Friday, October 28, 2016

An Address to the People of the State of New-York, on the subject of the Federal Constitution, Part I: Context

In preparation for new entries in this essay series, I naturally spend quite a lot of time seeking out old speeches, declarations, and pamphlets written by members of the Founding Generation. I skim everything I find, read a fraction of that based on what I think will generate interesting commentary, and analyse in depth whatever is next on the docket. In three years (my God, has it been that long?), I’ve covered quite a lot of ground. From the 1760s to the 1840s – from Benjamin Franklin, to John Dickinson, to James Madison, to Andrew Jackson – I’ve discussed here a goodly portion of the major documents, events, and personalities that have served to make the United States of America what it is today. I hope, perhaps in vain, that I’ve managed to keep things interesting for my dear, devoted readers. The American Founding – a period which I might argue extended at its farthest reaches to the 1860s and the Civil War – is an exceedingly complex topic of study, and there is a great deal to be said about its many and various aspects and implications. That being said, and no doubt owing to the nature of my education, I perceive a number of patterns that transcend the eras and topics I have examined. There are themes, ideas, and trends that seem to recur across the decades of America’s Founding Era. The primacy of inherited British political and legal traditions within the narrative of the Revolution, for instance, or the impact of classical antiquity – the literature of Ancient Rome and Greece – on early American republicanism. I feel the need to remark upon these things every now and then, in spite of how much white noise they may have become to my audience, because I feel they are of particular importance to understanding how and why the United States looks and acts the way that it does.

During my most recent hunt for new research material, one of these recurring themes caught my attention yet again. It is, I must admit, an idea that I have touched upon before in this series. All the same, and begging the indulgence of those of you presently rolling your eyes, I feel the need to revisit it here in connection with a little pamphlet written in the late 1780s by one John Jay. Originally printed in April, 1788, An Address to the People of the State of New-York, on the subject of the Federal Constitution represents the kind of overtly partisan literature both sides of the debate over the ratification of the proposed constitution printed in droves between the winter of 1787 and the following summer. It is, as these things go, not much of a revelation. Jay was a strong Federalist, supported ratification, and delivered an address that was intended to conciliate those who were uncertain about the new federal charter and convince those who were otherwise against it. Little about it is surprising, save a few sections that will be discussed a little later. It is well-argued, reasonably succinct, and doubtless served its intended purpose well – New York did, after all, ratify the Constitution. All that aside, though, it got me thinking about something. 
            
The American Founders were not perfect. They were, as a group, exceedingly intelligent, insightful, and ingenious. And their accomplishments remain a testament to the ability of a relatively small group of concerned citizens to quite literally change the world. But they were also human beings. They were flawed. They could be callous, self-interested, vindictive, and petty. We forget this, I think, in the face of the statues, and monuments, and widespread popular memorialization. We remember the things that impress us, and attribute the same degree of virtuosity to everything they did. As a result, we lose the ability to tell a good idea from a bad one when names like Washington, Jefferson, or Franklin are attached. This is a problem. If we are going to continue to draw inspiration from the Founders, as we should feel entirely free to do, we must be able to discern the lessons from the lapses. We need to be able to recognize when Jefferson was offering sound counsel and when he was being a foppish hypocrite. We need to understand that sometimes John Adams was an exceptionally prudent and principled man and sometimes he was a bitter old crank. We have to see the Founders for all of what they were if they are going to be of any use to us.

            Jay’s Address reminded me of this critical axiom because, while parts of it were prudent, wise, and insightful, others were plainly partisan, manipulative, and misleading. Indeed, as a purveyor of rhetoric, Jay appears in his pro-constitutional pamphlet about as willing to invoke the fear and uncertainty of his audience as any member of 21st century America’s socio-political elite. Because of his status as a Founder, however, I’m inclined to believe that these elements of Jay’s argument in favor of ratification would be smoothed over or forgotten by modern pundits or politicians seeking to validate their personal point of view. They would be far more willing, I think, to see the demigod that already exists in their mind than confront the flawed human being behind the words they seek to invoke. The result of this kind of reading of the Founders is understandably problematic – substantive debate gives way to meaningless name-dropping. Seeking to prevent this, in whatever small what that I can, I wish to offer an analysis of Jay’s Address that separates the rhetoric from the reason while still embracing both. Hopefully, when all is said and done, it will have become clear enough that the Founders ought to always be treated as the mere mortals they truly were. Sometimes they were angels and sometimes they were men; one should not cancel out the other, or discourage forming a healthy, measured respect for all that they achieved and all they still have to teach us.        

