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The Online Library of LibertyA Project Of Liberty Fund, Inc.

James Wilson, Collected Works of JamesWilson, vol. 1 [2007]

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Online Library of Liberty: Collected Works of James Wilson, vol. 1

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Edition Used:

Collected Works of James Wilson, edited by Kermit L. Hall andMark David Hall, with an Introduction by Kermit L. Hall, and aBibliographical Essay by Mark David Hall, collected by MaynardGarrison (Indianapolis: Liberty Fund, 2007). Vol. 1.

Author: James WilsonEditor: Kermit L. HallEditor: Mark David HallCollector: Maynard Garrison

About This Title:

This two-volume set brings together a collection of writings andspeeches of James Wilson, one of only six signers of both theDeclaration of Independence and the United States Constitution,and one of the most influential members of the federalConstitutional Convention in 1787. Wilsons writings and speecheshad a significant impact on the deliberations that produced thecornerstone documents of our democracy. Wilsons signalcontribution to the founding of our national government was his



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advocacy for both a strong national government and an open anddemocratic political system, a position that set him apart from bothAlexander Hamilton and Thomas Jefferson.

Wilsons writings form one of the most significant bodies of thoughtabout the relationship between a distinctively American form ofdemocracy and a distinctly American constitutional system. Wilsonwrote extensively on the concepts of separation of powers, theauthority of the judiciary to review acts of the other branches, andthe development of principles of representative government. Thiscollection of Wilsons writings includes his famous law lectures, anumber of noteworthy essays and speeches, some of which arepresented together for the first time, and his opinions in severalSupreme Court cases. Together, the writings in this volumeillustrate that Wilsons words more nearly foreshadowed thenations future than those of his better rememberedcontemporaries such as Alexander Hamilton, James Madison, andThomas Jefferson. In addition to providing the reader with ahistorical view of the nature of American democracy, the power ofcourts and judges, the independence of the executive branch, andthe power of law to structure social relations, this book speaksdirectly to the ongoing debate about the scope and nature ofjudicial review and the place of law and judicial structures in theconduct of society.



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Copyright Information:

The Introduction, Collectors Foreword, CollectorsAcknowledgments, Annotations, Bibliographical Essay are thecopyright of Liberty Fund 2007. The Bibliographical Glossary involume 2 is reprinted by permission of the copyright holders thePresident and Fellows of Harvard College 1967.

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Table Of Contents

Collectors AcknowledgmentsCollectors ForewordIntroduction the Reputation of James WilsonThe TextPart I: Political Papers, Speeches, and Judicial Opinions of

James WilsonConsiderations On the Nature and Extent of the Legislative

Authority of the British Parliament, 1774.Speech Delivered In the Convention For the Province of

Pennsylvania, Held At Philadelphia, In January, 1775.An Address to the Inhabitants of the Colonies (1776). *An Address to the Inhabitants of the Colonies Submitted to the

Continental Congress.Considerations On the Bank of North America 1785. ARemarks of James Wilson In the Federal Convention, 1787.James Wilsons State House Yard Speech October 6, 1787. *Remarks of James Wilson In the Pennsylvania Convention to

Ratify the Constitution of the United States, 1787.Oration Delivered On the Fourth of July 1788, At the

Procession Formed At Philadelphia to Celebrate the Adoptionof the Constitution of the United States.

Speech On Choosing the Members of the Senate By Electors;Delivered, On the 31st December, 1789, In the Convention ofPennsylvania, Assembled For the Purpose of Reviewing,Altering, and Amending the Constitution of the State. a

Speech Delivered, On 19th January, 1790, In the Convention ofPennsylvania, Assembled For the Purpose of Reviewing,Altering, and Amending the Constitution of the State.

A Charge Delivered to the Grand Jury In the Circuit Court ofthe United States, For the District of Virginia, In May, 1791.

Hayburns Case, 2 U.s. 409 (1792), 411414.James Wilsons Opinion In Chisholm V. State of Ga., 2 U.s. 419

(1793), 453466.Henfields Case Case No. 6,360 Circuit Court, D. Pennsylvania

11 F. Cas. 1099 (1793).James Wilsons Opinion In Ware V. Hylton, 3 U.s. 199 (1796),

281on the Improvement and Settlement of Lands In the United

States, Mid-1790s.On the History of Property.Part 2: Lectures On LawBibliographical Essay History of James Wilsons Law LecturesDistrict of Pennsylvania:to Wit.Preface



Lectures On Law,: Part IChapter I.: Introductory Lecture. of the Study of the Law In

the United States.Chapter II.: Of the General Principles of Law and Obligation.Chapter III.: Of the Law of Nature.Chapter IV.: Of the Law of Nations.Chapter V.: Of Municipal Law.Chapter VI.: Of Man, As an Individual.Chapter VII.: Of Man, As a Member of Society.Chapter VIII.: Of Man, As a Member of a Confederation.Chapter IX.: Of Man, As a Member of the Great

Commonwealth of Nations.Chapter X.: Of Government.Chapter XI.: Comparison of the Constitution of the United

States, With That of Great Britain.



[Back to Table of Contents]

COLLECTORS ACKNOWLEDGMENTSThe genesis of the Collected Works of James Wilson was the chancediscovery in 1995 of Andrew Bennetts pamphlet James Wilson ofSt. Andrews, an American Statesman (1928) in a bookstall at theSunday Antiques Faire at St. Andrews Town Hall. The journey fromthat initial discovery to this publication was made possible throughthe help of many scholars, all of whom eagerly shared theirknowledge with me. These include: the staff of the University of St.Andrews Library, Jack Rakove (Stanford University), Dennis L. Bark(Hoover Institution), James Billington (Library of Congress), GeorgeCarey (Georgetown University), David Kennedy (EarhartFoundation), Hans Eichoz (Liberty Fund), Thomas Vail (Cleveland,The Plain Dealer), and Mark David Hall (George Fox University). Iam indebted to each of them.

Maynard Garrison

San Francisco, CA




COLLECTORS FOREWORDIn 1907 Professor L. H. Alexander of Harvard University observedthat two great figures . . . loom from the Revolutionary era, theone, [James] Wilsons, whose brain conceived and created thenation; the other, [George] Washingtons, who wielded the physicalforces that made it.1 Alexander concluded that because ofWilsons intellectual and theoretical contributions to the nationsfounding, it was certain that future scholars would shower greatattention on him. Compared with others of the founding generation,however, that has not happened. There is not a little irony in thisdevelopment. For example, in 1997 Lady Margaret Thatcher statedbefore the annual convention of the American Bar Association thatthe modern political era began with the signing of the Declarationof Independence and the subsequent adoption of the AmericanConstitution in 1787, both documents Wilson helped to shape andto which he affixed his signature. Government created byconsideration and choice, rather than force or accident, hadbecome the universally admired model, Thatcher observed, andWilson was one of the architects of that model. It was Wilson whowove the intellectual threads of his generation into a theory ofpopularly based government wedded to the rule of law. In theoryand action Wilson, as Alexander argued, created a nation.

The path of Wilsons life, career, and political thought are detailedin Kermit Halls introduction. As Hall makes clear, Wilson was atthe front rank of the founders. He was also in touch with the future.By adopting this system, Wilson explained in 1787, we shallprobably lay a foundation for erecting temples of liberty, in everypart of the earth. He went on to insist that [t]he advantagesresulting from this system will not be confined to the United States;it will draw from Europe many worthy characters, who pant for theenjoyment of freedom.2 Thus the universal admiration for theAmerican system recognized by Lady Thatcher in 1997 was foretoldby James Wilson more than two centuries earlier. It is for thisreason that we return with respect to his works.

Maynard Garrison

San Francisco




INTRODUCTION

The Reputation Of James WilsonJames Wilson was a dominant figure in the founding of theAmerican nation, not just in politics and law, but in personalambition. He had a formidable appetite for fame and wealthmatched by a powerful intellect. Wilson was one of only six personsto sign both the Declaration of Independence and the Constitution;only Gouverneur Morris spoke more frequently in the PhiladelphiaConvention of 1787; and scholars rank Wilson as the second mostinfluential member of that convention, behind only James Madison.Wilson was, in the end, a tragic figure, a founder who understoodthe future too clearly and pointed to it too directly, both for his ownimmediate reputation and, as significantly, for his standing amonggenerations to come. These volumes are intended to stimulate newresearch and analysis of Wilsons contributions in the ongoingeffort to determine accurately his rightful place in the founding era.

