Jesse Wegman’s The Lost Founder is an accessible and engaging introduction to the life of James Wilson. Wegman repeats much of what is said in previous biographies, including Burton Alva Konkle’s early biography of Wilson which has never been published. Wilson’s optimism about the future grandeur and growth of his adopted country, and his optimistic hope that he would help to advance that growth through his own speculations is fully canvassed. Wegman depicts Wilson as woefully divided and inconsistent – principled in his view of law and unprincipled in private life – as other biographers have. But of Wilson’s philosophy, his legal, ethical and metaphysical system, too little is said. Without this, Wegman’s account of Wilson is confused.
Wilson made a unique contribution to political theory, he wrote a whole philosophy of law, rooted in the eternal law of God, making the creator of the universe the first principle of government and law. He did that for a nation which holds, as he well knew, that realizing the theological ends of man are beyond the appropriate realm for the state. But Wilson feared that democracy would turn to despotism if a sovereign people did not recognize a higher law and complete obedience to God. It is as a political philosopher, quite as much as a Constitutional Framer, that Wilson should be remembered. This perspective is necessary to thinking about Wilson’s view of the Constitution.
Wilson was educated in a philosophical culture. For him, the terms universal law, eternal law, natural law, and human law were descriptive of the nature of reality. While they are found in theology, they come from ancient legal philosophy. Scots law held to the idea of natural law, as can be seen in the Institutions of the Law of Scotland (1681), by Sir James Dalrymple of Stair, afterward created Lord Stair. This work of jurisprudence was closer to the European natural law tradition than to English common law. Until he moved to the colonies, Wilson’s thinking was shaped by Stair, and Wilson’s occasional critiques of Blackstone’s definition of sovereignty indicate this fact.
Wilson’s study of the writings of the Roman statesman Marcus Tullius Cicero (106-43 B.C) was complete, as one can see in the bibliography to his Lectures on Law, delivered from 1790-1793 in Philadelphia. He cites Cicero on the immutable law of the universe which is the standard of justice for human law. “This law, or right reason, Cicero, calls it, is thus beautifully described by that eloquent philosopher.”
“It is indeed”, says he, “a true law, conformable to nature, diffused among men, unchangeable, eternal. By its commands, it calls men to duty: by its prohibitions, it deters them from vice. To diminish, to alter, much more to abolish this law, is a vain attempt. Neither by the senate, nor by the people can its powerful obligation be dissolved. It requires no interpreter or commentator. It is not one law at Rome, another at Athens, one law now, another hereafter: it is the same eternal immutable law, given at all times to all nations: for God, who is its author and promulgator, is always the sole master and sovereignty of mankind.” [1]
I recognize that Wilson’s classical account of law appears archaic and foreign to contemporary jurisprudence, and perhaps that is why Wegman did not mention it, but Wilson’s long discussion of the philosophies of the era, his early chapters canvassing different theories of sovereignty as to their likelihood to lead to despotism, is a study in the early conflicts between legal positivism and natural law philosophy. The point is that in citing Cicero he is very aware that the future of democracy depends upon a population which is cognizant of the fact that they only real measure of justice and injustice is higher law.
This is to say that one notable lacuna in The Lost Founder is that it fails to deal seriously with Wilson’s philosophy. He feared democracy would not succeed if a sovereign people used their liberty to legislate according to current cultural norms and private opinion, and if they denied that there is a ‘right reason’ available to them through an unchanging law. No majority of individuals will rule themselves justly, except they recognize that this right is a gift of God.
Wilson also turned to medieval political theory to support his argument for higher law. In the legal history of England there are instances of a rights-holding people consenting to their laws. It is there in the Magna Charta and also in the medieval adage, quod omni tangit (what touches all must be approved by all). Such instances point to a long-held belief that human beings, created to exercise moral probity over their lives, must also have a moral right to consent to the laws under which they live. Legal consent in medieval culture was united to the idea that human beings are made in the image of God, and the exercise of a right limited by duty, a duty to be accountable to a divine and higher standard of justice; in other words, there is no right to be unjust.
