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January 01, 2015

James Wilson: A Founding Father Lost Along the Way

By Judge A. Robinson Hassell

(To Dickinson, and to Adams): I’m different from you, John. I’m different from most of the men here. I don’t want to be remembered.

—James Wilson (Penn.), 1776, scene 71

July 4, 1788, was one of the brightest days in the history of the City of Philadelphia and for one of its most influential citizens. A vast and excited crowd of some 17,000 had gathered in its streets to both commemorate the founding of the American Republic and to celebrate the young nation’s newly ratified, governing Constitution. Overhead, beginning at dawn, a carillon of bells pealed from the steeple of Christ Church, for years the highest structure in the entire coastal span of the former Colonies. It also served as a signal to commence a parade, a grand processional of public figures led by the occasion’s featured speaker, James Wilson.2

Wilson, as a lesser-known member from the Colony of Pennsylvania, had cast his delegation’s deciding vote for independence 11 years earlier at the convening of the Continental Congress a mere three blocks away from the same church in this, his adopted City of Philadelphia. Wilson had come to be regarded by his peers as a preeminent scholar of political theory and government,3 and as a principal contributor of the five-member Committee of Detail at the 1787 Constitutional Convention the previous year (also in Philadelphia), he had given voice and form to much of the founding words and principles that still provide much of the structural underpinnings of our nation. These include a preamble that begins “We the People”; a bicameral legislature with selection in one chamber by proportional representation; the “necessary and proper” clause for legislative authority; the Electoral College process for selection of the executive; and the Supremacy Clause for judicial authority and its exercise of interpretation and construction, among others.4

Wilson, as architect and primary advocate for the tandem theories of federalism and the sovereignty of the people, was instrumental in both the adoption and the ratification of the U.S. Constitution.5 Wilson, as an earlier lecturer in classics and English at The College of Philadelphia, was, by the time of the processional, only the nation’s second law professor,6 whose plenary lecture series are traced as the genesis of the University of Pennsylvania’s School of Law. Wilson, as one of the original associate justices of the U.S. Supreme Court he had helped to design, had also become recognized as a longtime champion for separation of powers and judicial independence.7

And yet, a mere decade later, Wilson perished while literally on the run from his creditors, far from those pealing bells of home, impoverished, and facing near-certain impeachment and renewed imprisonment.8 As author Charles Page Smith observed,

There were no testimonials, eulogies, funeral orations for Wilson. His death had been a pathetic one. . . . He lay in quiet obscurity besides the waters of Albemarle Sound, far from the scenes of his great triumphs. His forgotten bones, mouldering in the little graveyard beneath the cypress, symbolized the eclipse of his fame.9

In 1990’s commemoration of the Bicentennial of the U.S. Supreme Court, no mention was made of James Wilson in official remarks and materials by either Presiding former Chief Justice Warren Burger or then-Chief Justice William Rehnquist.10 As multiple published volumes on Founding Fathers continue to be introduced well into the present century, Charles Page Smith’s 1956 single volume remains Wilson’s sole principal American biography.11 Most likely, an informal survey taken of one’s legal and/or judicial peers inquiring as to the identity or role of Wilson would likely be met with either blank stares or searching puzzlement.

Scholars and chroniclers of the period, however, consistently recognize both his contributions and significance, particularly related to constitutional debate: Elkins and McKitrick declare that conceptual federalism “was a new synthesis probably most clearly articulated by James Wilson”; Gary Wills, in an editorial introduction of The Federalist Papers, exclaims without qualifying language that Wilson was “second only to Madison as a champion” of the document and notes that the Publius essays themselves became “the fullest exposition of the Madison-Wilson case for The Constitution as that case had been made in Philadelphia”; John Marshall’s biographer gives a nod in referencing Wilson’s early reasoning from The Bench to The Great Chief Justice’s exercises of judicial review. Historians Joseph J. Ellis, David McCullough, and Alf J. Mapp each compares Wilson favorably to Jefferson, while the latter two isolate a key passage from a pre-Revolution pamphlet composed and circulated by Wilson in comparing language and thought from Thomas Jefferson’s Declaration of self-evident truths.12 Interspersed between their subject’s humble beginnings abroad and humiliating dénouement in North Carolina, his two biographers lament that “the memory of his vital contributions . . . almost died with him” and that “the inner man remains an enigma.”13 To this day, he is “a rewarding if thorny subject.”14


(To Adams): Would you have us forsake Hastings and Magna Carta, Strongbow and Lionhearted, Drake and Marlborough, Tudors, Stewarts, and Plantagenets? For what, sir? For you?