Wilsons writings have always competed for attention against thebetter known works of the founding generation, notably TheFederalist Papers authored by John Jay, James Madison, andAlexander Hamilton.i Moreover, scholars have turned repeatedly tothe individual writings of Madison, Thomas Jefferson, and JohnAdams to discern the nature of free institutions. The materials inthis volume suggest that Wilson, as the historian Gordon Wood hasnoted, was one of the most, if not the most, ardent advocates forthe people as the sovereign base of the new Americanconstitutional system.ii

Wilson deserves attention as well because he sketched a genuinelysystematic view of the law. His Lectures on Law, while neverpublished in a single volume during his life, were nonethelessintended to make him the American equivalent of Sir EdwardBlackstone, the great English legal commentator. The Lecturesreflect Wilsons scholarly approach to matters of public affairs, aquality that set him apart from Thomas Jefferson, Oliver Ellsworth,Edmund Randolph, Tapping Reeve, and George Wythe. Wilsonattempted to blend the ideas of liberty and the rule of law with thenew idea of popular sovereignty. Moreover, the Lectures stand inmarked contrast to Wilsons contributions as a justice of theSupreme Court. He crafted few opinions while on the high court; ineight years, Wilson produced about twenty total pages of writtenopinions, a legacy that reflected neither his talent as a lawyer norhis impact on American law. His most important opinion, in



Chisholm v. Georgia (1793), was quickly overturned by theratification of the Eleventh Amendment.iii In this light hisambitious project to synthesize principles of natural law andpopular will in the Lectures stands as his most definitive statementabout the character of American law.

The Lectures, there is no doubt, were a serious contribution to theliterature of the law that no student of its early national origins canignore. Wilson deserves high marks for his efforts to reduce andsynthesize American law, a particularly difficult task in light of thejumble of colonial legal practices and the traditions of the Englishcommon law. What set him apart from his better-knowncontemporaries was his gift for addressing the law in broad, oftenbold strokes that encompassed philosophy, psychology, and politicaltheory.

Despite the obvious importance of his contributions, Wilsoncontinues to struggle for attention in comparison with the otherfounders at least in part because of his personal life. Wilsons adultlife was marked by land-development schemes, a correspondinginability to reconcile his quest for individual wealth with ascrupulous attention to the public interest, and ultimately thedistinction of being the only justice of the Supreme Court everimprisoned for debt. That made Wilson something of a paradox. Hewas trained in the Scottish Moral Enlightenment tradition ofThomas Reid and Francis Hutcheson, which stressed, among otherthings, the close relationship among public virtue, moralcommitment to the public interest, and respect for the will of thepeople based on their intrinsic good. This philosophicalperspective, however, collided with Wilsons fabled scramble forwealth, power, and social station. Wilsons articulated philosophywas based on a relatively optimistic view of human nature; hispersonal conduct betrayed to his critics a more pessimisticassessment. Madison, who was also schooled in the Scottish MoralEnlightenment, diverged from Wilson by rejecting the lattersstrongly populist impulses and substituting in their place the beliefthat if men were angels there would be no need for a constitutionin the first place. Wilson has been considered a conservativebecause of his opposition to the Pennsylvania Constitution of 1776,but at the Constitutional Convention of 1787 he was the onlyfounder to argue for the direct election of the executive, the directand proportional election of senators, and the principle of oneperson, one vote.iv

However, like Chief Justice John Marshall, he also supported theconstitutional separation of powers and checks and balancesevensuggesting in his Lectures that the Supreme Court could strikedown an act of Congress if it violated the Constitution or natural



law.v Although he lost many battles at the ConstitutionalConvention, Americas constitutional system has come to closelyresemble that advocated by Wilson. Accordingly, the materials inthis volume can help us better understand the political and legalideas underlying the American experiment in constitutionalgovernment.

BeginningsJames Wilson was born in 1742 at Carskerdo, Scotland. His fatherwas a farmer who resided in the vicinity of St. Andrews.vi Despitehis modest beginnings, Wilson received a splendid classicaleducation at Culpar grammar school, which enabled him to win ascholarship to the University of St. Andrews in 1757. Thiseducation served him well throughout his life, training him inscholarly analysis and simultaneously providing a lifelongintellectual compass. The Scottish Moral Enlightenment and theCommon Sense school of philosophy associated with it pervadedthese institutions and deeply influenced Wilson.

After completing his studies, Wilson moved to America in the midstof the Stamp Act agitations in 1765. Early the next year, heaccepted a position as a Latin tutor and then a lecturer in EnglishLiterature at the College of Philadelphia (later part of theUniversity of Pennsylvania), only to abandon it to study law underJohn Dickinson. On borrowed capital, he also began a lifelongpassionspeculating in land. The College awarded him anhonorary Master of Arts degree in 1766. In 1768, the year after hisadmission to the Philadelphia bar, Wilson set up practice atReading, Pennsylvania. Two years later he moved westward to theScotch-Irish settlement of Carlisle and built up a broad clientele.The following year he married Rachel Bird, the daughter of awealthy Berks County landowner, a union that joined her familysconsiderable wealth with the young lawyers voracious appetite forspeculation in land. The marriage produced six children and lasteduntil 1786, when Rachel Wilson died. Seven years later Wilsonmarried again, to Hannah Gray, half his age and a resident ofBoston, who outlived him.

Of Wilsons children, the best known was his third, Bird, born in1777. Bird became his fathers favorite, and he alone among thechildren was permitted to enter his study to read while his fatherworked. Wilson also took the young boy with him as he went aboutPhiladelphia doing business and conferring on matters of politicsand law. In 1792 the fifteen-year-old Bird graduated from theUniversity of Pennsylvania and went on to become one of the chiefmanagers of his fathers gradually collapsing financial empire.Following the elder Wilsons death, it fell to Bird to arrange for the



publication of his fathers Works in 1804, including the Lectures onLaw.

While Wilson began his family he also entered the swirl ofRevolutionary era politics. In Carlisle in 1774 he assumed thechairmanship of the citys committee of correspondence, attendedthe first provincial assembly, and completed preparation ofConsiderations on the Nature and Extent of the LegislativeAuthority of the British Parliament. This tract was an earlystatement challenging British authority; it was also Wilsons firstdirect published attack on what became one of his favorite targets,Parliamentary sovereignty. His authorship of the pamphletestablished him as a Whig leader, and it is one of the mostimportant documents in this collection.

The next year, voters sent Wilson to the provincial assembly, whichin turn sent him to the Continental Congress, where he sat mainlyon military and Indian affairs committees. In 1776, bound by thePennsylvania legislature not to vote for independence, he joined themoderates in Congress, voting for a three-week delay inconsidering Richard Henry Lees resolution of June 7 forindependence, what ultimately became in the hands of ThomasJefferson the Declaration of Independence. Wilson, however, afterPennsylvania freed the state delegates to vote their consciences,switched his vote, and on the July 1 and 2 ballots he voted in favorof and ultimately signed the Declaration of Independence.

At the same time, Wilson strenuously opposed the republicanPennsylvania constitution of 1776. That position proved politicallycostly, and in 1777 he lost his seat in Congress when his aggressivefrontier constituents viewed him as out of step with the fast-movingrevolution. Wilson relocated to Annapolis during the winter of177778, subsequently taking up residence in Philadelphia, wherehe resided for the remainder of his life.

Wilsons quest for wealth became increasingly apparent. InPhiladelphia he emerged as a spokesperson for and leader ofconservative republican groups determined to break with theBritish without fundamentally losing economic control. Despite thedislocations created by the war, Wilsons economic fortunesblossomed. He became a successful businessman, and theuncertain state created by the conflict served his speculativeinterest in land well. In June 1779 the French governmentappointed Wilson its advocate general in the new United States, apost he held until 1781. In this office, Wilson skillfully addressedcommercial and maritime matters involving France while defendingthe Loyalists who opposed the American Revolution. Wilsonresigned the post in 1783, however, because the French had failed



to honor their agreement to compensate him. Two years later,however, the King of France rewarded him with a lump-sumpayment of ten thousand livres.

