The Translation of James Wilson

David W. Maxey

--John Donne

By his own standards James Wilson failed to make it. He reached for glory and for wealth; yet both in the end eluded his grasp. He died a tormented man, on the run from his creditors and on the verge of impeachment. More than a century would pass before an attempt was made to rehabilitate him in a secular rite that entailed the removal of his remains from that quiet grave which John Donne commended to all those who coveted the things of this world.

"The love of honest and well earned fame," Wilson proclaimed, "is deeply rooted in honest and susceptible minds."[2] It was certainly deeply rooted in his, and under different circumstances, his achievements, which were far from meager, would have entitled him to a prominent place in the American pantheon. He belonged to an elite category of patriots who signed both the Declaration of Independence and the Constitution; in the drafting of the latter document, his role was a fundamental one, second only, it is often said, to that of Madison. He was a lawyer to whom clients flocked, a philosopher and a teacher of the law, and a member of the first Supreme Court of the United States. As much as he loved honors, of equal importance to him--and this passion proved his undoing--was the accumulation of "private landed property," that visible sign of success which he, the son of a poor Scottish farmer, of parents imbued with Calvinist principles, sought in emigrating to America. Such, after all, he would remind himself, was the reward given in the glorious age of republican Rome when "the farmer, the judge, and the soldier were to each other a reciprocal ornament" and when the Roman magistrate, his public career concluded, might savor the security of "a rural and independent life."[3]

Absorbed during his lifetime in erecting his monument and composing his epitaph, Wilson has dwelt in relative obscurity these two centuries since his death. Robert McCloskey, an admirer of Wilson, conceded that he was an unlikely candidate for resurrection, even though, in the preface he supplied to the modern edition of Wilson's Works, Professor McCloskey did his elegant best to revive him as a subject for sympathetic appreciation. That the judgment of history has been less than generous to Wilson may be explained by the simple fact that many of his contemporaries did not feel comfortable with him, or, to put it more bluntly, they often mistrusted him. If they were forced to acknowledge his formidable learning and his professional skills, they also took measure of his ambition and greed. Fame, Professor McCloskey points out, is not easily fabricated: "...the great whom the present recognizes tend to be those who were thought of as great in their time. Tomorrow may enhance or diminish yesterday's reputation; it does not often create a wholly new one."[4] It is, in short, his own generation's hesitancy about Wilson that has significantly affected the view we have of him in a longer perspective.

Suspicion about his motives originated as early as the debates in the Second Continental Congress when Wilson, as a member of a badly split Pennsylvania delegation, pleaded for a postponement until the instructions of the Pennsylvania delegates could be clarified on the crucial vote for independence. However clear his calling as a lawyer to provide the oppressed a defense, Wilson would later win no friends--indeed he stirred up enmity in an easily excited populace--when he came to the aid of beleaguered loyalists.[5]

Near the end of the Revolution, he ran the risk of offending Washington by extracting an exorbitant sum, "much higher than was usually paid to the other gentlemen of the bar [in Philadelphia]," in agreeing to accept Washington's nephew, Bushrod, as a student in his law office. If Washington was offended, he gave no immediate evidence of it; on the contrary, he overrode his nephew's "intention...of entering some other office on account of that difference" and impressed on him the value of the training he would get under Wilson's tutelage.[6] Still, that incident may have lingered in the memory of the newly elected President to whom Wilson applied some years afterwards for the position of Chief Justice of the United States. It was characteristic of Wilson, in florid, ingratiating language, to aim for the top, and characteristic of Washington, in carefully chosen words, to deflect the inquiry. Though Washington's reply ran true to the form he had devised for the host of office-seekers who descended on him, it did contain, in Wilson's particular case, a discernible trace of censure. At some cost to his pride, therefore, James Wilson had to settle for an appointment as Associate Justice of the Supreme Court.[7]

Wilson's judicial status did not cause him to be more prudent in the continued acquisition of land or in the further subsidizing of fanciful and economically draining schemes for its development. A Philadelphia Quaker of that day, Henry Drinker, whose rectitude could be intimidating, shared Wilson's enthusiasm for land as an investment. Unlike Wilson, however, Drinker was seldom distracted from his business concerns: he kept a watchful eye on his extensive holdings--and also, because he did not completely trust him, on Judge Wilson (as, in the style of that time, he referred to his neighbor).

During the summer of 1794, Drinker's agents in upstate Pennsylvania alerted him to Wilson's folly in attempting to construct overnight a factory-town in the middle of the wilderness, at a place that had already been named, not surprisingly, for its patron. Laborers, always scarce in the backwoods, were being diverted to Wilsonville by the offer of very high wages and by the even more potent inducement of a liberal ration of rum awarded daily to every man employed at the factory.[8] In the face of these repeated warnings from his agents that Wilson was going under and that he should look closely at his own relations with him, Drinker fretted not so much about the judge's ability to survive financially as about his honesty. He objected to "a swinging Caveat" that Wilson had entered on technical grounds against property in which Drinker had an interest. He asked Wilson

As problems of a severe sort multiplied for Wilson, Drinker approached him again on another grievance in much the same vein:

To this last message from Drinker, Wilson sent a conciliatory but weary response, for he could then do very little to fend off disaster.[11] In conditions of general financial panic at he end of 1796, Wilson was pulled down, and with his collapse came total humiliation. His work on the circuit finished in the spring of 1797, Wilson and his young second wife retreated some fifty miles north to Bethlehem in order to escape the crowd of angry creditors that was congregating in Philadelphia. When his wife left to visit her family in Boston, Wilson moved from Bethlehem to Burlington, New Jersey, where in August, on the application of a relentless creditor, he had to endure imprisonment for a time. The Supreme Court of New Jersey would thus confront the "nice" question whether a federal judge who had been arrested in the course of carrying out his duties could take advantage of a limited immunity and be discharged on nominal bail. Well before a sufficient number of judges in that court could be assembled to rule on the matter--a majority of them eventually denied the claim of privilege--Wilson's son, Bird, had scraped together the funds necessary to procure his father's release and to permit him to resume his flight south.[12]