            That being said, a brief discussion of the context in which Jay’s Address was published would seem, at this stage, appropriate. Of the man himself, it will suffice to say that he was a born (December 12, 1745) and bred New Yorker, that he attended King’s College (Class of 1764), and that his record of public service as of 1788 was lengthy and well-attested (one term in the First Continental Congress, two terms in the Second Continental Congress, one term as United States Minister to Spain, and an ongoing appointment as United States Secretary of Foreign Affairs). During his tenure as the nation’s top diplomat between 1784 and 1789, it fell to Jay to articulate and pursue the foreign policy objectives of the newly-independent United States. These objectives included, among others, securing recognition of American independence from the Great Powers of Europe, establishing sustainable commercial relationships abroad, paying off debts incurred during the war so as to establish the nation’s credit on a stable footing, and firmly establishing America’s territorial boundaries vis-à-vis its various European colonial neighbors. Due to the notorious deficiencies of the existing government under the Articles of Confederation, however, Jay found his aims continually frustrated and his own position continually undermined. The ability of the various states to disregard the mandate of Congress or its officers was a source of particular vexation – lacking any means to enforce its policy decisions or collect taxes, the national government was chronically underfunded and essentially powerless. Seeking a remedy to this ungainly state of affairs, Jay understandably came to support the attempts of men like Alexander Hamilton and James Madison – fellow public servants, both – to strengthen or replace the existing United States government.

            These attempts culminated in the calling of the Philadelphia Convention in May, 1787, attended by fifty-five delegates representing twelve states (Rhode Island being the sole holdout), and the drafting of an entirely new national constitution. This document, the subject of thorough debate and painstaking efforts at compromise, was then submitted to Congress on September 28th with the instruction that it be thereafter transmitted to the various state legislatures. The states were to then call special ratifying conventions and oversee the election of delegates. The state conventions were to establish their own rules and structure one they had assembled, and vote for or against the ratification of the proposed national constitution. Unlike the Articles of Confederation, alterations to which required the consent of all thirteen states, the Constitution only required nine conventions to vote in the affirmative before the new government was to take effect. Delaware, whose convention was first convened on December 3rd, quickly became the first state to approve the proposed constitution on December 7th, 1787. The vote was unanimous; all thirty delegates, though representing Whig and Tory factions that dated back to the Revolution, were in complete agreement that the new federal charter would substantially increase their state’s power in Congress (thanks to the states’ equal representation in the Senate) and alleviate some of the costs of trade and commerce Delaware suffered under in the absence of strong federal regulations. Neighboring Pennsylvania was the next state to vote for ratification, though the proceedings of its convention were far more acrimonious.

            As in Delaware, Pennsylvania politics in the 1780s were defined by a strongly factional element. Unlike in Delaware, however, this factionalism played a significant role in determining the outcome of the state’s ratifying convention. This was, in truth, no great surprise. Pennsylvania was one of the largest and most influential states, and it derived certain distinct benefits from its position under the Articles of Confederation. Whether the loss of those privileges – for instance, being able to set tariffs on imports to the port of Philadelphia that neighboring states like Delaware and New Jersey were forced to pay – would be adequately compensated by the commercial advantages of a stronger federal government was a matter for legitimate debate. The state’s two major political factions were accordingly motivated by partisan and practical considerations alike, and seized upon the ratifying convention as yet another battlefield in their ongoing contest.