Wilsons success in the face of the hardship of others made him atarget. Motivated by soaring inflation and food shortages broughton by the war, a mob attacked Wilsons home in the fall of 1779. Heand thirty-five other prominent businessmen were barricadedinside his home at Third and Walnut Streets, a residence that cameto be known as Fort Wilson. The fracas proved a turning point forboth Wilsons political fortunes and the conservatives in the city,who gained political traction in the face of casualties. Congress in1781 selected him to be one of the directors of the Bank of NorthAmerica, led by Robert Morris. Morris had been not just a clientbut a fellow investor with Wilson in several speculative land deals.A year later, he was selected to serve again in the ContinentalCongress, a post that he held until 1787.

The mob violence in Philadelphia also prompted Wilson to adopt aneven stronger nationalist position, one that coincided with his self-interest in the success of the Bank of North America. In 1785 theradical elements of the Pennsylvania legislature proposed revokingthe banks charter. In return for a fee of four hundred dollars,Wilson agreed to write a pamphlet in support of the bank. The bankhad established a modicum of fiscal stability during therevolutionary crisis, but as significantly, Wilson was indebted to itfor more than thirty thousand dollars in loans. His widely circulatedpamphlet, Considerations on the Bank of North America, offered avision of the powers of the national government that foreshadowedthe new Constitution drafted two years later. Wilson insisted thatrepeal of the Banks charter by the Pennsylvania Assembly wouldbe economically foolish.

His position at once aligned him with the conservative elements inPennsylvania politics and affirmed his strong nationalism. It alsowas unsuccessful. The Assembly repealed the charter inPennsylvania; Wilsons opponents painted him as more interestedin his own economic advantage than in the well-being of his fellowcitizens. Yet even his sharpest critics stood in awe of the eruditionof Considerations and of Wilsons general intelligence.

The Philadelphia Convention Of 1787 AndThe Ratification Of The ConstitutionWilsons greatest moment in public life came in the PhiladelphiaConvention of 1787.vii Wilson was a staunch advocate forseparation of powers that included an independent and powerfuljudiciary, a popularly elected president, and a bicameral legislative



branch. He prevailed in his arguments in support of the judiciary,although one of his pet ideas, a Council of Revision, lost not oncebut three times before the delegates. Wilsons hope of having apopularly elected president with a three-year term also failed, withthe delegates instead adopting an electoral college, which Wilsoncame to support, and a four-year term. Article I did include abicameral scheme, as Wilson proposed, but with the Senateselected by state legislators rather than the people.

Wilson also advocated for federalism and the related concept ofdual sovereignty. Since the people were the foundation of allgovernment, they could construct as many levels of authority asthey wished. Thus, the people could not only establish a nationalgovernment of enumerated powers but simultaneously lend theirsupport to state governments vested with the traditional policepowers of health, safety, morals, and welfare. Ironically, both JohnC. Calhoun and Abraham Lincoln in the years leading up to theCivil War found in Wilsons ideas arguments to support either thelimited or the perpetual nature of the Union.

Wilsons colleagues selected him to be one of the six delegates whoreported the final document for acceptance, a genuine honor to aperson uniformly recognized as one of its chief architects. AndWilson also played a decisive role in the ratification of theConstitution in his important home state. He was the only memberof the Pennsylvania state convention of 1787 to ratify theConstitution who had served in the Philadelphia Convention.Following the ratification of the federal constitution inPennsylvania, Wilson participated in a second state convention toalign the state constitution with the new federal document.

The Writings In This Volume: LegalPhilosopher And Associate JusticeIn 1789 President George Washington appointed Wilson anassociate justice of the Supreme Court. At the same time Wilsonagreed to give a series of law lectures at the College ofPhiladelphia. The documents in this collection speak to his role inboth.

Wilson used his university position to deliver his Lectures on Law.The Lectures comprise almost seven hundred pages of text; thefirst was publicly delivered on December 15, 1790. They were longon theory and short on the kinds of blackletter law issues thatmight be of practical value to students. The Lectures were lectures.They were not finely hewn essays meant to be read rather thanspoken.viii Only about half of them were delivered over the courseof two winter terms at the law school, hardly enough time for



Wilson to sketch his ambitious vision of American law. At the sametime, Wilson was also busy becoming a justice of the SupremeCourt and managing his increasingly chaotic business affairs.

The Lectures shed light on Wilsons philosophy of law, on therelationship of politics to law, on the role of God in the developmentof law, and thus on the landscape of early America in general. TheLectures are also one of the most notable examples in Americanthought of the purported link between popular will and moral sensephilosophy. While Wilson owed a great deal to the Scottish MoralEnlightenment, he also infused his lectures with ideas drawn fromJohn Locke, insisting that government depended on a voluntarycompact that included the right and duty of every citizen to act inways that conformed to the laws of God and nature. Wilson alsoagreed with Locke that the consent of the people was essential tocreate and maintain the state.

Wilsons Lectures underscore that he objected to the PennsylvaniaConstitution of 1776 not because it was too democratic but becauseit granted too much popular authority to the legislative branch atthe expense of the two other branches, the executive and thejudicial, which he considered to have a popular base as well.Wilson, in other sections of the Lectures, objected that an all-powerful, single-house legislature threatened to produce suddenand violent fits of despotism, injustice, and cruelty.ix Wilsonwanted the broadest possible popular base for the executive andlegislative branches at the same time that he insisted that all threebranches, including the appointed judiciary, enjoyed coequal statusas agents of the people.

That theoretical proposition collided with practical reality inChisholm v. Georgia (1793), the most important Supreme Courtcase in which he participated.x Wilson insisted that the peoplecould at once support both the federal government and each of theseparate states. The plaintiff, a citizen of South Carolina and theexecutor of a merchant in that state, sued the state of Georgia forthe value of clothing supplied by the merchant during theRevolutionary War. Georgia ignored a summons to appear infederal court and asserted that it was a sovereign and independentstate immune from any federal lawsuit. Article III section 2 of theConstitution extended the federal judicial power to controversiesbetween a State and Citizens of another State. The Court entereda default judgment against Georgia, with four votes cast seriatimby Wilson, John Jay, William Cushing, and John Blair, Jr., and astrong dissent by James Iredell.

Wilson wrote that sovereignty resided in the people of the UnitedStates for the purposes of the Union and that as to those



purposes Georgia was not a sovereign state.xi Georgia stood nohigher than any individual; it had to be held to account for thecontracts it made, and the place to do so was in the federal courts.The backlash against the decision in general and against the wordsof Wilson (and Jay) in particular was especially vehement amongAnti-Federalists. The result was the speedy ratification in 1795 ofthe Eleventh Amendment. The new amendment stripped the federalcourts of jurisdiction in suits commenced against a state by citizensof another state or another nation. This rebuke of Wilson wasparticularly poignant since in the constitutional convention he hadurged the principle of dual sovereignty. Put to the test on thebench, however, Wilson discovered that his views on thesovereignty of the people had less support than he supposed, atleast when that sovereignty trumped state authority.

Wilsons strident nationalism also led him to oppose the addition ofthe Bill of Rights to the Constitution. Based on his new concept ofthe perpetually sovereign people, Wilson confidently proclaimedthat the proposed Bill of Rights was neither essential nor necessary.Wilson even argued that the addition of a bill of rights would bedangerous because any enumeration of rights would imply thatothers were not included.

The Lectures also remind us that Wilson was something of a legalsociologist. For example, he insisted that the will of the peopletended to mirror their needs through the law, and he used the jurysystem to prove this proposition. The jury, according to Wilson, wasthe most important embodiment of the will of the people in thelegal system and an essential safeguard of liberty. Few earlyAmericans, as the Lectures make clear, wrote with greaterauthority and passion about the jury. Wilson insisted that trial byjury was essential to just government and freedom. He, however,was an equally strong critic of jury nullification, the practice bywhich juries interposed their interpretation of the law in place ofthat of a judge.