In January, 1798, Wilson landed in the small town of Edenton, North Carolina, the home of his Supreme Court colleague, Justice James Iredell. There he would stay for eight months, still pursued by those to whom he owed money. Racked by worry and malarial fever, he dispatched a series of querulous letters to Bird in which he criticized his son, then in his apprentice years as a lawyer, for failing to appease his creditors and to bring some order out of the chaos that Wilson had left behind him.[13] What comfort he experienced in Edenton was provided by his wife who joined him that spring to bolster his spirits and to nurse him back to health. Hannah Wilson was almost constantly at her husband's bedside during his last illness: "I had not my cloaths off for three days and nights, nor left him till the evening of his death, when I could not bear the Scene any longer."[14] Wilson's death on August 21, 1798, did save him from the ignominy which Samuel Johnston, Justice Iredell's brother-in-law and the Governor of North Carolina, regarded as inevitable if he survived: his forced removal from the Supreme Court by a conviction on impeachment.[15]

A handful of mourners accompanied Wilson to his grave in the small country cemetery of the Johnston family, located less than a mile from the main street of Edenton. Iredell, who had arrived home from Philadelphia the day of Wilson's death, immediately wrote to inform the Secretary of State, Timothy Pickering, of the vacancy on the Court; he urged that a successor to Wilson be appointed as soon as possible to cope with the pending cases that had piled up for disposition on the southern circuit--that circuit having been Wilson's assigned responsibility.[16] Iredell next wrote to Bird Wilson to praise the heroic conduct of his stepmother, but also to encourage the long-suffering Bird to pay promptly his father's funeral expenses and the large bill that the Wilsons, living on the cuff, had run up at the inn in Edenton where they had taken refuge those several months preceding Wilson's death.[17] Enclosed with Iredell's message was a letter from Hannah Wilson to Bird in which she consoled him "how much happier your papa is, it would be from a selfish motive if we wished his return, his mind had been in such a state for the last six months, harrassed and perplexed." She confessed that it was only after he died that she had learned of his arrest, "and now can account for many things he said in his delirium." For Hannah Wilson it had been an incredible ordeal: "I am astonished," she concluded in this letter to Bird, "when I think of what I have gone through." Though she signed herself "your affectionate mother," she was but two or three years Bird's senior, having consented five years before to marry the widower James Wilson when she was nineteen and he in his early fifties.[18]

Obituary notices mounted up in the Philadelphia newspapers during the late summer of 1798. The city was in the grip of a yellow fever epidemic as harsh in its impact as the one that had decimated the population of Philadelphia five years before.[19] The newspapers made no mention, however, of Wilson's passing. Nor did any member of the Supreme Court consider a eulogy appropriate--one can almost hear, in fact, a collective sigh of relief from his colleagues on the Bench. There was, of course, speculation about who would succeed to his seat on the Court. Taking for granted that the position was reserved for a Pennsylvanian, Benjamin Rush impulsively submitted to Pickering the name of his brother, but Jacob Rush, when consulted, indicated that he had no interest in the appointment.[20] John Marshall also declined to serve, and President Adams's choice finally fell on Wilson's former law student, Bushrod Washington.[21]

In the century that followed Wilson's death, he was occasionally identified as one of the outstanding members of that early Court, but more because of the reputation he had

earned prior to his tenure than because of any major contribution he made as a Justice. Wilson has left one extended essay from his Court years, his opinion in Chisholm v. Georgia,[22] which illustrates a persistent tendency on his part to parade learning and to wear out his reader. Nowadays, when discovering the original intent of the Framers is often taken as the necessary starting point in constitutional adjudication, it may be of at least some interest to record that Wilson, in his opinion in Chisholm v. Georgia, resorted to principles of general jurisprudence, the philosophy of matter, Sir Francis Bacon, Cicero, the history of France, Sir William Blackstone (but only to refute him), Socrates, the suit of Columbus's son against King Ferdinand, the Emperor Frederick of Prussia, an anecdote concerning Louis XIV, Homer, Demosthenes, and Bracton--all before he felt prepared to tackle the question of what he and the other Framers meant when they authored the Constitution a scant six years earlier. Chisholm v. Georgia and the Eleventh Amendment, whose immediate adoption that decision precipitated, have to be regarded, in any event, as a somewhat dubious legacy.[23]

Wilson was to be given a special postmortem opportunity to recapture some of the honors he had gambled away while he was alive. At the end of the nineteenth century, in a society that would have disclaimed attachment to ancestor worship or the collection of relics, Americans engaged in a variety of quasi-religious exercises which aimed at making the national past at once more accessible and more serviceable. This was the era of the colonial revival in literature and the arts, of the publication of countless local histories intended to put otherwise out-of-the-way communities on the historical map, of the beginnings of the preservationist movement, of the founding of patriotic societies, and of the first focusing on the flag as an object of veneration.[24] In this period of its coming of age, when the realities of life in a rapidly industrialized America collided with some of its more cherished ideals, the country turned for support to heroes from its past, and if, in this quest, resources were sometimes found lacking to meet a particular need, it was permitted practice to touch up or reshape these heroes so that they might assume a more imposing stature.

