272
THE GREEN BAG
elected first President of the United States. It has been said that James Wilson was Washington's first choice for Chief Justice, but that political reasons resulted in the appointment of John Jay, with James Wilson merely as an Associate Justice. In making the appointment, President Washington wrote him on Sept. 30, 1789: "I experience peculiar pleasure in giving you notice of your appointment to the office of an Associate Judge in the Supreme Court of the United States. "Considering the Judicial System as the chief Pillar upon which our national Gov ernment must rest, I have thought it my duty to nominate for the high office, in that department, such men as I conceived would give dignity and lustre to our national character — and I flatter myself that the love which you have to our country, and a desire to promote general happiness, will lead you to a ready acceptance of the enclosed commission. . . ." The commission is dated the 29th of September, and now hangs in the Law School of the University of Pennsylvania. Wilson took the oath of office on October 5, 1789, and at once entered upon that career which in the course of a few years afforded him the opportunity to write the all potent decision in the case of Chisholm v. Georgia, upon which, as has been so truly said, "rests the governmental fabric of the United States." Wilson believed "Justice to be the great interest of man on earth, " that the minis ters of the law were the conservators of the liberties of the people; that they should have that same respect for Constitutional restraints which he asserted it to be their duty to demand from and impose upon both the Executive and Legislative depart ments of the government. Judicial deci sions controlled by considerations of policy were to him utterly abhorrent. With these scathing words of denunciation, he warned against them: "Among all the terrible instruments of arbitrary power, decisions of Courts, whetted and guided and impelled by considerations
of policy, cut with the keenest edge, and inflict the deepest and most deadly wounds." To Wilson there was no No-man's land between the limits of national and state jurisdictions — no vacancies or interfer ences. He had a broader and more com prehensive grasp of the Constitution than had any man of his time, and certainly none have excelled him since, not even Marshall who was bound and restricted by the limits of the issues before him for adju dication, and who left behind him no great treatise on the Constitution as did Wilson. It is not strange that Wilson should have foreshadowed all of Marshall's great opin ions and should have clearly enunciated the most far-reaching constitutional prin ciple John Marshall ever wrote into a deci sion, and this Wilson did in 1791 in these plain and simple words in his law lecture on the legislative powers of Congress:1 "The powers of Congress are, indeed, enumerated; but it was intended that those powers, thus enumerated, should be effect ual, and not nugatory. In conformity to this consistent mode of thinking and acting, Congress has power to make all laws, which shall be necessary and proper for carrying into execution every power vested by the Constitution in the government of the United States, or in any of its officers or departments." Did John Marshall know of Wilson's writings? Did his great colleague, Joseph Story, know? Theoretically it is incon ceivable that they did not; but any who are curious enough to look will find Mr. Justice Story's autograph copy of Wilson's Works (edition, 1804) in the Library of Congress — in the Congress branch, under the Supreme Court room in the Capitol. Wilson, when a Justice of the Supreme Court, acted with courage and fortitude at the time of the insurrection in Pennsyl vania, known as the Whiskey Rebellion. Congress had passed an excise law on March 3, 1791. The senators from Pennsylvania , Wilson's Works, 1804 ed. Vol. II, p. 181; 1906 ed. Vol. II, p. 59.
