James Wilsons Political Thought and the Constitutional ... · James Wilsons Political Thought and the Constitutional Convention Ccholars familiar with the writings and career of James

James Wilson's Political Thought

and the Constitutional Convention

Ccholars familiar with the writings and career of James Wilson are►.J struck by the discrepancy between the status accorded him bymost constitutional historians and the magnitude ofhis contributionsto our founding.' In their view, Wilson's record clearly entitles him toa place among the honored "elite" of the founding era such asMadison, Hamilton, Jefferson, Washington, or Adams, a status which

1. Robert G. McCloskey put the matter this way: "The truth is that posterity ' s neglectof Wilson is nothing short of astonishing when it is measured against his claims to beremembered. " "Introduction" in Robert G. McClonskey, ed., The Works of JamesWilson, 2 vols. (Cambridge: Harvard University Press, 1956), 2. All subsequentparenthetical citations in the text are to these volumes; the volume number is followedby the page number.

Andrew C. McLaughlin offers this assessment of Wilson's contribution to the Con-stitutional Convention: The work of James Wilson as a framer of the constitutionseems not to have received its just recognition. . While it is true, indeed, that his-

torians have given him passing commendation, his name has generally been linkedwith names of other men far less deserving; and this argues lack of full appreciation.We are asked, for example, to admire the work of Gerry and Sherman and Franklin andRobert Morris and Dickinson and Randolph and Mason. Yet some of these men con-tributed little to the results of the convention; while other of them were at timesobstacles in the way to a reasonable conclusion or advocates of the sheerest folly. IfWilson's work be closely examined, its greatness and worth will appear, and will placehim above all but one or two men of the convention. Perhaps Madison alone can becalled his equal in judgment and far-sighted wisdom. Certainly Wilson was one of thefour men who bore the burden in the heat of the day-who fought with desperate andmagnificent energy in the greatest controversy of the convention. But for Madison,King, GouverneurMorris and Wilson, narrow, selfish particularism might have won thevictory in the long battle that was waged between the friends of nationalism on the onehand, and those of contracted localism on the other." "James Wilson in the Phila-delphia Convention, " 12 Political Science Quarterly (March, 1897), 1-2.

The importance of Wilson and his neglect is a theme common to virtually all thosewho have examined his political thinking. See, for example, Ralph Rossum, "JamesWilson and the ` Pyramid of Government': The Federal Republic," 6 Political ScienceReviewer (Fall, 1976); Randolph G. Adams, "Introduction" to Selected Political EssaysofJames Wilson (New York: Alfred A. Knopf, 1930) and Geoffrey Seed, James Wilson(Millwood, N.Y.: KTO Press, 1978).

50 THE POLITICAL SCIENCE REVIEWER

has so far been denied him.' Indeed, a mere recital of his activitiesand accomplishments during this period would certainly seem tobear out their assessment, the most notable being his service as a rep-resentative from Pennsylvania to the Congress (1775-77; 1782-83;1785-87) and as its delegate to the Philadelphia Constitutional Con-vention, his leadership in securing Pennsylvania's ratification of theproposed Constitution and in crafting the Pennsylvania Constitutionof 1790, and his work as one of the original justices on the UnitedStates Supreme Court. Yet, despite his significant and varied accom-plishments, he is most frequently remembered in civics texts as beingone of only six men to sign both the Declaration of Independenceand the Constitution.

The claims advanced on his behalf, however, are not primarilybased on his activities and service as such. Rather, to a great extent,they stem from the fact that Wilson-perhaps to a degree greaterthan any other of our Founders-possessed a systematic, coherentpolitical theory, the key elements and principles of which he activelysought to advance or realize in the various contexts in which heserved.' To put this in different terms, the Constitutional Conventioncan plausibly be pictured, a la John Roche, as a caucus of the demo-cratic elite engaged in the bargaining and the give and take whichcharacterizes consensual politics, a process wherein the participantsdeal with the issues and conflicts as they arise in the course of theproceedings without paying much heed to overarching theory orprinciples.' In these terms the delegates can be pictured as working,so to speak, from the "bottom up" as opposed to working from the"top down"; that is, as seeking, insofar as possible, a consensus amongcompeting views rather than resolutions or solutions derived from, or

2. We may surmise that one of the reasons Wilson has not been accorded the statuswhich seems his due is that he was an inveterate land speculator, who, after his for-tunes took a disastrous turn, spent the last years of his life fleeing his creditors.3. As M.E. Bradford, no friend of Wilson's nationalist position, writes: "Wilson wasalmost unique among the Framers in reasoning from a systematic philosophical posi-tion, resting on a general metaphysic, in recommending that particular provisions beincluded in the proposed .. . Constitution." Bradford describes Wilson as a "Meta-physical progressive" and "a philosophe of democracy. " A Worthy Company ( Marl-borough, New Hampshire: Plymouth Rock Foundation, 1982), 84.4. John Roche, "The Founding Fathers: A Reform Caucus in Action," 56 AmericanPolitical Science Review ( March, 1962). According to Roche, the Framers were "an ex-tremely talented" collection of "democratic politicians" whose final product was not "atriumph of architectonic genius" but instead "a patchwork sewn together under thepressure of both time and events" (814).

POLITICAL THOUGHT AND THE CONSTITUTIONAL CONVENTION 51

even compatible with, the principles of abstract theory. But this "bot-tom up" view does not describe Wilson or the positions he articulatedat the Philadelphia Convention. On the contrary, his position andarguments in the Constitutional Convention represented an effort toachieve a new constitutional order which would conform as closely aspossible, with due concessions to existing contours of the Americanpolitical landscape, to his basic political tenets.

While a good deal of Wilson's basic political thought can be ad-duced from his public utterances and writings of the revolutionaryand founding period, as well as from his contributions to the Conven-tion, his Lectures on the Law (1790-91) provide us with a relativelysystematic treatment of the assumptions and values underlying hispositions with respect to central theoretical concerns such as theproper foundations of government.' Thus, by examining these lec-tures with care, we come to a fuller understanding, albeit retrospec-tively, of the foundations of those operating political principles towhich he consistently adhered throughout his career.' Moreover,with respect to our immediate objective, these lectures, in addition toarticulating the theoretical roots of his views concerning the form thenew constitution should assume, convey his sense of priorities, i.e.,what he regarded to be most important for a just and well-admin-

5. Some of these lectures, thirty-five in all and in various stages of completion, weredelivered at the College of Philadelphia (now the University of Pennsylvania) in thewinter of 1790-91. Business and his duties on the Supreme Court kept him from con-tinuing with the lectures at the college during the subsequent winter and from puttingsome of them into final form. However, they do comprise the bulk of Wilson's writtenwork that we possess. The lectures range in subject matter and scope. Several deal withthe nature and types of crime; others with the "constituent parts of the courts" such asjudges; juries, attorneys-their functions and duties; and still others deal with broadermatters of political theory such as the nature of society, the natural law, and the charac-teristics of good government. Obviously, the lectures in this latter category are themost relevant to this undertaking.6. There is ample justification for this retrospective approach, In the first place,Wilson was a consistent theorist; that is, at a relatively early age he had already for-mulated the assumptions from which he was to reason in the political sphere. This isevident from his writings and utterances prior to the Constitutional Convention and,afterwards, in his role as the chief architect of the Pennsylvania Constitution of 1790.Moreover, there is nothing in his law lectures which would contravene the positions hetook at Philadelphia. On the contrary, what we find at many places is a full and com-plete explanation of why he adopted the position he did. To be sure, he does not putthe matter precisely this way. Yet, frequently we find him repeating arguments he hadpresented in the Convention in more elaborate form and even presenting newarguments which could be used to support the position he took on key issues.


istered government. As a consequence, it is altogether appropriatethat we begin by examining the deeper veins of his political thoughtfor an understanding of his position in the Convention.

Theoretical Foundations

Born in Scotland in 1742, Wilson received a classical education atthe University of St. Andrews with the intention of entering the min-

istry of the Church of Scotland. While he did not finish his requiredtheological studies for the ministry (upon the death of his father, heleft St. Andrews at the age of twenty after five years of study), there isno question that his education there had a permanent and profoundimpact on his thinking.' At some point during his studies, he became adisciple of the inductive/common-sense school of thought and, inparticular, the teachings of Thomas Reid. To a great extent, Wilson'ssubsequent political thinking can be viewed from the perspective ofreasoning outward from the assumptions and principles of thisphilosophical school. Consequently, most of his positions on law andgovernment, on matters both large and small, can be traced to thepremises of this common-sense approach. Nor, as we shall see, doeshe espouse any position that cannot readily be reconciled withthese premises.

An Overview

The Scottish common-sense philosophy to which Wilson sub-scribed constituted a reaction to the radical empiricism spawned byLocke which denied the reality of self-evident truths gained throughintuition or common sense. A major element of this reaction con-sisted in pointing out the limitations of reason and the absurdities towhich a reliance on reason alone would lead. In this latter vein,Wilson could write that the fundamental principle of Locke's philo-sophy, "assuming the existence of ideas," when "wielded by onephilosopher . . . attaches itself solely to matter, and destroys the mind.Wielded by another, it attaches itself solely to mind, and destroys

7. The leading biography of Wilson is Charles Page Smith's James Wilson: Founding

Father, 1742-1798 (Chapel Hill, N.C.: University of North Carolina Press, 1956).Seed's James Wilson is auseful account of his political thought and activity during hismature years.


matter. Wielded by a third, it becomes equally fatal to matter andmind" (I, 215).

But Wilson placed the greatest stress at various points in his Lec-tures on Law on differentiating between reason and intuition bypointing up the proper role and function of each. The common sensephilosophy, he wrote,

will teach us, that first principles are in themselves apparent; thatto make nothing selfevident, is to take away all possibility of know-ing any thing; that without first principles, there can be neitherreason nor reasoning; that discursive knowledge requires intuitivemaxims as its basis; that if every truth would admit of proof, proofwould extend to infinity; that, consequently, all sound reasoningmust rest ultimately on the principles of common sense-principlessupported by original and intuitive evidence. (I, 213)

At another place he tells us that "the science of morals, as well asother sciences, is founded on truths, that cannot be discovered orproved by reasoning. " Consequently, he affirms, just as mathematicsmust have "its intuitive truths" before it is possible to "take a singlestep in our reasoning on the subject," so, too, must moral reasoning.What is more, he is quick to point out that lacking these intuitivetruths "it would not be in the power of arguments, to give" an in-dividual "any conception of the distinction between right andwrong." Lacking such a conception, he writes, would render terms ofmoral discourse as "unintelligible . . . as the term colour to one whowas born and has continued blind" (I, 133).

A number of logical questions arise concerning these " intuitive"truths the answers to which give us a clear picture of Wilson's basicphilosophical approach and bring us around eventually to the spe-cifics of his political thinking. One such question is, of course, what is(are) the source(s) of these intuitive truths?

The answer to this query takes us to the heart of Wilson's philos-ophy. In the last analysis, he holds that God is the source of intuitivetruths. But his answer is more complicated than this because he iden-tifies conscience, common sense, and revelation as proximate sourcesof this truth; sources which, let us take care to note at this point, canalso be perceived as channels or paths through which God's will isrevealed. Now Wilson did not write extensively about the characterof these sources of knowledge. Nor does he systematically answer allthe questions that arise from his approach. Nevertheless, he still pre-


sents us with a clear and comprehensible overview of his philosophyand the principles upon which it is founded.

Conscience clearly constitutes one of the central elements inWilson's approach and it is perhaps best that we begin with it by wayof outlining the salient aspects of his theory. Wilson conceives of con-science as an inner moral sense, a "power of moral perception," bywhich "we perceive some things in human conduct to be right, andothers to be wrong" (I, 133). At other places he ascribes even widerfunctions to it as when, for example, he likens it to an "inward eye"which "distinguishes the beautiful, the amiable, the admirable, fromthe despicable, the odious, and the deformed" (I, 135). For Wilson,then, this inner moral force is truly a sixth sense, just as real as hearingand seeing, but which finds an outward expression in virtually everyaspect of our culture: not only is it the source of moral excellence, it isalso the source of the pleasures we derive from art, poetry, music,sculpture, and drama; i.e., all forms of human expression. Moreover,in his view, this moral excellence is addictive: a "high sense" of this"excellence is accompanied with a strong desire after it, and a keenrelish for it," a state of affairs which he describes as according withthe "highest virtues." And, beyond this, Wilson believed that thesemoral sensibilities, reinforced and improved through "habit, and byfrequent and extensive exercise," would serve to "regulate and con-trol all our other powers"-"our passions as well as our actions" (I,136).

Other aspects of Wilson's treatment of conscience are noteworthyin light of his views on government. First, he holds that conscience inthe fullest sense is universal: "All languages speak of a beautiful and adeformed, a right and a wrong, an agreeable and disagreeable, agood and ill, in actions, affection, and characters"-a fact which hetakes as proof of a "universal cause" (I, 135). Second, though he doesnot dwell upon the matter, he believes that individuals possess dif-ferent degrees of moral refinement. It is, he maintains, found amongchildren in its purest, though least refined, form; "hence that joy inthe prosperity of the kind and faithful, and that sorrow upon the suc-cess of the treacherous and cruel, with which we often see infantminds strongly agitated" (I, 134). Third, even though conscience andits commands "are written on their hearts, in characters so legible,that no man can pretend ignorance of them," it can be overwhelmedat times by "passion." Thus, he writes, in addition to "habit" and "fre-quent and extensive exercise" of our moral faculties, there is also theimperative need for the "vigorous and commanding principle of


duty" to keep the passions in check (I, 137). Finally, he believes thatreason within the confines of the self-evident or intuitive truths ofconscience can serve to refine and enlarge the inner moral sense,even though it is incapable of affirming or denying that "voice of Godwithin us" (I, 141). It helps us to discover the proper means to theend; "to make necessary distinctions and expectations, or to modifythem [the intuitive moral truths] , according to the circumstances oftime and place"; "to compare and discriminate" among the endswhich our moral senses suggest to us; and, inter cilia, to set standardsfor moral conduct under changing conditions (I, 138). The lack ofreason, we should remark in passing, helps to account for whatWilson perceives to be different levels in moral advancement amongpeoples (e.g., "the most uninformed slaves" have within them "thecommon notions and practical principles of virtue, though the ap-plication of them is often extremely unnatural and absurd") (I, 140).What is more, the role and function which reason assumes in histheory allows for the idea of progress ("it is the glorious destiny ofman to be always progressive," i.e., to advance, albeit at times ever soslowly, to higher plateaus of virtue) (I, 146).

Common sense, a second source for knowledge of God's law,resembles conscience: from one perspective it can also be viewed as a"seed" planted by God in man which `reveals' or allows him to com-prehend intuitive truths that cannot be derived from reason butwhich, at the same time, provide the axioms from which reason mustproceed. What is more, like conscience, which differentiates amongour moral sensibilities, common sense gives us the wherewithal tojudge of the reasonability of and relationship between intuitivetruths.