To a Philadelphia physician, S. Weir Mitchell, goes the initial credit for resuscitating James Wilson as a revered statesman, scholar, and judge. While an army surgeon in the Civil War, Mitchell gained insight into nervous disorders and their treatment; in the postwar years he became a pioneering specialist in this field, whom neurasthenic Philadelphians regularly sought out for advice. As an aside, one may regret that in this professional capacity Mitchell was not available to help James Wilson when the latter became unhinged during his financial crisis--so much so that Benjamin Rush reported, as convincing proof of Wilson's emotional distress, that he had surrendered to the incessant reading of novels.[25] Mitchell's advertised remedy for patients suffering from depression was the "rest cure," but by his producing well researched historical novels that attracted a wide reading public, he could have also satisfied Wilson's yearning for escape literature.

Hugh Wynne: Free Quaker, published in 1896, was an instant best seller. Slightly more than a decade later Mitchell would acknowledge this success as, in the introductory note he inserted in no less than the nineteenth edition, he defended the novel against criticism that he had derided deeply held principles of the Society of Friends. John Wynne, the hero's father and an unbending Quaker, was diagnosed by Mitchell as experiencing the onset of "senile dementia" in the stern relationship he maintained with his son and in his condemnation of any resistance to George III. James Wilson steps forward early in this story as Hugh's tutor in mathematics and Greek at the College of Philadelphia (now the University of Pennsylvania). Hugh warmed immediately to Wilson as "a most delightful teacher" who "put up with my flippancy and deficient scholarship." Throughout the book Wilson retains his kindly qualities: he liked to walk in the woods and to sail and fish; he guided Hugh gently in his conversion to the revolutionary cause; and, as a famous lawyer, he volunteered his help in a family land squabble--without any apparent discussion of a fee. Claiming in his preface that he was protected by a certain poetic license, Mitchell may have been aware of the liberties he was taking in portraying so endearingly this dour Scotsman--by most reports reserved and aloof in personal encounters.[26] We have to wonder, for example, if Wilson's son, Bird, would have had any chance of recognizing his father in the garb in which Mitchell had clothed him.

As Hugh Wynne launched on his memoirs years after the Revolution was over and its principal actors were dead, he paused to reflect on the significance of "the burying-ground...in and about the sacred walls of Christ Church" where the honor roll of those interred there included Benjamin Franklin, Francis Hopkinson, Peyton Randolph, and Benjamin Rush. At that distance from events Hugh Wynne was unable to place in such distinguished company his good friend James Wilson, who had died and been buried elsewhere in circumstances that were understandably omitted from the narrative. But for Wynne the precincts of Christ Church were hallowed ground and "a neighbourhood which should be forever full of interest to those who love the country of our birth.[27]

In March, 1904, 5. Weir Mitchell approached the Dean of the University of Pennsylvania Law School with a proposal which might have been called "The James Wilson Rescue Operation." To Dean William Draper Lewis he forwarded two letters "from a very respectable colored man" in Edenton who had confirmed to Mitchell the location of Wilson's unmarked grave in the Johnston family cemetery. "These altogether identify, without doubt," Mitchell wrote the Dean, "the situation and present neglect of one of the greatest men Pennsylvania can claim as her own." Mitchell called upon Dean Lewis to enlist the lawyers of Philadelphia, and especially of the University on whose faculty Wilson had twice served, in the formulation of a plan for the transfer of Wilson's remains to Philadelphia, which Mitchell envisioned as "a very great state affair," involving but limited expense. "I have taken a good deal of pains," he lectured the Dean, "to put the matter in shape and if it belonged to my profession, [I] would put it through, but as it is, I believe as the young ladies say, 'It is up to you.'"[28]

The next month Dean Lewis submitted to his faculty the correspondence from Dr. Mitchell and the Chancellor of the Law Association in Philadelphia, Samuel Dickson, "in reference to the grave of Hon. James Wilson," and a resolution was thereupon adopted requesting the University's Provost to appoint a committee to consider the proposal made by Dr. Mitchell.[29] This lawyer like action having been taken, the Dean and the law faculty appear to have abandoned any further notion of pressing forward with Mitchell's proposal. One deterrent, among others, was the attitude of Chancellor Dickson, who argued strongly for leaving Wilson where he was, in peace. He was especially leery of Wilson's resurrection if it would lead, as Dr. Mitchell plainly hoped it would, to some extravagant state ceremony in which Theodore Roosevelt might participate. An old-line Democrat, Dickson shrank from the specter of a James Wilson propped up as an apostle of the new nationalism and an advocate of implied powers granted the federal government under the Constitution.[30]

Enter now, as Dr. Mitchell's challenge to the legal profession is about to be submerged in committee, two curious characters who would compete for the privilege of ferrying James Wilson back across the Styx--for the role, if the image be allowed, of a Charon in reverse passage. The first was the Reverend Burton Alva Konkle. Originally from Indiana, Konkle studied for the ministry, but in the course of postgraduate studies in Chicago, he was bitten by the history bug. Toward the turn of the century he came to the Philadelphia area and took up residence in Swarthmore, vowing to "give my life...to put Pennsylvania into national history as she ought to be." In 1941, when he sent to the press his last book, he congratulated himself on having accomplished that goal by publishing biographies of twenty-one neglected Pennsylvanians.[31] How much Konkle drew on Mitchell's prior inspiration is unclear. What is clear, however, is that, for all his quirkiness (maybe because of it), he forged ahead, disregarding the many practical objections that others had raised. Under his leadership as secretary, a James Wilson Memorial Committee was organized and important personages, including Chancellor Dickson, were persuaded to serve on it.