Not understanding Wilson’s philosophy leads Wegman to draw some conclusions which are unwarranted. Wegman suggests that Wilson’s idea of popular sovereignty foreshadows the secularizing and progressive trajectory of the Democratic party over the last century. He writes: “No other founder foresaw more accurately where America was headed – a country more democratic, more inclusive, and more egalitarian than any of his contemporaries did imagine.” (p. 14) This misses the overriding sense to Wilson’s thought that American democracy must be a democracy of moral and religious limit given the very nature of things.
Even Cicero knew that there is an order in the universe which is expressed in a universal law which is not of human origin, but exists for his goodness and happiness. Laws and rights are not, ultimately, human inventions; just laws arise from the exercise of right reason among a people who exercise their given capacity to distinguish right from wrong. They have been given a higher source of law, a “compass”, a “chart” by which to govern themselves rightly, Wilson wrote.[2] Without acknowledging that compass, they will not reason rightly about law.
This is the classical view of law to which he was introduced at university in Scotland. It has been written that a “fundamentally Aristotelian approach to philosophy was still taken for granted, in spite of the recognition of the existence of a variety of competing views.”[3] The union of late Aristotelian philosophy with Presbyterianism made Wilson neither empiricist, nor idealist, nor a contract thinker; it did make him an intellectual critic of certain philosophical and legal thinkers of his day. Thomas Reid – the great Scottish philosopher of this era whose writings were a major influence on Wilson – wrote a philosophy of mind to counter the positivism and skepticism inherent in David Hume’s philosophy of mind. So, we see Wilson is taking Reid’s side, and most certainly aware of “competing views.”
Here is another round in the battle of the ancients against the moderns, a battle satirized decades before in Jonathan Swift’s The Battle of the Books. The Scottish philosophers were in their own way and for their own reasons also engaged in this battle, and for that reason classical philosophy continued to influence Reid’s use of common sense, which is, arguably, downstream of Cicero’s idea of communes notitiae.[4] Familiarity with 17th and 18th century philosophical disputes is rather necessary to understanding Wilson, and by extension, his natural law account of popular sovereignty. Wilson’s Lectures are notable for being an intelligent guide to contemporary debates on political philosophy.
Central also to Wilson’s account of natural law is the 16th century Anglican divine Richard Hooker’s Laws of the Ecclesiastical Polity – a work with which colonial lawyers (John Dickinson, most certainly) would have been familiar. Also important were the theorists of the “ancient constitution,” such as Algernon Sidney and Sir Edward Coke. The writings of Hugo Grotius, Samuel von Pufendorf, and Emmerich de Vattel were important to his history of the philosophy of natural right. All take natural right to be an expression of divine order.[5]
Moreover, drawing attention to another aspect of Wilson’s thought, he held that men are naturally sociable, and that by nature societies precede governments. Society is natural to mankind, by virtue of man’s social and intellectual powers. The laws of nature give them the measure and rule or natural and civil liberty.[6] Wegman is quite right to note Wilson’s views on this subject, but again without the epistemological principle supporting it. He attributes Wilson’s praise of sociability to eighteenth century thought, and certainly that is part of it. But once again there is an ancient teaching. Aristotle and Cicero held that men are rational as well as political and social animals, against the ancients. Hobbes and Hume did not. In addition, the study of the developing sociability of human beings throughout history was gaining influence in the burgeoning study of sociology in this period.
The upshot is that insofar as human beings are rational and social animals, they first unite into societies to satisfy natural needs, then create governments to serve them. Wilson wrote: “In the just order of things, government is the scaffolding of society”.[7] So, on his reading, a society of colonists drew up a constitution in order to protect and preserve that existing society, under God and universal law. It follows that a constitution can be dissolved at the will of society without anarchy resulting. Wilson is no Hobbesian.
To summarize, human beings live in a world which reflects the order of God’s creation, and they are endowed by God with both conscience and reason to know it, they have the light of reason:
Man, the nexus utriusque mundi, composed of body and soul, possessed of faculties intellect and moral, finds or makes a system of regulation, by which his various and important nature, in every period of his existence, and in every situation, in which he can be placed, may be preserved, improved, and perfected.[8]
Has the all-gracious and all-wise Author of our existence formed us for such great and such good ends; and has he left us without a conductor to lead us in the way, by which those ends may be attained? . . . . the bountiful Governour of the universe has been graciously pleased to provide us with a law; and that, to direct the less important parts of it, he has made us capable of providing a law for ourselves.[9]
The seat of this law is the “bosom of God”, with Wilson again quoting Richard Hooker.[10] All men are placed equally under this system of regulation. A constitution which incorporates this principle of equality under universal law has now been realized in the United States. The discussion of philosophy in which he engages in the Lectures is the means by which to speak to the principle of equality in the Constitution, and serves to address the danger of adopting a public philosophy of philosophical skepticism which undermines the real foundation of equality, thus undermining the raison d’etre for popular sovereignty and all the good that a republic could achieve.
