Friday, September 23, 2016

Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, Part I: Context

I think by now it has become clear to my readers – all twelve of them – that there are certain rhetorical themes relating to the American Founding about which I am more or less preoccupied. I’m sure, for instance, that I’ve said it enough times for it to have become a personal aphorism that the American Founders were complex, flawed human beings, and that it is important to understand them as such. I also know for a fact that more than one of the essay series presented here have touched upon the notion that the American Revolution was not a political or intellectual event that occurred in isolation from the rest of the world. Intellectual and religious concepts born of the Old World clashed, combined, and evolved in the New World during the 17th and 18th centuries and produced a social and political environment that was ripe for a renewal of existing notions of statehood and state power. These themes, ideas, concepts, or whatever you want to call them, are extremely important to developing a nuanced understanding of the origin of the United States of America, and for that reason have been, and will be, repeated.

If anyone among my audience finds this to be unnecessary, tedious, or irritatingly didactic, I do apologize. It’s just that I find the American Founding is so easily and widely misunderstood or misinterpreted. National origins can inform a great deal about national culture. Or, to put it another way, where we came from can tell us a lot about who we are. If the general population of the United States were to come to a realistic, subtle, and complex understanding of their nation’s founding, I do believe they would be better equipped to tackle the political and social challenges that seem to threaten their sense of self than now appears to be the case. And though I don’t for a moment believe that my provincial scribblings have any real chance of moving the needle of American popular identity in this positive direction, that doesn’t mean I shouldn’t try to clearly present what I think are the most important aspects of the Founding for a readership I choose to assume is keen to learn. Changing the world can sometimes be as simple as changing the right mind. Only time will tell how the reimaging of the Founders presented by Lin-Manuel Miranda’s Hamilton, or Senator Bernie Sanders’ fearless interrogation of the 21st century status quo, will reverberate in the culture. Rest assured, however, they will. Pennies make pounds, and pounds make profits, the British say. Every little bit helps.

That being said, I don’t particularly enjoy repeating myself any more than the next person. I have, therefore, attempted to vary the subject matter of these posts so as to present the Founders themselves in as varied a light as possible. I’ve discussed the writings of lawyers, farmers, plantation-owning polymaths, at least two radical demagogues, an immigrant college student, and a self-educated housewife and political theorist. Many of them have been examined with an eye towards reinforcing the same themes stated above, but each has hopefully been given the chance to breathe and to live and to affirm themselves as individuals. Because the Founders weren’t really a group, with membership cards, and a meeting hall, and a rotating chair. They had different perspectives, were subject to different influences, and brought different approaches to the same set of problems. They worked together and at cross-purposes, and they loved each other and hated each other, and each of them had something distinct to say about what they believed to be the purpose of their nation and its place in the world. Consequently, understanding the Founders requires more than just a cursory knowledge of, say, Washington, Jefferson, and Franklin. John Dickinson, and Elbridge Gerry, and James Monroe, and Benjamin Rush were Founders, too, and knowing them makes it possible to know American better.

In that spirit, I’d like to take a look at a pamphlet written in 1768 and published in 1774 by a man named James Wilson. Not alone among the Founders, though certainly unusual, Wilson was an immigrant to the American colonies. A native of Scotland, his British education imbued him with a perspective unlike that of his colonial contemporaries, and Considerations on the Nature and Extent of the Legislative Authority of the British Parliament manifestly bears this out. Drafted in the heat of the Anglo-American crisis of the late 18th century, when Parliament and the colonies battled back and forth over the proper characterization of their shared political and legal relationship, Wilson’s essay struck a tone of temperance, peerless attention to detail, careful deliberation, and transparency. Far from the rabble-rousing of Ethan Allen, the fiery denunciations of Thomas Paine, or the vaguely self-righteous pontification of Thomas Jefferson, Wilson’s Considerations treated the conflict between the colonies and Parliament almost as if it were a legal dispute in need of litigation. Precedent was evidently what mattered to a man of Wilson’s thinking, and logic, and respect for the rule of law. What the contemporary British government and the citizens of British America failed to agree on, he argued, was not what or how much to tax, but rather from where the reigning ministry summoned the right to extend parliamentary authority over populations it did not formally represent. Though a highly relevant point of debate in the late 1760s and early 1770s, this rather nuanced position would seem to fall outside the modern popular understanding of what the American Revolution was about. For this exact reason – and because of Wilson’s reliance on and affection for British/English legal culture – Considerations and its author are worth studying and understanding.

But first...