—John Dickinson (Penn.), 1776, scene 315

James Wilson came into the world in September 1742 in the Lowlands village of Caskerdo, Scotland. The Wilsons were a farming family, staunch Presbyterians, and active in the emerging reform polity of their denomination, who desired their eldest son to be educated and ultimately trained for the ministry.16 Wilson matriculated as a teen and graduated from the University of St. Andrews, where he studied the histories and philosophies of the Ancient Greeks and Romans, along with literature and more contemporary political thinkers and scholars.17 Upon the untimely death of his father, pursuits of formal postgraduate studies were deterred, and young Wilson was launched toward a future offering both uncertainty and opportunity in the New World. After an initial entry through New York, Wilson landed in Philadelphia, where his academic pedigree earned him an early retention as a lecturer at The College, which eventually bestowed upon him an honorary master’s degree. It was during this time in the mid-1760s that he was drawn to the legal profession, and after completing a two-year tutelage with John Dickinson, a prominent local attorney, Wilson was called to the bar in 1767.18

Still a newcomer within the entrenched civic professional community, Wilson traveled first to Reading and then eventually in the Scotch-Irish reaches further west in Carlisle to hang out his Colonial shingle.19 Wilson’s early professional areas of practice consisted principally in real estate and smaller commercial concerns. By then married to the former Rachel Bird, he was also anxious for opportunities for financial return to provide for a growing family. At this time Wilson was also introduced to the precarious world of land speculation (particularly along the undeveloped Colonial frontier), the lifelong addictive pursuit of which would prove his ultimate undoing.20

Wilson came to Colonial America at a time of discord and debate over the Stamp and Townshend Acts. Burgeoning patriotic activity in Pennsylvania, New England, and elsewhere escaped neither his attention nor his active involvement. His opinions and intellect drew the attention of his clients and colleagues alike, including his mentor Dickinson and others back East; after being selected to represent Cumberland County at a Provincial Conference in Philadelphia, in 1774 he published a widely distributed pamphlet entitled “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament.”21 The sentiments he expressed therein—that “all men are, by nature, equal and free: . . . all lawful government is founded on the consent of those who are subject to it. . . . The consequence is that the happiness of the society is the first law of every government”—would be adapted to greater fame elsewhere in representative Colonial gatherings forthwith.22 With the attention garnered by the pamphlet’s success, the following year, Wilson was simultaneously elected to serve as a delegate to both the Colonial Assembly and the Second Continental Congress, each of which was to meet in a different wing of the same building, which would come to be known as Independence Hall. Wilson would be forced to juggle both positions with mixed success by the summer of 1776.


(To Adams): In trying to resolve my dilemma I remembered something I’d once read—that “a representative owes the People not only his industry but his judgment, and he betrays them if he sacrifices it to their opinion.”(He smiles.) It was written by Edmund Burke, a member of the British Parliament.

—Dr. Lyman Hall (Ga.), 1776, scene 723

As a delegate among more distinguished and prosperous luminaries such as Benjamin Franklin, John Dickinson, Robert Morris, and Dr. Benjamin Rush, Wilson’s was not a forceful or loquacious presence at Independence Hall. In the renowned Broadway and film productions of the musical drama 1776, he is portrayed as weak and pliant under the domineering shadow of Dickinson (who is not otherwise identified to the audience as Wilson’s one-time scholarly legal master). Wilson is known to have contributed one speech of consequence in early 1776, which sought primarily to move the Congress gently toward addressing the underlying question itself during the course of the largely unrecorded and otherwise nonpublic debate on “independency.” Additionally, as both the weather and the tenor of discussion became more heated, Wilson urged the coolness of caution in the face of the still-undefined and disputed nature of the relationship between free states and any organized central governing body: “we need time to make certain who we are and where we stand in regard to one another—for if we do not determine the nature of the beast before we set it free, it will end by consuming us all.”24 As a dual-elected delegate, Wilson probably felt more constrained than even his most vocal fellow Pennsylvanians because the Assembly had given rather restrictive instruction to its Continental representatives. Wilson was also sensitive to the growing internal divisions in the colony on the question of revolt, along with the erosion of institutional integrity pressing upon the Assembly.