Largely on the strength of an effusive review given one of his books, Konkle recruited Lucien H. Alexander, a member of the junior bar in Philadelphia, to act as his assistant.[32] Within a month of his appointment, Alexander was apologizing to Konkle for appearing to take center stage in a newspaper article, which "puts me out of proper perspective, and in the minds of those who happen to see it, out of all proportion to the real workers in the cause."[33] Hard on the heels of that apology, Alexander outlined to Konkle the agenda for the Wilson memorial proceedings: the transportation to Philadelphia of Wilson's remains by a warship that the Secretary of the Navy would make available for that purpose; bringing Wilson's coffin to Independence Hall where it would lie in state; a solemn cortege of dignitaries accompanying the remains to Christ Church; and the delivery of an address by a senior Justice of the Supreme Court, preferably Chief Justice Fuller himself, who would render long overdue tribute to this predecessor redux.[34]

So it was that Konkle and Alexander, not always in perfect harmony, would round up the necessary allies and plan for the great day when James Wilson would return home in triumph. At the beginning of 1906, Alexander traveled to Hot Springs, Virginia, to appeal to a vacationing Andrew Carnegie for his endorsement and that of the St. Andrew's Society; it was of some help that Carnegie, a Scottish lad who had made good, hailed from the same shire of Fife that was Wilson's birthplace. In June of that year, Konkle and Alexander took the train to Washington to brief President Roosevelt on their plans and to ask him to contribute to the success of the Wilson memorial proceedings by his attendance. They returned to Washington in October to confer with Chief Justice Fuller, Justice White, and Attorney General Moody, all of whom were counted on to participate, and again in November to firm up arrangements with the Secretary of the Navy for the vessel which would convey Wilson's remains from Norfolk, the nearest port, to Philadelphia.[35]

Theodore Roosevelt no doubt produced a good reason for declining the invitation to be present in Philadelphia on November 22, the date that had at last been set for Wilson's reinterment. Even T.R.'s patriotic ardor had its limits: just a short time before this interview with Konkle and Alexander, he had officially welcomed back to these shores the body of another revived American hero, John Paul Jones.

Jones died in Paris in 1792--if not an outcast, a very great nuisance for the American minister to France, Gouverneur Morris, who refused to foot the bill for Jones's funeral. His French friends, however, looking forward to the day when Jones's body might be reclaimed by a nation more appreciative of the services he had rendered, saw to his burial in a lead-lined coffin filled with alcohol as a preservative. The ambassador to France in Theodore Roosevelt's administration, General Horace Porter, made it his assignment of highest priority to track down Jones's grave in a long-abandoned Parisian cemetery; his task was made all the more daunting by the fact that several buildings, including a public laundry, had been constructed on the cemetery site. Porter advanced his own funds for the excavation work, and after two months of burrowing and a series of disappointments, his crew uncovered the mummified corpse of Jones--in remarkably good shape, it was asserted, because of the ambient alcohol he had absorbed. An impressive funeral ceremony was orchestrated by Porter in Paris, following which Jones's remains were taken back to the United States, escorted by a flotilla of American and French warships.[36]

The Naval Academy at Annapolis would be Jones's final resting place, and the commemorative proceeding held there in April, 1906, provided President Roosevelt with a "bully pulpit." The flag-draped coffin in front of him, he preached a sermon on "the lessons that history teaches." Every midshipman and officer was put on notice by their commander-in-chief: "You will be worthless in war if you have not prepared yourselves for it in peace." To the members of Congress in the audience he issued a different challenge:

In what was left of John Paul Jones, the President had obviously found a useful surrogate.

If strengthening the navy was an essential part of the presidential program, so too was disciplining the abusive power of the corporate giants. Roosevelt did have on his calendar a trip to Pennsylvania that fall. He was to be the featured speaker at the dedication of the new capitol building in Harrisburg, and just as he had done with John Paul Jones at Annapolis, on this occasion he would summon back to duty James Wilson. Konkle and Alexander, when they went to the White House in June, had virtually handed the President the opening sentence of his speech in Harrisburg on October 4: "I cannot do better than base my theory of governmental action upon the words and deeds of one of Pennsylvania's greatest sons, Justice James Wilson."[38]

The worst apprehensions of Chancellor Dickson were about to be realized. Wilson's achievement, the President said, was to foresee the need for a strong national government which had "full and complete power to work on behalf of the people." Even before John Marshall, Wilson had the wisdom to develop "the doctrine (absolutely essential not merely to the efficiency but to the existence of this nation) that an inherent power rested in the nation, outside of the enumerated powers conferred upon it by the Constitution."

Yet certain tribunals and jurists had done, the President lamented, exactly what Wilson would have condemned: "They have, as a matter of fact, left vacancies, left blanks between the limits of possible State jurisdiction and the limits of actual national jurisdiction over the control of the great business corporations." A narrow and stultifying interpretation of the Constitution, in breach of the principles espoused by Wilson, would leave the national government impotent to provide "adequate supervision and control over the business use of the swollen fortunes of to-day," as well as "to determine the conditions upon which these fortunes are to be transmitted and the percentage they shall pay to the government whose protecting arm alone enables them to exist." To relegate responsibility to the states in the name of strict construction would be "a farce...simply another way of saying that it shall not be done at all." That was provocative stuff to serve up to his listeners in Harrisburg, much less to attribute to the enlarged vision of James Wilson. His political instincts intact, the President felt compelled to add that only by so proceeding could the nation be immunized against the twin evils of "anarchy" and "socialism."[39]

At dawn on Sunday, November 18, the U.S.S. Dubuque weighed anchor and set off from Philadelphia for Norfolk. The Pennsylvania delegation on board consisted of Konkle, Alexander, and a representative of the Governor. Alexander came very close to missing the boat; he had to hire an automobile at the considerable expense of $10 and just managed to get to the embarkation point at 2:30 a.m.[40] Also on board the Dubuque was the casket donated by the St. Andrew's Society, draped in the colors and under a guard of Marines.