Wilson, as we have already seen, was particularly concerned withrebutting the schools of philosophical thought which "allege that ourmind does not perceive external objects themselves; that it perceivesonly ideas of them; and that those ideas are actually in the mind." Hewas repelled by the "extravagant" conclusions that reason couldreach from such a premise, e.g., that the ideas exist, but not the ob-jects; that mind and body do not exist. Indeed, he believed that thispremise, by leading us to deny our senses, "would finally lead to thesubversion of all human knowledge" (I, 202). And he sought to un-dermine the foundations of these theories by embracing a "commonsense" position, i.e., a position which he believed was confirmed byexperience; namely, " that when external things are within the sphereof our perceptive powers, they affect our organs of sensation and are


perceived by the mind." He felt it useless to inquire into "the mannerin which" these external objects "are perceived" because "we cannottrace the connexion between our minds and the impressions made onour organs of sense." Nor, in this regard, did he believe we could"trace the connexion which subsists between the soul and the body."Thus, he concluded "the existence of the objects of our external sen-ses, in the way and manner in which we perceive that existence, is abranch of intuitive knowledge, and a matter of absolute certainty." Inother words, such knowledge fell into Wilson's category of a "selfevi-dent" or common sense truth which, though not capable of beingproved through processes of reasoning, was nevertheless "supportedby a species of evidence superiour to any that reasoning can pro-duce" (I, 202).

Still other truths fell into this common sense category: the reality ofman's existence and of his mind ("I know it not from proof: I see it bythe shining light of intuition") (I, 224); and, among others, free will or"moral liberty" ("that power [liberty] of the mind, by which it mod-ifies, regulates, suspends, continues, or alters its deliberations and ac-tions"). Again, for Wilson, the proof of this "moral liberty" cannot bedemonstrated by reason; rather, it resides in the "intuition ... that weare free " (1, 211).

Finally, in speaking of common sense, we should note that Wilsondid not entirely divorce it from reason. In fact at one point he writesthat there are "two offices" or "two degrees" of reason: the first, com-mon sense, " to judge of things selfevident"; the second, "to draw con-clusions" fi 1m that which is "selfevident." The differences betweenthe two come down to the fact that common sense is common, orperhaps better said basic, in the sense that it constitutes the only de-gree of reason for the "greatest part of mankind"; that it is "purely thegift of heaven" which-quite' unlike the second degree of reason-"no education can supply." For all of this, however, Wilson makesclear his belief that the two are not only compatible with one anotherbut also mutually supportive.' To this point, he writes, "the interestsof both [common sense and reason] are the same" and "betweenthem, there never can be ground for real opposition " (I, 213). In fact,he observes, "reason has no other root than the principles of common

8. In this connection, Wilson looked upon common law as "one of the noblest births oftime ... the wisest of laws" because it was the product of collective reason over time (I,334). It embodied "human reason" understood "as the knowledge, and experience,and information of many [men], arising from lights mutually and successively com-municated and improved" (I,358).


sense: it grows out of them: and from them it draws its nourishment"(I, 223).

The third ingredient of Wilson's triad is revelation. "Reason andconscience can do much," he wrote, "but they stand in need of sup-port and assistance" which, he felt, was provided by the the "revela-tion[s] . . . contained in the holy scriptures" (I, 143). Through suchrevelation ("given to us immediately and directly from himself"), hecontinued, "our natural knowledge is greatly improved, refined, andexalted" to the degree that "one who has had the advantage of a com-mon education in a Christian country, knows more, and with morecertainty, than was known by the wisest of the ancient philosophers"(I, 144).

Just as Wilson could see a compatible and mutually supportingrelationship between reason, common sense, and conscience, so toohe sees a symbiotic relationship between these sources of knowledgeand revelation. Where the teachings of the scriptures unambiguouslyapply to problems or conditions of the temporal world, they must, heholds, be regarded "supereminently authentic." But to this he is quickto add that those who look to the scriptures "to find . . . particulardirections for every moral doubt which arises" will be disappointed.The scriptures, he points out, "do not explain; nor do they specify inwhat instances one right or duty is entitled to preference overanother." Rather, as he sees it, they embody "principles of morality"which are directed to "rational and moral agents" who are to applythem in light of worldly conditions for the advancement of virtue. Assuch "the scriptures support, confirm, and corroborate, but not super-cede [sic] the operations of reason and the moral sense" (I, 144).

It is through conscience, common sense, and revelation combinedwith reason, according to Wilson, that we can apprehend natural law("that law, which God has made for man in his present state; that law,which is communicated to us by reason and conscience, the divinemonitors within us, and by the sacred oracles, the divine monitorswithout us") (I, 124). Certain characteristics of this natural law setforth by Wilson are noteworthy. To begin with, as we might expect, itis "immutable" having "its foundation in the nature, constitution andmutual relations of men and things." In his view, this immutabilityderives from the fact that God is the author of man's "constitution" sothat his command and prohibitions in the form of natural law mustconform with the nature of this constitution. This line of reasoning, ofcourse, only follows given his assumption that God "is under theglorious necessity of not contradicting himself." Immutabililty, then,


implies that the natual law not only conforms to man's constitutionand condition, but also that its provisions, taken as a whole, are consis-tent with one another.

Still another characteristic of the natural law upon which Wilsondwells is its universality. All men are equally subject to the commandof their Maker"; it possesses an essential fitness for all mankind, andbinds them without distinction." To this point, he quotes fromCicero: "it [the law of nature] is the same eternal and immutable law,given at all times and to all nations; For God, who is its author and pro-mulgator, is always the sole master and sovereign of mankind" (I,145-46).

Finally, and perhaps more immediately relevant to his politicalthinking, are the goals or directions which Wilson perceived thenatural law 'leading' mankind; that is, to put this otherwise, what heconceived to be the highest ends to which the natural law (God's will)conduced. That he thought it would be progressive ("though immu -

table in its principles, [it] will be progressive in its operations and ef-fects"), we have already remarked upon. While, as we shall see, he isspecific about what he considers to be its progressive nature in hispolitically oriented writings, he sets forth only general goals in his lec-ture on "The Law of Nature." Here he informs us that our "moralsense " operates to produce "happiness" ; that "whatever promotesthe greatest happiness of the whole is congenial to the principles ofutility and sociability: and that whatever unites in it all the foregoingproperties must be agreeable to the will of God." God's will, hebelieved, could be put into one "paternal precept," namely, "Let manpursue his happiness and perfection" (I, 145).

Clearly, Wilson's political theory employs the vocabulary and ap-proach of certain "modern" political theorists such as Hobbes andLocke with its references to a state of nature and natural rights.However, his basic premises, positions, and concerns-albeit linkedclosely to Christianity-are essentially those which characterizeclassical political thought. His conception of "happiness" is closelyconnected to the intellectual and moral development of individuals,and he subscribes to a higher law from which rights are derived-ahigher law and rights which are not the product of convention or`created' through agreements or contract. Moreover, and a matterdiscussed immediately below, even though he does use the modernframework for describing the origins of civil society and the institu-tion of government, at base he accepts the classical view of the in-


herent nature of man as "social." Thus, his vocabulary, not unexpect-edly, is one of "rights" and "obligations."'

Elements of Political Thought

Fundamental to Wilson's political thinking, and quite in keepingwith the intuitive approach outlined above, is his emphasis upon manas a social being. Our moral perception," he writes, as well as theother powers of our understanding, indicate, in the strongest manner,our designation for society(I, 232). At another place, he remarksthat humans are 'fitted for society" and "society is fitted and in-tended" for them. He likens society to a "powerful magnet, which, byits unceasing though silent operation, attracts and influences our dis-position, our desires, our passions, and our enjoyments " (I, 227). And,to dispel any notion that men have an option to live in society or not,he puts man's sociability on the same plane as natural law: we aredesignated by Him, who is all-wise and all-good" for a "state ofsociety " (I, 238).

Certain of Wilson's observations about the individual and societyare quite salient to his political thought. To begin with, there aredefinite classical overtones in his views concerning the individualand society. While he is certainly not unmindful of the ways in whichsociety provides for the purely material needs of its members-e.g.,"food, raiment and shelter"-he stresses that these needs are hardlysufficient for individual development in conformity with the naturallaw. In this vein, he asks whether a solitary individual, provided withsecurity and the necessities of life, "could . , find employment forthe most excellent powers and instincts of his mind?" And he answersthat "sour discontentment, sullen melancholy, listless languor" wouldnecessarily "prey upon his soul" (I, 235).

If we look at this concern from another angle, it would appear thatWilson believed that the degree of the development of the moral andintellectual capacities of the individual is a function of the extent orsize of the society. To be sure, he acknowledges that the basic unit ofsociety, the family, can provide "security," a degree of safety, "manyof the necessities of life," some "social enjoyments," and "fineroperations of the mind." He also reasons that the "pleasures and ad-

9. It seems clear that Wilson's thought, in important particulars, parallels that of the"judicious and excellent" Hooker (I, 123).


vantages" of "reciprocal assistance" would be greater in a "union of afew families in the same neighborhood." But greater still would bethe benefits of a more extended social sphere which, he writes, "willfurnish more diversified and delightful exercise to our powers ofevery kind " (I, 235). 1 °

Man's improvement, his quest for excellence and virtue, Wilsonperceived as stemming from a reciprocal and mutually beneficialrelationship between the individual and society. For instance, he ob-served that individuals in society derive "pleasure" from "acts ofbeneficence," just as do those who derive benefit from them. Andeven if the "praise and acclamations of others" or "regard and es-teem" are not forthcoming for such selfless or socially benevolentacts, "virtue will prove herself her own reward" for those who acceptand act in accordance with the "design of nature"-for those, that is,who contribute "to the general interest," "by employing [their] care... industry . . . and even . . . fortune, in order to strengthen the loveand friendship, which should always predominate in human society"(I, 236-37). In this context, he describes "the wisest and most benignconstitution of a rational and moral system"; namely, as one in which"the degree of private affection, most useful to the individual, is... consistent with the greatest interest of the system," while "the de-

gree of social affection, most useful to the system, is . . . productive ofthe greatest happiness to the individual." Thus, Wilson could envi-sion a unity or correspondence between individual well-being andhappiness and the promotion of the general welfare or common in-terest: "he . who operates for the good of the whole, as is by natureand by nature's God appointed him, pursues, in truth, and at the sametime, his own felicity." "Misery" is the reward of those who operate onmotives and principles contrary to the "common good and publick in -

terest" (I, 238).

Civil Society and Government: The Principle of Consent

Wilson's view of the state of nature clearly was not one of isolatedindividuals who seldom interacted with one another. Indeed, he

10. On this point, we cannot help but perceive a significant difference betweenWilson and Madison concerning the benefits to be derived from ari extended republicsuch as that envisioned under the proposed Constitution. Madison looked upon itschief advantage as controlling the effects of majority factions. Wilson, however, as wesee from these passages, looked upon an extended society as benefitting its members ina variety of ways.

. POLITICAL THOUGHT AND THE CONSTITUTIONAL CONVENTION 61

writes of a "natural society" which preceded the development or,perhaps more accuately, the evolution of the "civil society." What isevident in this connection is that he viewed society as passingthrough stages of development; from natural society to civil society or"state," and finally to the highest stage, civil society with govern-ment." Key to understanding the major principles which seemed toguide his thinking about the forms and processes of government atthe Philadelphia Convention and elsewhere is his conception of the"middle stage," that is, of the state or civil society.

Although he does not describe in any detail the characteristics ofa "natural" society, we do come to understand its essential features byexamining the chief elements of his civil society. To begin with, weshould note that Wilson throughout his writings makes clear that civilsociety or the state did exist without government. In fact, he main-tains that "a state of civil society must have existed, and such a state,in all our reasonings on this subject; must be supposed, before civilgovernment could be regularly formed and established" (I, 238). Hestresses this point in order to make clear one of the central principlesof his theory, namely, that "the acts and compact which form thepolitical association, are very different from those by which theassociated body, when formed, may choose to maintain and regulateitself" (I, 284). In keeping with this conception, he could write at theoutset of his law lectures that "in the just order of things, governmentis the scaffolding of society: and if society could be built and kept en-tire without government, the scaffolding might be thrown down, withthe least inconvenience or cause of regret" (I, 86). At another pointhe emphasizes that "government was instituted for the happiness ofsociety "; that government and even the constitution should be"handmaidens," not the "mistresses of the state." Thus, he points out,the change of government, even through revolution, is not, as com-monly supposed, logically connected with the "calamities attendanton wars." A change of government, in his view, does not mean that"every thing must be reduced to a state of nature, and that the rightsand obligations of the society must be lost and discharged." On the

11. Wilson is not very precise about the nature of the evolution from natural society tocivil society with a fully developed government. We can say that civil society withgovernment commences when the people have consciously consented to form agovernment for purposes to which they also consent. The natural society ceases when apeople, recognizing common purposes and interests, consent to become one. But thecharacter of the in-between stage, i.e., civil society, is not described by Wilson inany detail.


contrary, those "establishments, whose foundations rest on the soci-ety itself, cannot be overturned by any alteration of the governmentwhich society can make " (I, 284).

What is equally clear from Wilson's discussion is that societiesreach a stage wherein government is necessary for at least two some-what disjointed reasons. The first, he maintains, is that society withoutgovernment, "in the present state of things," cannot "flourish," muchless "reach perfection." Government, from this perspective, is an aidin developing the intellectual and moral capacities of the members ofsociety. The second relates directly to the "dissensions and animosi-ties" that he believed would necessarily arise in a society whereineach individual could act "uncontrolled by others." The result of thishe portrays in terms of a diminishment of "liberty" and an "incon-venience," both of which are remedied by "civil government"(I, 285).

Wilson, of course, recognized that government can be good or bad["how often has the happiness of society been offered as a victim tothe idol of government!" (I, 239)] and he discusses this matter atvarious levels. But the deepest level of all is whether the constitutionand the government it creates conform with the basic principles orfundamental laws of the civil society which, in turn, are grounded inthe natural law or God's will. Indeed, he writes: "Government .. .should be formed to secure and to enlarge the exercise of the naturalrights of its members; and every government, which has not this inview, as its principle object, is not a government of the legitimatekind" (II, 592). In this connection, he stresses a point which per-meates most of his writings about political institutions and practices;namely, there is a reciprocal influence between the people and theirgovernment, that "government founded on improper principles, anddirected to improper objects, has a powerful and pernicious bias bothupon those who rule, and those who are ruled" (II, 785).

12

12. Regarding this relationship Wilson wrote: "On the Constitution will depend thebeneficence, the wisdom, and the energy, the folly, and the weakness of governmentand laws. On the good or bad qualities of government and laws, will depend the pros-perity or decline of the state. On the same good or bad qualities will depend, on theother hand, the excellence and happiness, or on the other, the depravity and infelicityof the citizens" (I, 306). For an extended treatment of this relationship see: Ralph A.Rossum, "Civic Virtue and Republican Government: The Importance of Character inthe Political Thought of James Wilson," a paper prepared for delivery at the ClaremontInstitute ' s Bicentennial Conference. Claremont McKenna College, February 20-22,1986.