The tensions were heightened as Virginia delegate Richard Henry Lee’s Resolution for Independence was formally introduced in June 1776. During debate within the Committee of the Whole, it was established that the Resolution’s passage would require the unanimous vote of the 13 assembled colonies. With Pennsylvania delegates Franklin and Assembly Speaker John Morton in favor and Dickinson, Morris, and others opposed, Wilson and others were successful in moving for a postponement of three weeks to seek opinion and instruction from both their fellow colonists and fellow Assemblymen. While John Adams and others would be frustrated by delay, a sympathetic Thomas Jefferson was aware that a rogue provincial convention had been called, reflective of the stormy infighting within the political factions of their host colony, and noted that “[t]he Assembly . . . was now sitting abovestairs, and their Convention would sit in a few days. . . . [T]he instructions from Pennsylvania accounted for from time drawn 12 months ago since which the face of affairs has totally changed.”25 As Smith would frame it, “throughout the winter, two Johns, Adams and Dickinson, had contended for [Wilson’s] political soul . . . it was a contest that the New Englander was to win but not without a bitter struggle.”26

When Wilson faced vociferous criticism by supporters who accused him of secretly opposing independence, a written “Defense of Wilson” exonerating his motives and his positions was prepared and ultimately signed by virtually every congressional delegate, including those who both agreed and disagreed with the ultimate question.27 The disintegrating Assembly “abovestairs” modified its prior stringent conditions and agreed to allow their Continental representatives to act with their own judgment “for promoting the liberty, safety, and interests of America.”28 Whatever thoughts or doubts Wilson may have harbored, Professor Seed, of Wilson’s own University of St. Andrews, concludes wryly that “[t]he wind was set fair for independence, and Wilson was not one to be left on shore when the crew embarked,”29 and Wilson’s was the deciding lot cast among the delegation members who voted on that fateful July day.


I see Fireworks! I see the Pageant and Pomp and Parade! I hear the bells ringing out! I hear the cannons’ roar! I see Americans, all Americans, free forever more!

—John Adams (Mass.), 1776, scene 730

John Adams would later write in that famous July 3 correspondence to his Dearest Friend, Abigail, that the previous day “will be the most memorable epocha in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival.”31

After his critical treatment by some members of the Assembly in the run-up to the vote on independence, and with active efforts afoot to have him replaced, James Wilson expressed surprise that he would be reelected to continue to serve in the Continental Congress: “What in the name of Wonder has induced The Assembly to re-appoint me?” He would later reason that “if at any time I can be useful to my country, I can at this.”32 Finding himself teamed often with his new kindred spirit, John Adams, Wilson revealed his emerging philosophy on a strong and open national government as he advocated for public debate. He particularly supported proportional voting in the Congress as opposed to votes taken by each state, though both of these propositions would be defeated on more than one occasion.33 Wilson also found himself tasked with issues concerning Indian affairs, the conduct of the war, as well as the establishment of a national bank.

It was also during this time, as the Revolutionary War waged on, that Wilson opened a law practice after returning with his family to live in Philadelphia. In addition to his prior areas of real estate and contracts, Wilson expanded his practice to include admiralty cases and, not insignificantly, criminal law. Wilson was retained as counsel to represent the King of France in legal matters in the republic of France’s newest ally, and Wilson also gained prominence, even notoriety, for representing and defending the legal rights of Tories and loyalists.34 In defending the rule of law and individual rights, Wilson’s popularity suffered. He and other similarly minded lawyers once had to barricade themselves at his residence and form armed resistance to a band of rogue militiamen. The 1779 incident, initially derided as “Ft. Wilson,” was in fact seriously scrutinized before he and his compatriots were exonerated and absolved.35 The experience no doubt strengthened Wilson’s own resolve as to the defense of legal principles and due process even in the face of heated popular sentiment in wartime.


Revolutions come into this world like bastard children . . . half improvised, and half compromised. Our side has provided the compromise; now Judge Wilson is supplying the rest.

—Benjamin Franklin (Penn.), 1776, scene 736

By the mid-1780s, the structural deficiencies of the Articles of Confederation adopted at the decade’s beginning were becoming more and more apparent. In addition to the diverging economic interests of the states, the lingering issues of postwar Colonial debt and unsupportable currency remained; without an executive or even independent judicial officer, business of the single governing branch could only be conducted by vote of state delegations, and any attempt to raise revenue had to be approved by a supermajority of nine states. Concern increased over the inability of individual states to deal with foreign powers, over the effect of a significant Native American population, and over the inability of the government to respond with dispatch to Shays’ Rebellion in western Massachusetts.37

Prompted in part by George Washington and James Madison, and augmented by a called conference in Annapolis, Maryland, states agreed to convene again in Philadelphia to consider amending the Articles. By 1787, James Wilson was a natural choice to represent his city and state. His pedigree in advocating for stronger national authority was proven. As an attorney a few years before, he had assisted in participating in a dispute between two states before a Commission of the Confederacy, demonstrating a present and future need for a judicial mechanism to resolve such issues. His long record of representation in and for Pennsylvania was virtually unmatched, alongside Morris and an aging Franklin. In addition, his wife Rachel had died the previous year, so renewed focus in areas of intellectual passion propelled him from grief. Finally, his law practice in the city was situated to accommodate the long and arduous hours ahead. Wilson approached his assignment with energy as his intellect, status, and oratorical skills equipped him for the opportunity to address the nation’s long-existing institutional shortcomings. Described as “tall, well-dressed, and solidly built, his auburn hair fashionably powdered,” and with his trademark Scottish burr, Wilson was observed peering through his thick spectacles “like a surveyor through a compass.”38 Upon his arrival in late spring, he was assigned to the five-member Committee of Detail,39 whose task it became to write the first and enduring draft of what became far more than mere amendments to an existing governing framework.


