James Wilson Lectured on Natural Law While Washington Was President

Picture the scene in Philadelphia in December 1790. The capital of the United States is a brick city on the Delaware. In a hall of the College of Philadelphia a sitting justice of the Supreme Court rises to give the first in a series of lectures on law, and in the audience, according to one early account, sits the President of the United States. Imagine that today. A justice announcing a semester-long course on where law comes from, and the President showing up to take notes. The cable panels would need a week to decide whether it was a scandal.

The justice was James Wilson, and the lectures he gave that winter and the next are one of the most important and least read documents of the American Founding. They answer a question every free people has to answer sooner or later: is law simply whatever the government commands, or does law answer to something higher than the government? Wilson's answer was clear, and it is the American answer. Law rests on the moral order God built into human nature, on the natural rights that order protects, and on the consent of a sovereign people. The man who said it died broke and hiding from his creditors eight years later. His argument deserves a better fate than he had.

A Scot who signed both documents

James Wilson was born on September 14, 1742, in Fife, Scotland, and studied at the University of St Andrews in the years when Scotland was the most intellectually alive corner of Europe. Scottish moral philosophy, the school of Francis Hutcheson and Thomas Reid, taught that human beings have a moral sense: a built-in capacity to perceive right and wrong that is as real as sight or hearing. Reid's Inquiry into the Human Mind on the Principles of Common Sense appeared in 1764. Wilson sailed for America the next year.

He landed in the middle of a quarrel over the Stamp Act, tutored at the College of Philadelphia, and read law in the office of John Dickinson, the author of the Letters from a Farmer in Pennsylvania. He was admitted to the bar in 1767 and practiced for years in Carlisle, out on the Pennsylvania frontier.

In 1774 he published Considerations on the Nature and Extent of the Legislative Authority of the British Parliament. Most colonial writers were still arguing about which taxes Parliament could lay. Wilson went further. He argued that Parliament had no legislative authority over the colonies at all, because the colonists were not represented in it, and that their tie to Britain ran through allegiance to the King alone. That was a radical position in 1774. Two years later it was the premise of the Declaration of Independence, which never names Parliament and addresses its grievances to the King.

Wilson signed that Declaration in 1776. Eleven years later he signed the Constitution. Only six men signed both: Wilson, Benjamin Franklin, Robert Morris, George Read, Roger Sherman and George Clymer. Of the six, Wilson may have done the most to shape the second document. On June 1, 1787, he moved that the executive consist of a single person, a proposal that met an uneasy silence in the room before the debate began and that won in the end. He argued, against most of the delegates, for electing both houses of Congress and the President by the people. He sat on the Committee of Detail that turned the Convention's resolutions into the first full draft. And on October 6, 1787, in the State House Yard in Philadelphia, he gave the first major public defense of the new Constitution, arguing that a federal bill of rights was unnecessary because Congress held only the powers granted to it.

Washington named him one of the original associate justices of the Supreme Court in 1789. He wanted to be Chief Justice and did not get it. What he got instead was a lectern.

The lectures and what they were for

The College of Philadelphia appointed Wilson its first professor of law in 1790. He was not merely teaching students how to file a plea. He wanted to do for American law what Sir William Blackstone's Commentaries on the Laws of England, published between 1765 and 1769, had done for English law: give it a philosophy and a system.

That ambition required a fight with Blackstone, and Wilson picked it on purpose. Every lawyer in America had learned law from Blackstone. Many still do, at one remove, because the Commentaries shaped how American courts talk about common law. Wilson admired Blackstone's learning. He thought Blackstone's foundation was wrong for a free republic, and he said so in front of the most powerful men in the country.

The lectures ran through the winter of 1790 and 1791 and into the next session. They cover the general principles of law and obligation, the law of nature, the law of nations, the Constitution, the courts, the criminal law and much more. They were published after his death. The core argument fits in three moves, and I want to take them one at a time.

First move: law is not just a command

Blackstone defined municipal law as "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." Notice the structure. Law is a command. It comes down from a superior to an inferior. What makes it law is that the supreme power prescribed it.

Blackstone added a theory of sovereignty to match. In every state, he wrote, "there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty, reside." In Britain that authority was Parliament. Parliament could do anything that was not naturally impossible.

Wilson rejected the command theory at the root. If law is merely the order of a superior, he asked, why is anyone obliged to obey it except out of fear? A highwayman with a pistol issues commands too. The difference between a law and a robbery cannot be the size of the gun.