Born in 1742 in Caskerdo – now the village of Ceres – in the east of Scotland near the royal burgh of St. Andrews, James Wilson’s outwardly humble origin as the son of Presbyterian farmers belies the rich literary and scientific culture he was exposed to in his homeland. 18th century Scotland, thanks in no small part to the Act of Union (1707) eliminating the Scottish Parliament and planting the new kingdom of Great Britain’s political establishment firmly in London, was a society dominated by a highly-skilled and educated elite of lawyers, professors, artisans, scientists, and clergymen. Combined with a densely-woven network of parish schools – the product of a Calvinist religious establishment that prized literacy – and some of Europe’s oldest universities, Scotland emerged from its union with England as a centre of literacy, philosophy, economics, and scientific thought. Young James was accordingly afforded the privilege of studying divinity, the classics, and political philosophy at the Universities of St. Andrews (founded in 1413), Edinburgh (founded in 1583), and Glasgow (founded in 1451) long before his arrival in colonial Pennsylvania. While he failed to attain a degree from any of these institutions, their influence on his later writings should not be underestimated. The Scottish Enlightenment – as the country’s 18th century has become known – gave rise to the Utilitarianism of Francis Hutcheson (1694-1746), the Empiricism of David Hume (1711-1776), the Common Sense Realism of Thomas Reid (1710-1796), the economics theories of Adam Smith (1723-1790), and the poetry of Robert Burns (1759-1796). Born and raised in a society so awash with creativity, innovation, and intellectual rigor, Wilson would have had to be particularly dense not to have his mode of thinking fundamentally affected.

Without being able to say why – it may have had something to do with being one of seven children, likely not the eldest, and thus ineligible to inherit the family farm – Wilson immigrated to British America at some point in 1765. He lived first in New York for a time, and then settled in Philadelphia in 1766. Thanks to the letters of introduction that accompanied him he was able to secure a tutoring position at the Academy and College of Philadelphia – a “charity school” founded in 1749 by, among others, Benjamin Franklin – while also studying law under noted Pennsylvania solicitor John Dickinson (1732-1808). Wilson thereafter attainted the colonial bar, moved to nearby Reading, and established a remarkably successful law practice. By 1767 he had done well enough to purchase a farm in Carlisle, on the west bank of the Susquehanna River, and in a few short years attained a reputation for himself as one of the finest lawyers in the colony – if not in all of the colonies. In 1773 he became one of the founding trustees of the Carlisle Grammar School, then intended to serve the needs of Pennsylvania’s western frontier landholders, and in 1776 he was chosen to represent the colony at the Second Continental Congress (1775-1781). Thereafter, Wilson attended the Philadelphia Convention in 1787, served as a delegate at Pennsylvania’s ratifying convention, and in 1789 was appointed by George Washington as one of the original six Justices of the United States Supreme Court.   

            Based on this relatively brief biography, there are a few characteristics James Wilson brought to the American Founding that are worth pointing out in particular. As noted earlier, he was an immigrant – and more specifically a British immigrant. Unlike, say, Thomas Jefferson or John Adams, who were born and raised in Virginia and Massachusetts, respectively, and were accordingly forced to perceive and understand “the Mother Country” at a considerable geographic and cultural distance, Wilson spent the first twenty-three years of his life in Britain. It was less likely, then, that British law, British culture, and British politics existed for him as the abstractions – nefarious or benign – they often became in the colonial American popular imagination. This, he had in common with Thomas Paine; British natives both, their understanding of how Parliament functioned, or how authority in Britain asserted itself more generally, was the result of more intimate experience then that enjoyed by their various colonial contemporaries. Without stating unequivocally that this familiarity allowed either of them to speak with greater authority than most on the subject of Great Britain or its parliament, it would at least seem fair to conclude that Wilson, like Paine, saw his homeland through different eyes than his American-born colleagues.

            Wilson’s education also surely set him apart from the great majority of his adopted countrymen. Whereas most young men in the colonies – outside of New England, at any rate – were homeschooled until they reached the appropriate age to be admitted (if they were wealthy enough) to an institute of higher learning – the College of New Jersey, for instance, or Harvard, or Yale, or Virginia’s College of William & Mary – Wilson was the beneficiary of 18th century Scotland’s aforementioned well-developed education system. Having attended parish schools and three of Europe’s finest universities by the time he was in his early twenties, he doubtless would have been considered, by the standards of 18th century America, exceptionally learned. Even without a structured primary education, this likely would have been the case. Without in any way denigrating the quality of colonial America’s post-secondary institutions, their Scottish equivalents benefitted from a deeper talent pool from which to construct their respective faculties. Situated in Europe – albeit, cold, damp, Northern Europe – the University of St. Andrews, or the University of Edinburgh, could potentially attract scholars from across Britain, or even from distant outposts of the larger British Empire, to provide instruction to their students. King’s College, for example, though the premier centre of learning in 18th century New York, was far less likely due to its distance from the centres of Anglo-American culture to be able to draw upon the same expansive reservoir of talent and expertise. Having been on the receiving end of the same, Wilson would have been, if not better equipped than certainly differently equipped, to perceive, interpret, contextualize, and react to the political convulsions that wracked the late 18th century Anglo-American relationship compared to most residents of the colonies.