As Konkle would subsequently report in a published article, "the dignity of the occasion was somewhat infringed upon late on Sunday afternoon, when Neptune attacked the Pennsylvania delegation." The most likely victim of this assault was Konkle himself, for when the Dubuque docked in Norfolk on Monday morning, he sent ahead Alexander and Mr. Bringhurst, a Philadelphia undertaker, so that the disinterment could be completed by the time the rest of the party arrived in Edenton the next day. On Tuesday, there was a sizable gathering in the Johnston cemetery: it included, in addition to the contingent from Pennsylvania and the captain of the Dubuque, members of the local Wilson committee, the Lieutenant Governor and Chief Justice of North Carolina, and an honor guard from the Society of the Cincinnati and the Sons of the Revolution. After a prayer was said, Konkle read the request from the Commonwealth of Pennsylvania for permission to remove Wilson's remains, to which Lieutenant Governor Winston formally assented. The group then adjourned for a cordial luncheon at a nearby mansion.[41]

As the Dubuque steamed out of Norfolk that afternoon, the flags of all vessels in the harbor were at half-mast and minute-guns sounded a respectful salute. We owe, by the way, to Konkle's special descriptive talents further testimony to the close alliance formed between Theodore Roosevelt and James Wilson: "...it is now known," wrote Konkle of Wilson's exhumed remains,

James Wilson's reception in Philadelphia was an extraordinary affair, and all the more so when one recalls how sharply his stock had fallen during the last years of his life and the shabby circumstances in which he died. At the outset, not everything proceeded as smoothly as the managers of this event would have liked. The Dubuque, delayed by fog, kept Governor Pennypacker of Pennsylvania and a cluster of other notables waiting for three hours at the Chestnut Street wharf.

When the Dubuque hove into sight, a convoy of small craft moved out to meet it, guns boomed again in Wilson's honor, foreign vessels in port dipped their flags, and bells in the city began to toll. All this noise and bustle led to an anxious moment on the Delaware: the Dubuque nearly ran into a Reading Railroad ferryboat whose captain saved the day by throwing the engine of his boat into full reverse.[43]

Lifted on the shoulders of sailors from the Dubuque, the casket was carried in procession to Independence Hall and placed on a catafalque in the very room in which Wilson and his fellow delegates had assembled to debate and vote on the Declaration of Independence and the Constitution. To Wilson was accorded a privilege previously bestowed on John Quincy Adams, Henry Clay, and Abraham Lincoln, for their remains had also lain in this historic east room.[44] With officers of the First City Troop present in full regalia, and two burly Philadelphia policemen stationed less grandly in the background, the public filed past Wilson's bier from 11 a.m. to about 1:30 p.m.

It is a short walk from Independence Hall to Christ Church, a distance of four blocks. On this second trip to his grave, James Wilson would be escorted by three Justices of the Supreme Court of the United States. At the head of the cortege, leaning on his cane, the Chief Justice, Melville Weston Fuller, was engaged in animated conversation with Justice Oliver Wendell Holmes, Jr. Not a matched pair by any measurement--Fuller a diminutive figure, barely five feet tall, and Holmes at an elevation that compelled him to bend down to converse with the Chief--the two of them had nevertheless gotten along famously since Holmes had joined the Court in 1902. In all probability, Holmes had come along just for the ride, solely to please Fuller and not because he thought much of Wilson's philosophy of the law or relished participating in the staged events that were in prospect. The third member of the Court, designated to speak for his brethren, was Edward Douglass White, who in four years would succeed Fuller as Chief Justice; like Holmes, White had fought in the Civil War, but on the opposite side, enlisting as a Confederate drummer-boy at the age of fifteen.[45]

As the national anthem rang out from the organ of Christ Church, these three Justices were installed in the pew reserved for George Washington when he resided in Philadelphia as President. The church was filled to overflowing by a crowd that could gain admittance by invitation only. Wilson had shifted from the Presbyterianism of his forebears to Anglicanism at about the time he married his first wife. Hence, the religious service was appropriately entrusted to the bishop coadjutor of the Episcopal Diocese of Pennsylvania, who, in this situation, may have had to improvise on the ritual prescribed in the Book of Common Prayer.[46]

Ecclesiastical duties discharged, Governor Pennypacker rose as the first of the speakers lined up to extol Wilson. Nations which fail to give due recognition to men of Wilson's rank and capacities "either still linger within the trammels of barbarism," the Governor intoned, "or are moving on the downward path toward decadence."[47] It appeared that, by the narrowest of margins in Wilson's case, the United States was about to escape these unattractive alternatives.

Samuel Dickson, as spokesman for the lawyers of Pennsylvania, submitted a brief. He was determined, among other things, to repair some of the damage caused by President Roosevelt's speech in Harrisburg. When Dickson had finished, the Wilson he had reconstructed was a quintessential conservative, trained by a conservative John Dickinson, zealous in protecting the autonomy of first the colonies and then the states "as self-governing communities," reluctantly ready to participate in a "conservative Revolution," and committed to a slowly evolving, dependable common law as the foundation of our jurisprudence. Dickson was at special pains to prove that, far from being attached to the concept of inherent powers, Wilson believed that what the Constitution did not give explicitly or by necessary implication to the national government was reserved to the states. Wilson saw no need, he argued, for a bill of rights--neither, one suspects, did Dickson--but if such a charter of basic liberties had to be, then the Tenth Amendment restored the necessary balance.[48]