His answer was that human law binds free people for two reasons that work together. The first is consent: a free citizen is bound by laws because he and his fellow citizens, through their representatives, agreed to them. The second, and deeper, is the moral obligation that exists before any government does. We are bound to keep promises, to refrain from harming the innocent, to give each his due, not because a parliament said so, but because we are the kind of creatures who can perceive that these things are right. Human law, at its best, declares and enforces duties that already exist. It does not invent them.

Second move: the moral sense and the law of nature

This is where Wilson's Scottish education shows. He taught that the law of nature is the will of God, made known to human beings in two ways: by reason and the moral sense, which every person has, and by revelation in the Scriptures. The two do not compete. They confirm each other.

Wilson leaned openly on Reid. The moral sense, he argued, is not a feeling that varies from person to person like a taste for oysters. It is a faculty of perception. We do not argue ourselves into the conviction that torturing a child for fun is evil; we see it, the way we see that a wall is in front of us. Our first principles of morality are self-evident in the strict sense: they cannot be proved from anything more basic, and they do not need to be.

Read the second paragraph of the Declaration with that in mind, and its first words light up:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

"Self-evident" is not a rhetorical flourish. It is a technical claim from the philosophy Wilson studied at St Andrews. The Declaration does not argue that men are equal in their rights. It says we see it. And it places the source of those rights in the Creator, before and above any government. Wilson, who signed it, spent his lectures explaining what that sentence commits a nation to.

From the moral sense, Wilson drew natural rights. Every person has a natural right to life, to the safety of his body, to his property and to his liberty, including liberty of conscience. Government does not grant these. It exists to secure them. That is the Declaration's next clause, "That to secure these rights, Governments are instituted among Men", and it is the opposite of Blackstone's picture, in which rights are whatever the sovereign leaves alone.

Third move: the people, not the parliament, are sovereign

Here Wilson made his most distinctively American argument. Blackstone said every state must have a supreme, uncontrolled authority. Fine, said Wilson in effect. In America that authority is the people themselves, and no government holds it.

The difference is enormous. In Blackstone's Britain, the legislature was sovereign, so there could be no higher law for a court to enforce against it. In Wilson's America, the people are sovereign, and they have delegated limited powers to several governments, state and federal, through written constitutions. Every one of those governments is an agent. None is the principal. When a legislature exceeds the powers the people gave it, its act is not law at all.

That is the logic of judicial review, and Wilson taught it years before Chief Justice John Marshall wrote it into Marbury v. Madison in 1803. A judge who refuses to enforce an unconstitutional statute is not placing himself above the legislature. He is obeying the people's higher command, the Constitution, over their agent's lower one. Marshall's opinion puts it in almost exactly those terms.

It is also the logic of the Constitution's first words. "We the People of the United States... do ordain and establish this Constitution." The people ordain. The government is ordained. Wilson pressed the point from the bench in Chisholm v. Georgia (1793), where he asked whether the people of the United States form a nation and answered that they do. He observed that the word sovereign does not appear anywhere in the Constitution's text, and he meant it as a lesson: the document never hands supreme power to any government, state or federal. The ruling in Chisholm, which let a citizen of another state sue Georgia in federal court, provoked the Eleventh Amendment, ratified in 1795. The states won that fight about suits. They did not refute Wilson's account of who the sovereign is.

The strongest objection, answered

Now let me state the best case against Wilson, in words a careful legal positivist would accept.

The objection runs like this. Natural law is a beautiful idea and a dangerous one. If law depends on a moral sense, whose moral sense? Every judge will discover that the law of nature agrees with his own politics. Slaveholders appealed to nature. So did kings. Blackstone and later Jeremy Bentham and John Austin insisted that law is a command of the sovereign precisely because that definition is clear: you can find the law by looking in the statute book, without arguing about God. Separate what the law is from what it ought to be, and you get predictability and honest criticism. Mix them, and you get judges who rule by conscience.

That is a serious argument. It does not survive contact with the record, for four reasons.