Now if government, as Wilson writes, is to provide "precision andcertainty" in the application of the fundamental laws of society andthe ends for which civil society is constituted, we must come backaround to and carefully examine his vision of the properly constitutedcivil society. For this purpose, we can best begin with his descriptionof a state as "a complete body of free persons, united together fortheir common benefit, to enjoy peaceably what is their own, and to dojustice to each other." It is," he continues, an artificial person: it hasunderstanding and will peculiar to itself: it has its obligations; and ithas its rights." He tells us that

this union may rationally be supposed to be formed in the followingmanner: ifa number of people, who had hitherto lived independentof each other, wished to form a civil society, it would be necessary toenter into an engagement to associate together in one body, and toregulate, with one common consent, whatever regards their preser-vation, their security; their improvement, their happiness. (I, 239)

He deems it "indispensably necessary" for this union "that the willsand the power of all the members be united in such a manner thatthey shall never act nor desire but one and the same thing, inwhatever relates to the end, for which the society is established." Heputs this in only slightly different terms when he writes that the civilsociety, "properly understood," is a"voluntary union of persons in thesame end, and in the means requisite to obtain that end." Thus, heholds, that the only rational and natural method ... of constituting acivil society, is by the convention or consent of the members, whocompose it ." The "social compact, " in other words, is one whereineach individual engages with the whole collectively, and the whole

collectively engage with each individual." Those individuals who donot care to join the compact are not members of society," but thosewho do are bound to its terms (I, 239).

From this account of the formation of civil society, we can deriveone of Wilson's most basic political principles, namely, voluntary con-sent. "Consent;" he writes in his law lectures, is the soleprinciple, onwhich any claim, in consequence of human authority, can be madeupon one man by another " (I, 187). However, we must look to his"Considerations on the Nature and Extent of the Legislative Author-ity of the British Parliament" (1774), a pamphlet directed to the mat-ter of the status of the American colonies, to understand fully the cen-tral role of consent in his political thinking. In his prefatory remarks


to this work he writes that his original intention was "to trace someconstitutional line between those cases in which we ought, and thoseto which we ought not, to acknowledge the power of parliament overus." Instead, basing his position on the principle of consent, hedenied the legitimacy of "the legislative authority of the Britishparliament over the colonies ... in every instance " (II, 721).

Wilson's argument is essentially twofold and derives from certainaxioms central to his understanding of the emergence of civil society;namely, that "all men are, by nature, equal and free" and that "no onehas a right to any authority over another without his consent." Thus,he reasons, "all lawful government is founded on the consent of thosewho are subject to it." 13 But, as we might expect, he adds an importantdimension to this formulation: the reason individuals give their con-sent is "to increase the happiness of the governed, above what theycould enjoy in an independent and unconnected state of nature."And he declares that this "happiness of the society is thefirst law ofevery government," a law "founded on the law of nature" that is bind-ing upon the "legislature itself" "The people," he contends, "have aright to insist that this rule be observed; and are entitled to demand amoral security that the legislature will observe it. If they have not thefirst, they are slaves; if they have not the second, they are every mo-ment exposed to slavery" (II, 723).

Wilson's first level of argumentation consists in showing that theliberty, and hence the happiness, of the American colonists are not atall secure in the hands of the British parliament, even the House ofCommons. The ties which serve to unite the interests of the Britishpeople with their government and which also serve to militate againstencroachments on liberty-e.g., the fact that members of commons,as well as their family and friends, are subject to the laws which theypass-are simply "not enjoyed by the colonists " (II, 724). Unlike theEnglish citizens, the colonists have no mechanisms, such as elections,to restrain the members of commons from "betraying their trust" (II,727). In Wilson's estimation, these and like factors show that the "thecolonists are not under the same obligations" as the English "to in-trust their liberties into the hands of" parliament (II, 724). For the

13. In this regard it should be remarked that when the occasion presented itselfWilson never failed to fault Blackstone's definition of the law as "dangerous and un-sound. " Law, according to Blackstone, was a "rule of action prescribed by some supe-rior, and which the inferior is bound to obey." But Wilson's conception of equality sim-ply ruled out the possibility of "superiors" and "inferiors." For him, the law rested uponpopular consent given by equals (I, 103).


same reasons, he argues, there can be no presumption of the consenton the part of the colonists to the acts of parliament. In sum, at thislevel, his arguments are directed to showing that the politicalarrangements and relationships of the colonists to Great Britain aresuch that the "first law of government, the happiness of society" hasnot and cannot be observed: the "British liberties" and natural rightswhich the colonists should enjoy, far from being secure in the handsof parliament, can been abrogated with impunity.

His second level of argument concerns the nature of the ob-ligations the colonists have incurred towards their mother countrywhich, in turn, involves the question of what they have consented toby way of governance at the most fundamental or `contractual' level.More specifically, this aspect of Wilson's argument goes to a "deeper"level by inquiring into the basis for the presumed "superiority ofGreat Britain over the American colonies." His investigations in thisrespect convince him that this superiority cannot be "shown in anybook of the law" nor can "it be derived from the right of conquest." Infact, he concludes, "it cannot be accounted for" (II, 741). Conse-quently, though the colonists owe an allegiance to the king "becausethey have hitherto enjoyed, and still continue to enjoy, his protec-tion," they are under no obligation to obey the acts of parliament (II,743).14 Such was not the understanding of "those who left Britain, inorder to settle in America" nor of their "sovereigns . . . who gave themcommissions for that purpose" (II, 741).

From this we can see that the principle of consent applies to boththe ordinary operations of government as well as to the more fun-damental institutional arrangements, relationships, procedures, andstructures which are normally regarded as constitutional in nature.And we may go so far as to say, on the basis of what Wilson writes withrespect to this principle, that when the first principle of government,"happiness of the governed," is consistently violated something isamiss with the mechanisms of consent.

14. In the last paragraph Wilson writes: "The connexion and harmony between GreatBritain and us, which it is her interest and ours mutually to cultivate, and on which herprosperity, as well as ours, so materially depends, will be better preserved by the opera-tion of the legal prerogatives of the crown, than by the exertion of the unlimitedauthority by parliament" (II, 745). In setting forth this relationship, Wilson establishedwhat was to become in the nineteenth century the framework for the BritishCommonwealth.

66 TIIE POLITICAL SCIENCE REVIEWER

Liberty, equality, and diversity

Consent, as we have already indicated, is integrally linked to twoother basic principles which also have their roots in the civil societyand which government is obliged to promote and protect: to wit,liberty and equality.

Liberty, in Wilson's thought, is perhaps best conceived in terms ofthe primary means to happiness. "Every man has a sense of the right"of liberty because, according to Wilson, nature has "furnished himwith a natural impulse to exercise his powers for his own happiness,and the happiness of those, for whom he entertains . tender affec-tions." Thus, not only is the "right of natural liberty" the outgrowth ofthe "selfish part of our constitution; it also finds moorings in our"generous affections." Our "moral sense, he contends, "intimates tous, that in our voluntary actions consist our dignity and perfection"(I, 242):

This natural liberty which man enjoys in the state of nature is,Wilson informs us, bounded only by the laws of nature; specifically,that an individual "does no injury to others" and that he tends to the"publick interests" that "demand his labours." Once government isinstituted; however, man enjoys civil liberty which still allows him toact "according to his inclination" which is now limited by "municipallaw." Wilson recognizes that this municipal law may prohibit morethan the law of nature. Yet, he writes, "under a government which iswise and good, every citizen will gain more liberty than he can lose bythese prohibitions." 15 The positive penalties of law; and thus the in-tended restrictions on civil liberty, should, he believed, only operateupon the same concerns as natural law limitations on natural liberty;that is, upon "selfishness and injury'" (II; 587).

As for equality, Wilson takes great pains to make clear that he is farfrom being a social and economic egalitarian. As we have seen, heperceived a richness and diversity in the extended society-a rich-ness and diversity which would operate to refine and enlarge the in-tellectual and moral capacities of its members. So, too, he sees thatmuch is to be gained from the varieties of human genius, human dis-

15. To this point he writes: The opinion has been very general; that, inorder to obtainthe blessings of good government, a sacrifice must be made of a part of our naturalliberty. I am inclined to believe, that, upon examination, this opinion will prove to befallacious: It will, Ithink, he found, that wise and good government instead of con-tracting, enlarges as well as secures the exercise of the natural liberty of man: and whatI say of his natural liberty, I mean to extend ... to all his other natural rights" (II5586-87).'


position, and human characters." For him the maxim that "all men arecreated equal" did not "apply ... to their virtues, their talents, theirdispositions, or their acquirements." With regard to these characteristics, he believed that there "should be ... great inequality amongmen." Such inequality he felt indispensable for "social happiness" aswell as for the needs of society (I,240).

Wilson holds that the "efficient cause" for the wide "varieties oftaste and character which are to be found in society may be dif-ficult," perhaps even impossible, to explain. Of their "final cause," hehas no doubts: the intention of Providence." Not only does he regardthem as "mutually beneficial to each other," they also serve, in hisview, to dampen "violent oppositions of interest in the same pursuit.""Hence, he writes,

we enjoy a variety of convenience; hence the numerous arts andsciences have been invented and improved; hence the sources ofcommerce and friendly intercourse between different nations havebeen opened; hence the circulation of truth has been quickenedand promoted; hence the operations of social virtue have been mul-tiplied and enlarged. (I, 241)

The one respect in which men are equal, Wilson insists, is in rela-tion to the rights and obligations which existed prior to the establish-ment of civil government. The natural rights and duties of man," heholds, "belong equally to all." Each individual forms but a part of asociety whose greatest interest and happiness are intended by allthe laws of God and nature." "These laws, he goes on to say,"prohibit the wisest and the most powerful from inflicting misery onthe meanest and most ignorant; and from depriving them of theirrights or just acquisitions." Put otherwise, in civil society, according toWilson, no one can claim, in preference to another, superior right";likewise, no one" in civil society can claim over another superiorauthority" (II 2241);

This equality with regard to rights and obligations, as we havenoted above, is to be observed by government. Wilson specifies theseindividual rights and duties in the following terms: to receive thefulfillment of the engagements which are made to him, and to be freefrom injury to his peculiar relations [relations less than general suchas those between parents and children, husband and wife], to hisproperty, to his character, to his liberty, to his person" (II6608): Thereis another kind of equality which must be observed with the establish-


ment of government; specifically, a political equality which comesdown to the equality of individuals to give or withold their consent.From this principle flows another, majority rule, which Wilson uses asa basic standard for judging the legitimacy of governmental in-stitutions and processes once established. The political equality of thecivil society, in other words, should ideally be reflected in the in-stitutions and operations of government.

Wilson writes that individuals organized for action in society can"do business only in three ways-by the decision of the whole, by thedecision of the majority, or by the decision of the minority." Ofcourse, he regards rule by the majority as the only suitable or work-able option, the more so given his views of society and the natural law.Yet, it is of some interest to note the qualifications and justificationsfor majority rule which he does set forth. To begin with, he rejects theposition that because "all men are naturally equal" and "naturallyfree" they can be bound only with their consent to the laws which arepassed by government; a position which, if adhered to, would requireunanimity as the decision-making rule. In joining society, he main-tains, individuals freely and unanimously consent to the formation ofa society and the purposes for which it is established. Likewise theyconsent to "every thing that is necessary" for the fulfillment orachievement of these purposes (I, 242).

Wilson also inquires into "which is most reasonable and equitable,"whether "the minority should bind the majority-or . . . the majoritybind the minority?" He has no hesitation in answering that majorityrule is the "most reasonable ... because it is not so probable, that agreater number, as that a small number concurring in judgment,should be mistaken." As for the matter of equity he writes that themajority must be presumed to have a greater interest in the societythan the minority. He remarks again that the minority is obliged toobey the majority because "they [the minority] are bound by theirconsent originally given to the establishment of the society, for thepurposes which it was intended to accomplish."

Finally, with regard to how decisions should be made, Wilson doesbelieve that the majority rule principle "may be altered and modifiedby positive institution." "In some cases," he adds, "the consent of anumber larger than a mere majority: in others even unanimity may berequired." While he does not explain what he means by "positive in-stitution," we may take this to mean that the society, at the time it es-tablishes government, may make provisions for such extra-majorities.In other words, he implies at this juncture that the society may adopt


a constitution which contains provisions calling for the assent of morethan mere majorities for the government to act. This view is borneout by his definition of and views on the nature of a constitution:

By the term constitution, I mean that supreme law, made orratified by those in whom the sovereign power of the state [society]resides, which prescribes the manner, according to which the statewills that the government should be instituted and administered.From this constitution the government derives its power: by thisconstitution the power of government must be directed and con-trolled: of this constitution no alteration can be made by the govern-ment; because such an alteration would destroy the foundations ofits own authority. (I, 304)

We should not conclude from this that Wilson viewed constitutionsas instrumentalities for limiting popular majorities. For him, it wouldappear, they embodied limitations on government or the authority ofrulers. He writes, immediately after the passage quoted above, that"as to the people, however, in whom the sovereign power resides, thecase [their relationship to the constitution] is widely different, andstands upon widely different principles." It is, he makes clear, from,the authority of the people that the "constitution originates." Intheir hands," he continues, "it is as clay in the hands of the potter:they have the right to mould, to preserve, to improve, to refine, and tofinish it as they please." From this he concludes that a "majority" issufficient to change or alter the constitution. But, in this regard, hedraws a distinction relative to the power of the majority and theobligations of a minority. If that which the majority mandates is not"contrary to the act of original association, or to the intention of thosewho united under it," the minority is obligated "to conform to theresolution of the majority." However, the situation changes if the ma-jority infringes upon the "act of original association " or governs con-trary to the original "intentions" of those who originally formed theassociation. In these circumstances, the minority is still bound to therule of the majority, but it is "not obliged to submit to the newgovernment"-i.e., its members "have a right to retire, to sell theirlands, and to carry off their effects" (I, 304). In other words, and amatter about which Wilson showed great sensitivity, the minoritypossesses the right to emigrate under such circumstances.

I6

16. Without the right to emigrate freely, Wilson pointed out, "residence" cannot betaken as "reasonable evidence of .. , consent to the formation, the constitution, thegovernment, or the laws of the state " (I, 246).


Finally-and this by way of attempting to clarify Wilson's approachto constitutionalism-we should note that changes in a constitution,according to Wilson's theoretical principles, would seem to requirethat the majority act through channels apart from the ordinary politi-cal processes through which statutory laws are made. Otherwise, con-stitutional change could be brought about in a manner completelyalien to one of Wilson's basic precepts, that is, through agenciescreated by and subordinate to the constitution. Perhaps, in this re-spect, it is useful to conceive of Wilson's theory as comprising twokinds of majorities: political majorities, which legitimately operatethrough the government created by the constitution, and constituentmajorities, which can legitimately change the constitution. In thiscontext, then, the constituent majority which establishes the firstconstitution can specify by "positive institution" not only the meansby which change can be achieved, but also whether change shouldrequire something beyond a mere majority.