After reviewing Wilson's career on the faculty of the College of Philadelphia and the lectures he gave as its first professor of law, Dean William Draper Lewis labeled Wilson "the most democratic among the fathers of our country, prevented from being a scientific anarchist only by his final conclusion, that the individual man can bind himself and by his consent turn a proposed rule of conduct into a binding law." Dean Lewis flatly contradicted Samuel Dickson's reading of Wilson's opposition to a bill of rights and, in fact, praised Wilson as an advocate of a theory of implied or inherent powers "more extreme than any which has been adopted by our courts."[49]

The next three speakers steered clear of controversy. S. Weir Mitchell, as the representative of American literature, borrowed from the pages of Hugh Wynne by referring to the burial ground of Christ Church as the consecrated resting place of those who had struggled in the War of Independence, including "the Tory gentlemen who stood for the King" and lay there "in the peace which is past understanding." Andrew Carnegie, deputized to speak for Scottish-Americans, rather let himself go when he asked rhetorically whether life is worth living and answered, "Yes, grandly worth living if lived as James Wilson lived." Alton B. Parker, Theodore Roosevelt's Democratic opponent in the election of 1904 and the President of the American Bar Association, had the professional good sense to play to the occupants of Washington's pew by concentrating on Wilson's membership in what had become "the greatest court in history."[50]

Ever so delicately in his remarks, Justice White touched on the issue of the effect and adequacy of a constitution "framed in generic terms." That the nation came into existence at all was due to "the self-abnegation of the fathers in declining to insist upon the full adoption of their views when the Constitution was framed, thus leaving sufficient flexibility to enable the adjustment of questions as they might arise." True, a price had to be paid in ensuing constitutional litigation for this lack of precision, a perfect babel of voices upholding first one interpretation of the Constitution and then another." Just how far White had himself progressed in accepting the necessity of a strong central government was revealed in the appeal he made in his peroration to "the great and tender soul of Abraham Lincoln" and to the concluding words, "which shall never die," of the Gettysburg Address.[51]

Of Wilson, Attorney General (and later Justice) Moody began by admitting: "It is one of the mysteries of history, which I have not been able to solve, why his fame has not kept pace with his service." There as the President's representative, the Attorney General had little choice but to echo the party line. Wilson desired, he said, that "the government should be endowed with extensive powers, and that in respect of them it should be supreme over all."[52]

The principal and last address, delivered by Hampton L. Carson, the Attorney General of Pennsylvania, was worthy of Wilson himself: a Latin quotation, a reference to Rome in its heyday, a side trek or two--and the whole of considerable duration. Wilson's opinion in Chisholm v. Georgia he pronounced a masterpiece that "must be regarded as the climax of Federalism." What was more, "the architecture of our Constitution, as conceived by the brain of this marvelous man, resembles that of the heavens, where states circle like planets about the Federal government as a central sun."[53]

A long afternoon soon drew to a close. A brief committal service occurred in the churchyard, and as the gentlemen present (it was mostly a male gathering) removed their hats, Wilson's casket was lowered into the ground beside the remains of his first wife. Konkle, who fancied himself a specialist in lapidary inscriptions, was responsible for the text which appears on the identical tombstones that were put in place in Edenton and at Christ Church:

By the end of this memorable day, Konkle and Alexander were no longer on speaking terms. Though their joint venture had been deemed a great success, there was simply not enough acclaim to satisfy them both. Each had jockeyed for position and precedence, and each was certain that the other had encroached on his territory. Moreover, Konkle reacted angrily to Alexander's barb that, in the tombstone inscription, he had missed the date of Wilson's death by a full week--a discrepancy that had come to Alexander's attention when he was in Edenton.[55]

Minor skirmishes turned into all-out-war. Konkle summarily dismissed Alexander from the Wilson Memorial Committee for insubordination.[56] His previously trusted lieutenant retaliated by suggesting that Konkle had taken leave of his senses and that he had better get his own contribution into proper perspective, else "you will utterly destroy your usefulness for the future." On the bottom of the letter from Alexander containing this advice, Konkle scrawled a rejoinder which he fired back to the sender: "Relations with you are the only injury to my usefulness that I know. You are as much an authority on preserving one's usefulness as you are on untrustworthiness and common impudence."[57]

A quiet grave was thus denied James Wilson. Hostilities between Konkle and Alexander continued for more than a year, eliciting newspaper comment (such as "Row Spoils Holy Rite") and bewildering the other participants in the business of the Wilson Memorial Committee.[58] After an embarrassing delay in settling its accounts, the committee finally disbanded. In the separate reports the two antagonists published on the work of the committee and the memorial proceedings, honors were distributed according to their contrasting notions of merit. More elaborate projects, such as Alexander's proposed commemorative volume, with a preface written by Lord Bryce, the British ambassador to the United States, and Konkle's definitive biography of Wilson, were necessarily put aside.[59]

In two respects, James Wilson was "translated." Looked at as ritual, the transfer of his remains from an obscure country graveyard to Christ Church in Philadelphia corresponds, in strikingly similar ways, to the translation of the relics of saints in late antiquity and the medieval period. The modern mind may resist this comparison, but the continuities are there, including the discovery of the saint and the verification of sainthood, the ceremonies associated with the translation, the speeches given, the erection of a monument, and what an acute observer of this phenomenon has dubbed the "impresarios" of the cult of saints. These impresarios, ancient counterparts of Konkle and Alexander, had both an expediting and self-serving function: they were privileged intermediaries between the past and the present, the dispensers of glory, the translators of fame, whose reputation in their own community rose in direct relation to the perceived power of the saint whom they were promoting.[60]

James Wilson was also translated in the more conventional understanding of that word. Not completely decipherable in the original version, he became more intelligible as he was made more relevant. When translation is defined as the effective delivery of a message, Wilson's revival should be seen in the larger context of our recurrent temptation to put the past and its inhabitants to work for present purposes. In that sense, the translation of James Wilson must be viewed as something other than a bizarre episode, consigned to an age of innocence far removed from our own time.[61]