Wilson also covered the subject of equity. He believed that theentire purpose of the legal system was to produce justice;accordingly, the concept of equity was central to the success of theAmerican experiment. Wilson argued that judges should be morethan mere voices of precedent; they had also to make certain thatwhat he called the spirit of the law was realized.xii He alsowarned that judges should not make law. According to Wilson, ajudge should take account of the immediate sentiments of justiceand should implement principles and rules of genuine policy andnatural justice for the purpose of promoting a true science oflaw.xiii He urged common law judges to apply equitable principlesin the interest of continual progression, because equity may well



be deemed the conductor of law towards a state of refinement andperfection.xiv

Wilson emerged as a proponent of law as a tool for the commercialgrowth of the new nation. If the Republic were to prosper, it woulddo so based on principles of uniformity and predictability. Onceagain, he drew on his Scottish experience. Americas economy, likethat of Scotland, would prosper to the extent that it embracedprinciples of international commercial law or, as it was called then,the law of nations.

The connection that Wilson made among common law, natural law,and the law of nations also informed his thinking about judicialreview. For his authority, Wilson drew on Lord Cokes decision inDr. Bonhams Case (1610).xv He also took exception toBlackstones view that judges could not defeat the intention of alegislative body, since in the new American scheme the peoplerather than Parliament were sovereign. Because judges were alsoagents of the people, those same judges could strike down anunconstitutional law. The people would expect nothing less of them.His version of judicial review was in part text based. Judges, hebelieved, were required to take the text of the Constitution and layit alongside the law that was in question. Judges could not simplydo what they felt was best. In the Lectures, he went even further.He insisted that any act of a legislature could be subject to thecontrol arising from natural and revealed law.xvi

Wilson argued strongly in the Lectures for the importance offederal judicial review. He had insisted in Hayburns Case (1792)that the justices should not hear claims made by Revolutionary Warpensioners, even though an act of Congress directed that they doso. He and other members of the Court objected because the lawrequired them to perform non-judicial duties, thus violating theprinciple of separation of powers. The decision also prefiguredarguments to come that the Court could declare an act of Congressto be unconstitutional, although it did not do so in this particularinstance. He expected the people in whom he so trusted to respondwith support, but in practice Wilson consistently underestimatedhow broad the base of opposition was not only to an active federaljudiciary but also to the courts exercise of the equity power.

Wilsons own behavior on and off the bench reminds us of howunworkable his attempt was to establish natural law as acornerstone of American politics and jurisprudence and to frame acommon law of federal crimes. For example, in Henfields Case(1793) he attempted to establish the principle of a common law offederal crimes. The jury hearing the case, however, rejected hisdirect charge that, even though there was no specific statute that



Gideon Henfield had violated, the captain of a privateer hadnevertheless acted illegally by bringing a captured British ship toPhiladelphia.xvii

Disgrace And DeathWilsons ambition for high station in life collided with his equallystrong quest for material gain. Wilson wanted to be Chief Justice, aposition that he believed he had earned for his resolute support ofthe new national government. Wilson was also vain enough tobelieve that of the members of the Court, he was the one bestversed in the law. Such an ambition was entirely in keeping with hisgoal of becoming the American Blackstone.

When the Supreme Court came into session in February 1796,President George Washington had to replace Chief Justice John Jay.Wilson seemed a likely possibility, but because of his preoccupationwith land and business ventures, Washington ultimately turned toOliver Ellsworth, a Connecticut Federalist, a member of thePhiladelphia Convention, and the principal framer of the JudiciaryAct of 1789. Wilson was devastated by being passed over, so muchso that he wrote privately of his intentions of resigning.

He simply could not afford to do so. His steadily plummetingfinancial fortunes made his meager Supreme Court salary all themore important, especially since he was borrowing money to coverfailed land speculation at rates as high as thirty percent. Wilsonconfronted financial ruin and, even more tragically for a judge,arrest and imprisonment. After spending a brief period in a NewJersey jail in July 1797, Wilson fled to Edenton, North Carolina. Hewas unable to return to the February 1798 term of the Courtbecause his creditors would have had him imprisoned. Among thecreditors to whom he owed money was Pierce Butler of SouthCarolina, who, on learning of Wilsons presence across the border,demanded payment of the $197,000 owed him, a huge sum for thetime. Wilson could not pay; he was again jailed. Ultimately, Butleragreed to the release of the Supreme Court justice, who took upresidence in the Horniblow Tavern. In July he was stricken withmalaria; on August 21, 1798, he died, financially ruined.

LegacyLitigation over Wilsons extensive estate went on for years. Itsdisposition included hundreds of thousands of dollars in realproperty in Pennsylvania and the Gibraltar Iron Works in BucksCounty. His estate also included an extensive selection of books onfarming, a lifelong passion of Wilson and an echo of his childhood



in Scotland. Ultimately, his son, Bird, was able to pay the great bulkof his debts in full.

In the end, the real wealth and fame that Wilson sought eludedhim. Literally no one had a good word to say about him. Hisdeath, wrote Page Smith, had been a pathetic one without thenobler dimensions of tragedy.xviii Perhaps even more important,Wilson left this life with a string of claims of serious ethical lapsesas a legacy. His land-acquisition programs and personal conductare subjects well worthy of the attention of modern scholars of theCourt and the era.

Wilson did leave a legacy in the law and in his contributions to thecreation of the American republic. As Arthur Wilmarth reminds us,he was committed to the idea of public virtue, an unwavering beliefin the power of popular sovereignty, and an oddly unrealistic viewof human nature. What Wilson wanted was, in the end, not withinhis or even the nations reach: a more perfect society that not onlysecured the rights of individuals but actually enlarged themthrough an appointed federal judiciary. Judges were supposed to beagents of human perfection. In some ways Wilson was the firstsociologist of American law; his legacy lingers in his admonition toview law as a system of social adaptation.




The TextThis edition is the most comprehensive collection of materials everassembled by and about James Wilson. It also has the virtue ofgathering all of Wilsons important works in one place.

Although comprehensive, it is not complete. For example, Wilsonmade a number of charges to grand juries in the course of hiscircuit court duties while sitting on the Supreme Court between1789 and 1798, but not all of them were recorded, and of thosethat were only two merit serious consideration, one fromPennsylvania in 1793 and the other from Virginia in 1797. Scholarsuniformly treat these as important contributions by Wilson to thedevelopment of American law.xix Only two of Wilsons SupremeCourt opinions are included, again because of their importance.The first is from the famous case of Chisholm (1793); the other, andmuch briefer, from Ware v. Hylton (1796).xx Wilson possessed oneof the finest legal minds of his era, but it seldom found expressionin Supreme Court opinions. Wilson was on the Court in only twoother significant cases: Hylton v. United States (1796) and Calder v.Bull (1798).xxi In the case of Calder, Wilson did not participatebecause of his flight from creditors and an illness that ultimatelykilled him. All commentators agree, however, that Chisholm wasWilsons most important Supreme Court opinion and that hisopinion in Ware, while brief, underscored his basic constitutionalvalues.

In 1967 Robert G. McCloskey produced the last edited volumes ofWilsons works. His two-volume compilation was for the most part areprint of the 1804 text prepared by Bird Wilson. In 1896 JamesDeWitt Andrews edited a two-volume collection. Andrews omittedsome of the papers that Bird Wilson had included and modestlyrearranged some of the materials. Both McCloskey and Andrewsfollowed Bird Wilsons organizational scheme. McCloskey providedan illuminating introduction and supplied footnoted annotationsalong with the translation of Latin phrases.

Since the publication of McCloskeys two volumes on Wilson,additional materials have come to light. These include Wilsonscarefully handwritten notes for the Lectures on Law, now in themanuscript collection of the Free Library of Philadelphia. Thesenotes are discussed at the beginning of the section on the Lecturesin an essay by Wilson scholar Mark David Hall. Hall not onlyaddresses the notes but also offers a substantial commentary onthe origins, purposes, and value of the Lectures.