The principles and qualities of good government

At various points, as we have already mentioned, Wilson remarksupon the interrelationship between the character of society, govern-ment, and constitution. Nowhere is this more pronounced than in hisdiscussion of the principles and qualities of good government. Whilecareful to observe that society and government are indeed distinctentities, he observes that the beneficence, the wisdom, and the en-ergy or the injustice, the folly, and weakness of government" can beattributed to the character of the constitution. In turn, on the goodor bad qualities of the government and laws, will depend on the pros-perity or the decline of the state." Likewise, these qualities alsodetermine the "excellence and happiness" or the "depravity and in-felicity of the citizens (I, 306). And from this he concludes: the firstconsideration of a state, and its most important duty, is to form thatconstitution, which will be best in itself; and best adapted to thegenius, and character, and manners of her citizens. Such a constitu-tion will be the basis of her preservation, her happiness, and her per-fection" (I, 308). Such a formulation makes sense because, as will beseen, his principles and qualities of good government are general innature and can be realized in a variety of ways appropriate to the"genius," "character," and "manners" of the people.

What, then, are those qualities and conditions which a constitutionshould seek in order to promote the happiness of the people? Wilson


specifies four which are all grounded on his belief that "frail and im-

perfect" men "must be the instruments ... by which government isadministered." The first is to insure as far as possible that "the wisestand the best" within the society are elected to the "offices anddepartments" of government. The second, he puts as follows: "tocommunicate to the operations of government as great a share as pos-sible of the good, and as small a share as possible of the bad propen-sities of our nature. " Closely related to this is a third objective: "to in-crease, encourage, and strengthen those good propensities," whilediscouraging, lessening, or correcting the bad. And, finally, to struc-ture the government through "particular checks and controls" so thatit is "advantageous even for the bad men to act for the publick good"(I, 290-91). It is when these conditions are met that Wilson believeswe may speak of government of laws, and not of men"; a governmentin which "every man does homage to the laws" (I, 290).

As we might expect, Wilson also inquires into "the qualities ingovernment, necessary for producing laws, properly designed, pro-perly framed, and properly enforced." These qualities he capsulizedas follows: "Goodness should inspire and animate the intention: wis-dom should direct and arrange the means: power should render themeans efficacious, by carrying the laws vigorously into execution. " Tothe degree that these qualities predominate and "blend" with oneanother in due proportion in the "operations of government," themore perfect the government and society (I; 290).

Wilson is explicit about the principles of organization or structur-ing that will produce good government. For the most part, his atten-tion centers in and around the principle of the separation of powers;that is, with the proper organization of the legislative, executive, andjudicial branches and their relationship to one another. That hewould concentrate his attention on this principle is understandablesince he shared the prevailing view of the time which held that anyunion of the three powers of government-legislative, executive, andjudicial-in the same hands would represent tyranny. To evidencehis concern on this score, he canvasses the various possible unions ofthese powers to show what the consequences might be. A union ofthe legislative and executive powers in the same person, he writes,would allow the executive not only to "enact tyrannical laws" but toexecute them in a "tyrannical manner. A union of the legislative andjudicial powers would expose the "lives, liberties, and properties ofthe citizens ... to arbitrary judges, whose decisions would, in effect,be dictated by their own private opinions, and would not be governed


by any fixed or known principles of law. " Uniting the executive andjudicial powers, he observes, "might soon be an overbalance for thelegislative authority." In any event, the citizens would have norecourse to the perversion of the laws and their unjust and tyrannicalexecution. Of this particular union of powers, Wilson writes: "Noth-ing is more to be dreaded than maxims of law and reasons of stateblended together by judicial authority. Among all the terrible in-struments of arbitrary power, decisions of courts, whetted and guidedand impelled by considerations of policy, cut with the keenest edge,and inflict the deepest and most deadly wounds" (I, 298-99). Need-less to say, he was convinced that a concentration of all three powersin the same hands would produce the same results without any possi-bility of redress.

We should pause to note other aspects of Wilson's thinking regard-ing the need for the separation of powers that relate to the broaderprinciples of his political theory. In the first place, it would appearthat he believes tyranny exists whenever there is a union of powersalong the lines he suggests; that is, his conception of tyranny is notconfined to the exercise of these powers in an arbitrary and op-pressive manner, but rather comes down to the mere existence of theunion of any two powers. Why so? Because, as Wilson intimates in hisbrief discussion of the government of Venice, where all three powerswere joined in an "aristocracy," those living in such a regime cannever enjoy the "peace and tranquility" of mind which is an essentialingredient of liberty. Nor may we surmise could anyone living underthe same conditions. To put this in a broader context, the "peace andtranquility'' of mind cannot be had in a regime where the potentialfor the exercise of arbitrary and capricious power exists; where, forexample, the subject is not certain from one day to the next how thelaws will be applied or interpreted. Thus, it seems certain that forWilson, the civil liberty of the individual-which, let us recall, was tobe even more extensive than his natural liberty-depended on theuniform, equal, and predictable application of the civil laws. We see,then, that the separation of powers assumed critical importance in hispolitical thought precisely because it would insure the rule of law-i.e., this uniform, equal, and predictable application of the laws.

While we can view Wilson's specifics regarding the proper organ-ization from the viewpoint of his overriding concern to insure therule of law (i.e., a government of laws, not of men), they also embraceother values quite in keeping with the attributes of good government.For instance, in considering the branches of government in the order


of their "greatness," he is adamant about the need for a bicamerallegislature. "A single legislature," he argues, "is calculated to unite init all the pernicious qualities of the different extremes of bad govern-ment. It produces general weakness, inactivity, and confusion; andthese are intermixed with sudden and violent fits of despotism, injus-tice, and cruelty" (I, 291). Just as individuals sometimes act on thebasis of their passions and prejudices contrary to their "true in-terests," so too, he maintains, do single legislative chambers.

Now, in Wilson's view, the second legislative body provides the re-quisite "internal" restraint on the legislative authority. Indeed, hebelieves that the "restraints on legislative authority must ... bechiefly internal" (I, 293). A second chamber would not only serve tocheck the passions of the first body-so that, presumably, thepassions might `cool down' thereby allowing for reflective delibera-tion-but also any encroachment on the constitution that might pro-ceed from this quarter. In fact, he envisions each branch being awatchdog, so to speak, over the other: "If one of them should depart,or attempt to depart from the principles of the constitution; it will bedrawn back by the other." What is more, the mere existence of twobodies lessens the possibility of either branch broaching un-constitutional measures: "The very apprehension" of disapproval ofthe other chamber "will prevent" attempts by one branch to departfrom constitutional principles (I, 290-91).

Wilson is also quite clear on another point relative to the legisla-ture. That is, in commenting on republican government, he conceivesof the legislature as forming the base of what he calls the "pyramid ofgovernment" (I, 403; II, 785). The stability and structural soundnessof this pyramid, he emphasizes, demands a close connection betweenthe people and the legislature. In his view, the "foundations" of thispyramid must be "broad, and strong, and deep." In this regard, hesees "representation" in terms of a "chain of communication betweenthe people, and those to whom they have committed the exercise ofthe powers of government" (II, 786; I, 312; I, 403). In turn, he holdsthat "two things are essentially necessary" for this "chain" to operatein a fashion consistent with republican principles: "1. That the rep-resentatives should express the same sentiments, which the rep-resented, if possessed of equal information, would express. 2. Thatthe sentiments of the representatives, thus expressed, should havethe same weight and influence, as the sentiments of the constituentswould have, if expressed personally."

In order to achieve these ends Wilson perceived the need for two


additional conditions. First, "all elections ought to be free." To realizethis, he supported extensive manhood suffrage: "The correct theory[regarding the extent of suffrage] and true principles of liberty re-quire, that every citizen, whose circumstances do not render himnecessarily dependent on the will of another, should possess a vote inelecting those, by whose conduct his property, his reputation, hisliberty, and his life, may be all most materially affected" (I, 407). Se-cond, he thought that all elections ought to be equal." By this hemeant, one person, one equal vote" in the sense that the citizens inone part of the state ought to be able to choose the same number ofrepresentatives as citizens in another part of the state.

Turning to the executive, Wilson envisioned the necessity for unityin order to provide restraint as well as "safety and . . . energy in theoperations of government." Quite unlike the legislature, he notes, therestraints on the executive authority are "external." Consequently, hereasons, these restraints can be "applied with the greatest certainty,and with greatest efficacy, when the object of restraint is clearly as-certained" (I, 293). To this matter he writes, if the people shouldperceive misconduct or corruption on the part of those charged withexecutive responsibilities, they will at least know who to hold respon-sible for the abuse of their "generous and unsuspecting confidence"come the time of general elections.

A good deal of Wilson's case for a single executive is set forth fromthe perspective of the weaknesses and drawbacks of plural executives.While, for example, he acknowledges that "deliberation has its prop-er place in "planning, forming, and arranging laws," he also believesthat there are "emergencies" wherein he who "deliberates is lost orwhere "secrecy may be equally necessary as despatch." Yet, he asksrhetorically, can either secrecy or despatch be expected, when, toevery enterprise, and to every step in the progress of every enterprise ;mutual communication, mutual consultation, and mutual agreementamongmen,perhaps of discordant views,of discordant tempers, and ofdiscordant interests are indispensably necessary?" (I, 294)

But even in the ordinary operations of government, where noemergency presents itself, Wilson could see the compelling need forunity. "When, he observes, more than one person are engaged inthe same enterprise, a difference of opinion, concerning the object orthe means, is no improbable contingency." And how, he asks, are thesedifferences to be resolved between "those of equal authority"? Thedifficulties he perceives in this regard stem from "a prevailing and un-decided difference in sentiment" which, unlike the differences


to be found in deliberative bodies, cannot be "concluded by aresolution or a vote." Rather, these differences in the conduct of"publick enterprises" are the inauspicious parent ofbitter and deter-mined opposition" which serves to undermine the cooperationneeded for effective execution of the laws (I, 295).

From this same perspective, Wilson devotes a good deal of atten-tion to the dangers to effective and honest administration that canresult from the appointment process in a system with plural ex-ecutives.'' After observing that "much of the reputation ... en-ergy . . . and safety of the nation depends on judicious and impartialappointments," he goes on remark:

But are impartiality and fine discernment likely to predominate in anumerous executive body? In proportion to their own number, willbe the number of their friends, favourites, and dependents. An of-fice is to be filled. A person nearly connected, by some of theforegoing ties, with one of those who are to vote in filling it, isnamed as a candidate. His patron is under no necessity to take anypart, particularily responsible, in his appointment. He may appeareven cold and indifferent on the occasion. But he possesses an ad-vantage, the value of which is well understood in a body of this kind.Every member, who gives, on his account, a vote for his friend, willexpect the return of a similar favour on the first convenientopportunity.

Through such processes, Wilson contends, "a reciprocal intercourseof partiality, of interestedness, of favouritism, perhaps of venality, isestablished. " The result is that "ignorant, vicious, and prostitutedcharacters are introduced into office" so that those who do possess"talent and virtue" will shy away from "appointments" lest theirreputations be tarnished by association. Off at the end, however, thepeople, "wounded and buffeted, suffer the most. What is more, ac-cording to Wilson, they have not the melancholy satisfaction ofknowing by whom the blows are given '' (I, 294).

Wilson firmly believed that the person who nominates or makesappointment to offices should be known" and that there should be"no constitutional stalking horse . . . provided for him to conceal histurnings and windings, when they are too dark and too crooked to beexposed to publick view." He entertains the hope that "an inter-

17. The strength of his conviction and language are no doubt due to the Pennsylvaniaexperience with plural executives under the Constitution of 1776.


course of integrity and discernment on the part of the magistrate whoappoints, and of gratitude and confidence on the part of the people,who will receive the benefit from his appointments" will lead to a"beneficent atmosphere" in which "bare-faced impudence and un-principled intrigue will receive repulse and disappointment " (I, 295).

As for the judiciary, Wilson stresses the need for independence.Because the "fortunes," "lives," "reputations," and "liberties" of thepeople are affected by the judgments of the judges, it is indispensible,according to Wilson, that they be impartial. Their judgments, hewrites, "ought to be calculated not only to do justice, but also to givegeneral satisfaction, to inspire general confidence, and to take evenfrom disappointed suiters . . . the slightest pretence of omplaint."For this reason, he continues, "in their salaries, and in their offices,they ought to be completely independent" (I, 297).

Though, as we have seen, Wilson stresses the need for a separationbetween the branches in order to avoid a tyrannical union of powers,he is also aware that there must be some degree of "mutual depend-ency" between them. With regard to their essential functions, itwould appear, he believed they should be independent of oneanother. "In preparing bills, in debating them, in passing them, inrefusing to pass. them," he maintains, the legislature should be com-pletely independent. But once the measure has passed it should besubject to control by the other branches in accordance with the pro-visions spelled out in the constitution. The end sought by this mutualinterdependence is, as he put it, "if one part should, at any time, usurpmore power than the constitution give, or make an improper use of itsconstitutional power, one or both of the other parts may correct theabuse, or may check the usurpation." For him, "the balance of theparts consists in the independent exercise of their separate powers,and, when their powers are separately exercised, then in their mutualinfluence and operation on one another. Each part acts and is actedupon, supports and is supported, regulates and is regulated by therest." Because of the "necessity for movement in human affairs," thedepartments will "move in concert," with each influencing the other,forming a vector in the direction of "public liberty and happiness"(I, 300).

Wilson at the Constitutional Convention

We can best understand Wilson's posture in the Philadelphia Con-vention by recurring to the major elements of his broader theory


which have been set forth. Perhaps the most crucial of these is thatWilson viewed the thirteen states as one society in the midst of a pro-cess of changing its government, of establishing a new governmentthat would insure its happiness in accordance with the natural law toa degree and in a fashion the Articles had proved incapable. To putthis in other terms, from Wilson's perspective it seems clear that thecolonies formed a civil society even before the Declaration of In-dependence. In his framework, the Continental Congress and theadoption of the Articles simply represented efforts on the part of thewhole society, albeit through the existing state governments, to estab-lish a system that would be conducive to its collective happiness. Inkeeping with his view, these efforts could also be conceived of interms of a progression; that is, just as the society felt the need to adoptthe Articles in order to provide for a closer union, it had come to therealization that an even stronger political union was necessary inorder to secure happiness. From his vantage point, then, the Conven-tion represented only one, though critically important, step in theprocess of altering or changing the "scaffolding" of society, a scaffold-ing which Wilson held could be ripped down and replaced in its en-tirety. Thus, he believed the Convention could begin de novo in struc-turing a new government that would conduce to the happiness of thesociety; it was not bound down by the constitutional or governingprinciples which had been employed in the Articles. Such a positionis manifest in his statement (16 June) of what he understood to be thescope of his authority-and that, we may infer, of the Convention aswell-"with regard to the power of the Convention, he conceived him-self authorized to conclude nothing, but to be at liberty to proposeany thing."

Though many of Wilson's more substantial contributions to theConvention are clearly predicated on this one society premise, we donot find it articulated as such. Instead, what we do find is consider-able indirect evidence to this effect in the form of remarks that arebest understood in light of this premise. Consider, for instance, his in -

terpretation of the Declaration of Independence and its place in theAmerican founding. On 19 June, during a debate concerning whatought to be the status and role of the states in a new system, LutherMartin contends that with their separation from Great Britain, thestates had been "placed ... in a sate of Nature towards each other;that they would have remained in that state till this time, but for theconfederation; that they entered into the confederation on the foot-ing of equality; that they met now to amend it on the same footing;


and that he could never accede to a plan that would introduceaninequality.

