Friday, 30 September 2016

Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, Part II: Inheritance

    In spite of how the American Revolution ended – if, indeed, it has ended – with the creation and consolidation of a republican government the likes of which the world had never before seen, the breakdown of British rule in North America actually began as a conservative response to the violation of long-established practice. Early written attempts to justify resistance to British tax policy, circa 1765-1775, made this quite clear. The citizens of British America, as documents put forward by colonial legislatures or inter-colonial assemblies attempted to explain, were nothing if not eager to maintain a strong, stable, and mutually beneficial relationship between themselves and the British Crown. The various colonies had been established under the auspices of the British monarchy through the use of royal charters, and the links between the far-flung provinces of Massachusetts, Virginia, or Pennsylvania and Britain proper were, by the 1760s and 1770s, long-established and well-regarded. Accordingly, conflict arose between the colonies and Parliament after 1765, not because the former wished to alter the terms under which the Anglo-American relationship functioned, but rather as a result of the British legislature’s attempt to claim a power that British law and centuries of precedent utterly failed to account for or justify.

James Wilson’s Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, written in 1768 and published in 1774, was very much one of these early, conservative documents. And though it is perhaps not as well-remembered as Jefferson’s Declaration of Independence, or even Dickinson’s Letters from a Farmer in Pennsylvania, the way it attempted to drive home it’s author’s central point – that British efforts to apply direct taxes to the American colonies violated British law and precedent – is striking in its attention to detail and its rigorous application thereof. As many of his colleagues at the 1787 Philadelphia Convention later commented, Wilson was possessed of a uniquely compendious knowledge of legal precedents, and his ability to bring any number of them into focus while driving home a point of debate was truly remarkable. Considerations, in many ways, is this talent made manifest. Rather than rely on arguments that stemmed from the at-times abstract rights philosophy of the European Enlightenment, Wilson relied on British examples and British authorities to make his case for him. While not always concise, this method provided readers with an understanding of British law and jurisprudence that stretched back centuries without necessarily losing sight of the central argument – again, that Parliament had no right to extend its taxing power beyond the confines of Britain itself. Aside from being an impressive feat on its own, this particular style of debate argues strongly in favor of the conservatism and the Anglophilia of the early years of the Revolution.

Within the context of this essay series, the term “conservative” ought to be understood as synonymous with words like “traditional” or “established.” Describing the early phase of the American Revolution as conservative should thus by no means denote an attachment on the part of the Founders to fundamentalist religion or fiscal responsibility. James Wilson’s Considerations was a conservative pamphlet because it argued in favor of reasserting the accustomed relationship between Britain and the America colonies that Parliamentary politicking had disrupted, and did so in part by relying on the strength of precedent and tradition. In essence, it put forward the argument that the British system of representative government was something that had evolved over the course of many centuries, that its various provisions and safeguards were the result of a trial-and-error process whereby useful elements were reinforced and contradictions were addressed, and that the result, by the late 18th century, was an administrative framework that was as near to perfect as was humanly attainable. Though this may sound like something of a digression from the topic at hand – America, taxes, and the rightness thereof – Wilson’s central conceit was that he and his countrymen regarded the British system of government so highly that they were unwilling to allow it to be wantonly violated or abused. Permitting Parliament to tax the colonists without providing for their representation, he argued, would have disregarded centuries of precedent and called into question the value of British rights and the guarantees they were meant to embody. America would have no part of this, it seemed – or James Wilson would not, at any rate.

    The means by which Considerations put this case to the colonial population speaks volumes about how they understood their ongoing dispute with Parliament. This isn’t to say, of course, that they all nurtured the deep-seated affection for the Mother Country that evidently compelled James Wilson. Across the millions of people who resided in Britain’s North American possessions, opinion varied greatly as to the value of the Anglo-American relationship, the form it ought to take, the quality of allegiance owed by colonial Americans to British authority, and the potential future of any continued connection between the two. That being said, the fact that Wilson felt it possible to publish Considerations in 1774 without fear of being lynched – a fate suffered by more than one customs officer during the height of the anti-Stamp Act fervor – would seem to indicate that his views were at the very least acceptable, if not accepted. It may therefore be reasonable to conclude that when Wilson wrote in the third paragraph therein, “We insist only upon being treated as freemen, and as the descendants of those British ancestors, whose memory we will not dishonour by our degeneracy [,]” he was expressing a sentiment that was not uncommon among his fellow colonists.

Understanding what Wilson meant by the phrase “whose memory we will not dishonour by our degeneracy” is in some ways key to grasping the broader point Considerations was intended to make. Though the various colonies had, since their foundings in the 17th and 18th centuries, acquired political and cultural traditions that were entirely unique or novel, all of them were built upon a base of British law and British culture. The political turmoil of the English Civil War (1642-1651), the constitutional turning point represented by the Glorious Revolution (1688), and the passage of the Bill of Rights (1689) all formed a part of the socio-political mythology of what it meant to be English, and subsequently British, in the 18th century. The residents of British America – of British stock or British-born themselves – were inheritors of this legacy. And though they lived and worked at great physical distance from the seat of Parliament or the site upon which the Magna Carta (1215) was signed, they were by and large no less sensitive of the importance of protecting and promoting the rights and practices their forbears had passed on to them.