In presenting the text, the chief goal has been to make it asauthentic as the original 1804 edition of the lectures and to leavethe reader to reach his or her own judgments about it. The spelling,capitalization, and punctuation have been left as they were in the1804 edition. James Wilsons footnotes and those of his son havealso been left intact. They are indicated by letters. Footnotesmarked by numbers are modern translations of Latin phrases fromMcCloskeys version of Wilsons works or annotations forindividuals who might not be known to even well-educated readerstoday. Again, the objective has been to intrude as little as possibleon the way in which Bird Wilson presented his fathers materials.Where Ed. appears beside a note, it indicates that the annotationwas made by Bird Wilson.

This volume is arranged somewhat differently from that ofMcCloskey, in part to reflect the new material and in part tounderscore that the Lectures were a self-contained enterprise.Thus, the first materials in the volume are some of what McCloskeytermed Miscellaneous Papers, which he placed at the end of hisvolumes. The decision to place these materials first was driven inpart by their chronology, since most of them appeared before theLectures were given. In addition to the miscellaneous materialincluded by previous editors, this edition contains Wilsons AnAddress to the Inhabitants of the Colonies (1776), Remarks ofJames Wilson in the Federal Convention of 1787, State HouseYard Speech (1787), and On the Improvement and Settlement ofLands in the United States (mid-1790s). The materials from theconstitutional convention include every instance that Madisonrecorded Wilsons comments. Although Wilson repeated some ofthese thoughts in his Lectures, the excerpts from the conventionshine light on one of his most important contributions to Americanconstitutional history. As well, this edition contains Wilsonsremarks at the Pennsylvania ratifying convention and his mostimportant judicial opinions.

Finally, this volume also contains a Bibliographical Glossary, onethat McCloskey prepared for his two-volume work. The glossary ishelpful because Wilson drew extensively on a rich and varied bodyof writing, but in indicating the sources to which he turned, heused what McCloskey rightly termed an often . . . baffling systemof abbreviated citations.xxii The glossary will help readers tounderstand the sources that Wilson relied on and to confirm hisambitions as a serious scholar.

The impetus for this volume originated with Maynard Garrison ofSan Francisco, a person with a strong interest in Wilson and theFounding Era. Garrison pulled together a collection of materials



that makes this volume the most comprehensive assemblage ofwritings and speeches ever collected by and about Wilson.

In bringing this volume to publication, I have had considerableassistance. I am grateful to James Taylor, Robert Wagner, andPhyllis A. Hall for their assistance with footnote preparation,citation checking, research on the annotations, and proofreading. Ialso treasure the professional support and patience provided byLaura Goetz of the Liberty Fund press.

Kermit L. Hall

Albany, New York, September 1, 2005




PART I

Political Papers, Speeches, And JudicialOpinions Of James WilsonAll men are, by nature, equal and free: no one has a right to anyauthority over another without his consent: all lawful governmentis founded on the consent of those who are subject to it: suchconsent was given with a view to ensure and to increase thehappiness of the governed, above what they could enjoy in anindependent and unconnected state of nature. The consequence is,that the happiness of the society is the first law of everygovernment. (Considerations, August 17, 1774, James Wilson.)




Considerations On The Nature And Extent OfThe Legislative Authority Of The BritishParliament, 1774.Originally written in 1768, Wilsons pamphlet was one of the first toargue that Parliament had no authority to pass legislationregulating the colonies internal or external affairs.

No question can be more important to Great Britain, and to thecolonies, than thisdoes the legislative authority of the Britishparliament extend over them?

On the resolution of this question, and on the measures which aresolution of it will direct, it will depend, whether the parentcountry, like a happy mother, shall behold her children flourishingaround her, and receive the most grateful returns for her protectionand love; or whether, like a step dame, rendered miserable by herown unkind conduct, she shall see their affections alienated, andherself deprived of those advantages which a milder treatmentwould have ensured to her.

The British nation are generous: they love to enjoy freedom: theylove to behold it: slavery is their greatest abhorrence. Is it possible,then, that they would wish themselves the authors of it? No.Oppression is not a plant of the British soil; and the late severeproceedings against the colonies must have arisen from thedetestable schemes of interested ministers, who have misinformedand misled the people. A regard for that nation, from whom wehave sprung, and from whom we boast to have derived the spiritwhich prompts us to oppose their unfriendly measures, must leadus to put this construction on what we have lately seen andexperienced. When, therefore, they shall know and consider thejustice of our claimthat we insist only upon being treated asfreemen, and as the descendants of those British ancestors, whosememory we will not dishonour by our degeneracy, it is reasonableto hope, that they will approve of our conduct, and bestow theirloudest applauses on our congenial ardour for liberty.

But if these reasonable and joyful hopes should fatally bedisappointed, it will afford us at least some satisfaction to know,that the principles on which we have founded our opposition to thelate acts of parliament, are the principles of justice and freedom,and of the British constitution. If our righteous struggle shall beattended with misfortunes, we will reflect with exultation on thenoble cause of them; and while suffering unmerited distress, think



ourselves superiour to the proudest slaves. On the contrary, if weshall be reinstated in the enjoyment of those rights, to which weare entitled by the supreme and uncontrollable laws of nature, andthe fundamental principles of the British constitution, we shall reapthe glorious fruit of our labours; and we shall, at the same time,give to the world and to posterity an instructive example, that thecause of liberty ought not to be despaired of, and that a generouscontention in that cause is not always unattended with success.

The foregoing considerations have induced me to publish a fewremarks on the important question, with which I introduced thisessay.

Those who allege that the parliament of Great Britain have powerto make laws binding the American colonies, reason in thefollowing manner. That there is and must be in every state asupreme, irresistible, absolute, uncontrolled authority, in which thejura summi imperii,1 or the rights of sovereignty, reside:a Thatthis supreme power is, by the constitution of Great Britain, vestedin the king, lords, and commons:b That, therefore, the acts of theking, lords, and commons, or, in other words, acts of parliament,have, by the British constitution, a binding force on the Americancolonies, they composing a part of the British empire.

I admit that the principle, on which this argument is founded, is ofgreat importance: its importance, however, is derived from itstendency to promote the ultimate end of all government. But if theapplication of it would, in any instance, destroy, instead ofpromoting, that end, it ought, in that instance, to be rejected: for toadmit it, would be to sacrifice the end to the means, which arevaluable only so far as they advance it.

All men are, by nature, equal and free: no one has a right to anyauthority over another without his consent: all lawful governmentis founded on the consent of those who are subject to it: suchconsent was given with a view to ensure and to increase thehappiness of the governed, above what they could enjoy in anindependent and unconnected state of nature. The consequence is,that the happiness of the society is the first law of everygovernment.c

This rule is founded on the law of nature: it must control everypolitical maxim: it must regulate the legislature itself.d The peoplehave a right to insist that this rule be observed; and are entitled todemand a moral security that the legislature will observe it. If theyhave not the first, they are slaves; if they have not the second, theyare, every moment, exposed to slavery. For civil liberty is nothingelse but natural liberty, devested of that part which constituted the



independence of individuals, by the authority which it confers onsovereigns, attended with a right of insisting upon their making agood use of their authority, and with a moral security that this rightwill have its effect.e

Let me now be permitted to askWill it ensure and increase thehappiness of the American colonies, that the parliament of GreatBritain should possess a supreme, irresistible, uncontrolledauthority over them? Is such an authority consistent with theirliberty? Have they any security that it will be employed only fortheir good? Such a security is absolutely necessary. Parliaments arenot infallible: they are not always just. The members, of whom theyare composed, are human; and, therefore, they may err; they areinfluenced by interest; and, therefore, they may deviate from theirduty. The acts of the body must depend upon the opinions anddispositions of the members: the acts of the body may, then, be theresult of errour and of vice. It is no breach of decency to supposeall this: the British constitution supposes it: it supposes thatparliaments may betray their trust, and provides, as far as humanwisdom can provide, that they may not be able to do so long,without a sufficient control.f Without provisions for this purpose,the temple of British liberty, like a structure of ice, would instantlydissolve before the fire of oppression and despotick sway.

It will be very material to consider the several securities, which theinhabitants of Great Britain have, that their liberty will not bedestroyed by the legislature, in whose hands it is intrusted. If itshall appear, that the same securities are not enjoyed by thecolonists; the undeniable consequence will be, that the colonistsare not under the same obligations to intrust their liberties into thehands of the same legislature: for the colonists are entitled to allgthe privileges of Britons. We have committed no crimes to forfeitthem: we have too much spirit to resign them. We will leave ourposterity as free as our ancestors left us.