Wilson is an original thinker, insofar as he gave Americans a philosophical foundation upon which to rest the Constitution, a philosophy of popular sovereignty which is a development and recapitulation of the key elements of the philosophical tradition of natural law found in both legal history and philosophy in the West – ancient, medieval, and Christian.
Wilson did not place ultimate justice in the Constitution, but in justice ‘writ large’, which never changes. Thus, metaphysical questions do underlie all the arguments about the Constitution, but they are not addressed because jurisprudence today ignores the foundational thinking which went into the formation of the Constitution. Wilson knew that this could be possible, but he feared that ultimately the denial of limit, the denial of God, would overcome the nation if it adopted a philosophy skeptical of the order of reality. Law and religion are twin sisters, he wrote. For Wilson such questions are always relevant: what or who is sovereign? Is it God, the source of the moral order and universal law which humans are created to know, and have always known – explicated by Cicero and Richard Hooker? Or is it accident and chance, so that justice is the will of the stronger? If that is so, then right and wrong are reduced to public preference and economic utility. Wilson’s point was, if that is to be believed, then no republic will be just, nor will it serve the happiness and well-being of the people, which is the end of government.
John Adams wrote in 1798: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other”.[11] James Wilson was of the same opinion, but he stated it differently. The Constitution depends upon a citizenry who see reality as it is. There is a higher law given by God, there is a human nature which is capable of moral reasoning. He would say today what he said in his Lectures, and Adams suggested as well – the intellectual and moral seriousness of a people is determinative of the success of the democracy.
[1] James Wilson, Collected Works, Vol. I, ed. Mark David Hall (Liberty Fund, 2007), p. 523.
[2] James Wilson, Collected Works, Vol. I ed. Mark David Hall (Liberty Fund, 2007), p. 500
[3] Alasdair MacIntyre, Whose Justice? Which Rationality? (Notre Dame, 1988), p. 236.
[4] James Wilson, Collected Works Vol. I, (Liberty Fund, 2007), p. 517. Wilson uses the term communes notitiae to refer to the “common notions and practical principles of virtue” found in all human beings. The natural law is exhibited in these common notions, and supports Reid’s argument about ‘common sense’. As a matter of interest, to show the ubiquity of the idea of natural law in that period, Wilson’s notes to this passage, read the margin of his manuscript of the Lectures on Law found in the archives of the Free Library of Philadelphia,indicate that his thoughts here align with those of Henry Dagge’s, Considerations on Criminal Law (1774). Dagge is a support for his argument. Dagge, in chapter VI, V and VI, on the law of nature, makes the same argument as Wilson as to why, if all law is a matter of convention, it denies the light of reason in the soul of man. Dagge makes an extended argument for natural law and quotes Cicero – which indicates the level conviction for natural teaching among legal thinkers of the day. Dagge’s work can be found on Archive.org.
[5] See: Knud Haakonssen and Michael J Lacey, ed., A Culture of Rights: The Bill of rights in philosophy and politics and law (Cambridge University Press, 1991), Ch. 1. Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge University Press, 1996). For another angle, see also: Richard Tuck, The Sleeping Sovereign, the invention of modern democracy (Cambridge University Press, 2015)
[6] James Wilson, Collected Works, Vol. I, ed. Mark David Hall (Liberty Fund, 2007), p. 639.
[7] James Wilson, Collected Works, Vol I, ed. Mark David Hall (Liberty Fund, 2007), p. 452
[8] James Wilson, Collected Works, Vol I, ed. Mark David Hall (Liberty Fund, 2007), p. 464-5
[9] James Wilson, Collected Works, Vol I ed. Mark David Hall (Liberty Fund, 2007), p. 500.
[10] James Wilson, Collected Works, Vol I ed. Mark David Hall (Liberty Fund, 2007), p. 464.
[11] John Adams on Religion and the Constitution | Online Library of Liberty