1. From a sermon preached on January 30, 1625. John Donne: Selected Prose, ed. Neil Rhodes (Penguin Classics, 1987), p. 223.
2. James Wilson, The Works of James Wilson, ed., Robert Green McCloskey, 2 vols (Cambridge: Harvard University Press, 1967) 1:405.
3. Ibid., 2: 716, 719-20.
4. Ibid., 1:47.
5. Charles Page Smith, Jams Wilson: Founding Father (Chapel Hill: University of North Carolina Press, 1956), pp. 82-89, 117-23, 133-39. Professor Smith's biography remains the single most reliable source of information about Wilson.
6. Bushrod Washington to Bird Wilson, October 26, 1822, Wilson Papers, The Historical Society of Pennsylvania, Philadelphia, Pa. (hereafter cited as HSP), vol. 2, pp. 122-23. George Washington Covered the stipend with his own note delivered to Wilson: "Necessity obliges me to give you my promissory Note instead of the deposit of a hundred guineas. I will take it up as soon as I can." Washington to Wilson, March 22, 1782, The Writings of George Washington, ed. John C. Fitzpatrick, 39 vols. (Washington, D.C.: U.S. Govt. Printing Office, 1931-44), 24:88.
7. Wilson's letter of application dated April 21, 1789, may be found in The Papers of George Washington (Presidential Series), ed. W.W. Abbot (Charlottesville: University Press of Virginia, 1987-), vol. 2, April-June 1789, ed. Dorothy Twohig, 2:111-12, and Washington's reply dated May 9, 1789, in The Writings of George Washington, 30:314.
8. John Kinsey to Henry Drinker, September 14, 1794, and Samuel Preston to Henry Drinker, September 24, 1794, Drinker Collection, HSP. Wilson was not alone in imagining that a prosperous settlement could be created almost instantly in the backwoods, on the sole condition that there was sufficient waterpower to run the mills. For Wilson's model, see Tench Coxe, A View of the United States of American (Philadelphia: William Hall and Wrigley and Berriman, 1794), pp. 380-404, an influential book on which foreign investors, in particular, relied.
9. Henry Drinker to John Canan, Esquire, May 26, 1794, Drinker Letterbook (1793-96), HSP, pp. 167-68, in which Drinker purports to quote verbatim from a letter sent to Wilson.
10. Henry Drinker to James Wilson (copy), August 4, 1796, Drinker Collection, HSP.
11. James Wilson to Henry Drinker, August 18, 1796, Drinker Collection, HSP.
12. Smith, James Wilson, pp. 382-84; Gratz v. Wilson, 6 New Jersey L. Rep. 419 (1798).
13. James Wilson to Bird Wilson, January 17, February 4, February 24, March 17, April 21, May 5, 1798, Wilson Papers, HSP, vol. 5, pp. 1-8.
14. Hannah Wilson to Bird Wilson, September 1, 1798, Wilson Papers, HSP, vol. 6, pp. 11-12; see Smith, James Wilson, pp. 386-88.
15. Samuel Johnston to James Iredell, July 28, 1798, in Griffith J. McRee, Life and Correspondence of James Iredell, 2 vols. (New York: D. Appleton and Company, 1857), 2:532.
16. James Iredell to Timothy Pickering (corrected copy), August 25, 1798, James Iredell Papers, William R. Perkins Library, Duke University, Durham, N.C.
17. James Iredell to Bird Wilson, September 1, 178, James A. Montgomery Collection, HSP.
18. Hannah Wilson to Bird Wilson, September 1, 1798, Wilson Papers, HSP, vol. 6, pp. 11-12; see Smith, James Wilson, pp. 97, 361,366. Hannah Wilson remarried Dr. Thomas Bartlett of Boston, whom she accompanied to England, where she died in 1807. McRee, Life and Correspondence of James Iredell, 2:535.
19. "It is more malignant . . . than in 1793." William Rawle (in Philadelphia) to James Iredell, September 26, 1798, in McRee, Life and Correspondence of James Iredell, 2:537.
20. Jacob Rush to Benjamin Rush, September 8, 1798, Rush Collection, HSP; Timothy Pickering to Benjamin Rush, September 19, 1798, Gratz collection, HSP.
21. Adams preferred Marshall to Bushrod Washington, but sent to Pickering from Quincy, Massachusetts, a signed commission in blank so that Pickering could fill in the name of the candidate who did accept. The Works of John Adams, ed. Charles Francis Adams, 10 vols. (Boston: Little, Brown and Company, 1850-56), 8:595-98.
22. 2 U.S. (2 Dall.) 419, 453-66 (193).
23. See Justice Brennan's dissent in Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247-302 (1985).
24. See Alan Axelrod, ed., The Colonial Revival in America (New York: W.W. Norton & Company, 1985), pp. 10, 241-77; Wallace Evan Davies, Patriotism on Parade: The Story of Veterans' and Hereditary Organizations in America, 1783-1900 (Cambridge: Harvard University Press, 1955, pp. 45-46, 218-19; Charles B. Hosmer, Jr., Presence of the Past: A History of the Preservation Movement in the United States before Williamsburg (New York: G.P. Putnam's Sons, 1965), p. 299; and Karal Ann Marling, George Washington Slept Here: Colonial Revivals and American Culture, 1876-1986 (Cambridge: Harvard University Press, 1988), pp. 65-70, 75-76, 121-25.
25. The Autobiography of Benjamin Rush: His "Travels Through Life" together with his Commonplace Book for 1789-1813, ed. George W. Corner (Princeton: Princeton University Press, 1948), p. 237.
26. S. Weir Mitchell, Hugh Wynne: Free Quaker (New York: The Century Co., 1909), pp. viii-ix, 60-62, 133-34, 536-47.