Martin's position, of course, represents a direct assault on key ele-ments of Wilson's conceptual framework. If Martin 's view is correct,it follows that the states constituted thirteen separate civil societies,each with its own government; whose consent-rather than that ofthe individuals comprising them-would be necessary for any changein the form of government. Thus, as we might expect, Wilson openlychallenges Martin's view of the union, particularly with respect to thestatus of the states. In this, he presents his own interpretation of theDeclaration of Independence: "He read the declaration of Inde-

pendence, observing thereon that the United Colonies were declaredto be free and independent States; and inferring that they were inde -

pendent, not individually but Unitedly and that they were con-federated as they were independent, States.' In other words, onegovernment had existed over the whole; a view entirely consonantwith, and even necessary (but not sufficient) for, the one societypremise. 19

At an earlier point (8 June) Wilson spoke directly to an even moreessential element of his one-society premise. Here he observed that"among the first sentiments expressed in the first Congress was thatVirginia is no more, that Massachusetts is no more, that Pennsylvaniais no more etc. We are now one nation of brethren. We must bury alllocal interests and distinctions." And, while he acknowledged that

18. Interesting in this connection is Wilson ' s argument advanced in 1785 that Con -

gress under the Articles possessed inherent powers. "The act of independence wasmade before the articles of confederation. This act declares, that `these Unitedcolonies,' (not enumerating them separately) are free and independent states, theyhave full power to do all acts and things independent states may, of right, do.

"The Confederation was not intended to weaken or abridge the power and rights, towhich the United States were previously entitled. It was not intended to transfer any ofthose powers or rights to the particular states, or any of them. If, therefore, the powernow in question [to incorporate a national bank] was vested in the United States beforethe confederation; it continues vested in them still. The confederation clothed theUnited States with many though, perhaps, not with sufficient powers; but none did itdisrobe them" (II8829-30).19. This view, of course, stood in sharp contrast to those who viewed the nation interms of a confederation of sovereign states. Indeed, there were those who sharedSherman's view, diametrically opposed to Wilson's, that the states actually did con-stitute societies. At least so much seems clear from the context of Sherman's remark on20 June: Each State like an individual had its peculiar habit, usages and manner,which constituted its happiness. It would not therefore give to others a power over thishappiness, any more than an individual would do, when he could avoid it."


the "tables at length began to turn," he pointed out that the Articlesgave too much rein to the states; a state of affairs which had allowedthem to sacrifice the "general interest" of the society to local and par -

tial interests. Clearly he felt it to be the business of the Convention topropose a new system that would rectify the vices of the Articles,even if this meant subordination of the states to a new nationalgovernment: Such, at least, would seem to be the presumption giventhe language which he does use at this point-e.g., "One of its [Ar-ticles] vices is the want of an effectual controul in the whole over itsparts"-and which is also borne out in his later positions and com-ments. In this connection, it should also be noted that he maintained(9 June) that the principle of equality of the states under the Articles,rather than state representation according to the population, was adecision of expediency, "owing to the urgent circumstances of thetime," rather than a contractual principle which the delegates wereobliged to honor. On 20 June, in an apparent effort to undermine thelegitimacy of the Articles, he again stresses that the large states had"acceded .. , to the Constitution in its present form" out of "neces-sity, not of choice."

In keeping with this "one society" thesis, on 16 June-after com-paring the Virginia and New Jersey plans-he asks, "Where do thepeople look at present for relief from the evils of which they com-plain? Is it from the internal reform of their governments?" And, afteranswering the latter question in the negative, he goes on to assert that"it is from the National Councils" that "relief' is sought, as if to saythat not only is there a self-awareness of a national society-i.e., thepeople of the different states recognize themselves as constituting asociety with common interests and aspirations-but also an acknowl-edged means through which this society can legitimately act. Giventhis state of affairs, he entertains no doubts that the people would em-brace a new modeled national government.'

To this interpretation of events and developments, we should alsoremark that Wilson had other reasons for holding to the one societythesis, quite aside from the fact that its premises would allow for a far

20. It is interesting to note that Doctor Johnson, on 29 June at the height of the con-troversy between the small and large states over the composition of the upper cham-ber, pictured their basic difference as stemming from different conceptions of the na-ture of the political union. "The controversy must be endless whilst Gentlemen differin the grounds of their argument; Those on one side considering the States as districtsof people composing one political Society; those on the other considering them as somany political societies."


stronger political union. From his viewpoint, we need only recall, anextensive and diverse society would also foster the moral and in-tellectual development of its members. On this score, we mayreasonably surmise that he would look upon a stronger political unionas strengthening the bonds between individuals in a society, makingsocial and commercial intercourse far easier, as well as broadeningtheir experiences and outlook. As such, a stronger and more exten-sive union would clearly represent "progress" in his estimation.These reasons, we may also surmise, account for Wilson's strong aver-sion to the incorporation of federal principles-i.e., those whichwould acknowledge states as political societies-into the con-stitutional framework.

Principles and objectives

Wilson spoke more than 165 times at the Convention, ranking sec-ond only to Gouverneur Morris in this regard. He spoke to everymajor issue before the Convention and to many minor matters as well.Yet, and this again because his positions were derived from hisbroader theory, it is not too difficult to comprehend his stance towardthe major issues facing the Convention. Indeed, his first address tothe Convention on 31 May provides us with an overview of the endswhich he sought and, as such, serves as a convenient point of depar-ture for examining his positions in some detail:

[He] contended strenuously for drawing the most numerous branchof the Legislature immediately from the people. He was for raisingthe federal pyramid to a considerable altitude, and for that reasonwished to give it as broad a base as possible. No government couldlong subsist without the confidence of the people. In a republicanGovernment this confidence was peculiarly essential. He alsothought it wrong to increase the weight of the State Legislatures bymaking them the electors of the national Legislature. All inter-ference between the general and local Governments should be ob-viated as much as possible. On examination it would be found thatthe opposition of States to federal measures had proceeded muchmore from the officers of the States, than from the people atlarge.

While his assumption that the new national government must berepublican in nature is not uninteresting, his remarks expressly di-rect us back to a fundamental element of his thinking: namely, the


foundations of this republican government must rest firmly on thepeople and, insofar as possible, the connection between the peopleand their representatives ought to be as direct as possible. Certainlyhe saw no room for the states as intermediate institutions betweenthe national government and the people; a condition which, to use hisexpression, could only weaken the "chain of communication." Hencehis posture from the outset was both democratic (or republican) andnational, two principles under which a good deal of Wilson's conven-tion strategy can be subsumed and comprehended. Moreover, as hismetaphor implies, his thinking also embodied beliefs concerning theproper organization of the government, as well as how powers andfunctions ought to be distributed so that the "pyramid" could besoundly and safely raised to the "considerable altitude" he en-visioned. As we might well imagine on the basis of his broader theory,the doctrine of the separation of powers played an enormous role inhis thinking on these matters. Consequently, to understand fully hisgoals and tactics requires that we examine his concerns in this re-spect as well.

The democratic principle

From the outset, as already noted, Wilson , was a strong proponentof the principle of the popular election of the lower chamber as setforth in the Virginia plan. On 6 June we find his most extensive jus-tifications for this, the first element of which is simply that theauthority of the more powerful government in contemplation should"flow immediately from the legitimate source of all authority. We areleft to wonder at this point if he entertained the belief that thelegitimacy of the national government in the exercise of its newpowers would be strengthened or, at least, could not readily bebrought into question, provided its foundation were popular. But hedoes say that the government should possess "not only the force.. but the mind or sense of the people at large." And, in this connec-

tion, he maintains, consonant with his broader principles, that "theLegislature [i.e., not only the lower house] ought to be the most exacttranscript of the whole Society." "Representation," in his view, "ismade necessary only because it is impossible for the people to actcollectively." Moreover, he could see benefits arising from represen-tation under the proposed system; namely, large electoral districtswould serve to guard against the "improper elections" that had oc-


curred in small districts where "bad men" had been able " to intriguethemselves into office."

From the beginning it was apparent that Wilson was going to havedifficulties realizing his democratic goals with regard to the secondbranch. Ideally, he favored direct election of Senators through anelectoral system based on his "one man, one vote" principle. Thismuch, at least, he intimated in his second address to the Conventionon 31 May when he observed that "both branches of the NationalLegislature ought to be chosen by the people." However, his remarksin this connection also pointed to the practical difficulties of im-plementing any scheme of popular election. He acknowledges, for in-stance, that he was not prepared to offer a "specific proposition" fordirect popular election, though he does refer to "the mode of chusingthe Senate of New York to wit of uniting several election districts, forone branch, in chusing members for the other branch, as a goodmodel." Yet, as Madison was quick to point out, to follow this modewould involve associating the "smaller States with larger ones inthe same district," a consideration which, given the political realitiesof the Convention, was itself sufficient to rule out any such scheme.What is more, as Madison also noted, larger states in this situation"would chuse from within themselves, altho' better men might befound in the former [the smaller states]." Thus, we find evenMadison, who favors proportional representation in the secondchamber, in effect, undercutting one of the more feasible schemes forsecuring this end.

On 7 June, not unexpectedly, the Convention by a ten to one voterejects Wilson's motion for popular election to the Senate by districtscreated for that purpose. However, from Wilson's perspective all wasnot lost because on 11 June the Convention by a six to five vote doesapprove his formal motion, seconded by Hamilton, that "the right ofsuffrage in the second branch ought to be according to the same ruleas in the first branch." Thus, by a narrow margin the principle of pro-portional representation was, at least for a time, accepted.

Nevertheless, a very serious practical problem remained: If thepolitical integrity of the states was to be observed in this electoralprocess, how could proportionality be achieved without creating aSenate far too numerous for the functions which Wilson and otherswould like to see it perform? King put one aspect of the difficultyrather succinctly as early as 31 May: " [He] reminded the Committeethat the choice of the second branch . . . by the State Legislatureswould be impracticable, unless it was to be very numerous, or the idea


ofproportion among the States was to be disregarded. According tothis idea, there must be 80 or 100 members to entitle Delaware to thechoice of one of them." Pinckney reaffirms this on 7 June byremarking that if the proportionality principle were followed and"the small States should be allowed one Senator only, the numberwould soon be too great, there will be 80 at least. "21 At this juncture,Madison articulates the basic concern, namely, that such a numerousassembly would defeat the very purposes of a second chamber: "theuse of the Senate is to consist in its proceeding with more coolness,with more system, and with more wisdom than the popular branch.Enlarge their number and you communicate to them the vices whichthey are meant to correct. And there can be no question that Wilsonviewed the question of size as critical, particularly as a numerous sec-ond chamber would be less likely to engage in reflective deliberation.

The problem for Wilson, then, came down to trying to provide forproportionality, while keeping the size of the Senate small enough forits deliberative functions. He could not go along with the Virginiaplan which provided for election of senators by the lower housebecause, as he intimates on 31 May, this arrangement, by making theupper house dependent on the lower, violated the principle of theseparation of powers. On 25 June he moves that the upper chamberbe elected by "electors chosen by the people for that purpose." Themotion is not even seconded and reveals that by this point he hadgiven up any idea of direct popular election of senators. By 30 June,we can begin to sense that he is grasping for straws. At this point he iswilling to "compromise." To this end, he "threw out the idea" ofallowing states one senator for each 100,000 inhabitants. In com-mending this compromise "he looked forward to the time when thesmallest States will contain 100,000 souls. " In the meantime, how-ever, he urged, "let the States not having that number of inhabitantsbe allowed one [Senator]." Such a compromise, he believed, wouldnot render the Senate "too numerous," though it is difficult to believethat he could not foresee the obvious difficulties the anticipatedgrowth in population would create. Finally, on 14 July, in a last ditch

21. Davie puts the issue bluntly on 30 June. He believes the "Report of the Committeeallowing the Legislature to choose the Senate, and establishing proportional represen-tation in it ... to be impracticable." He puts the minimum number this would require atninety. Moreover, in commenting on "appointment of the Senate by electors chosen bythe people," he raises the same objections as Madison; namely, "the larger Counties ordistricts thrown into a general district, would certainly prevail over the small Countiesor districts, and merit in the latter would be excluded altogether."


effort to salvage some semblance of proportionality in the upperchamber, he seconds and speaks on behalf of Pinckney's motion toallot the states between one and five senators according to their pop-ulation with the total number coming to thirty-six.

Clearly Wilson's concerns on the critical issue of representation inthe second chamber were twofold. One, which we will explore indue course, was to prevent the states from playing a constituent rolein the national government. Hence, he was opposed to election bythe state legislatures. The other, though not entirely independent ofthis matter, centered on the more abstract concern to provide fordemocratic foundations which, in turn, required political equalityamong citizens conceived of as members of one society.

The depth of Wilson's conviction that the foundations of thesystem-the "pyramid," as he would have it-must accord with theprinciple of political equality in both legislative chambers can begleaned from his remarks of 30 June, when by all evidences the Con-vention was on the verge of breaking down over the issue of the ap-propriate principle of representation for the Senate. In speaking toEllsworth's motion which called for equality of state representation,he reacts boldly to the contention that if the principle of stateequality is not acceded to, only one state "North of Pennsylvania"would ever agree to the plan of government. "If," he responds, "theminority of the people of America refuse to coalesce with the ma-jority on just and proper principles, if a separation must take place, itcould never happen of better grounds." In this connection, he goeson to stress the degree to which equality of state representationwould allow the minority to thwart the will of the majority. Referringto the vote of 29 June on which four smaller states had even votedagainst proportional representation ( "the just principle of represen-tation") in the lower house, he notes that they "were as 22 to 90 of thepeople of America." 22 The basic issue confronting the Convention, ashe saw it, came down to whether "less than 1/4 of the United States[shall] withdraw themselves from the Union; or shall more than 3/4renounce the inherent, indisputable, and unalienable rights of men,in favor of the artificial system of states." "If the issue be joined," hecontinued, "it was on this point he would chuse to join it."

22. In this connection, it should be noted that on 2 July Wilson speaks against commit-ting the issue of representation in the Senate to a committee as proposed because, heargued, "it [the committee] would decide according to that very rule of voting whichwas opposed on one side."


Wilson's remarks on 30 June also embody another line of attack onthe state equality principle. Noting that by this principle seven statescan control six, he goes on to argue that "less than 1/3" of the peoplecould conceivably "overrule 2/3." Now the problem Wilson identifiesin this respect goes beyond the justness of this situation and to thequestion of legitimacy; that is, more exactly, to the matter of how thiselectoral arrangement can be justified. Thus, for instance, he asksrhetorically whether "honest citizens," who presumably are thwartedby minorities in the fashion he imagines, "will" or "ought . . . to besatisfied with being told that one third compose the greater numberof States?" "If the Government be not laid on [the] foundation" ofpolitical equality, he goes on, "it can be neither solid nor lasting."