Wilson’s patriotic assertions in the fourth paragraph of Considerations are emblematic of this exact sentiment. “The principles on which we have founded our opposition to the late acts of parliament,” he wrote, “Are the principles of justice and freedom, and of the British constitution.” He further added that Americans were entitled to the rights that they claimed invalidated the Stamp Act, “By the supreme and uncontrollable laws of nature, and the fundamental principles of the British constitution [.]” It is telling that Wilson – and no doubt some percentage of his audience – held the unwritten legislative compendium that is the constitution of Great Britain to be as powerful and inexorable as “the principles of justice and freedom” and “the uncontrollable laws of nature.” Compared to the rhetoric later utilized by Jefferson’s Declaration, wherein the highest powers invoked were that of “Nature” and an abstract “Nature’s God” and the rights being asserted were described as “self-evident,” this fixation on explicitly British precedent might seem almost reactionary. Far from seeking to justify something novel or exceptional, Wilson was evidently keen in Considerations to assert the high regard he and his fellow colonists nurtured for the status quo. “The colonists are entitled to all the privileges of Britons [,]” he stated plainly in the eleventh paragraph. It would seem to follow that 18th century Americans had invested the idea of being a Briton with a great deal of significance.

Much of the affection and admiration that he and his follow colonists nurtured towards British legal and political culture and tradition, Wilson went on to explain, had to do with how well-balanced and well-crafted they understood the contemporary British government to be. This, of course, had not always been so. The privileges and responsibilities of the House of Commons, the powers of the Lords, and the prerogatives of the Crown had all evolved over the course of centuries and in response to semi-regular periods of turmoil and instability. Elections, which Wilson described as, “A point of the last consequence to all free governments [,]” whose free exercise, “Is justly deemed the strongest bulwark of the British liberties [,]” had been made subject to regulation at various times in order to counter abuses of power or incidents of corruption. At times, he explained, Parliament had become too powerful, as when the session summoned by Charles I (1600-1649) in 1640 refused to disband in the midst of the constitutional crisis that preceded the aforementioned English Civil War. The result, Wilson determined in the twenty-fourth paragraph of Considerations, was a power imbalance whereby the legislators elected to pursue and promote the public good, “Became independent of the king and of their electors,” and thereafter, “Sacrificed both to that inordinate power which had been given them.” Though Parliament was intended, among other things, to restrain the arbitrary authority exercised by the Crown, Wilson reminded his readers that the Long Parliament (1640-1660) had made it quite clear that, “Kings are not the only tyrants [.]”

I know that this is a lot to throw at you. Bear with me. There is a point.

Experience had also proven, Wilson continued, that undue deference to the Crown on the part of Parliament was equally dangerous. When, following the restoration of the British Monarchy in 1660, the first Parliament under the reign of Charles II (1630-1685) was summoned, that body soon, as Wilson put it, “Lost all dependence upon [its] constituents, because [it] continued during the pleasure of the crown.” In point of fact, the so-called Cavalier Parliament sat from 1661 until 1679, was dominated by the House of Lords, and generally acted quite favorably towards the reinstated Charles. By the 1670s this air of permissiveness had worn rather thin, though, and the next several years were dominated by a simmering conflict between the king, his favorites in the Lords, and the increasingly frustrated Commons. The evaluation contained in Considerations, however, was notably more damning than this brief description would seem to indicate. Wilson described the members of the Cavalier Parliament as having, “Seemed disposed ingloriously to surrender those liberties, for which their ancestors planned, and fought, and bled [,]” in part because they had, “Bartered the liberties of the nation for places and pensions [.]” To his thinking, it seemed, the Cavalier Parliament represented another instance of a power imbalance wreaking havoc on the constitutional order and stability of the British (or in this case English) government. Parliament needed to be strong and the monarchy needed to be strong, it seemed, for British liberties to be truly safe.

Throughout these discussion, which occupied the better parts of paragraphs fourteen through forty-three of Considerations, Wilson peppered his assertions as to the strength and stability of British parliamentary government with references to pieces of legislation he understood as having strengthened the reigning constitutional order. These notably included allusions to the aforementioned Bill of Rights (1689), and to legislation passed during the reigns of William and Mary (Meeting of Parliament Act, 1694) George I (Septennial Act, 1716), and George II (Corrupt Practices at Parliamentary Elections Act, 1728). The cumulative result of this voluminous parade of legal citations, along with the aforementioned examination of the faults of the Long Parliament and the Cavalier Parliament, was the seemingly irresistible conclusion that the structure of the British government was not haphazardly arrived at. The restrictions placed on how Parliament’s elected members were chosen and how long they were permitted to serve, who could dissolve the House of Commons, and which royal prerogatives the people’s representatives were bound to obey, Wilson was keen to point out, were all the result of centuries of turmoil, conflict, modification, and reconstruction, and the product of many keen and rational minds all working towards the ultimate goal of protecting and serving the fundamental rights that Britons held dear.

Americans, Wilson explained, were sensible of this just as well as their British-born counterparts. They were proud to think of themselves as British, in spite of living a great distance from the soil of their forbears, and held British liberties close to their heats. They also understood that the British voting public rightfully expected Parliament to guard against any violation of those liberties. The countless modifications that had been made to the powers and structure of the national legislature existed largely to fulfill that purpose, and it was thus entirely reasonable for the general population to refuse to tolerate any action that might threaten or abrogate their sovereign rights. That being the case, Wilson found it rather curious that these same British citizens would expect their American cousins to willingly permit something they themselves would have found abhorrent. With the passage of the Stamp Act, Parliament had effectively claimed the right to tax the citizens of British America in spite of the fact that they enjoyed no representation therein. This claim was then made explicit with the approval of the American Colonies Act (1766), a piece of legislation which stated in no uncertain terms that Parliament,

Had hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America [...] in all cases whatsoever [.]

The British public, Wilson asserted, would not have tolerated this kind of treatment. They expected their government to be elected, responsive, and accountable, having “planned, and fought, and bled” for their liberties. The descendants, in the main, of British immigrants to distant shores, it appeared to him inconceivable that 18th century Americans would accept anything less for themselves.

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