To give to any thing that passes in parliament the force of a law, theconsent of the king, of the lords, and of the commonsh is absolutelynecessary.i If, then, the inhabitants of Great Britain possess asufficient restraint upon any of these branches of the legislature,their liberty is secure, provided they be not wanting to themselves.Let us take a view of the restraints, which they have upon thehouse of commons.

They elect the members of that house. Magistrates, saysMontesquieu,j2 are properly theirs, who have the nomination ofthem. The members of the house of commons, therefore, electedby the people, are the magistrates of the people; and are bound by



the ties of gratitude for the honour and confidence conferred uponthem, to consult the interest of their constituents.

The power of elections has ever been regarded as a point of the lastconsequence to allk free governments. The independent exercise ofthat power is justly deemed the strongest bulwark of the Britishliberties.l As such, it has always been an object of great attention tothe legislature; and is expressly stipulated with the prince in thebill of rights. All those are excluded from voting, whose poverty issuch, that they cannot live independent, and must therefore besubject to the undue influence of their superiours. Such aresupposed to have no will of their own: and it is judged improperthat they should vote in the representation of a free state. What canexhibit in a more striking point of view, the peculiar care which hasbeen taken, in order to render the election of members ofparliament entirely free? It was deemed an insult upon theindependent commons of England, that their uninfluencedsuffrages should be adulterated by those who were not at liberty tospeak as they thought, though their interests and inclinations werethe same. British liberty, it was thought, could not be effectuallysecured, unless those who made the laws were freely, and withoutinfluence, elected by those for whom they were made. Upon thisprinciple is reasonably founded the maxim in lawthat every one,who is capable of exercising his will, is party, and presumed toconsent, to an act of parliament.

For the same reason that persons, who live dependent upon the willof others, are not admitted to vote in elections, those who areunder age, and therefore incapable of judging; those who areconvicted of perjury or subornation of perjury, and thereforeunworthy of judging; and those who obtain their freeholds byfraudulent conveyances, and would therefore vote to serveinfamous purposes, are all likewise excluded from the enjoyment ofthis great privilege. Corruption at elections is guarded against bythe strictest precautions, and most severe penalties. Every elector,before he polls, must, if demanded by a candidate or by twoelectors, take the oath against bribery, as prescribed by 2. Geo. 2.c. 24. Officers of the excise, of the customs, and of the post offices;officers concerned in the duties upon leather, soap, paper, stripedlinens imported, hackney coaches, cards and dice, are restrainedfrom interfering in elections, under the penalty of one hundredpounds, and of being incapable of ever exercising any office of trustunder the king.

Thus is the freedom of elections secured from the servility, theignorance, and the corruption of the electors; and from theinterposition of officers depending immediately upon the crown.But this is not all. Provisions, equally salutary, have been made



concerning the qualifications of those who shall be elected. Allimaginable care has been taken, that the commons of Great Britainmay be neither awed, nor allured, nor deceived into any nominationinconsistent with their liberties.

It has been adopted as a general maxim, that the crown will takeadvantage of every opportunity of extending its prerogative, inopposition to the privileges of the people; that it is the interest ofthose who have pensions or offices at will from the crown, toconcur in all its measures; that mankind in general will prefer theirprivate interest to the good of their country; and that,consequently, those who enjoy such pensions or offices are unfit torepresent a free nation, and to have the care of their libertiescommitted to their hands.m All such officers or pensioners aredeclared incapable of being elected members of the house ofcommons.

But these are not the only checks which the commons of GreatBritain have, upon the conduct of those whom they elect torepresent them in parliament. The interest of the representatives isthe same with that of their constituents. Every measure, that isprejudicial to the nation, must be prejudicial to them and theirposterity. They cannot betray their electors, without, at the sametime, injuring themselves. They must join in bearing the burthen ofevery oppressive act; and participate in the happy effects of everywise and good law. Influenced by these considerations, they willseriously and with attention examine every measure proposed tothem; they will behold it in every light, and extend their views to itsmost distant consequences. If, after the most mature deliberation,they find it will be conducive to the welfare of their country, theywill support it with ardour: if, on the contrary, it appears to be of adangerous and destructive nature, they will oppose it withfirmness.

Every social and generous affection concurs with their interest, inanimating the representatives of the commons of Great Britain toan honest and faithful discharge of their important trust. In eachpatriotick effort, the heart-felt satisfaction of having acted a worthypart vibrates in delightful unison with the applause of theircountrymen, who never fail to express their warmestacknowledgements to the friends and benefactors of their country.How pleasing are those rewards! How much to be preferred to thatpaltry wealth, which is sometimes procured by meanness andtreachery! I say sometimes; for meanness and treachery do notalways obtain that pitiful reward. The most useful ministers to thecrown, and therefore the most likely to be employed, especially ingreat emergencies, are those who are best beloved by the people;and those only are beloved by the people, who act steadily and



uniformly in support of their liberties. Patriots, therefore, havefrequently, and especially upon important occasions, the bestchance of being advanced to offices of profit and power. An abjectcompliance with the will of an imperious prince, and a readydisposition to sacrifice every duty to his pleasure, are sometimes, Iconfess, the steps, by which only men can expect to rise to wealthand titles. Let us suppose that, in this manner, they are successfulin attaining them. Is the despicable prize a sufficient recompense,for submitting to the infamous means by which it was procured,and for the torturing remorse with which the possession of it mustbe accompanied? Will it compensate for the merited curses of thenation and of posterity?

These must be very strong checks upon the conduct of every man,who is not utterly lost to all sense of praise and blame. Few willexpose themselves to the just abhorrence of those among whomthey live, and to the excruciating sensations which such abhorrencemust produce.

But lest all these motives, powerful as they are, should beinsufficient to animate the representatives of the nation to avigorous and upright discharge of their duty, and to restrain themfrom yielding to any temptation that would incite them to betraytheir trust; their constituents have still a farther security for theirliberties in the frequent election of parliaments. At the expiration ofevery parliament, the people can make a distinction between thosewho have served them well, and those who have neglected orbetrayed their interest: they can bestow, unasked, their suffragesupon the former in the new election; and can mark the latter withdisgrace, by a mortifying refusal. The constitution is thusfrequently renewed, and drawn back, as it were, to its firstprinciples; which is the most effectual method of perpetuating theliberties of a state. The people have numerous opportunities ofdisplaying their just importance, and of exercising, in person, thesenatural rights. The representatives are reminded whose creaturesthey are; and to whom they are accountable for the use of thatpower, which is delegated unto them. The first maxims ofjurisprudence are ever kept in viewthat all power is derived fromthe peoplethat their happiness is the end of government.

Frequent new parliaments are a part of the British constitution: bythem only, the king can know the immediate sense of the nation.Every supply, which they grant, is justly to be considered as atestimony of the loyalty and affection, which the nation bear totheir sovereign; and by this means, a mutual confidence is createdbetween the king and his subjects. How pleasing must such anintercourse of benefits be! How must a father of his people rejoicein such dutiful returns for his paternal care! With what ardour must



his people embrace every opportunity of giving such convincingproofs, that they are not insensible of his wise and indulgent rule!

Long parliaments have always been prejudicial to the prince, whosummoned them, or to the people, who elected them. In that calledby King Charles I,4 in the year 1640, the commons proceeded atfirst, with vigour and a true patriotick spirit, to rescue the kingdomfrom the oppression under which it then groanedto retrieve theliberties of the people, and establish them on the surestfoundationsand to remove or prevent the perniciousconsequences, which had arisen, or which, they dreaded, mightarise from the tyrannical exercise of prerogative. They abolishedthe courts of the star chamber and high commission: they reducedthe forests to their ancient bounds: they repealed the oppressivestatutes concerning knighthood: they declared the tax of shipmoney to be illegal: they presented the petition of rights, andobtained a ratification of it from the crown. But when the kingunadvisedly passed an act to continue them till such time as theyshould please to dissolve themselves, how soonhow fatally didtheir conduct change! In what misery did they involve theircountry! Those very men, who, while they had only a constitutionalpower, seemed to have no other aim but to secure and improve theliberty and felicity of their constituents, and to render theirsovereign the glorious ruler of a free and happy peoplethose verymen, after they became independent of the king and of theirelectors, sacrificed both to that inordinate power which had beengiven them. A regard for the publick was now no longer the springof their actions: their only view was to aggrandize themselves, andto establish their grandeur on the ruins of their country. Theirviews unhappily were accomplished. They overturned theconstitution from its very foundation; and converted into rods ofoppression those instruments of power, which had been put intotheir hands for the welfare of the state; but which those, who hadformerly given them, could not now reassume. What an instructiveexample is this! How alarming to those, who have no influence overtheir legislatorswho have no security but that the power, whichwas originally derived from the people, and was delegated for theirpreservation, may be abused for their destruction! Kings are notthe only tyrants: the conduct of the long parliament will justify mein adding, that kings are not the severest tyrants.