Later on 7 July, he once again indicates the depth and nature of hisconvictions on this issue. Remarking that he "was not deficient in aconciliatory temper," he notes that "firmness was sometimes a duty ofhigher obligation." At this point he argues that the conciliation soughtbetween the large and small states over the issue of equality of staterepresentation in the Senate was significant only to the "Represen-tatives," not "the Constituents." Moreover, on this occasion, hestresses that the conciliation of these representatives to the proposedsystem was not the important issue. Rather, he insists, the support ofthe constituents was vital; a support which could not be expected un-less "the foundation ... be laid in justice and right." To this generalconcern he remarks on 14 July that the prospects for popular supportof the proposed Constitution will be diminished once the peoplecome to realize that delegates representing but one third of thepeople have dictated to those representing two thirds on the "fun-damental point" of representation in the Senate. "What hopes," heagain asks rhetorically, "will our Constituents entertain when theyfind that the essential principles of justice have been violated in theoutset of the Government?"

Wilson, true to form, fights the principle of state equality in theSenate to the bitter end. On 15 July, just one day before the final voteon the amended Committee report which provided for equality ofvotes in the second branch, he reiterates his basic arguments in onlyslightly different, but highly dramatic, terms: "Justice" calls for pro-portional representation-a proposition which, he insists, "has not inargument at least been yet contradicted," and state equality con-stitutes a "vice in Representation," "a fundamental and perpetualerror" that "must be followed by disease, convulsions, and finallydeath itself."


We can comprehend the extent of Wilson's bitter disappointmentwith the adoption of the Connecticut Compromise from anotherperspective. Above all, he wanted the base of his federal pyramid tobe anchored in the people, and the principal component of this base,we may infer from his comments concerning representation, was thelegislative branch; a fact which accounts for outspoken and deter-mined opposition to the state equality principle. This view of his posi-tion is confirmed when we turn to his positions and comments on thepresidency. What we see in this respect is a far greater willingness togive and take, to seek accommodation, and to allow values other thanthose associated with political equality and majority rule to come intoplay. Put another way, Wilson seemed to have a pretty good notion ofhow to constitute the base of his pyramid, but he was less certain ofwhat values ought to predominate, and to what degree, as he moved"up" from this base.

This is not to say that Wilson did not have some pretty firm ideasabout the executive office. He did. As we might expect, he is quick tomove (1 June) for a single executive arguing that "unity in the Execu-tive instead of being the fetus of monarchy would be the bestsafeguard against tyranny. " Moreover, at this time he joins Madison inmoving for broad executive powers, i.e., that the executive shouldpossess the "power to carry into effect the national laws, to appoint tooffices in cases not otherwise provided for, and to execute such otherpowers `not Legislative nor Judiciary in their nature,' as may fromtime to time be delegated by the national Legislature." On 4 June, heexpands upon the need and desirability of unity in the executive of-fice. Not only would unity provide for the necessary "vigor" ingovernment, it would also conduce to "tranquility" as well. "Amongthree equal members," he could envision "nothing but uncontrouled,continued, and violent animosities; which would not only interruptthe public administration; but diffuse their poison thro' the otherbranches of Government, thro' the States, and at length thro' the peo-ple." To this he adds that the possibilities of deadlock among threeheads might well result because, unlike the judiciary where "thereare two sides only to a question," legislative and administrative ques-tions "have commonly many sides." In sum, his views on unity and thereasons for it remained constant throughout the Convention. In thisrespect, Wilson may be regarded, quite in keeping with his generaltheoretical views, as the first and foremost advocate for the frame-work necessary for a strong and energetic executive.

However, he was amenable to compromise concerning the mode


of selecting the chief executive. His flexibility on this matter may beaccounted for by a perceived interrelationship between mode ofselection and other concerns such as reeligibility, as well as with cer-tain difficulties associated with popular election which he came to ac-knowledge. In any event, on 1 June, Wilson-though "apprehensivethat it might appear chimerical "-sets forth the notion of "election[of the executive] by the people." On this occasion he notes that thismode of selection has proved "convenient and successful" in NewYork and Massachusetts and that it also necessitates a choice between"persons whose merits have general notoriety." We may interpretthis to mean that he wanted to place the executive authority on thesame fundamental plateau as the legislative; that he sought to anchorexecutive authority firmly on popular foundations as part of the baseof his pyramid. So much he expressly acknowledges towards the endof the 1 June session: "[He] renewed his declaration in favor of an ap-pointment by the people. He wished to derive not only both branchesof the Legislature from the people, without the intervention of theStates Legislatures but the Executive also; in order to make them asindependent as possible of each other, as well as of the States." At theoutset of the very next session (2 June), however, he moves for a sys-tem of indirect popular election which in certain respects resemblesthe electoral college system finally agreed to. Under this scheme,with certain crucial details left to be ironed out, the states would bedivided into districts with those voters eligible to vote "for membersof the first branch of the national Legislature" authorized to elect`"electors of the Executive magistracy " who, in turn, would meet toelect a president. Wilson, in proposing the plan, noted its advantageswhich he took to be ` election without intervention of the States " andthe promotion of greater "confidence among the people in the firstmagistrate" than would be had through "election by the nationalLegislature."

On 17 July, after the Great Compromise, the Convention againturned its attention to the mode of electing the president, as if resuin-ing where it had left off before the stormy controversy over the basisfor representation in the Senate. At this point, Wilson joins Gouver-neur Morris in attacking the provision for election by the legislatureand in urging direct election by the people. His most significant con-tributions in this regard involve what he perceives to be the legit-imate role of the legislature in the process of electing a president. Inthe first place, he believed that the extensiveness of the countrywould render election by the people relatively immune from the


cabals, intrigues, and conspiracies that would characterize electionby the legislature. When pressed by Mason on the issue of whynationalists, such as Wilson, were willing to repose great confidencein the legislature when it came to the delegation of "indefinitepower," but not in electing a president, Wilson responds that con-fidence may be reposed in the legislature when its actions affect itsmembers as well as their constituents. However, where this is not thecase, such as "appointment to great offices, where the legislaturemight feel many motives, not common to the public confidence,""jealousy" is "warranted." "It was notorious," he concluded, that "thisbranch of business . . . was most corruptly managed of any that hadbeen committed to legislative bodies."

A second role for the legislature emerges from Wilson's acknowl-edgement that a majority of voters might not concur on the same can-didate for president. To meet this objection, he would allow thelegislature by majority vote to decide between the leading can-didates, "This," he believed, would restrain the [legislature's] choiceto a good nomination at least, and prevent in a great degree intrigueand cabal."

While the Convention would ultimately move in the general direc-tion suggested by Wilson, it did so very slowly. A concern which cameinto play and which greatly complicated finding any acceptablemethod of selection was the question of reeligibility. If, that is, theexecutive were chosen by the legislature, there was a firm consensusamong the delegates that he should not be reeligible. Their chiefworry in this respect centered around the danger that the executive,to gain reelection, would become dependent on the legislature. In-timately linked to this question were other considerations rangingfrom the consequences which a ban on reeligibility would have forthe system over the appropriate term of office. For instance, it was.Wilson's view that if elected by the legislature, the term of the chiefexecutive should be lengthy. Indeed,; he goes so far as to say on 24July that "he would agree to almost any length of time in order to getrid of the dependence [on the legislature' which must result from it[election by the legislatnre]L"As he also makes clear at this point, aprohibition on reeligibility might well serve to deprive the nation ofthe services of its ablest and most competent men, thereby violatingone of his cardinal principles of good government 23

23. Wilson adamantly opposed (14 August) a provision which would have made mem-bers of the national legislature ineligible for national offices on grounds that this wouldviolate the principles of good government. "To render its [national legislative] mem-


The Convention flip-flops on the issue of the mode of selection. On19 July, it adopts a scheme calling for election by electors chosen bythe state legislatures with provisions for reeligibility. This repre-sents a step in a direction towards Wilson's ideal insofar, at least, asit removes the national legislature from the process. But on 24 July,the Convention moves back to election by the national legislature. Atthis juncture, Wilson proposes another (and, for him, uncharacteris-tic) mode of selection which, as he put it, was not a "digested idea andmight be liable to strong objection." This proposal called for the elec-tion of a chief executive for a six year term by not more than 15 ofthe National Legislature, to be drawn from it, not by ballot, but by lotand who should retire immediately and make the election withoutseparating." Through random selection and provision for isolation ofthe legislators, he pointed out, this plan would greatly reduce boththe possibility of intrigue and dependence on the legislature. How-ever, he felt obliged to say towards the end of this session that he didnot regard his plan as the best mode"; that, indeed, his opinionremained unshaken that we ought to resort to the people for the elec -

tion [of the chief magistrate]."On 24 August, when the Convention is considering the report of

the Committee on Detail on the election of the president, Wilsonseems resigned to the fact that election would be by the nationallegislature. At this point, he moves that rather than providing for theseparate concurrence of both chambers, the election should be byjoint ballot. This change, quite in keeping with his democratic prin-ciples, would give the House a greater say in the election of the Presi-dent. His motion to the effect is adopted. However, in this same ses -

sion, Gouverneur Morris once again assails election by the legislatureon familiar grounds and moves that the President be chosen by Elec-tors to be chosen by the People of the several States." Morris's motionloses by a vote of six to five, but the narrowness of its defeat may belooked upon as marking a shift in thinking which set the stage for thefinal resolution of this issue, the main outlines of which were set forth

bers ineligible to National offices" would, he argued, "take away its powers of attractingthose talents which were necessary to give weight to the government and to render ituseful to the people. He was far from thinking the ambition which aspired to Offices ofdignity and trust, an ignoble or culpable one. He was sure it was not politic to regard itin that light, or withhold from it the prospect of those rewards, which might engage inthe career of public service."


in the report of the Committee of Eleven on 4 September that pro-vided for the electoral college.

Wilson, for obvious reasons, saw great merit in the Committee ' sproposal for the election of the president by electors. He remarks thatthe matter of how to select the chief executive has been "in truth themost difficult on which we have had to decide" and that, for his part,"he had never made up an opinion on it entirely to his own satisfac -

tion." He goes on to remark that this plan not only clears the way "fora discussion of the question of reeligibility on its own merits," but also"gets rid of one great evil, that of cabal and corruption. " However, aswe might expect, he was highly displeased with the stipulation thatthe eventual selection of a president, if no candidate should receive amajority of electoral, would fall to the Senate. He states his firm view,consonant with his 24 August position, that this responsibility shoulddevolve on the entire legislature and that the legislative choice beconfined to fewer than five candidates as provided in the report.

On 6 September, he states his objections to the Senate's role in a farmore comprehensive fashion. He remarks that the power of electinga president, along with powers and functions already vested in relat-ing to executive and judicial appointments, removal, and treaties,has "a dangerous tendency to aristocracy. " In this vein, he observes:

The power of making Treaties involves the case of subsidies, andhere as an additional evil foreign influence is to be dreaded. Ac-cording to.the plan as it now stands, the President will not be theman of the people as he ought to be, but the Minion of the Senate.He cannot even appoint a tide-waiter without the Senate.... theSenate sitting in conclave, can by holding up to their respectiveStates various and improbable candidates, contrive so to scattertheir votes, as to bring the appointment of the President ultimatelybefore themselves.

His sentiments, it would appear, were shared by others to the extentthat the Convention amended the report to provide that election ofthe President would fall to the House, not the Senate, in case no can-didate received a majority of electoral votes. However, he couldhardly have been pleased with the provision that each state wouldvote as a unit in this process.

It should be remarked that Wilson's commitment to the democraticprinciples of political equality and majority rule was certainly notconfined to the discussions and debates surrounding the constitutionof the major departments of the proposed system. In the debates on


the age qualifications for members of the House (22 June), he setsforth his opposition to "abridging the rights of election in any shape.It was the same thing whether this were done by disqualifying the ob-jects of choice, or the persons choosing." To the specific motionbefore the Convention, he observes "many instances might be men-tioned of signal service rendered in high stations to the public beforethe age of 25: The present Mr. Pitt and Lord Bolingbroke were strik-ing instances. " In arguing for indefinite reeligibility of the chiefexecutive he notes that the "capacity and inclination for public serv-ice existed-in very advanced stages of life." "The popes," he ob-serves, "have generally been elected at very advanced periods, andyet in no case had a more steady or better concerted policy been pur-sued than in the Court of Rome." And, though Wilson does not ex-press his general views on liberal manhood suffrage in the Conven-tion, he does, as we would expect, oppose (7 August) GouverneurMorris's motion to restrict the suffrage to freeholders.

His comments on both 7 and 8 September make it clear that hebelieved that the treaty-making process ought to be changed to sim-ple majority votes in both chambers, rather than two-thirds of theSenate. His reasoning was twofold: The two-thirds requirement "putin the power of a minority to controul the will of a majority" and"treaties . . . to have the operation of laws . . . ought to have the sanc-tion of laws also."

Probably Wilson's best and most comprehensive statement of hisdemocratic convictions and their relationship to his broader theory ofgovernment and society comes on 13 July, when he responds to thefears of Gouverneur Morris that certain Southern states would exer-cise a control over the yet to be formed Western states to oppress theEastern commercial interests. "Conceiving that all men whereverplaced have equal rights and are equally entitled to confidence," hedeclared that he did not view with "apprehension the period when afew States should contain the superior number of people. The ma-jority of the people wherever found ought in all questions to governthe minority." "Further," he inquired, "if numbers be not a properrule, why is not some better rule pointed out. No one has yet venturedto attempt it. Congresses have never been able to discover a better.No State as far as he had heard, as suggested any other." He went onto say that "he could not agree that property was the sole or theprimary object of government and society." Rather, he subscribed tothe position; clearly classical in nature, that "the cultivation and im-provement of the human mind was the most noble object." And he


concluded by observing that "with respect to this end, as well as toother personal rights, numbers were surely the natural and precisemeasure of representation."

The national principle

As we have seen, one of Wilson's primary objectives-alongwith that of securing democratic foundations-was to provide for anational government as independent as possible from the stategovernments. Ideally speaking, it would seem, Wilson did not wantthe existence or the exercise of the powers of the national govern-ment to depend in any way on the state governments. For instance,we see very strong support for Madison 's plea (5 June) that the pro-posed Constitution rest, not on the ratification of the state legisla-tures, but rather "the supreme authority of the people themselves."Indeed, on this matter, Wilson cautioned the Convention not to allow"a disposition in the plurality of States to confederate anew on betterprinciples, to be defeated by the inconsiderate or selfish oppositionof a few States." He makes it clear in this connection that he wouldrather have a "partial union,'' one based on sound principles, ratherthan a complete union achieved by acceding to demands that ratifica-tion rest upon the assent of the state legislatures.

This same concern over the role of the states is evident on matterswhich, though less theoretically significant, were nevertheless highlycrucial to the end which he sought. In this category, by way of illustra-tion, would clearly fall his concern (22 June) that the "members ofthe national government" be paid by the national government, not bythe states; a provision which he thought necessary to render them "asindependent as possible of the State Governments in all respects."