            Opening in Philadelphia on November 21st and concluding its business on December 12th, the Pennsylvania ratifying convention proved to be a contentious, drawn-out, and deeply-divided gathering of some of the state’s most talented, eloquent, and impassioned citizens. The Republican faction – members of the state’s eastern merchant and intellectual elite who favored replacing the 1776 constitution with a more orthodox governing framework – enjoyed majority among the assembled delegates while the Constitutionalists – ambitious and upwardly-mobile farmers, westerners, and Irish or German Protestants who favored the 1776 constitution – were at a distinct numerical disadvantage. The debates that followed were accordingly often accompanied by accusations that the opinions of the minority were only being given a token hearing so as to move the debate along as quickly as possible. In spite of this apparent desire for haste, however, the convention dragged on for twenty-two days, during which a relatively small number of delegates posed the same arguments time and again. As both sides had become convinced of the outcome of the assembly very soon into its proceedings, speakers appeared more interested in ensuring their words would be captured by the attending journalists than convincing anyone in attendance of anything they didn’t believe already. When the convention finally secured a vote on the proposed constitution on December 12th, 1787, the tally was entirely expected – forty six in favor to twenty-three against – and the minority delegates soon after voiced their dissent in an editorial published in the Pennsylvania Packet. Their description of the heavy-handed tactics of the majority further inflamed existing partisan rancor in the state. The period following the convention’s adjournment, intended by the majority to be a period of celebration to coincide with Christmas, was consequently marked by episodes of mob violence, effigy burning, and public accusations of foul play.    

The state conventions that immediately followed Pennsylvania in ratifying the proposed constitution tended to be less tense, with delegates observing a greater degree of equanimity then their fellow Americans in Philadelphia. Meetings in New Jersey and Georgia, for instance, followed the example of Delaware by voting unanimously for ratification in January, 1788 (thirty-eight to zero and twenty-six to zero, respectively), and the Connecticut convention returned a healthy majority in favor of approving the new federal charter later that same month (one hundred twenty-eight to forty). South Carolina approved of the proposed constitution by a similar margin in April (one hundred forty-nine to seventy-three), while Maryland produced a close but still respectable margin to the same end earlier that month (sixty-three to eleven). In spite of these relatively trouble-free proceedings, however, the strength of certain regional political disputes ensured that not every state convention was unmarred by partisan discord.

Though the Massachusetts ratifying convention proved to be far less rancorous than its Pennsylvania counterpart, it was marked by a similar political division and witnessed a similarly close final vote. Thanks to the characteristic municipal autonomy afforded the New England town, and the experience gained by regular citizens during the ratification process of the state’s own constitution in 1780 – it was, in fact, the only state that submitted its new governing charter for popular approval – the people of Massachusetts were unusually adept, experienced, and creative when it came to matters of balance, structure, and power in government. This widespread sense of political awareness had already been a partial cause for conflict during the abortive Shays Rebellion of 1786 and 1787 – a popular revolt among indebted farmers and Revolutionary War veterans centered in rural Western Massachusetts – and tempers had yet to cool entirely by the time the state convention was assembled in Boston on January 9th, 1788. Opposition to the proposed constitution – similar in structure to the state constitution that many rebellious Shaysites had identified with corruption and elitism – was accordingly quite common among the three hundred sixty-four gathered delegates, and the Federalists (as supporters of the Constitution had become known) were careful to proceed on a course of conciliation and compromise.

Though certain personal disagreements did occasionally serve to disrupt the ongoing debates, and bitterness remained on the part of delegates that had earlier supported the aforementioned rebellion, this sense of openness and reconciliation succeeded in convincing enough declared opponents of the proposed constitution to switch their vote when the final tally was made. Notably, the Federalists agreed to submit a list of amendments to the Constitution, compiled by a committee, to the first Congress elected under the new frame of government. The understanding reached by the majority of the convention delegates was that Congress would make the consideration of these amendments their first priority. While this attempt at rapprochement did not meet with universal acclaim – many Anti-Federalist delegates still voted against ratification – the willingness of the Constitution’s supporters to compromise ensured that even those in the minority were willing to respect the final outcome. Thus, on February 6th, 1788, Massachusetts voted to ratify, one hundred eighty-seven to one hundred sixty-eight.