1. Wilson did not hand natural law to judges as a roving commission. His structure puts the people's written Constitution between the moral order and the courtroom. Judges enforce the text the sovereign people ratified. Natural law explains why that text binds and what it was written to protect. It does not authorize a judge to add clauses he likes. The real danger the positivist fears, judges legislating from conscience, has come far more often from theories of a "living" Constitution than from the Founders' natural law.
2. The command theory cannot explain why anyone should obey. If law is just a command backed by force, the only reason to obey is the force. That reduces citizenship to fear, and it leaves no ground for saying that a command is unjust. Positivists answer that you may criticize a law as immoral while admitting it is law. But then they owe us an account of what makes it immoral, and they are back to a standard above the sovereign.
3. The historical record runs against the objection. The Declaration itself appeals to "the Laws of Nature and of Nature's God." The abolitionists appealed to the same higher law against the Fugitive Slave Act. The positivist position, that whatever the sovereign commands is law, was the position of those who enforced slavery as settled property law. Wilson's framework is what let Americans say that a statute could be on the books and still be a wrong.
4. Popular sovereignty is the cure for the "whose morality" problem. Wilson's answer to "who decides" was: the people, through a written constitution, amended only by the process the people set. That is clearer than Blackstone's parliamentary sovereignty, not murkier. Parliament could change the British constitution by ordinary statute on a Tuesday. The American people put their fundamental law beyond the reach of ordinary majorities.

The verdict: Wilson does not trade clarity for mysticism. He trades a theory in which power makes law for a theory in which the people, under God, make the government, and the government answers to them.

How a founder ended in debt

Now the sad part, and it should be told straight. Wilson was a brilliant lawyer and a reckless investor. He borrowed heavily to buy land on the frontier, on the theory that America's growth would make him rich. It might have, eventually. Then credit tightened in the Panic of 1796 and 1797, land prices collapsed, and his creditors came for him.

A sitting justice of the Supreme Court was jailed for debt in Burlington, New Jersey, in the years of the Panic. After his release he went south to Edenton, North Carolina, where his colleague Justice James Iredell lived, partly to stay out of reach of creditors. He fell ill there and died on August 21, 1798. He was buried in North Carolina and largely forgotten. In 1906 his remains were brought back to Philadelphia and reinterred at Christ Church, where Franklin's grave also lies.

There is a lesson in the fall too, and conservatives should not skip it. The man who taught that law rests on moral duty, promise-keeping included, could not keep his own. That does not refute his argument. It confirms the oldest conservative insight about human nature: that knowing the good and doing it are different things, which is exactly why the Founders built a government with checks on everyone, including the brilliant. Federalist 51 says it best: "If men were angels, no government would be necessary."

What Wilson means for us

Most Americans have never heard of James Wilson. That is a shame, and a symptom. Our law schools teach the positivist inheritance of Bentham and Austin, refined in the twentieth century, as if it were neutral common sense. Our courts spent decades deferring to agencies under the Chevron doctrine, as though an administrator's reasonable command were enough to make law, until the Supreme Court overruled it in Loper Bright Enterprises v. Raimondo (2024). And the argument that rights are simply whatever society grants is taught in plenty of classrooms as sophistication.

Wilson is the answer to all of it, and he was in the room when the government began. He told the capital's lawyers and statesmen, and by one account the first President himself, that law is not the will of the powerful. It is the will of a free people, made under God, to secure rights that existed before any of them took office. If the President was listening, so should we be.

If you want to go further, start with the companion portrait in James Wilson, the Forgotten Founder Who Put the People at the Center, which covers his work at the Convention in depth. The classical root of his argument is traced in From Cicero to Aquinas to Jefferson, the Long Road of Natural Law, and Blackstone's own view of rights, which Wilson kept even while rejecting Blackstone's sovereign, is in Blackstone's Three Absolute Rights and Why Every Founder Owned His Book. For the judicial review he anticipated, read Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not, and for the case that cost him a constitutional amendment, Chisholm v. Georgia Lost in 1793 and the States Answered With the 11th Amendment. The modern version of the positivist objection gets a full answer in Rights Are Not Social Constructs, and Here Is the Answer to That Claim.

The case in brief

1. James Wilson, a signer of the Declaration and the Constitution and an original justice of the Supreme Court, gave the young republic its first full philosophy of law in lectures begun in December 1790.
2. He rejected Blackstone's definition of law as a sovereign's command and argued that law binds because of moral duties that exist before government and because a free people consents to it.
3. He grounded natural rights in the moral sense and in the will of the Creator, which is exactly what the Declaration's word "self-evident" claims.
4. He placed sovereignty in the people rather than in any legislature, which is the foundation of written constitutions and of judicial review.
5. The positivist objection that natural law licenses judges to rule by conscience fails, because Wilson's people speak through a written text that judges must enforce as written.

What you can do: read the Declaration's second paragraph aloud at your next family dinner, then read the Preamble on the site's Constitution page, and ask your children who, in each sentence, is giving the orders.