JAMES WILSON AND THE FIRST SUPREME COURT

Wayne Everett Orgar

August 2001

One of the recent attempts to promote the myth that our nation was founded on Christianity (See my essay: Our Great Non-Christian Nation) is to refer to James Wilson. He was an associate justice on the first Supreme Court. Appointed by George Washington, Wilson attained his reputation as a member of the Continental Convention, in his land dealings, and in his law practice. He was regarded as second only to James Madison in his promoting and structuring of the Constitution. George Washington paid a handsome sum to Wilson to tutor his nephew Bushrod Washington, who himself became an associate Supreme Court justice.

I will take nothing away from Wilson's knowledge of the law and his influence as a founding father. However, in perspective of his total life, he is a most embarrassing candidate to be poster boy for Christianity. He has often been whitewashed in historical accounts.

I'm going to tell a story. It's not a happy story. First, to put this story in perspective, it might be good to take a quick look at the first Supreme Court. The first court consisted of six justices. They were, with the dates of appointment:

John Jay, Chief Justice, 1789-1795

James Wilson, 1789-98

William Cushing, 1790-1810

John Rutledge, 1790-91, 1795

James Iredell, 1790-1799

John Blair, 1790-1796

The first replacements:

Thomas Johnson, 1792-93

William Paterson, 1793-1806

The first court only decided three cases but the lives of the justices were kept busy with circuit court duty and private interests. Circuit court duty was a frequent complaint of the early justices due to the arduous travel, uncomfortable lodging, and poor food. They sometimes had to share a bed with an unkempt stranger! It often resulted in sickness of the justices and being way from their families. This circuit court duty and private interests will later figure into the story of Wilson.

The first justices were fairly religious. John Jay is the most familiar since he was the president of the Continental Congress from 1778-79. He was active in the Episcopalian church and established the American Bible Society and was its president in 1821. Although he opposed slavery like most New Yorkers and opposed British action in the colonies, he did not originally favor independence from the British until independence was proclaimed. It is interesting to note that at one time he managed the Dancing Assembly of New York City, a post that clearly precluded him from being a fundamental Baptist!

Thomas Johnson was also an Episcopalian. He was a good friend and failed business partner of George Washington. He temporarily replaced Rutledge but due to very poor health, only served 14 months, the shortest of any Supreme Court justice. William Cushing hailed from Massachusetts. As chief justice of that state's superior court, he was known to use Biblical doctrine and scripture to embellish the written law. John Blair is not noteworthy as his wife was often very ill and he missed several terms to take care of her. James Iredell was known as a devout Christian. He lived in Edenton, NC, a fact that will also come into play in the story of Wilson.

John Rutledge is interesting in that he never attended court! He also was often ill and it seemed that there were no cases to hear when he was able to attend. He also was opposed to complete independence from the British. He was from Charleston, SC and fought the ban on slavery, saying it was a question of commerce, not morality. He took commerce seriously over moral principles. For example, he succeeded in getting rice excluded from the British embargo. It was the only item so excluded. Rice was his home state's principle export. Rutledge was somewhat unstable. When he was rejected by the Senate for the permanent chief justice position, he attempted suicide by jumping into the bay. Ironically, two slaves saved him.

Which brings us to the story of James Wilson. His mother was a Calvinist and his father was an elder in the Church of Scotland. He attended the University of St. Andrews and followed that with a year in the University's School of Divinity. He eventually decided on law and practiced in Scotland before coming to Pennsylvania. He established himself as very supportive of the aristocracy and conservative patriots. His hunger for wealth caused him to become involved in large land speculation. He missed several circuit court sessions to manage his financial interests in Philadelphia, a behavioral trend that we would call irresponsible.

It is important to realize that in the early days after the American Revolution, there were huge tracts of land to be distributed. The courts and Congress were in a good position to pass laws or determine cases that could later be favorable to the friends of the court and Congress (or Wilson himself) when it came to decide who was allowed to profit from such transactions. This is beyond the scope of this story, however, and I encourage the reader to review Myers referenced at the end. It does not paint a pretty picture of some of our founding fathers and their motivations for political service.

Wilson catered to the rich and made no secret of it. He defended rich Tories (those loyal to the British crown, many who sought to retain their colonial wealth) during the Revolution. He was known for his sneers at common settlers, something that made no sense if he believed anything about the teaching of the alleged Jesus. He was so badly regarded by local patriots, in 1779 a group of them opened fire on his home with cannon.

In 1796, as a Supreme Court Justice, he filed a fraudulent claim in Congress for reimbursement of money allegedly paid to Indians for land on the Illinois and Wabash rivers. By this time, Congress was becoming wary of such land dealings and rejected the claim. He also was involved in supplying much of the money to bribe the Georgia Legislature to secure land grants.

Wilson did not exactly keep good company. Beside his dishonest business partners, his attorney, Joseph Thomas, also defrauded several clients. He took the money, abandoned his pregnant wife, and fled to avoid prosecution.

Due to his enormous debts and failed dealings, he had writs of arrest issued against him. The kinder accounts tell us that Wilson traded his more northern circuit court duty with James Iredell's southern circuit court duty. The truth was that Wilson was trying to avoid being arrested by his creditors. This is what we would call today "running from the law." Senator Pierce Butler caught up with Wilson and had him imprisoned. It was actually Wilson's second time being in debtor's prison.

Wilson died in disgrace in Edenton, NC in 1798. No eulogy was issued by the Supreme Court. However, in 1906, his body was moved back to Philadelphia and several Supreme Court members attended the reburial.

James Wilson remains an enigma in early American History. Some scholars indicate that he believed in a Christian conception of natural law and that our rights stem from this natural law. Other scholars doubt that Christian ideology was part of his natural law theory. In either case, Wilson's life is better evidence of his lack of concern for spiritual matters over materialistic gain. Regardless of what he did or did not really believe, what remains today is our completely secular Constitution, void of any reference to a god or Christianity.

To add a contrast to the sad story and poor character of Justice Wilson, consider another justice appointed by George Washington, William Paterson. Paterson, from New Jersey, also was a very influential founding father at the Constitutional Convention. He led the coalition of small states. A Calvinist, he thought that the enemy of virtue was luxury. I will close with his view on the United States Constitution. You will note that he uses the term "Creator" to refer to the people, not to a deity.

"What is a Constitution? It is a form of government, delineated by the mighty hand of the people, in which certain first principles of (or?) fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it... What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution; they derive their power from the Constitution; It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void. The Constitution is the work or will of the People themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the Legislature in their derivative or subordinate capacity. The one is the work of the Creator, and the other of the Creature, (Cushman, p. 39, bold mine)

References

1. Cushman, Clara, Ed. The Supreme Court Justices, Illustrated Biographies 1789-1995. The Supreme Court Historical Society. Congressional Quarterly: Washington, DC, 1995.

2. Gerber, Scott D., Ed. Seriatim. The Supreme Court before John Marshall. New York University Press, NY, 1998.

3. Myers, Gustavus. History of the Supreme Court of the United States. Charles H. Kerr & Company: Chicago, 1912.