From James Wilson
Philada 31st Decemr 1791.
By the House of Representatives of Pennsylvania I am empowered to “digest into proper Order and Form the Laws of that Commonwealth;” and “to report such Alterations, Additions and Improvements as the Principles and Forms of the Constitution may require.”1
In this Work I have made some Progress; during which it has occurred to me, that a similar Work with Regard to the Laws of the United States might, with Propriety accompany that, in which I am engaged.
To you it is unnecessary to make any general Remarks concerning the immense Importance of a good Code of municipal Law.
There are two Circumstances, which induce me to think, that to the United States this Subject is peculiarly interesting.
1. Their Government is newly formed and organised. A good System of Legislation introduced into it now will have a salutary, a decisive and a permanent Influence upon its future Fortunes and Character. Good Principles, at least—Principles congenial to those of the Constitution—should be laid betimes as the Foundation of subsequent Regulations.
2. It is of much Moment that those Principles be established and ascertained, in complete and correct Theory, before they are called farther into practical Operation. The most intricate and the most delicate Questions in our national Jurisprudence will arise in runing the Line between the Authority of the national Government and that of the several States. A Controversy, which happens between two Individuals, is considered and determined with Coolness and Impartiality, like a Question of Law. A Controversy, happening between the United States and any particlar State in the Union, will be viewed and agitated, with Bias and Passion, like a Question of Politics. For this Reason, the Principles and Rules, on which it must be determined, should be clearly and explicitly known before it arises.
To the happy Atchievment of such a Revolution as that of the United States, the foregoing Observations are applicable with a Force uncommonly striking and powerful.
I have intimated my Opinion, that a Digest of the Laws of the United States might, with Propriety, accompany that of the Laws of Pennsylvania. This Opinion is grounded on the following Reasons.
1. In the latter Digest, the difficult and delicate Line of Authority, which I have mentioned, must be run; and the Country lying on the Side of the Commonwealth must be explored and liberated. Can there be a fitter Occasion for exploring and delineating the Country, which lies on the Side of the United States? To explain and delineate the Country on both Sides is, perhaps, the best Mode of discovering and ascertaining, with Accuracy, the different Directions, which this Line ought to take. From one employed to do the Business on both Sides, Impartiality as well as Accuracy might be reasonably expected.
2. There is a peculiar Propriety in running the Line between the Government of the United States and that of Pennsylvania. Since the Establishment of the Constitution of the United States that of Pennsylvania has been made. With an express and avowed Reference to the Constitution of the United States that of Pennsylvania has been sedulously framed. It is probable, therefore, that the Directions, which the Line above mentioned ought to take, may be traced with a satisfactory Degree of Clearness as well as of Precision; and that neither Vacancies nor Interferences will be found, between the Limits of the two Jurisdictions. For it is material to observe, that both Jurisdictions together compose, or ought to compose only one uniform and comprehensive System of Government and Laws.
In what follows, I must speak concerning myself. I shall speak with Freedom and with Candour: I speak to a Friend as well as to a Judge.
If you think, that, at a proper Time, it ought to be “recommended” by you to the national Legislature, or the two Houses which compose it, to authorise one to prepare, for their Consideration, such a Digest as I have mentioned; I declare my Willingness, nay my Desire to undertake it.
I know, that I am unequal to the Task. I know, that, in performing it, I would not be able to attain even that Degree of Excellence, of which I myself can form an Idea.
My offer proceeds from the following Considerations. In the Formation of both Constitutions, that of the United States and that of Pennsylvania, I took a faithful and an assiduous Part. So far, therefore, as my Abilities can reach, I may be supposed to know their Principles and their Connexion; and the various Relations and Dependencies, which their Principles and Connexion ought to produce in the different Parts of Legislation. In the Study and in the Practice, too, of Law and systematic Politics, I have been engaged for a Time considerably long, and on a Scale considerably extensive. I am already employed in executing one Part of the great Plan: If I can command a tolerable Share of Success in that Part; I can command an equal Share in the other also. Nay, I believe, that both Parts can be executed together, better than either Part can be executed separately. Permit me farther to suggest, that my Deficiencies in Point of Abilities would, in some Degree, be compensated by the Ardour of my Inclination to acquit myself as well as possible in a Trust so honourable and so important.
This Ardour, believe me, would be greatly increased as well as gratified by executing this important and honourable Trust under your Auspices, and during your Administration; from which every Thing connected with them will receive and reflect a Lustre.2 With Sentiments of the most perfect Esteem and Attachment, I have the Honour to be, Sir, Your most obedient and very humble Servant