Chisholm decision, 359 “Visitant” essays, 32-35 Walker, Thomas, 69 Wallis, Samuel, 361, 366-367, 386, 389, 390 Wain, Nicholas, 30, 37 Ward, Artemus, 65 Ware, Adm. v. Hylton, 379 Washington, Bushrod, 128, 170, 210, 375; succeeds Wilson on Supreme Court, 389 Washington, George, 65, 93, 106, 170, 286, 310, 344, 368; appointed commander-in¬ chief of Continental Army, 65-66; appoints Wilson associate justice on Supreme Court, 305; army bounties under, 74; arrives in Philadelphia, 1787, 218; attends Second Continental Congress, 63; congratulates

Paine on Common Sense, 76; defeats Hes¬ sians at Trenton, 96; elected chairman of Federal Convention, 219; forwards expres¬ sions of army discontent to Confederation Congress, 188; judicial appointments of, 304-305, 372-373, 376, 379; as land specu¬ lator, 163; maneuvers to meet Howe’s in¬ vasion of Philadelphia, 106; and neutrality, 361-362, 367-368; praises Wilson’s speech favoring Constitution, 265; relations with Continental Congress, 68, 72; reorganizes army, 97; retreats from Long Island, 9294; urges Congress to settle prize claims, 125; views on Henfield case, 364; warns of invasion of Philadelphia, 101; Wilson confers with, on peacetime army, 193; Wilson solicits chief justiceship from, 304 Wayne, Anthony, 59, 268, 278, 305 Webster, Daniel, 323 Webster, Pelatiah, 157 Wertz, Christian, 113 Western land claims, 90-91, 160, 189, 197, 198 Western Reserve, Conn, makes deal for, 200201 Wharton, Thomas, President of Pa., 114, 117 Whig Society, 112 Whipple, William, 96, 172-177 Whiskey Rebellion, 370-371 White, William, first Episcopal bishop of Pa., 28, 32, 40, 224, 390 White Eyes, Delaware chief, 72 Whitehill, Robert, 263, 270, 271, 272, 278, 303

Whitgift, John, 323 Wilcox, Alexander, 80 Williams, William, 291 Williamson, Hugh, 184, 195 Willing, Charles, 163 Willing, Thomas, 63, 81, 203; and Bank of North America, 146, 150, 155; and Bank of Pa., 142-143; chairman of Pa. Provin¬ cial Convention, 53; delegate to Second Continental Congress, 62; member of Handin-Hand Fire Co., 203; votes against in¬ dependence, 87 Wilson, Alison (mother), 6-8, n, 18, 42, 49. 211 Wilson, Andrew (brother), 8, 17, 211 Wilson, Bird (son), 97, 211, 384, 385; ad¬ ministrator of father’s estate, 390; gradu¬ ates from University of Pa., 352; manages father’s financial affairs, 383-388 Wilson, Charles (son), 210, 211, 383, 384 Wilson, Emily (daughter), 211, 383, 389 Wilson, Hannah (second wife), 367, 369-

INDEX

425

37°> 378> 383. 385. 388-389; attends Wil¬ son during his illness, 387; bears Wilson’s

Society of Cincinnati, 204; elected to Amer¬

seventh child, 380; joins Wilson in N. C.,

scholar,

386

ticles inadequate, 215; fights for adminis¬

Wilson, Henry (son), 380 Wilson,

James,

ican

Philosophical

trative

1742-1775:

abandons

theo¬

logical career, 17; admitted as attorney be¬

206;

Society,

family

departments

fights

for

life, of

“national”

204;

fame

211;

government,

system

as

feels Ar¬ 77;

of finances,

105; formulates ideas on federal judiciary,

fore the Supreme Court of Pa., 1768, 37;