At the restoration, care was taken to reduce the house of commonsto a proper dependence on the king; but immediately after theirelection, they lost all dependence upon their constituents, becausethey continued during the pleasure of the crown. The effects soondreadfully appeared in the long parliament under Charles thesecond.5 They seemed disposed ingloriously to surrender thoseliberties, for which their ancestors had planned, and fought, and



bled: and it was owing to the wisdom and integrity of twon6virtuous ministers of the crown, that the commons of England werenot reduced to a state of slavery and wretchedness by thetreachery of their own representatives, whom they had indeedelected, but whom they could not remove. Secure of their seats,while they gratified the crown, the members bartered the libertiesof the nation for places and pensions; and threw into the scale ofprerogative all that weight, which they derived from the people inorder to counterbalance it.

It was not till some years after the revolution, that the people couldrely on the faithfulness of their representatives, or punish theirperfidy. By the statute 6. W. & M. c. 2. it was enacted, thatparliaments should not continue longer than three years. Theinsecure situation of the first prince of the Hanoverian line,7surrounded with rivals and with enemies, induced the parliament,soon after his accession to the throne, to prolong this term to thatof seven years. Attempts have, since that time, been frequentlymade to reduce the continuance of parliaments to the former term:and such attempts have always been well received by the nation.Undoubtedly they deserve such reception: for long parliaments willnaturally forget their dependence on the people: when thisdependence is forgotten, they will become corrupt: Whenever theybecome corrupt, the constitution of England will lose its libertyitwill perish.o

Such is the provision made by the laws of Great Britain, that thecommons should be faithfully represented: provision is also made,that faithful representatives should not labour for their constituentsin vain. The constitution is formed in such a manner, that the houseof commons are able as well as willing to protect and defend theliberties intrusted to their care.

The constitution of Great Britain is that of a limited monarchy; andin all limited monarchies, the power of preserving the limitationsmust be placed somewhere. During the reigns of the first Normanprinces, this power seems to have resided in the clergy and in thebarons by turns. But it was lodged very improperly. The clergy,zealous only for the dignity and preeminence of the church,neglected and despised the people, whom, with the soil they tilled,they would willingly have considered as the patrimony of St. Peter.Attached to a foreign jurisdiction, and aspiring at an entireindependence of the civil powers, they looked upon theprerogatives of the crown as so many obstacles in the way of theirfavourite scheme of supreme ecclesiastical dominion; and thereforeseized, with eagerness, every occasion of sacrificing the interests oftheir sovereign to those of the pope. Enemies alike to their kingand to their country, their sole and unvaried aim was to reduce



both to the most abject state of submission and slavery. The meansemployed by them to accomplish their pernicious purposes were,sometimes, to work upon the superstition of the people, and directit against the power of the prince; and, at other times, to workupon the superstition of the prince, and direct it against theliberties of the people.

The power of preserving the limitations of monarchy, for thepurposes of liberty, was not more properly placed in the barons.Domineering and turbulent, they oppressed their vassals, andtreated them as slaves; they opposed their prince, and wereimpatient of every legal restraint. Capricious and inconstant, theysometimes abetted the king in his projects of tyranny; and, at othertimes, excited the people to insurrections and tumults. For thesereasons, the constitution was ever fluctuating from one extreme toanother; now despotismnow anarchy prevailed.

But after the representatives of the commons began to sit in aseparate house; to be considered as a distinct branch of thelegislature; and, as such, to be invested with separate andindependent powers and privileges; then the constitution assumeda very different appearance. Having no interest contrary to that ofthe people, from among whom they were chosen, and with whom,after the session, they were again to mix, they had no viewsinconsistent with the liberty of their constituents, and thereforecould have no motives to betray it. Sensible that prerogative, or adiscretionary power of acting where the laws are silent, isabsolutely necessary, and that this prerogative is most properlyintrusted to the executor of the laws, they did not oppose theexercise of it, while it was directed towards the accomplishment ofits original end: but sensible likewise, that the good of the statewas this original end, they resisted, with vigour, every arbitrarymeasure, repugnant to law, and unsupported by maxims of publickfreedom or utility.

The checks, which they possessed over prerogative, were calm andgentleoperating with a secret, but effectual forceunlike theimpetuous resistance of factious barons, or the boisterousfulminations of ambitious prelates.

One of the most ancient maxims of the English law is, that nofreeman can be taxed at pleasure.p But taxes on freemen wereabsolutely necessary to defray the extraordinary charges ofgovernment. The consent of the freemen was, therefore, ofnecessity to be obtained. Numerous as they were, they could notassemble to give their consent in their proper persons; and for thisreason, it was directed by the constitution, that they should give itby their representatives, chosen by and out of themselves. Hence



the indisputable and peculiar privilege of the house of commons togrant taxes.q

This is the source of that mild but powerful influence, which thecommons of Great Britain possess over the crown. In this consiststheir security, that prerogative, intended for their benefit, willnever be exerted for their ruin. By calmly and constitutionallyrefusing supplies, or by granting them only on certain conditions,they have corrected the extravagancies of some princes, and havetempered the headstrong nature of others; they have checked theprogress of arbitrary power, and have supported, with honour tothemselves, and with advantage to the nation, the character ofgrand inquisitors of the realm. The proudest ministers of theproudest monarchs have trembled at their censures; and haveappeared at the bar of the house, to give an account of theirconduct, and ask pardon for their faults. Those princes, who havefavoured liberty, and thrown themselves upon the affections of theirpeople, have ever found that liberty which they favoured, and thoseaffections which they cultivated, the firmest foundations of theirthrone, and the most solid support of their power. The purses oftheir people have been ever open to supply their exigencies: theirswords have been ever ready to vindicate their honour. On thecontrary, those princes, who, insensible to the glory and advantageof ruling a free people, have preferred to a willing obedience theabject submission of slaves, have ever experienced, that allendeavours to render themselves absolute were but so many stepsto their own downfall.

Such is the admirable temperament of the British constitution!such the glorious fabrick of Britains libertythe pride of hercitizensthe envy of her neighboursplanned by herlegislatorserected by her patriotsmaintained entire bynumerous generations past! may it be maintained entire bynumerous generations to come!

Can the Americans, who are descended from British ancestors, andinherit all their rights, be blamedcan they be blamed by theirbrethren in Britainfor claiming still to enjoy those rights? But canthey enjoy them, if they are bound by the acts of a Britishparliament? Upon what principle does the British parliament foundtheir power? Is it founded on the prerogative of the king? Hisprerogative does not extend to make laws to bind any of hissubjects. Does it reside in the house of lords? The peers are acollective, and not a representative body. If it resides any where,then, it must reside in the house of commons.

Should any one object here, that it does not reside in the house ofcommons only, because that house cannot make laws without the



consent of the king and of the lords; the answer is easy. Though theconcurrence of all the branches of the legislature is necessary toevery law; yet the same laws bind different persons for differentreasons, and on different principles. The king is bound, because heassented to them. The lords are bound, because they voted forthem. The representatives of the commons, for the same reason,bind themselves, and those whom they represent.