In spite of the cautionary tale that was the Pennsylvania debacle, and the admirable example provided by the assembled Massachusetts delegates, New York’s ratifying convention arguably proved to be the most contentious of those yet convened. This state of affairs was substantially due to the fact that New York’s existing political rivalries partially imposed themselves upon the terms of the ratification debate. Public affairs in the Empire State had been defined by familial and factional association since the colonial era, and the events of the Revolution allowed a number of key personalities to achieve dominant positions. The group most vehemently opposed to the proposed constitution was led by Governor George Clinton (1739-1812), a populist figure who had served as the state’s chief executive since 1777 and built a base of support by using his office to confiscate the estates of wealthy Loyalists and distribute them among New York’s tenant farmers. This created an entire social class of small-scale yeoman landowners who owed their prosperity to Clinton and supported him almost unconditionally. Clinton’s allies included lawyer and merchant Melancton Smith (1744-1798), and John Lansing (1754-1829) and Robert Yates, both of whom were appointed to represent New York at the Philadelphia Convention and walked out in protest. Arrayed against them were declared nationalists like Robert Livingston (1746-1813), lawyer, diplomat, and Chancellor of New York (effectively the head of the state’s highest court), lawyer and member of Congress Alexander Hamilton (1755-1804), and John Jay himself.

Having spent the better part of the previous decade squabbling over control of key state political offices, and otherwise jockeying for position, these men, their allies, and supporters were not particularly disposed to be conciliatory in the spring of 1788. The county elections meant to select delegates for the state ratifying convention accordingly reflected this rather fraught state of affairs. Pamphlets and editorials were widely printed and distributed by both sides, accusations of personal ambition, corruption, and underhandedness were hurled indiscriminately in the press, candidates manoeuvred carefully in choosing which county to represent at the convention – nobody wanted to risk being excluded from the debate, and so were sure to campaign in districts that looked to favor their stated views – and allegations of bribery and favoritism on the part of state officials were far from unknown. In one notable instance, Federalists in Ulster County (in the Catskill Mountains) even attempted to confuse voters by nominating Anti-Federalist candidates other than those who had declared themselves. The state convention, set to convene in Poughkeepsie in Anti-Federalist-dominated Dutchess County, thus looked set to be just another manifestation of New York’s endemic partisan warfare. Jay, himself a Federalist delegate-in-waiting, waded into this melee in the middle of April, 1788 with the publication of his aforementioned pamphlet, An Address to the People of the State of New-York, on the subject of the Federal Constitution. Substantially less aggressive in tone than much of the campaign literature then in circulation, it was held in high esteem by Jay’s Federalist allies and widely republished and distributed in several of New York’s counties, New York City, and even in states that had yet to decide on the proposed constitution.

This was a lot to take in, I’m sure. While far from an exhaustive chronicle of the ratification process, I do hope the details provided have made certain things fairly clear. However much it might please us to think of the Founders as being selfless, objective, and above party, the method by which the United States Constitution was ratified in 1787/1788 very clearly exposed the limits of the unity and solidarity that the Revolutionary War had engendered. Though the debate over the new federal charter was ostensibly concerned with national issues and national priorities, the mechanism of ratification was distinctly provincial. The states, each with a distinctive political culture, factions, local grudges, and regional concerns, were the entities tasked with ultimately determining the fate of the federal union. A consequence of this arrangement, likely unintended by the attendees of the Philadelphia Convention, was that intra-state conflicts – between Shaysites and Boston merchants in Massachusetts, Constitutionalists and Republicans in Pennsylvania, and the Clinton and Livingston factions in New York – became fused with issues of far greater import than was normally the case – the nature of republican government, the needs of a complex, federal state, and the dangers of unchecked authority. Rather than lay aside their egos, their preconceptions, and their vendettas, men from across the colonies, selected to represent their friends and neighbors, frequently brought their provincialism with them. The result, in a word, was chaotic.

