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A Tradition of Popular Consent: Readings of Livy, Cicero, and Justinian in the Political Thought of James Wilson

Laurie A Wilson

Biola University

This paper demonstrates that the classical texts formed an essential and determinative part of James Wilson’s theory of popular sovereignty. The American founding father studied classical languages and texts at the University of St. Andrews before immigrating to the American colonies where the College of Philadelphia gave him a position as tutor in the Latin department and awarded him with an honorary master’s of arts degree in recognition of his learning. Wilson later became one of the foremost lawyers in the colonies, signed the Declaration of Independence, assisted in writing the Constitution, played a prominent role in the Federal Convention, and served as the first professor of law at the University of Pennsylvania and as a justice on the first Supreme Court. In his Law Lectures of 1790-92, Wilson expounds on the central principle of the American experiment that a legitimate government must be founded upon the consent of the people. Scholars have rightly recognized the influence of John Locke, the Scottish School of Common Sense, and natural law philosophers in Wilson’s thought, but they have overlooked Wilson’s prioritization of Roman authors in the development of his theory of popular sovereignty (O’Donnell 1937, Obering 1938, Delahanty 1969, Powell 1951, Pascal 1991, Hall 1997). In contrast, this paper argues that despite the diverse elements contributing to his philosophy and his personal slant on the classical authors, Wilson built his conception of popular sovereignty upon his readings of Livy, Cicero, and Justinian. These three authors also provide the basis for Wilson’s argument that popular sovereignty is not a new theory, but rather a long-standing tradition. 

In Ab Urbe Condita 3.31-34, Livy speaks of the Roman deputation sent to Athens in order to study their laws, customs, and institutions. Wilson directly references this work four times, as well as quoting Livy a fifth time through an intermediate work, and he draws special attention to Livy’s insistence that the Twelve Tables and the ensuing laws of the Roman Republic were amended to fit the circumstances and manners of the Romans, that they protected the interests of the whole Roman people by imparting justice to all classes of society, and that they were based on consensus omnium. Unlike many Founders who viewed the commencement of the Roman Empire as the destruction of liberty (Richard 1994), Wilson asserts that customary law and its accompanying respect for popular consent continued under the Roman Empire. During his time as a student, Wilson had checked out a text by Justinian (Library Receipt Book 1752-1759). He now translates passages from the Digesta and the Institutes to affirm that the Romans placed obligatory force on customary as well as written law and to argue that the people both make and unmake customary law through their consent. Breaking with William Blackstone, Wilson argues that the English common law tradition finds its origin in Justinian and its legitimacy in the consent of the people. Finally, Wilson directly quotes from Cicero’s De Officiis 2.12.41-42, Pro Milone 4.10-11and Pro Cluentio 53.146 and also references De Legibus 2.2.4  and De Lege Agraria 3.17.39 to reinforce his belief that the source of sovereignty rested in the Roman people. Although Wilson conceptualizes these quotations within his own framework of thought, broadens them to fit his theory of popular sovereignty, and imposes a democratic reading onto the Ciceronian texts, he aptly draws from them the discourse of popular consent. Thus, Wilson employed his learning as a classical scholar to formulate and legitimize his doctrine of popular sovereignty. As scholars continue to discuss differing conceptions of liberalism and its sustainability, Wilson’s reading of the classical authors demonstrates the necessity of including them within the conversation.

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Legal Culture

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