            Also worth noting, more in relation to the general context in which Wilson found himself, are the exchanges that had taken place between the colonies and Parliament at the time Considerations was written in 1768 and published in 1774. The passage of the Stamp Act in 1765, intended to raise revenue meant to pay for the maintenance of a large British military presence in North America, raised ire across the colonies and resulted in a veritable fusillade of negative press, public demonstrations, and organized resistance. Unlike previous taxes levied upon the citizens of Britain’s American dependencies with the intention of regulating commerce, like the Molasses Act (1733), the Iron Act (1750), and the Sugar Act (1764), the Stamp Act applied to transactions and purchases made within the colonies rather than to products imported from without. Colonists from Maine to Georgia objected to the resulting ubiquity of the levy, and to the fact that it was explicitly intended to help fill the coffers of the British government. Accepting that governments were entitled to raise funds in order to defray administrative and security costs, many American colonists argued – through street protests, written petitions, and public orations – that said governments could only tax those whom they adequately represented. Lacking representation in Parliament, it followed that the colonies could not be made subject to direct, internal taxes such as was mandated by the Stamp Act. In June of 1765, three months after said act was granted royal assent, the legislative assembly of Massachusetts proposed that the various colonies consult with one another in order to formulate a formal, collective response. Nine colonies responded to the summons in the affirmative – New Hampshire chose not to participate, and Virginia and Georgia were prevented from doing so by their governors – and accordingly sent delegates to the resulting “Stamp Act Congress” in New York City.

            Among the petitions and remonstrances that the Congress ultimately drafted – intended to convince the House of Common, the House of Lords, and the Crown to seek the repeal of the offending legislation – perhaps the most revealing document to come out of the Stamp Act Congress was the so-called Declaration of Rights and Grievances. Intended mainly for domestic consumption, it took the form of a manifesto by which the various participating colonial governments attempted to balance their continued loyalty to the British Crown with an understanding of British law and custom that rendered the Stamp Act injurious to the rights enshrined in the British Constitution. “The members of this congress,” it opened, were, “Sincerely devoted, with the warmest sentiments of affection and duty to his majesty's person and government [and] inviolably attached to the present happy establishment of the protestant succession [.]” To this conciliatory preamble, the delegates added a catalogue of thirteen numbered grievances that attempted to couch their collective discontent in terms intended to portray the colonial position as being entirely compatible with the well-being and self-interest of the greater British Empire.

            The second point, for example, declared that, “His majesty's liege subjects in these colonies are entitled to all the inherent rights and privileges of his natural born subjects within the kingdom of Great Britain,” while the third asserted that it was,

Inseparably essential to the freedom of a people, and the undoubted rights of Englishmen, that no taxes should be imposed on them, but with their own consent, given personally, or by their representatives.

Both of these clauses invoked the concept of individual rights that were “inherent” or “undoubted,” core to the notion of being a British subject or an Englishman, and carried with them certain inviolable guarantees. By calling upon them, the colonists were thus merely attempting to assert the existence of something that all British people – living in Britain proper, the West Indies, or rural Massachusetts – were entitled to, relied upon, and had more than once proven themselves willing to protect with force of arms. The sixth grievance drove home the perceived incompatibility of the Stamp Act with British law further still by combining the hallowed personage of the British Constitution with a rather stark turn of phrase doubtless intended to deprive the stamp tax of any shred of legitimacy. “All supplies to the crown,” it read,

Being free gifts of the people, it is unreasonable and inconsistent with the principles and spirit of the British constitution, for the people of Great Britain to grant to his majesty the property of the colonists.

Whereas as tax might be explained away as an instrument intended to help balance the trade of certain commodities across a complex economy – a justification many American colonists were willing to concede – an act of law effectively granting the people of one country the authority to take at will the property of the people of another was another beast entirely. To those who truly believed in “the principles and spirit of the British constitution,” so ran the implication, there was no power on earth that could make such an act acceptable, or even possible.

Accordingly, the Declarations and Grievances of the Stamp Act Congress is best thought of as an inherently conservative document. Rather than deny the appropriateness of something that had the power of precedent behind it, the assembled delegates asserted that Parliament was the one guilty of baseless innovation. The government of Prime Minister Grenville had broken with tradition and violated the terms of the British Constitution by taxing citizens it could not claim to represent. The colonists, displeased and distressed by the implication of allowing Parliament to extend its reach across the Atlantic, countered by claiming only that they wished to uphold what they understood to be the right and proper legal and constitutional order of the British Empire. Indeed, the conclusion of the Stamp Act Congress’s Declaration characterized this impulse as a kind of sacred obligation. “It is the indispensable duty of these colonies,” it stated,

To the best of sovereigns, to the mother country, and to themselves, to endeavor, by a loyal and dutiful address to his majesty, and humble application to both houses of parliament, to procure the repeal of the act for granting and applying certain stamp duties [.]

It is worth remarking upon that at this juncture in the Anglo-American crisis of the late 18th century neither revolution nor independence was being given serious public consideration. Far from discarding their relationship with Britain, the American colonies seemed keen to preserve it – albeit, on the terms they understood to be correct and justified. James Wilson’s Considerations was drafted three years after the adjournment of the Stamp Act Congress in October, 1765, and followed very much in the footsteps of that group’s conservative manifesto.  

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