Wilson's position regarding this need for independence is based onboth political and theoretical considerations. Of the two, the politi-

cal-whose foundations are most clearly seen in the debates overrepresentation, particularly state representation in the second cham-ber-are the more prominent in the Convention debates. At arelatively early date (7 June), Wilson opposes selection for the upperhouse by state legislatures, noting only at this point that if one branchis elected by the people and the other by the legislatures, "the twobranches will rest on different foundations, and dissensions willnatural arise between them." And, on 20 June, he amplifies on the na-ture of the dissension that will arise. Reciting the history of certainconfederacies and recalling the experiences of Americans under the


Articles, he notes the propensity of member states to obstructmeasures in the "public interest." He was convinced, moreover, that"a jealousy would exist between the State Legislatures and theGeneral, Legislature" owing to the interests which attached to thesebodies. "A private citizen of a state," he observes, "is indifferentwhether power be exercised by the General or State Legislatures,provided its being exercised for his happiness." However, he con -

tinues, "his [state] Representative has an interest in its being exer-cised by the body to which he belongs." For this reason, Wilsonconcluded, the state representative "will . view the National Legis-lature . . . with the eye of a jealous rival." In sum, in his estimation, themain cleavages in the system would take the form of state versusnational interest, wherein interest would generate from and attach tothe institutions.

On 21 June, in responding to Doctor Johnson 's query on how a por-tion of state sovereignty might be preserved without "giving them[states] each a distinct and equal vote for the purposes of defendingthemselves in the general Councils," we come upon another dimen-sion of Wilson's thought. If protection is to be afforded the states, hewonders aloud about mechanisms that will protect the nationalgovernment from the states. From his perspective, the nationalgovernment, not states, are in need of protection:

he saw no danger to the States from the General Government. Incase a combination should be made by the large ones it would pro-duce a general alarm among the rest; and the project would be frus-trated. But there was no temptation to such a project. The Stateshaving in general a similar interest, in case of any proposition in theNational Legislature to encroach on the State Legislatures, he con -

ceived a general alarm would take place in the National Legislatureitself, that it would communicate itself to the State Legislatures, andwould finally spread among the people at large ..: He could not dis-cover, therefore, any danger whatever on the side from which it hadbeen apprehended. On the contrary, he conceived that in spite ofevery precaution the general Government would be in perpetualdanger from encroachments from the State Governments.

From this, we can see that he subscribed to Madison's position thatthere were no essential differences between the large and smallstates, most certainly none which required institutional protection forthe latter. Indeed, on 30 June, he disparages the arguments of thesmall states by referring to their concern about a combination of the


three large states as "imaginary." Rather than any such combination,he argues, "it would be easy to prove both from reason and historythat rivalship would be more probable than coalitions. " In any event,he notes that "no answer has yet been given to [Madison's] observa-tions" that no real interest differences serve to separate the largefrom the small states.

Wilson's theoretical reasons for seeking a new national system in-dependent of states takes us back to his conception of the pyramidgovernment he outlines on 31 May. On 25 June, he fills in elements ofthis outline. On this occasion he sets forth the idea of dual citizenship;that is, as he contemplated it, that there would be a "two-fold relationin which the people would stand: 1. as Citizens of the GeneralGovernment; 2. as Citizens of their particular State. " Now, in oppos-ing state representation, Wilson wants both governments, state andnational, " to he derived from the people"; for both to have parallellines of accountability to the people. "The same train of ideas whichbelonged to the relation of the Citizens to their State Governmentswere," he argues, "applicable to their relation to the General Govern-ment and in forming the latter, we ought to proceed, by abstracting asmuch as possible from the idea of the State Governments." By thisline of analysis, he concluded that "with respect to the province andobjects of the General Government they [the states] should be con-sidered as having no existence"; that, in other words, the nationalgovernment is not to be "an assemblage of States, but of individualsfor certain political purposes." As such, he maintained, "it is notmeant for the States, but the individuals composing them." He em-phasizes this point again in his speech of 30 June, during the height ofthe debate over state equality in the Senate, when he asks rhetori-cally, "Can we forget for whom we are forming a Government? Is itfor men, or for the imaginary beings called States?"

However, his more general conception of union makes: clear that,despite his fervent nationalism, he did not believe in the eliminationof the states.24 This is a point which he emphasizes repeatedly at

24. His remarks on 9 June are interesting in this respect. Here he maintains that " anew partition of the States is desireable." We can view this remark in light of his con-cern to base Senate representation on the principle of proportionality. But we can alsoinfer that he would like to redraw state boundaries to secure better administration. Andthe question arises, in what sense did Wilson think of the states as being indispensibleto union? It does seem clear that he thought they would have to play a role in adminis-tration because of the extensiveness of the republic. Thus, for instance, his response on19 June to Hamilton's Plan: "They [the states] were absolutely necessary for certainpurposes which the former [national government] could not reach. All large Govern-ments must be subdivided into lesser jurisdictions."


various points in the proceedings. Even in the 30 June speech with itsreference to states as "imaginary beings," he concludes by saying thatstates are "necessary and valuable parts of a good system." On 6 June,he is quick to enter the fray in order to respond to what he un-derstood to be Read's contention that "the idea of preserving StateGovernments ought to be abandoned." He holds that there is "no in-compatibility" between the national and state governments, "pro-vided that the latter were restrained to local purposes." Then, inkeeping with the general theme we have already examined, he per-ceives the problem, not as Read pictured it of the national governmentswallowing up the states, but rather of the general government "beingdestroyed gradually by the usurpations of the parts composing it."

On 7 June, Wilson reaffirms his position with respect to the states,this time around to counter the intimation by Dickinson that he(Wilson) favored "extinguishing these planets [the states]." While"he did not believe they would warm or enlighten the Sun [centralgovernment]," he reasserts the proposition that "within their properorbits they must still be suffered to act for subordinate purposes forwhich their existence is made essential by the great extent of ourCountry. " Again, on 19 June, in an apparent effort to disassociatehimself from Hamilton's plan, Wilson remarks that "by a NationalGovernment he did not mean one that would swallow up the StateGovernments." On the contrary, he asserted, "he was tenacious of theidea of preserving" the state governments; that, in fact, "they wereabsolutely necessary for certain purposes which the former couldnot reach.""

Naturally, Wilson could see that the states would pose a threat tothe uniform interpretation and application of national laws. Thus, hesupported the ninth resolution of the Virginia Plan which providedfor the establishment of "inferior tribunals." However, at an earlystage (5 June), this provision for inferior tribunals runs into difficulty,principally because, to cite Rutledge, "the State Tribunals might andought to be left in all cases to decide in the first instance the right ofappeal to the supreme national tribunal" which was "sufficient tosecure national rights and uniformity of Judgment." Apparently there

25. Hamilton is to correct this impression immediately after Wilson ' s comments and inso doing blurs whatever differences there might have been between them on the roleof the states. Hamilton contended that "he had not been understood [correctly] yester-day. By an abolition of the States, he meant that no boundary could be drawn betweenthe National and State Legislatures; that the former must therefore have indefiniteauthority. If it were limited at all, the rivalship of the States would gradually sub-vert it. "


was strong sentiment that this provision represented an unwarrantedencroachment upon state authority because, even after Madisonpoints out the impracticality of depending upon state tribunals andthe need for a national judiciary "commensurate to the legislativeauthority" (views which Wilson endorsed), Rutledge's motion tostrike it out carries by a vote of five to four with two states divided.However, Wilson and Madison are to pick up on the idea expressedby Dickinson in the course of this debate, namely, that if there was tobe a National Legislature, there ought to be a national judiciary, andthat the former ought to have authority to institute the latter." To thisend, they move "that the National Legislature be empowered to in-stitute inferior tribunals," a motion which carries eight to two withone division. With this, at least, one essential element of a viablenational government was agreed to.

On 18 July, after having approved Martin' s motion of 17 July pro-viding for the supremacy of national laws passed "in pursuance of theArticles of Union"-a forerunner of the Supreme Law of the Landclause found in the final version-the Convention reaffirms itsdecision of 5 June to empower the national legislature "to appoint in-ferior tribunals." These two decisions, taken together, obviouslyserved to strengthen the hand of the national government vis-a-visthe states. Nevertheless, Wilson felt that the judiciary alone wouldnot be able to cope with the centripetal forces fueled by the statesthat would inevitably arise in the new union. This is fully apparentfrom his comments on Pinckney ' s motion (23 August) which rein-troduced the idea of a national legislative veto on "all laws passed bythe several States interfering in the opinion of the Legislature withthe general interests and harmony of the Union." This Wilson re-garded as no less than "the key stone wanted to compleat the widearch of Government." While, he observes, "the power of self-defencehas been urged as necessary for the State Governments . . . it wasequally necessary for the General Government. But he felt thefirmness of Judges is not of itself sufficient"; that "something furtheris requisite."

His comments of 8 June, when the notion ofa legislative vote is firstdiscussed by the Convention, reveal another, though hardly surpris-ing, dimension of his nationalist approach. After Gerry contendedthat such a provision could "enslave the States" and would "never beacceded to," Sherman follows to urge that the Convention devotesome thought to defining the cases in which the negative ought to beexercised." Wilson responds to this suggestion by drawing a parallel


between the status of the states in the contemplated union and that ofindividuals who have entered a political society. 26 In this vein, hereasons:

There is no instance in which the laws say that the individual shouldbe found in one, and at liberty to judge whether he will obey or dis-obey in another. The cases are parallel. Abuses of the power overthe individual person may happen as well as over the individualStates. Federal liberty is to States, what civil liberty, is to private in-dividuals. And States are no more unwilling to purchase it, by thenecessary concession of their political sovereignty, than the savageto purchase civil liberty by the surrender of his personal sov-ereignty, which he enjoys in a State of nature."

Thus, he held that "a definition of the cases in which the Negativeshould be exercised, is impracticable. But he was firm in assertingthat the power to decide should be vested in the national govern-ment. After noting that "a discretion must be left on one side or theother," he asks rhetorically: will it not be most safely lodged on theside of the National Government?" This question he answers towardsthe end of his presentation with still other rhetorical questions:"What danger is there that the whole will unnecessarily sacrifice apart? But reverse the case, and leave the whole at the mercy of eachpart, and will not the general interest be continually sacrificed tolocal interests?"

That Wilson possessed certain general principles which ought toconstitute a basis for determining an appropriate use of the nationalveto, and hence some idea of what ought to be the primary respon-sibilities of the states and national government, is evident from hissupport of Sherman's motion on 17 July to change the sixth resolutionof the plan under consideration to vest the national legislature withpower "to make laws binding on the people of the United States in allcases which may concern the common interests of the Union; but notto interfere with the Government of the individual States in any mat-ters of internal police which respect the Government of such States

26. This analogy, of course, can be viewed as weakening his "one society" positionbecause it places the states in the position of contracting parties to the Constitution.However, the point he seems intent on making through the use of this analogy is that itwould be impossible to draw, a priori at least, clear lines of jurisdiction between thecontemplated national government and the states. Moreover, the analogy would seemto be appropriate for the conditions which he perceives under the Articles-principally the conflict and dissension between the states-which are to be alleviatedthrough the proposed Constitution.


only, and wherein the general welfare of the United States is notconcerned."

Yet, it is questionable that Wilson thought such formulations suchas that offered up by Sherman would or should matter much in resolv-ing the question of state-national power relationships. The elementsof Wilson's answer to this problem, as well as the objectives he soughtin this regard, are to be found in his more general principles.Although he never put these elements together at any one point inthe Convention, the outline of his preferred answer seems clear:The majority of the people acting through the national legislature andin their capacities as citizens of the United States shoud be the finalarbiters of the extent of states' powers vis-a-vis national authority. Inthis sense, the system would be unitary. But this, according toWilson's line of thinking, should be no cause for alarm because thereis no reason to suppose that individuals acting in their capacities ascitizens of the United States would act contrary to their interests ascitizens of their respective states. So much he seems to say in hisanswer to Doctor Johnson (21 June) who, as we have seen, fearedthat the national government would swallow up the states. Accordingto Wilson this would simply not come about because "the GeneralGovernment will be as ready to preserve the rights of the States as thelatter are to preserve the rights of individuals; all the members of theformer, having a common interest, as representatives of all the peopleof the latter, to leave the State Government in possession of what thepeople wish them to retain. " (Emphasis added.) His solution, then, isprocedural in nature, relying on the dual citizenship of the people.'

The Separation of Powers

As we might well expect from our survey of Wilson's politicalthought, particularly the views he expressed in his law lectures, thedoctrine of the separation of powers, and the principles which hederives therefrom, are never very far from his thinking concerningthe most important issues, and many lesser ones, that confronted theConvention. Many positions he took in the Convention were ex-pressly related to the central requirement of the doctrine; namely,

27. Thus, to secure the representation of state interest did not, to Wilson's way ofthinking, require state equality in the upper chamber. Nor, indeed, was it necessary tomake states constituent parts of the national government for this purpose. However,once state equality was granted, then, from Wilson's point of view, the states surelywould have no basis to question the propriety of national legislation.


that the legislative, executive, and judicial powers be not joined. Yet,positions which he assumed on virtually all issues touching upon theorganization of the system, the distribution of powers, and the rulesunder which it should operate were clearly conditioned by, and bestexplained in terms of, this requirement. Or, put another way, he wasconvinced that maintaining the separation of powers was imperative;that without a viable separation the system would soon degenerateinto tyranny. 28 Consequently, we must assume that the conditionsnecessary for maintaining separation between the branches were,whether articulated or not, uppermost in his mind.

Understanding this, we come to see why, early in the deliberations,Wilson voices misgivings with regard to the Virginia Plan. Quite sim-ply, in his view, it did not adequately provide for maintaining theseparation of powers. For instance, on the same day as his initial"pyramid" statement, 31 May, he criticizes the mode provided forelection to the "second branch"of the legislature. His opposition to"nomination by State Legislatures" is, of course, best attributed to hisnationalistic stance. But his objection to election by the lower houseis grounded on his firm belief that the second branch ought to be, ashe put it, "independent" of the first. Otherwise, he believed, the sec-ond chamber would lack the independence to pose a check on thelower branch, a condition that would lead to a concentration ofpowers in the hands of the lower house with an attendant loss ofreflective deliberation, liberty, and the rule of law. Likerwise, whenspeaking to the issue of the election of the executive on 1 June, he op-poses state intervention in the process and calls for election by thepeople, while simultaneously arguing that the legislature and execu-tive ought to be "as independent as possible of each other." In thisregard, as we have already noted, he was a staunch opponent of thelegislature electing the executive in order to preserve the inde-pendence of the latter.

To understand thoroughly Wilson's stance on these and related

28. Wilson, we should take care to recall, did not look upon the separation of powers asa means or device for curbing or controlling popular majorities. He looked uponseparation as a means of controlling the rulers from abusing or oppressing the ruled.Thus, his advocacy of the separation of powers did not conflict with his democraticprinciples.