176; friends of, 202-203; hides in Morris’s

attitude toward women, 32-35, 202; begins

country house,

law practice at Reading, 29; birth, 1742, 3;

at Fort Pitt, 1775, 69-72; influence of An

boyhood pleasures, 11, 12; as Carlisle law¬

Inquiry

yer,

(Economy on, 145; influence on Alexander

43-48;

commissioned

as

militia col.,

into

137; Indian Commissioner the

Principles

of

Political

61; compared with John Adams, 19; courts

Hamilton,

Rachel

162; land speculations of, 159-168; leaves

Bird, 38-42; delegate to Pa. Pro¬

158;

returns

in

to

Canaan

Carlisle,

Co.,

vincial Conventions, 52-53, 59-60; delegate

Congress

to Second Continental Congress, 62; as di¬

116; member of Hand-in-Hand Fire Co.,

vinity student,

203;

16; early education of, 9;

and

interest

1778;

member of Society for Political In¬

family life in Scotland, 6, 9; first criminal

quiries,

case, 31; legal training, 23-26; member of

from Carlisle, 117; opposes land claims of

Carlisle Committee of Correspondence, 51;

Va., 91; opposes Pa. Constitution of 1776,

publishes

Considerations,

1774,

54-59;

at

St. Andrews University, 12-17; trained for

100,

204;

no,

moderate Whig, 79; moves

129-130;

opposes

state

sover¬

eignty, 101; as orator, 207; owns iron forges,

Phila¬

160-161; in Pa. politics, 107-115; president

20-21;

of Illinois-Wabash Co., 160; under pressure

writes first draft of Considerations, 1768,

from Mass, and Va. to back independence,

36-37; writes “Visitant” essays, 32

80; quality of mind, 205-207; on representa¬

ministry,

8;

delphia,

21;

tutor

at

voyage

College to

of

America,

1775-1786: appearance of, 202; appointed delegate

to

62,

appointed

73;

tion of states under Articles,

92; resigns

Congress,

from Confederation Congress, 194; and St.

to Confederation Con¬

Andrews Society, 205; ship masts contract,

Second

Continental

gress, 172, 177; attacked for requesting de¬

141-142;

lay in independence vote,

ticles, 91; social position of, 208-209; on

82-83; attitude

on slavery and taxation in Ar¬

toward state treason law, 123; and Bank

source

of North America, 147, 148, 153-155, 158;

studies and scholarship of, 206-207; sup¬

of

governmental

authority,

75;

and Bank of Pa., 142; career as Philadel¬

ports Congressional

phia

the

lution, 105; supports general revenue under

Active, 124-128; character and ability, too;

Confederation, 179-186; in Trenton Court,

lawyer,

116-128;

and

case

of

taxation during Revo¬

committees of Continental Congress, 67, 73,

172-177; votes for independence, 87; wishes

119,

to

125;

compared

with John

Marshall,

be French

advocate-general

in U.

140-141;

142; on Confederation committee approv¬

the

ing treaty of peace, 188; on Confederation

writes

control over western lands,

ment of Lands in the United States,” 165-

189;

consults

writes

“Considerations on .

of

America,”

S.,

170; concerned about Continental finances,

Bank “On

North

.

.

151 -153 5

the Improvement and Settle¬

with Washington on peacetime army, 193;

167; writes plan of Bank of Pa., 142-143;

on control of commerce by Confederation

writes under pseudonym of “Addison,” 114;

Congress, 198; counsel for Pa. in Marbois-

and Wyoming Valley controversy, 170, 195

Longchamps affair, 195-196; defends Abra¬ ham Carlisle against treason charge, defends

his

defends

Philadelphia

with

John

pendence,

home against mob, Adams 81;

Tories,

over

directs

133-136;

118;

timing

opposition

120;

differs

of to

inde¬ Pa.