So it’s up to me, is it? Well, in all my years, I ain’t never heard, seen nor smelled an issue that was so dangerous it couldn’t be talked about. Hell yeah! I’m for debating anything!

—Stephen Hopkins (R.I.), 1776, scene 340

The constitutional lawyer and author David Stewart observes of the Committee of Detail that “James Wilson brought the greatest learning to the panel . . . who (as one delegate wrote) can trace the causes and effects of every revolution from the earliest stages of the Grecian commonwealth down to the present time.”41 Wilson was able to forge crucial relationships with other delegates, such as Alexander Hamilton of New York, William Richardson Davie of North Carolina, James Madison of Virginia, and Convention president George Washington. These bonds would serve him and the nation well during the subsequent fight for ratification.

As a full-throated Federalist, Wilson met head-on the notion that the sovereignty of individual states was to be surrendered and subsumed into a dominant national government by reframing the working definition entirely. The man who would inscribe for the first time the words “We the People” declared that unlike a monarchy, a single-branch parliament, a military-sanctioned empire, or a compact of individual governing states, sovereignty rested in the People in the American model. As a result, the People could expressly delegate governing authority both to a national government and to governments of states; in this way, “state sovereignty was not being invaded because sovereignty had never resided there, (but rather) in the whole body of the people . . . such that should majorities consent, the people would thereby be obeying no higher power than themselves. The argument proved unanswerable.”42

The construct continued by way of contrasting an instrument such as the Magna Carta—in which a governing crown sovereign, by the grace of his deigned will, is ceding authority to legislative barons and citizens—with a Constitution, where the People are conferring authority dispersed and separated horizontally and vertically to do the will of the People’s choosing with barons and citizens chosen by the People.43 Because it was the Federalist belief that “rights” remained in the sovereign people, it followed that no “bill of rights” would be necessary and might in fact weaken the power and rights of individuals,44 as the explicit inclusion of enumerated rights implied that rights not included were not conferred, could not be enforced, or could even be otherwise limited or constrained by a governing authority that had given no such power or efforts might be made to limit powers of the national government not otherwise already identified and conferred.

Through his work on the Committee of Detail, and through his 168 floor speeches over the four months of the Convention (more than any other delegate except the final drafting scribe, Gouverneur Morris),45 Wilson had a profound and decisive effect on the shape of our national charter and the debate that defined it and its aftermath. He persevered in his advocacy for direct proportional legislative representation, a chief executive selected by electors with the power to veto legislation, and an appointed third independent judicial branch (the theory and result of all being that only one portion of one branch would be chosen by the states). During the final day’s debate, the Convention’s elder statesman, an exhausted Benjamin Franklin, handed his speech to his fellow delegate from Philadelphia to read on his behalf. James Wilson’s arguments, and his place among his peers, were secured, along with the “unanimous vote of the states assembled.”46


We are about to brave the storm in a skiff made of paper, and how it will end, God only knows.

—John Hancock (Mass.), 1776, scene 747

One of the many Convention victories of Virginia’s James Madison was to secure the mechanism of ratifying the hard-fought and newly minted Constitution. It was agreed that the document would be submitted through the Congress of the Confederacy to the states through ratifying conventions and not their existing legislatures. Madison and James Wilson further prevailed in arguments to the Congress that the product had not exceeded the chartered mission and that the Constitution as proposed was not to be tampered with or amended by the Congress. Similarly, as the states began their ratifying processes, the argument was extended to them and to their delegates that this Constitution was not subject to amendment by individual states, was not amenable to so-called conditional ratification (that is, subject to prior or subsequent adoption and passage of suggested amendments), and could not be ratified only in some parts.48