If the Americans are bound neither by the assent of the king, nor bythe votes of the lords, to obey acts of the British parliament, thesole reason why they are bound is, because the representatives ofthe commons of Great Britain have given their suffrages in favourof those acts.r But are the representatives of the commons of GreatBritain the representatives of the Americans? Are they elected bythe Americans? Are they such as the Americans, if they had thepower of election, would probably elect? Do they know the interestof the Americans? Does their own interest prompt them to pursuethe interest of the Americans? If they do not pursue it, have theAmericans power to punish them? Can the Americans removeunfaithful members at every new election? Can members, whomthe Americans do not elect; with whom the Americans are notconnected in interest; whom the Americans cannot remove; overwhom the Americans have no influencecan such members bestyled, with any propriety, the magistrates of the Americans? Havethose, who are bound by the laws of magistrates not their own, anysecurity for the enjoyment of their absolute rightsthose rights,which every man is entitled to enjoy, whether in society or out ofit?s Is it probable that those rights will be maintained? Is it theprimary end of government to maintain them?t Shall this primaryend be frustrated by a political maxim intended to promote it?

But from what source does this mighty, this uncontrolled authorityof the house of commons flow? From the collective body of thecommons of Great Britain. This authority must, therefore, originallyreside in them: for whatever they convey to their representatives,must ultimately be in themselves.u And have those, whom we havehitherto been accustomed to consider as our fellow subjects, anabsolute and unlimited power over us? Have they a natural right tomake laws, by which we may be deprived of our properties, of ourliberties, of our lives? By what title do they claim to be ourmasters? What act of ours has rendered us subject to those, towhom we were formerly equal? Is British freedom denominatedfrom the soil, or from the people of Britain? If from the latter, dothey lose it by quitting the soil? Do those, who embark, freemen, inGreat Britain, disembark, slaves, in America? Are those, who fledfrom the oppression of regal and ministerial tyranny, now reducedto a state of vassalage to those, who, then, equally felt the sameoppression? Whence proceeds this fatal change? Is this the return



made us for leaving our friends and our countryfor braving thedanger of the deepfor planting a wilderness, inhabited only bysavage men and savage beastsfor extending the dominions of theBritish crownfor increasing the trade of the Britishmerchantsfor augmenting the rents of the British landlordsforheightening the wages of the British artificers? Britons shouldblush to make such a claim: Americans would blush to own it.

It is not, however, the ignominy only, but the danger also, withwhich we are threatened, that affects us. The many and carefulprovisions which are made by the British constitution, that theelectors of members of parliament may be prevented from choosingrepresentatives, who would betray them; and that therepresentatives may be prevented from betraying their constituentswith impunity, sufficiently evince, that such precautions have beendeemed absolutely necessary for securing and maintaining thesystem of British liberty.

How would the commons of Great Britain startle at a proposal, todeprive them of their share in the legislature, by rendering thehouse of commons independent of them! With what indignationwould they hear it! What resentment would they feel and discoveragainst the authors of it! Yet the commons of Great Britain wouldsuffer less inconvenience from the execution of such a proposal,than the Americans will suffer from the extension of the legislativeauthority of parliament over them.

The members of parliament, their families, their friends, theirposterity must be subject, as well as others, to the laws. Theirinterest, and that of their families, friends, and posterity, cannot bedifferent from the interest of the rest of the nation. A regard to theformer will, therefore, direct to such measures as must promote thelatter. But is this the case with respect to America? Are thelegislators of Great Britain subject to the laws which are made forthe colonies? Is their interest the same with that of the colonies? Ifwe consider it in a large and comprehensive view, we shall discernit to be undoubtedly the same; but few will take the trouble toconsider it in that view; and of those who do, few will be influencedby the consideration. Mankind are usually more affected with anear though inferiour interest, than with one that is superiour, butplaced at a greater distance. As the conduct is regulated by thepassions, it is not to be wondered at, if they secure the former, bymeasures which will forfeit the latter. Nay, the latter will frequentlybe regarded in the same manner as if it were prejudicial to them. Itis with regret that I produce some late regulations of parliament asproofs of what I have advanced. We have experienced what an easymatter it is for a minister, with an ordinary share of art, topersuade the parliament and the people, that taxes laid on the



colonies will ease the burthens of the mother country; which, if thematter is considered in a proper light, is, in fact, to persuade them,that the stream of national riches will be increased by closing upthe fountain, from which they flow.

As the Americans cannot avail themselves of that check, whichinterest puts upon the members of parliament, and which wouldoperate in favour of the commons of Great Britain, though theypossessed no power over the legislature; so the love of reputation,which is a powerful incitement to the legislators to promote thewelfare, and obtain the approbation, of those among whom theylive, and whose praises or censures will reach and affect them, mayhave a contrary operation with regard to the colonies. It maybecome popular and reputable at home to oppress us. A candidatemay recommend himself at his election by recounting the manysuccessful instances, in which he has sacrificed the interests ofAmerica to those of Great Britain. A member of the house ofcommons may plume himself upon his ingenuity in inventingschemes to serve the mother country at the expense of thecolonies; and may boast of their impotent resentment against himon that account.

Let us pause here a little.Does neither the love of gain, the love ofpraise, nor the love of honour influence the members of the Britishparliament in favour of the Americans? On what principles,thenon what motives of action, can we depend for the security ofour liberties, of our properties, of every thing dear to us in life, oflife itself? Shall we depend on their veneration for the dictates ofnatural justice? A very little share of experience in the worldavery little degree of knowledge in the history of men, willsufficiently convince us, that a regard to justice is by no means theruling principle in human nature. He would discover himself to be avery sorry statesman, who would erect a system of jurisprudenceupon that slender foundation. He would make, as my Lord Baconsays, imaginary laws: for imaginary commonwealths; and hisdiscourses, like the stars, would give little light, because they areso high.v

But this is not the worst that can justly be said concerning thesituation of the colonies, if they are bound by the acts of the Britishlegislature. So far are those powerful springs of action, which wehave mentioned, from interesting the members of that legislaturein our favour, that, as has been already observed, we have thegreatest reason to dread their operation against us. While thehappy commons of Great Britain congratulate themselves upon theliberty which they enjoy, and upon the provisionsinfallible, as faras they can be rendered so by human wisdomwhich are made forperpetuating it to their latest posterity; the unhappy Americans



have reason to bewail the dangerous situation to which they arereduced; and to look forward, with dismal apprehension, to thosefuture scenes of woe, which, in all probability, will open upon theirdescendants.

What has been already advanced will suffice to show, that it isrepugnant to the essential maxims of jurisprudence, to the ultimateend of all governments, to the genius of the British constitution,and to the liberty and happiness of the colonies, that they should bebound by the legislative authority of the parliament of GreatBritain. Such a doctrine is not less repugnant to the voice of herlaws. In order to evince this, I shall appeal to some authorities fromthe books of the law, which show expressly, or by a necessaryimplication, that the colonies are not bound by the acts of theBritish parliament; because they have no share in the Britishlegislature.

The first case I shall mention was adjudged in the second year ofRichard the third. It was a solemn determination of all the judges ofEngland, met in the exchequer chamber, to consider whether thepeople in Ireland were bound by an act of parliament made inEngland. They resolved, that they were not, as to such things aswere done in Ireland; but that what they did out of Ireland must beconformable to the laws of England, because they were thesubjects of England. Ireland, said they, has a parliament, whomake laws; and our statutes do not bind them; because they do notsend knights to parliament: but their persons are the subjects ofthe king, in the same manner as the inhabitants of Calais,Gascoigne, and Guienne.w

This is the first case which we find in the books upon this subject;and it deserves to be examined with the most minute attention.

1. It appears, that the matter under consideration was deemed, atthat time, to be of the greatest importance: for ordinary causes arenever adjourned into the exchequer chamber; only such areadjourned there as are of uncommon weight, or of uncommondifficulty. Into the exchequer chamber, says my Lord Coke,x allcases of difficulty in the kings bench, or common pleas, &c. are,and of ancient time have been, adjourned, and there debated,argued, and resolved, by all the judges of England and barons ofthe exchequer. This court proceeds with the greatest deliberation,and upon the most mature reflection. The case is first argued onboth sides by learned counsel, and then openly on several days, byall the judges. Resolutions made with so much caution, andfounded on so much legal knowledge, may be relied on as thesurest evidences of what is law.



2. It is to be observed, that the extent of the legislative authority ofparliament is the very point of the adjudica

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