Constitution of 1776, 112; drafts “Address

1786-1788; on absence of bill of rights from Constitution,

265;

on

admission

of

new states, 259; advocates government rest¬ ing directly on people, 222-226;

attacked

by Anti-Federalists, 266; burned in effigy, 282;

consistency

delivers

oration 288-290,

of on 294;

political

ideas,

Independence elected

260; Day,

to the . . . United Colonies,” 1776, 74-76;

1788,

dropped from Pa. delegation to Continental

Federal Convention, 217; at Federal Con¬

delegate

to

100; early exponent of implied

vention, 221-255, passim; formulates idea

powers, 152; elected honorary member of

of dual sovereignty, 236; on government as

Congress,

INDEX

426

pyramid, 256-257, 276; on national char¬

poses

acter, 277; nicknamed James de Caledonia

proposes digest of Pa. laws, 343-344; pro¬

digest of laws of U.

by Anti-Federalists, 281-282; opposes Negro

poses

slavery, 274; at Pa. ratification convention,

of Law degree, 313; on source of authority,

world

court,

340;

S.,

344-345;

receives

Doctor

269-289; philosophic system of, 207; public

328; sources of his legal and political the¬

oration favoring Constitution, 264-265; re¬

ories, 341; on suffrage, 300-302; vein of im-

lation of interests to ideas, 259; on resi¬

practicality, 344; view of Supreme Court,

dence

requirements

candidates,

259;

for

Congressional

role in Federal

Conven¬

tion, 256; role in Pa. ratification conven¬

347,

377.

See

also

Federal

389

tion summarized, 279-280; on role of chief

Wilson, John (brother), 8, 17

executive,

Wilson,

258;

shapes definition

of trea¬

son in U. S. Constitution, 246; on suffrage, 259-260; summary of stand on Federal

Convention,

256-261;

Annapolis Convention, 217;

212; family life during Revolution, 47-48, justice

of

attitude toward In¬

97;

flees

gracious

home

before

hostess,

210;

Wilson, William

summarized,

Pa.

laws,

391-394;

351-352;

courts

mob

attack,

solicits

133;

funds

for

Revolutionary soldiers, 213 Wilson, Robert, 25

of

64,

birth, 49, 64, 97, 102, 140, 210; death of,

336-337; codification

49,

205> 3X3; character of, 212-214; in child¬

S. as

valid Pension Act, 348; on beauty of law, career

daughter),

supports

on U.

associate

Supreme Court, 305;

(“Polly,”

issues in

1788-1798: and American political thought, appointed

Mary

210-211, 352-354, 383, 384, 389 Wilson, Rachel (first wife), 59, 64, 96, 137,

model for mankind, 277 319-323;

Convention

Wilson, James, Jr. (son), 140, 211, 212, 383,

(brother), 8, 17, 20, 49

Wilson, William (father), 6, 7, 9, 16

Hannah Gray, 361-366; crisis in financial

Wilson, William (son), 64, 211, 383

affairs, 343, 385-388; death of, 388; demo¬

Wilsonville, Pa., industrial center, established

cratic view of law, 345; desires appoint¬

by Wilson, 369; industrial growth of, 374,

ment as chief justice, 304, 372-373, 376; dissents in Wiscart v. Dauchy, 381; draws

383 Wiscart v. Dauchy, 380, 382

up plan of law lectures, 308; emancipates

Witherspoon, John, 341

his slave, 367; establishes industrial center

Women,

at

Wilsonville,

Pa.,

369-370;

estate

of,

civilizing role

in

social

life,

313;

Wilson’s views on, 32-35

390; fatal illness of, 387; on federal court

Wynkoop, William, 297

circuit, 352-355, 382; flees creditors, 384,

Wyoming Valley, controversy between Pa. and

385; and Henfield case, 363; influence of,

Conn, over, 170-177, 194, 199, 200, 201;

391-394; jailed

for debt,

384, 385; land

speculations, 366-367, 373'375. 402; land speculations, collapse 387;

law

lectures,

324-341;

377'378, of, 383-

law

lectures

published, 314, 392; legal theories of, 319323; physic

marries

Hannah

(psychology)

Gray,

of law

366; of,

meta¬

320-323;

significance of peaceable arbitration of, 176 Wythe, George, 73, 125, 309, 341 Yeates, Jasper, 30, 203, 263 Yellow

fever,

in

Philadelphia,

1793,

365-

366 York, Pa., 117

on nature of man, 319-320, 326, 333-334;

Young, John, Wilson borrows from, 374

opinion in Chisholm v. Ga., 356-357; pro¬

Young, Dr. Thomas, 85, 108, 112