Organized and pamphleted criticism was growing by late September 1787. Opponents railed against the absence of an enumerated bill of rights, which were commonplace in many state constitutions. Other factions voiced concern over the lack of enumerated provision of jury trials (Article III expressly protected the right in criminal cases only), the formulation of proportional representation through inclusion of “3/5” of the total number of slaves within a House district (as with the passage of the earlier Declaration, an unfortunate but unavoidable compromise by Wilson with South Carolina’s John Rutledge), as well as the lack of expressed or implied reservation of powers to the states and the people (what would become in time the Constitution’s Ninth and Tenth Amendments).49 As Professor Richard Labunski has noted, “Federalists were learning that the absence of a bill of rights would become the most serious shortcoming in the Constitution and the hardest for supporters to explain. It would haunt (them) during the entire ratification process.”50

In the first public response by a Convention delegate, Wilson addressed a large crowd in the square just outside the State House in Philadelphia on October 6, 1787. Facing concerns about the lack of enumerated rights, Wilson returned to his articulation of the people’s sovereignty in federal aspects by pointing out that with state constitutions, “everything which is not reserved is given,” while with the national constitution, “everything which is not given is reserved” by and for the benefit of the sovereign people.51 In remarking on the omission of jury trial preservation in civil cases, Wilson drew upon his legal experience in observing that juries were not called in cases involving admiralty law or in equity, and that states varied in their use and application otherwise: “let it be remembered, then, that the business of the Federal Convention was not local, but general, . . . co-extensive with the continent, and comprehending the views and establishments of thirteen independent sovereignties.”52 He concluded:

I will confess, indeed, that I am not a blind admirer of this plan of government, and there are some parts of it which, if my wish had prevailed, would certainly have been altered. But . . . 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.53

Historian Pauline Maier notes that the speech “became a landmark in the ratification debates. . . . An account of it was reprinted in every state except perhaps Delaware. . . . Federalists throughout the country . . . silently absorbed his arguments into their own essays and oratory.”54 George Washington ordered reprints for distribution in Virginia to assist Madison and others in that state’s contested ratification process.55

Wilson would continue his advocacy at his state’s proceedings as he had in the Convention, speaking at length on the first and final days, and with frequency in between during the three weeks of November to December 16, 1787. Yet the successful effort he led and the case he helped to make did not go down well with the largely voiceless opponents in and out of the Ratification Hall. Proponents controlled not only the debate, but even its highly edited and incomplete, but nevertheless official, record. Where the Pennsylvania assemblage dragged on for over three weeks with hardened divided votes,56 conventions in Delaware, New Jersey, and Georgia adopted the draft in mere days, each with unanimous votes and each within days of each other in December 1787.57

Upon New Hampshire’s ratification in June 1788, while the heated summer debates continued in both New York and Virginia, the established preconditions of Article VII were satisfied, and the nation was reborn.58 The First Congress convened in the spring of 1789 and newly elected President Washington was sworn in. During the first half-year of new government, several developments of significance to Wilson occurred. In legislative matters, efforts of his ally Madison, as a member of the new U.S. House, paid off as the much-debated post-ratification amendments that became the Bill of Rights were submitted to the states. Additionally, Connecticut’s Oliver Ellsworth authored and shepherded passage of The Judiciary Act of 1789, which provided tangible form to Article III’s scaffolding. In executive matters, President Washington, with Vice President Adams, Secretary of State Jefferson, and Attorney General Edmund Randolph, went about the business of governing, which included consideration of appointment of members to the as-yet-unfilled bench of the Supreme Court. Notwithstanding a direct petition by Wilson himself,59 the president selected Federalist co-author John Jay as chief justice. Wilson was appointed and confirmed within days as associate justice, and he would soon be joined by other notable jurists, including James Iredell of North Carolina.60 By February 1790, the three distinct federal branches originally envisioned by Justice Wilson, Rep. Madison, and Treasury Secretary Alexander Hamilton were a reality, with one seated in each.


(To Wilson): It would be a pity for a man who handed down hundreds of wise decisions from the bench to be remembered only for the one unwise decision he made. . . .

—John Adams (Mass.), 1776, scene 761

Achieving accession to the highest court in the land would seem to represent the pinnacle of James Wilson’s career. In actuality, the early Supreme Court received but a paucity of substantive cases to decide in its first decade, and while Wilson made his mark with some potential precedent-setting issues of federalism in such cases as Chisholm v. Georgia,62 much of the work of the justices involved the rigorous, time-consuming, and health-challenging venture of “circuit-riding,” where each would travel extensively to hear matters at the trial and appellate levels in the district courts of the three subdivided judicial circuits. Here, too, Wilson was provided a memorable opportunity to exercise judicial power in gently dissipating intense local feeling of what came to be called the Whiskey Rebellion in Wilson’s former environs of western Pennsylvania.63