27. Ibid., pp. 3-4.
28. S. Weir Mitchell to William Draper Lewis (copy), March 14, 1904, Lucien H. Alexander Papers (hereafter cited as Alexander Papers), HSP.
29. Excerpt from minutes of Faculty of Law Department, April 4, 1904, Alexander Papers, HSP.
30. Lucien H. Alexander to Arthur G. Dickson (copy), May 23, 1907, and Arthur G. Dickson to Lucien H. Alexander, May 24, 1907, Alexander Papers, HSP.
31. Burton Alva Konkle, The Life of Andrew Hamilton, 1676-1741 (Philadelphia: National Publishing Company, 1941), preface.
32. Lucien H. Alexander, review of The Life and Speeches of Thomas Williams, Orator, Statesman and Jurist, 1806-1872, by Burton Alva Konkle in The Legal Intelligencer (Philadelphia), January 19, 1906; Lucien H. Alexander to Burton Alva Konkle, January 23, 1906; Alexander Papers, HSP.
33. Lucien H. Alexander to Burton Alva Konkle (copy), February 19, 1906, Alexander Papers, HSP.
34. Lucien H. Alexander to Burton Alva Konkle (copy), February 28, 1906, Alexander Papers, HSP.
35. Lucien H. Alexander to Francis Rawle (copy), February 6, 1907) (enclosing an itemized account confirming trips taken), Alexander Papers, HSP.
36. By joint resolution of Congress, it was directed that a volume be prepared on the discovery, transfer, and reburial of Jones's body, complete with photographs, and pursuant to this authorization, 11,000 copies were printed. John Paul Jones--Commemoration at Annapolis, April 24, 1906 (Washington: U.S. Govt. Printing Office, 1907).
37. Ibid., p. 19.
38. The text of the speech, entitled "Legislative Actions and Judicial Decisions," is found in Theodore Roosevelt, The Works of Theodore Roosevelt, 24 vols. (New York: Charles Scribner's Sons, 1923-26), 18:82-89.
39. Ibid., pp. 83-86.
40. Lucien H. Alexander to Francis Rawle (copy), February 6, 1907, Alexander Papers, HSP.
41. Burton Alva Konkle, "The James Wilson Memorial," American Law Register 55 (1907), 1, 5-6.
42. Ibid., p. 6.
43. Public Ledger (Philadelphia), November 23, 1906, pp. 1-2.
44. J. Thomas Scharf and Thompson Westcott, History of Philadelphia, 1609-1884, 3 vols. (Philadelphia: L.H. Everts & Co., 1884), 3:1790.
45. Sheldon M. Novick, Honorable Justice: The Life of Oliver Wendell Holmes (Boston: Little, Brown and Company, 1989), pp. 241-44, 255-57.
46. For Wilson's conversion to Anglicanism, see Smith, James Wilson, pp. 28-29, 37-42.
47. "Tributes Delivered at the Memorial Services," American Law Register 55 (1907), 12.
48. Ibid., 13-19.
49. Ibid., 19-22.
50. Ibid., 22-27.
51. Ibid., 27-31.
52. Ibid., 31-34.
53. "Oration," American Law Register 55 (1907), 35-46.
54. Konkle, "The James Wilson Memorial," American Law Register 55 (1907), 7.
55. Lucien H. Alexander, "Concerning The Rev. Mr. Konkle's Attack on the Accuracy of Mr. Alexander's Assertion that Dr. Mitchell was the Author of the Movement to Bring Wilson's Body Home to Pennsylvania . . .," undated memorandum, p. 2, Alexander Papers, HSP.
56. Alva Burton Konkle to Lucien H. Alexander (copy), December 1, 1906, Alexander Papers, HSP.
57. Lucien H. Alexander to Alva Burton Konkle, December 3, 1906 (with Konkle's undated reply), Alexander Papers, HSP.
58. The Evening Bulletin (Philadelphia), November 8, 1907, p. 10; see also The Philadelphia Inquirer, November 4, 1907, pp. 1 and 2, and November 5, 1907, p. 9.
59. In effect, Konkle's report was his previously cited introductory essay published in the issue of the American Law Register devoted to the Wilson proceedings. Alexander produced his own account in a study on "James Wilson" Nation-Builder," The Green Bag 19 (1907), pp. 1-9, 98-109, 137-46, 265-76.
60. Peter Brown, The Cult of the Saints (Chicago: The University of Chicago Press, 1981), pp. 36-39, 86-105. Two other examples of this kind of translation at the end of the nineteenth century and the beginning of the twentieth century are instructive. The first was the attempt to move the remains of William Penn From England to Fairmount Park in Philadelphia, which failed because of Quaker sensibilities, and the second was the reinternment of General Nathanael Greene, over possession of whose remains the States of Rhode Island and Georgia contested for several months (during which period the relics of Greene were lodged in the safe deposit vault of the Southern Bank of the State of Georgia). George L. Harrison, The Remains of William Penn (Philadelphia: globe Printing House, 1882); The Remains of Major-General Nathanael Greene (Providence, R.I.: E. L. Freeman & Sons, 1903).
61. A Harvard professor was responsible for the 1988 reburial in Arlington National Cemetery of Matthew Arnold Henson, a black valet-cum-navigator who accompanied Robert Peary to the North Pole; the translation of the long-neglected Henson was hailed as marking a new day in race relations. New York Times, April 7, 1988, p. A16. Thirty-one years after he was hanged and his body thrown into a prison grave, Imre Nagy, the leader of the 1956 uprising in Hungary, was rehabilitated and given a state funeral in Budapest.; New York Times, June 17, 1989, pp. 1, 6.