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James Wilson and Natural Law in the First Years of the Republic

Source: US Global Legal Monitor

In a recent post on this blog, I wrote about David Hoffman, the early 19th-century lawyer who founded the University of Maryland’s first law school. In that post, I talked about Hoffman’s vision for legal education. He thought that lawyers ought to have a firm foundation in moral and philosophical principles and that the legal profession should play a public role in defending those principles. In his lectures and other writings, Hoffman advocated theories of natural law, claiming that they offered American lawyers, who faced the pressures of a rapidly changing society and an often cutthroat business environment, a necessary mooring in enduring principles. Natural law is the idea that there are basic rights and obligations that people have by nature. They have their source, as Thomas Jefferson wrote in the Declaration of Independence, in “nature and nature’s God.” This idea was widely discussed by 18th-century legal authors, and Hoffman was not alone in the early history of this country in attempting to place it at the center of legal education. In this post, I want to talk about another important lawyer of that era who tried to offer students of law a natural law account of American jurisprudence. That lawyer was James Wilson.

James Wilson (1742-1798) began his career in 1766 as a Latin tutor at the College of Philadelphia (which later became the University of Pennsylvania). He began studying law that same year, taking up an apprenticeship with John Dickinson, who was perhaps Pennsylvania’s leading lawyer. Dickinson himself had benefited from an unusually strong education for an American of that time. He had elite private tutors, he was apprenticed to John Moland, an important figure in the Pennsylvania bar, and he attended lectures for three years at Middle Temple in London. Wilson had his own advantages: he was an emigre from Scotland and had attended Cupar grammar school and later the University of Glasgow, and [possibly] also the University of St Andrews and the University of Edinburgh before departing for America. These experiences furnished Wilson, above all, with a strong background in classics and the major works of the Scottish Enlightenment. (Hall (1997), pp. 7-34.)

The title page of James Wilson’s Introductory Lecture to a Course of Law Lectures (Philadelphia, 1791). Photo by Nathan Dorn.

As a lawyer, Wilson quickly moved toward the top of the profession, but it was his participation in the politics of the times that was career-defining. He served with John Dickinson on the Pennsylvania delegation to the Second Continental Congress. He was one of six men who signed both the Declaration of Independence and the United States Constitution. At the Constitutional Convention in 1787, he spoke more often than any other participant apart from Gouverneur Morris. (Hall (1997), p 21.) It has been said that the final draft of the U.S. Constitution bears the mark of Wilson’s ideas and influence more than those of anyone apart from James Madison. (Hall (1997), p 21.) He was also a driving force behind Pennsylvania’s ratification of the Constitution. (Hall, 1997, p 22.) He drafted Pennsylvania’s state constitution and he served as one of the inaugural justices of the United States Supreme Court.

James Wilson’s foray into teaching law came late in his career, in 1790-92, when he was already a national figure. He delivered the lectures he wrote that year at the College of Philadelphia, where he had recently been hired as professor of law. (Hall (1997), p 27.) Though his was among the first appointments to a professorship in law in the United States, it was preceded by the College of William and Mary’s appointment of George Wythe for that role in 1779. Tapping Reeve had also established his law school in Litchfield, Connecticut, in 1784. Instruction in the law – in most cases by far – was still done at that time through apprenticeship. But the chance to deliver university lectures allowed Wilson to relate to the law as a coherent body of knowledge, and to present with structure and organization subject matter that was most often taught with neither. Wilson hoped that by doing so, he would be remembered as America’s Blackstone. (Hall (2004), p. 63.)

Title page of The Works of the Honourable James Wilson, L.L.D., edited and published posthumously by the author’s son, Bird Wilson (Philadelphia, 1804). Photo by Nathan Dorn.

The lectures took place at a time when Philadelphia was the seat of the federal government. It is reflected in comments that Wilson makes both in his plan for the lectures (Wilson (1791), pp. 75-76) and in his introductory lecture on law (Wilson (1804), v. 1, pp. 4-5) that prominent members of the American elite were in attendance for some part of the course, but he intended it primarily for students. As he makes clear in his plan for the lectures, his intention was to teach a course that could introduce the subject by first discussing general principles, and then, through careful elaboration of these, to continue on to more developed parts of the law. (Wilson (1804), v. 1, pp. 13-17.)

The first several lectures covered the basic parts of Wilson’s theory of natural law. One important example of these is the idea, especially found in chapter V of Wilson’s Lectures on Law (in Works), “On Municipal Law,” that might does not confer authority and that no one has natural authority to command another. Wilson concludes from this insight that political authority, the right to make law and expect people to uphold it, depends on the consent of the people rather than on, say, superiority of social rank. (Wilson (1804), v. 1, pp. 204-228.) Another example is the idea, mostly found in chapter III, “Of the Law of Nature,” that people have an innate moral sense, a sense of right and wrong that is known through something like intuition. (Wilson (1804), v. 1, pp. 118-137.) Over the course of his lectures, Wilson presents the idea that simple perceptions about right and wrong – that one should do no harm, that a person’s property should be respected, that contracts should be kept, that life with one’s fellows is desirable – lead to far-reaching conclusions about how best to organize society. (E.g., Wilson (1804), v. 1, pp. 104-106 and passim.) They lead, he says, to conclusions about the relationships between states (Wilson (1804), v. 1, pp. 145-178.) and even how states ought to respect their own internal cohesion and self-preservation. (Wilson (1804), v. 1, pp. 179-228.) 

People familiar with this type of theorizing will hear in Wilson’s ideas about the consent of the governed echoes of the book Of the Laws of Ecclesiastical Polity, by the theologian Richard Hooker (1554–1600). And Wilson’s discussion of the moral sense is in conversation with similar ideas that were advanced by the Scottish authors Francis Hutcheson (1694–1746) and Thomas Reid (1710–1796).

While Wilson had hoped to publish his lectures in his lifetime, his schedule with the United States Supreme Court, which included riding circuit to federal courts throughout the country, kept him too busy to complete the work. He died of illness while riding the Southern Circuit in 1798. (Hall (1997), pp. 31-32.) The lectures he wrote out were edited and published by his son, Bird Wilson, in 1804. Both the 1791 introductory lecture and plan of the lectures, and the 1804 collected works can be found in the Law Library’s rare books collection. 

Engraved portrait of James Wilson that appears opposite the title page of The Works of the Honourable James Wilson L.L.D. (Philadelphia, 1804). Photo by Nathan Dorn.

Wilson’s legacy has sometimes been eclipsed by other men of the founding generation. Yet in the 20th century, he was sometimes held by Catholic natural law theorists to offer a link between the natural law of Thomas Aquinas and the founding of the United States. (E.g., Obering and Delahanty, below.) He was also studied by students of the political philosopher Leo Strauss, for whom the subject of natural rights theories attracted exegetical interest. (E.g., Velasquez, below.) It is worth noting that the writings Bird Wilson compiled offer us the earliest university lectures ever presented on the United States Constitution, and they were written by one of its principal architects within a couple of years of its adoption.  

July 2026 marks the 250th anniversary of the signing of the Declaration of Independence. Keep an eye out for more posts like this one that celebrate the Declaration, the lives of its signers, and the world in which they lived.

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