Nevertheless, Wilson’s increasing absences from the work of the Court became both a recurring and increasing problem as the 1790s progressed. The reasons were primarily twofold: first, Justice Wilson, at the ripe age of 50, had found love in the form of a 19-year-old widow, Hannah Gray.64 Secondly, and no less important, the growing cascade of debt from mismanaged land acquisitions and unrealized opportunities was catching up with Wilson. With a disciplined mind focused on the forming and functioning of a new nation, Wilson remained singularly and inexplicably undisciplined in his unrealistic and stubborn pursuits of schemes that never materialized. By the mid-1790s, it was estimated that Wilson owned millions of acres of properties in western Pennsylvania, New York, Virginia, North Carolina, Georgia, and the Northwest Territories of present-day Ohio and Kentucky.65 For over a decade, he had pursued a group of Dutch investors and sought to encourage European immigration to populate the land he held, and he envisioned further development of textile and mill interests. As the acquisitions continued to be financed with borrowed funds on the promise of future returns, Wilson, like more than a few of the Founding Fathers, became land-rich and cash-poor.

Justice James Iredell noted Wilson’s absences with concern, in letters nine months apart:

All the Justices are here but Wilson, who, unfortunately, is in a manner absconding from his creditors—his wife with him—the rest of his family here (in Philadelphia). What a situation!

Finding Mrs. Wilson at her house on Market Street, she was very well, but . . . upon her finding Mr. Wilson would not be coming, she burst into tears.

I am glad to hear that Judge Wilson and his wife are well, but I am still a little uneasy about that writ.66

Iredell and Wilson had come to know and respect one another as the ratification debates developed and had traveled together frequently when riding the circuit. The Iredells had even entertained the Wilsons in their Edenton, North Carolina, home on one such occasion.67

By 1798, the press of judicial authority was brought upon Wilson when he was imprisoned in New Jersey for his debts. Wilson, through the efforts of his son, Bird Wilson, arranged to tender payment of bail, but the itinerant justice now rode a very different circuit of evasion and escape. Wilson returned to the Iredells’ community in Edenton. The historical record would appear to bear out that Iredell could or would not openly harbor his friend, a legal fugitive, but that with his assistance Wilson found quarters in a nearby tavern.68 Weakened by malaria and discovered by Senator and former Convention Delegate Pierce Butler, now a creditor from South Carolina, Wilson hit bottom. Iredell’s brother-in-law, North Carolina governor (and its first U.S. Senator) Samuel Johnston, wrote Iredell:

I feel very much for Judge Wilson. I hear he has been ill. What upon Earth will become of him and that unfortunate lady who has attached herself to his fortunes? He discovers no dispositions to resign his office. Surely, if his feelings are not rendered altogether callous by his misfortunes, he will not suffer himself to be disgraced by a conviction on an impeachment.69

Three weeks later, on August 21, 1798, Wilson suffered a fatal stroke. Hannah Gray Wilson had come to Edenton to be with him and was hosted for a time thereafter by the gracious Iredells.70 Wilson’s surviving family members, with estate litigation imminent, could not afford to return his remains to Philadelphia, so Iredell arranged to have his fellow justice buried in the family plot on the adjoining plantation of his brother-in-law, Governor Johnston.


Very well, gentlemen. McNair, go ring the bell.

—John Hancock (Mass.), 1776, scene 771

Dr. Benjamin Rush, James Wilson’s fellow former delegate, ruefully observed to John Adams in later life, “there was scarcely a deceased person that was active in our Revolution that has not died poor in Pennsylvania.”72 That Wilson died poor hundreds of miles to the south meant that he could not even have that dismal accomplishment in common with his former comrades and colleagues. Yet, a few years earlier, Rush reminisced in sketches about those with whom he served, and of Wilson had made the following declaration:

He . . . was a profound and accurate scholar. He spoke often in Congress, and his eloquence was of the most commanding kind. . . . His mind, when he spoke, was one blaze of light. . . . He rendered great and essential services to his country in every stage of the Revolution.73

Although Wilson’s son, Bird, was able to gather printed representations of his father’s Penn law lectures for publication in the early 1800s, the public memory faded with each passing sunset along the tidewaters of North Carolina’s Chowan County. Would James Wilson’s eroding legacy be the destiny of “a nonentity trying to preserve the anonymity he so richly deserves?”74 Over a century later, however, the hand of history would pull him back to State House Square as Wilson’s heirs and members of the legal and historical community arranged to have his remains returned to Philadelphia. President Theodore Roosevelt had noted Wilson’s accomplishments during a 1906 speech in Harrisburg, Pennsylvania, and, one month later, the Justice was reinterred within the hallowed grounds of Christ Church.75

Although the chimes of bronze suspended above Christ Church have resounded faithfully since 1755, their fame is eclipsed by a Bell more famous in its silence even in its own historic city. Yet, to this day, James Wilson’s crypt lies in the shadow of the steeple of that church, whose bells had once pealed in honor and celebration of the achievements for which he had long labored. Fittingly, his place of rest is but a short walk up Fifth Street and down Market Street from Independence Hall, in near proximity to those of fellow delegates Benjamin Franklin, Benjamin Rush, Robert Morris, and even his onetime creditor, Pierce Butler. We can recognize and acknowledge that as they rest, we are the beneficiaries of their visions of freedom, and as the bells continue to toll, we can be mindful of our profession’s obligations and honor the legacy of justice and liberty that rings forth.