Wilson also believed that good government could be secured through a separation ofpowers. Consequently, he could look upon the double representation of the people ina second chamber, not only as a way to curb the members of the lower chamber frombetraying their trust, but also as a means of refining the laws passed by the lowerchamber.


matters-e.g., why he believed "unity in the Executive" constituted"the best safegaurd against tyranny"-requires an awareness of thenature of Wilson's strategic approach to the problem of maintainingthe separation of powers. This we see best at two places: first, in hiscomparison and appraisal of the New Jersey Plan (16 June); and sec-ond, in his comments on the prospects and nature of legislativetyranny on 15 August.

We gain considerable insight into the dimensions of his principleconcerns relative to the separation of powers from his specificcriticisms of the New Jersey Plan. After discussing what he regards tobe its deficient foundation ("Congress as a Legislative body does notstand on the people"), he turns to his second major criticism,"Congress is a single Legislature." On this score, he remarks:

Despotism comes on Mankind in different Shapes, sometimes in anExecutive, sometimes in a Military, one. Is there no danger of aLegislative despotism? Theory and Practice both proclaim it. If theLegislative authority be not restrained, there can be neither libertynor stability; and it can be only restrained by dividing it within itself,into distinct and independent branches. In a single House there isno check, but the inadequate one, of the virtue and good sense ofthose who compose it.

As we see, Wilson regarded bicameralism, with independent cham-bers, to be not only essential to prevent despotism, but for goodgovernment as well; themes, as we have seen, he expands upon in hislater writings.

But bicameralism, he also makes clear in this analysis, is not all thatis necessary to avoid tyranny. Another major deficiency of the NewJersey Plan, he holds, is its provision for plural executives. "In order tocontroul the Legislative authority," he argued, "you must divide it. "

Likewise, he believed that "to controul the executive you must uniteit." Aswe shall see, the unity he sought, beyond helping to provide forcontrol of the executive, fit in very well with his more generalstrategy to fortify the executive so that he would be able to fend off at-tacks from the legislative body.

Wilson's comments on 15 August are made in support of a complexmotion by Madison (which Wilson seconded) to the effect that if boththe executive and the judges of the Supreme Court should object to ameasure passed by Congress, then both legislative chambers wouldhave to repass the measure by a three-fourths vote for it to have the


force of law; if only one disapproved-i.e., either the executive or thejudges, not both-then a two-thirds vote would be necessary. In sup-port of this motion he remarked that "after viewing the subject withall the coolness and attention possible [he] was most apprehensive ofa dissolution of the Government from the legislature swallowing upall the other powers." "The prejudices against the Executive," hecontinued, result from a "misapplication of the adage that the parlia -

ment was the palladium of liberty. Where the Executive was reallyformidable, King and tyrant, were naturally associated in the minds ofthe people; not legislature and tyranny." Yet, he noted, "where theExecutive was not formidable, the two last were the most properlyassociated." In this connection, "he insisted that we had not guardedagainst the danger on this side [legislative] by a self-sufficient powereither to the Executive or Judiciary department."

Wilson's fear of the legislature, we may say, leads to a strategy formaintaining the separation between the departments which comesdown to weakening the strong (the legislature) and strengtheningthe weak (the executive and judiciary). While we see that histactics-i.e., his specific proposals to achieve this condition-do vary,his strategy remains constant throughout. On 4 June, for example, wefind him advancing the position that the "Executive ought to have anabsolute veto." "Without such a self-defense," he argued, "theLegislature can at any moment sink it into non-existence." In answer-ing Sherman's objection that such a negative would allow "one man tostop the will of the whole" and that "no man could be found so farabove all the rest in wisdom" that he should be empowered "tooverrule the decided and cool opinions of the majority," Wilson re-sponds by saying that the negative "would seldom be used." Its mereexistence, he argued, would cause the legislature to resist passingmeasures that would occasion its use. And, while anything less thanan absolute veto, such as providing for override by extra-majorities inthe legislature, "might do in peaceable times," he warned that "theremight be tempestuous moments in which animosities may run highbetween the Executive and Legislative branches, and in which theformer ought to be able to defend itself"

In defending the absolute executive veto on 4 June, Wilson alsoacknowledges that he was for varying the proposititon in such amanner as to give the Executive and Judiciary jointly an absolutenegative," Along with Madison he was a staunch advocate of theCouncil of Revision which would have provided a union of executiveand the judiciary in the exercise of the veto power. From his brief


remarks on his motion of 6 June to unite the judiciary with the execu-tive in the exercise of the veto power, we can see that he sharedMadison 's view that such a union would add to executive firmnessand help to insure that the veto would be employed when necessaryto fend off an aggrandizing legislature. While this motion loses badly(8 to 3), convinced of "its utility," he again moves on 21 July that the"supreme National Judiciary should be associated with the Executivein the Revisionary power. This time around he emphasizes thebeneficial role the judiciary can assume under such an arrangement,indicating, as he proceeds, his belief that the courts possessed thepower of judicial review:

The Judiciary ought to have an opportunity of remonstrating againstprojected encroachments on the people as well as themselves. Ithad been said that the judges, as expositors of the Laws would havean opportunity of defending their constitutional rights. There wasweight in this observation; but this power of the judges did not gofar enough. Laws may be unjust, may be unwise, may be dangerous,maybe destructive; and yet may not be so unconstitutional as to jus-tify the Judges in refusing to give them effect. Let them have a sharein the Revisionary power, and they will have an opportunity of tak-ing notice of these characters of a law, and of counteracting, by theweight of their opinions the improper views of the Legislature.

While Wilson leaves it to others, principally Madison, Mason, andGouverneur Morris, to defend this proposal, he does attempt toanswer the charge that such a union would represent a blending ofpowers contrary: to the spirit of the separation of powers doctrine. Inspeaking to Wilson's motion, Gerry argues that "he would rather givethe Executive an absolute negative for its own defence than thus toblend together the Judiciary and Legislative departments. It will bindthem together in an offensive and defensive alliance against theLegislature, and render the latter unwilling to enter into a contestwith them." To this Wilson responds simply that it was "obvious... that the joint weight of the two departments was necessary tobalance the single weight of the Legislature." At another level,Wilson tacitly acknowledges the merit of Ghorum's charge that the"Judges ought to carry into the exposition of the laws no pre-possessions with regard to them," an impartiality that might be im-paired if they were part of the revisionary process, by answering that"the evil would be overbalanced by the advantages promised by the


expedient." Such was his fear of legislative aggrandizement whichcould bring about a collapse of the separation of powers.

From the outset, and in keeping with the principles of his overallstrategy, Wilson opposed appointment of judicial and executive of-ficers by the legislature. On 5 June, he expresses his displeasure withthe provision of the Virginia Plan to the effect "that the NationalJudiciary be chosen by the National Legislature." "Experienceshewed," he argued, "the impropriety of. such appointment bynumerous bodies. Intrigue, partiality, and concealment were thenecessary consequences. " "A principle reason for unity in the Execu-tive," he went on, "was that officers might be appointed by a single,responsible person. " Again on 18 July, he voices his opposition to theprovision that the second chamber of the legislature appoint judgesand moves that "the Judges be appointed by the Executive." This mo -

tion loses badly (6-2). On 23 August, he associates himself fully withthe position and reasoning of Gouverneur Morris in opposition to"appointment of officers by the Senate." Here Morris stresses that"the body is too numerous for the purpose; as subject to cabal; and asdevoid of responsibility." Further, he points out that "if judges wereto be tried by the Senate . . . it was particularly wrong to let theSenate have the filling of vacancies which it own decrees were tocreate." Wilson even objects (7 September) to the final disposition ofthis matter which, by way of a compromise, allowed for nomination bythe president and confirmation by the Senate. He held this to be a"blending [of] a branch of the Legislature with the Executive."Moreover, he observed: "Good laws are of no effect without a goodExecutive; and there can be no good executive without a responsibleappointment of officers to execute. Responsibility is in a manner de-stroyed by such an agency of the Senate." This stance was consistentwith his views expressed on 6 September, which we have already ex-amined, concerning the "aristocratic" potentialities of the Senate.

The Constitution from Wilson's Perspective

By stepping back, so to speak, and looking at the Virginia Plan fromWilson's perspective, we can make some assessment of the degree towhich the final product embodies his theoretical principles. For in-stance, we see at once that Wilson had to look upon the popular baseof the national government provided by the Virginia Plan as toonarrow, at least for the pyramid he had in mind. Moreover, we know

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that he felt the Plan violated certain basic principles of the separationof powers doctrine by making all branches dependent to varyingdegrees on the lower house. From his perspective, these would seemto be the two major drawbacks. On the other hand, the chief `plus' inthe Plan was that it embodied the national principle with respect toboth its powers and structure.

Clearly, from Wilson's point of view, there were some very serioussetbacks. The most serious of these, as we have seen, resulted fromthe intrusion of the confederal principle; that is, from the com-promises that had to be made with those concerned about the pres-ervation of state sovereignty. On this count, the biggest blow toWilson surely was the Great Compromise which, from his perspective, was not really a compromise at all. 29 Indeed, it violated bothhis national and democratic principles. However, one positive resultof the compromise was to insure, and this in keeping with his mostbasic principles, that the upper chamber would not be dependent onthe lower. From this vantage point, then, it was not a complete disaster.

What is more, two other considerations, somewhat interrelated,rendered this compromise far less objectionable in practice than intheory. First, Wilson and his supporters could not come -up with anyviable scheme for proportional representation in the Senate. This wemay surmise is one reason why the large state delegations could notfind common ground in opposing the compromise. Second, onWilson's own showing, there was no reason to suppose that on issuesapart from those involving state interest, as such, there would be anygrounds for conflict or deadlock between the small and large states.While Wilsoncould make the abstract case that the compromisewould allow a small minority to control the majority, there was no apriori reason to believe that such would occur in practice,'

29. Wilson never did regard the provision of the Connecticut Compromise which pro-vided that "all bills for raising or appropriating money" should originate in the House tobe any concession at all to the interests of the larger states. On 6 July, for instance, hecomments that " if both branches are to say yes or not, it was of little consequencewhich should say yes or no first, which last. " Indeed, he did not believe it would servethe purpose of good government: "if either [chamber] was indiscriminately to have theright of originating, the reverse of the Report, would he thought be most proper; sinceit was a maxim that the least numerous body was fittest for deliberation; the mostnumerous for decision."

30. Luther Martin, among others, is to make this point on 28 June by turning the argu-ment of Wilson and Madison around. Martin reas'oned, "if the large States have thesame interest with the smaller as was urged, there could be no danger in giving them an


There were other major gains and losses from Wilson's vantagepoint. The confederal principle again came into play in the electionof the president. Clearly, however, this particular minus was morethan offset by the mode of election which corresponded very closelywith his initial suggestion and carried with it the full potential for ademocratically based chief executive. Not only did this mode of elec -

tion promise to broaden the base of the pyramid, it also avoided themajor difficulties associated with the election of the president by thelegislature-difficulties which arose from the separation of powersprinciple. In sum, while he could find theoretical grounds on whichto fault the final resolution of this very difficult issue, if viewed as awhole, he had good reason to be pleased.

We know, to view the final product from another angle, that Wilsoncould not have been entirely pleased with the `balance' between thebranches grafted into the Constitution. However, on this matter, hisspecific views seemed to be dictated more from the experience of thestates than from theoretical principles. Put otherwise, his view thatthe executive needed more protection against legislative encroach-ment than was provided by the qualified veto clearly could not bederived from theory independent of observation and experience.However, in saying this, we should not overlook the extent to whichWilson did get his way, albeit with a mixing of the confederal princi-ple, in insuring the independence of the branches. While, that is, helost out on the matter of a union of the executive and judiciary in theso-called revisionary function, he could hardly be displeased thattheir dependence on the legislative branch, built into the VirginiaPlan, had been eliminated.

We can say essentially the same thing with regard to the nationalprinciple. He did lose out in his proposals for a national negativeon state legislation. Yet, one wonders if he was not on the whole fairlysatisfied with the final product in light of his conception of theunion and its foundations. Revealing in this regard are his obser-vations in the Pennsylvania ratifying convention debates whichwould indicate that he had expanded upon the ideas embodied in hisconcept of "dual citizenship." Here, in response to the notion that

equal vote; they would not injure themselves, and they could not injure the large oneson the supposition without injuring themselves." And on 30 June, Ellsworth argues that"no salutary measure has been lost [under the Articles] for want of a majority of theStates, to favor it."


"the supreme power resides in the states, as governments, " hemaintained:

it [supreme power] resides in the people, as the fountain of govern-ment; that the people have not-that the people meant not-to partwith it to any government whatsoever. In their hands it remainssecure. They can delegate it in such proportions, to such bodies, onsuch terms, and under such limitations, as they think proper. I agreewith the members in opposition, that there cannot be two sovereignpowers on the same subject.3'

As he makes clear in his remarks later, the people to whom he refersare "We, the people" of the Preamble; that is, the people collectively,not the people of each state taken separately. Moreover, he takespains to deny the Antifederalist charge that the Constitution is basedon the consent of the states. 32 In so doing, Wilson conceives of theConstitution as a national supremacy document; that is, more exactly,as one which will permit the people in their capacities as nationalcitizens-i.e., through the national government-to adjust the re-lationships between the states and national government in a mannermost conducive to their happiness and well being.

33

In short, what an extended analysis along the lines suggested herewould show is that Wilson was quite candid in his famous Statehousespeech of 6 October, designed to answer the major charges against

31. John B. McMaster and Fredrick D. Stone, Pennyslvania and the Federal Con-stitution, 1787-88 (Lancaster, Pennyylvania: The Historical Society of Pennsylvania,1888), 316.32. Ibid., 383.33. So much, at least, seems clear from his 24.November speech to the Pennsylvaniaratifying convention. "After all, it will be necessary that, on a subject so peculiarly deli-cate as this [the respective sphere of state and national authority], much prudence,much candor, much moderation, and much liberality, should be exercised and dis-played both by the federal government and by the governments of the several states. Itis to be hoped that those virtues in government will be exercised and displayed, whenwe consider that the powers of the federal government and those of the state govern-ment are drawn from sources equally pure. If a difference can be discovered betweenthem, it is in favor of the federal government, because that government is founded on arepresentation of the whole Union; whereas the'government of any particular state isfounded only on the representation of a part, inconsiderable when compared with thewhole. Is it not more reasonable to suppose that the counsels of the whole will embracethe interest of every part, than that the counsels of any part will embrace the interestsof the whole?" Jonathan Elliot, Debates on the Adoption of the Federal Constitution, 5vols. (Philadelphia: J.B. Lippincott Co., 1836-45); II, 425.


the proposed Constitution. On this occasion, he openly acknowl-edged that he was not "a blind admirer of this plan of government,and that there are some parts of it which . . . would certainly havebeen altered" if he had had his way. Nevertheless, he goes on toremark, "but, when I reflect how widely men differ in their opinions,and that every man (and the observation applies likewise to everyState) has an equal pretension to assert his own, I am satisfied thatanything nearer to perfection could not have been accomplished. "39

On balance, it constituted a sufficiently sound "pyramid of govern-ment" that he could enthusiastically work for its adoption.

Georgetown University GEORGE W. CAREY

34. McMaster and Stone, 149.

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