1. Peter Stone & Sherman Edwards, 1776 (libretto); while the lines and lyrics cited throughout reference the debate that titular year on “independency,” it is hoped that the spirit of the historically based sentiments can be equally ascribable to subsequent topics herein.

2. David Stewart, The Summer of 1787: The Men Who Invented the Constitution 245–50 (2007).

3. Charles Page Smith, James Wilson: Founding Father, 1742–1798, at 256, 304 (1956).

4. Stewart, supra note 2, at 169, 172.

5. Geoffrey Seed, James Wilson 177 (1978); Stewart, supra note 2, at x.

6. Penn Biographies: James Wilson (1742–1798), Penn Univ. Archives & Records Ctr., (accessed Sept. 23, 2014).

7. Seed, supra note 5, at 72, 141; id. at 74 (“Judges would be in a bad situation if made to depend on every gust of faction which might prevail from the (other) two branches of government”).

8. Gerard St. John, James Wilson: A Forgotten Father, The Phila. Law., Winter 2004.

9. Smith, supra note 3, at 390–91.

10. Comm. on the Bicentennial of the U.S. Const., The Supreme Court of the United States: Its Beginnings and its Justices, 1790–91 (1992).

11. Seed, supra note 5, at vii.

12. Stanley Elkins & Eric McKitrick, The Age of Federalism 12 (1993); The Federalist Papers viii, xi (Bantam Classic ed., 1982); Jean Edward Smith, John Marshall: Definer of a Nation 600n (1996); David McCullough, John Adams 121 (2001); Joseph J. Ellis, Founding Brothers 9–10 (2001); Alf J. Mapp Jr., Thomas Jefferson: A Strange Case of Mistaken Identity 111 (1987).

13. Seed, supra note 5, at 183, Smith, supra note 3, at 393.

14. Smith, supra note 3, at x.

15. Stone & Edwards, supra note 1.

16. Seed, supra note 5, at 3–5.

17. Id.

18. Smith, supra note 3, at 29. Smith further relates that among the early pages of his student notes, Wilson, ever the Classics scholar, inscribes from Cicero that “the house of the Lawyer is the oracle of the whole city.” Id. at 25.

19. Id. at 42–46.

20. Stewart, supra note 2, at 34.

21. Smith, supra note 3, at 50–52.

22. Id. at 55; see also note 12, supra, referencing Jefferson’s inspiration from Wilson’s words.

23. Stone & Edwards, supra note 1.

24. Id., scene 3 (here quoting Wilson directly); to Wilson was also attributed the cautious additional rhetorical colloquy during early and unsure debate on Colonial separation: “Before we are prepared to build the new house, why should we pull down the old one, and expose ourselves to the inclemencies of the season?” Seed, supra note 5, at 13.

25. Henry Steele Commager & Richard Morris, The Spirit of Seventy-Six, at 303, 306 (Bicentennial ed. 1975).

26. Smith, supra note 3, at 81.

27. Id. at 83.

28. Id. at 86.

29. Seed, supra note 5, at 15.

30. Stone & Edwards, supra note 1.

31. Commager & Morris, supra note 25, at 320–21. The lyric and the edited work cited each refers, of course, to one of Adams’ most famous missives to Mrs. Adams, where he envisions “bells, bonfires and illuminations.” In the 1972 film adaptation of the musical drama, the scene is staged with Adams perched in marveling contemplation alongside the Liberty Bell in the steeple of Independence Hall, with his eyes casting to the taller Christ Church steeple.

32. 2 Letters of the Members of the Continental Congress, at lxvin (Edmund C. Burnett ed., 1923).

33. Seed, supra note 5, at 26; Smith, supra note 3, at 91–92; McCullough, supra note 12, at 146–47.

34. Smith, supra note 3, at 119–23. The author also notes Wilson’s significant contributions to the developing law of treason.

35. Id. at 133–39; Seed, supra note 5, at 187.

36. Stone & Edwards, supra note 1.

37. Stewart, supra note 2, at 18–20.

38. Id. at 34.

39. Id. at 164–68.

40. Stone & Edwards, supra note 1.

41. Stewart, supra note 2, at 169.

42. Elkins & McKitrick, supra note 12, at 12–13.

43. Seed, supra note 5, at 101.

44. Id.

45. Smith, supra note 3, at 236, 256, 304.

46. Richard Labunski, James Madison and the Struggle for the Bill of Rights 12 (2006); Stewart, supra note 2, at 239–40. Elbridge Gerry (Mass.), George Mason (Va.), and Edmund Randolph (Va.) famously dissented, and others previously in attendance had either departed or refused to sign. See also Pauline Maier, Ratification 35 (2010).

47. Stone & Edwards, supra note 1.

48. Labunski, supra note 46, at 14–18.

49. Meier, supra note 46, at 39–44.

50. Labunski, supra note 46, at 20.

51. Maier, supra note 46, at 78–79.

52. James Wilson, Speech in the State House Yard, Oct. 6, 1787, available at (accessed Sept. 23, 2014).

53. Id.

54. Maier, supra note 46, at 80–81.

55. Smith, supra note 3, at 265; Labunski, supra note 46, at 43.

56. Maier, supra note 46, at 120–24. An early opponent, who in time would serve for over 20 years in the U.S. House, noted later in life with understatement that “some circumstances of irritation were unfriendly to cool discussion.” Id. at 472.

57. Id.

58. Id. at 361. See also text discussion accompanying note 12, supra (Gary Wills’ analysis of the adoption of Wilson’s theories and arguments by New York delegate Alexander Hamilton and his Publius co-author Madison. Hamilton had arranged for an express rider to travel to New York from Exeter, N.H., upon that state’s ratification to underscore to ratification opponents that the ninth state’s adoption changed the dynamic of argument in Poughkeepsie).

59. Smith, supra note 3, at 304. Wilson would subsequently be passed over a second time in favor of John Rutledge and then Oliver Ellsworth. During much of that formative first governing year of 1789, Wilson had also undertaken and presented an unprecedented series of law lectures at The College of Philadelphia, and also began what would be a successful challenge to dissolve and rewrite the faulty 1776 Pennsylvania Constitution. Id. at 296–341 (where Smith declares with convincing exposition that “James Wilson’s law lectures are a landmark in American jurisprudence”).

60. Id. at 203 (“Between James Wilson and James Iredell, the jovial and warm-hearted North Carolinian . . . a deep friendship developed.”). For an excellent and well-researched biography of Justice Iredell, see Willis P. Whichard, Justice James Iredell (2000). Whichard, a longtime member of the ABA and its Judicial Division, a retired N.C. Supreme Court justice, and former dean of the Wiggins Law School of Campbell University, references Justice Iredell’s early correspondence to his wife in which he declared Wilson “a very agreeable companion.” Id. at 266.

61. Stone & Edwards, supra note 1.

62. 2 U.S. (2 Dallas) 419 (1793). Chisholm determined a controversial question of the right of a citizen of one state to bring suit against another sovereign state. While the Wilson majority prevailed, the continuing debate over the issue ultimately resulted in effectual reversal with the passage of the 11th Amendment.

63. Elkins & McKitrick, supra note 12, at 478–82.

64. John Quincy Adams gossiped to his brother that “the wise and learned Judge & Professor Wilson has fallen lamentably in love with a young lady in this town. . . the gentle Caledon was smitten at meeting with a first sight love.” Whichard, supra note 60, at 267.

65. Seed, supra note 5, at 161; Smith, supra note 3, at 375 (“everyone who had land to sell seemed to find a path eventually to Wilson’s door, and very few were turned away”).

66. Life and Correspondence of James Iredell 516, 520, 527 (Griffith McRee ed. 1857).

67. Whichard, supra note 60, at 266; Smith, supra note 3, at 371.

68. St. John, supra note 8.

69. McRee, supra note 66, at 532. Johnston had presided over both of North Carolina’s ratifying conventions in Hillsborough and Fayetteville, where he saw firsthand the abundant talents of advocacy his brother-in-law possessed. Following the Fayetteville ratification, Johnston was selected as the first North Carolinian to represent his state in the new U.S. Senate.

70. Whichard, supra note 60, at 269, McRee, supra note 66, at 534. Christ Church’s bishop William White wrote to Iredell and warned that Hannah should remain in Edenton if welcome in light of the epidemic of “prevailing fever” that had also swept Philadelphia the same summer.

71. Stone & Edwards, supra note 1.

72. Seed, supra note 5, at 177.

73. Commager & Morris, supra note 25, at 276.

74. John Dickinson (Penn.) (to Franklin), 1776, scene 7. Stone & Edwards, supra note 1.

75. St. John, supra note 8.