It also bears remembering that the various state ratification conventions did not occur in isolation from one another or all at once. Rather, they took place in a kind of cascade, with each state and set of delegates respectively influenced by any number of rational and irrational considerations. Authorities in Delaware and Pennsylvania, for instance, were each keen for their state to be the first to ratify the Constitution. While the former succeeded in this, and with a minimum of fuss given the advantages that small states stood to gain, the latter’s attempt at haste only served to needlessly exacerbate existing friction within Pennsylvania’s political culture. Delegates elected in other states, having observed the turmoil unleashed in Philadelphia, aimed to proceed with greater care and consideration for those whose opinions they did not share. Massachusetts represented the pinnacle of this model – wishing only to decide upon the proposed constitution in a manner that would leave everyone satisfied that their views had been duly considered, the Federalists in that state practiced respect, modeled patience, and aimed at compromise. Yet more states were inclined to call their conventions precisely when they did, and yet more delegates were given to stall or speed things along, by a concern for the overall progress the Constitution was making. It being widely understood that the document would come into effect once nine state conventions had voted to approve it, supporters and opponents of ratification often planned their efforts according to the running tally. An early defeat, some reasoned, would perhaps help turn public opinion in other precincts against the entire project. Delay, others deduced, would prove similarly advantageous – once eight conventions had chosen to ratify, the opportunity of becoming the ninth and final state might prove enough to sway the undecided; once nine had approved, the conversation would inevitably shift from deciding on a new national government to staying in or departing from the federal union.

All of these factors, to a greater or lesser extent, weighed upon men like John Jay as they aimed to determine whether their home state was for or against the proposed constitution. And though the stakes were very high – a fact not lost on anyone – the tenor of the resulting debates was generally somewhat mixed. Forbearance and high-mindedness were widely aimed for – an issue of such widespread and lasting significance as the size, structure, and authority of the United States government seemed to demand as much. Frequently, however, local concerns and existing conflicts frustrated attempts at statesmanlike behavior. Rather than bring feuding parties together in a fit of public-spiritedness, the proposed constitution and its implications became yet another thing for existing factions to bludgeon each other with. Certainly much was said, within the state conventions and without, that was ingenious, insightful, and inspired. Among the delegates chosen to represent their respective states and counties were some of the most intelligent, experienced, and prudent men America had yet produced. And even those of comparatively humble talents were now and then recorded as having brought to the discussion unique perspectives from which all present were able to benefit. Nevertheless, the business of ratification was frequently as dirty as it was dignified, and the participants most often subject to deification in subsequent eras were no more removed from its best aspects than its worst. John Jay is emblematic of this, and his Address is the evidence.

Friday, October 21, 2016

Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, Part V: Reason, Liberty, and Law, contd.

Lest if appear, based on the contents of the previous week’s entry in this series, that James Wilson was motivated to offer a critique of late 18th century British tax policy solely by a rigid personal adherence to reason and logic, it now bears examining the depth of his dedication to the principles he and his fellow colonists held most dear. Liberty – the second ingredient in the Wilson cocktail – formed an essential part of the central argument in Considerations. As eager as he might have been to pick apart the various illogical aspects of the British position, Wilson never seemed to lose sight of what he and his fellow colonists knew was at stake – namely, the fundamental rights upon which their legal and political culture was based. British liberties, as he called them, were evidently as dear to his American cohorts as their very lives. Their governments – in Massachusetts, the Carolinas, Pennsylvania, or New York – were built upon the model embodied by Parliament and intended in the main to protect these liberties while serving the community at large. Trial by jury, the writ of habeas corpus, the right to bear arms, and to be taxed only by representatives elected for that purpose; colonial Americans considered these guarantees to be a part of their birthright. To lose them or see them violated was to give up a part of themselves; a part of what they felt made their civilization – British civilization – perfect.

By attempting to tax those who had no part in electing its members – through the passage of the Stamp Act (1765) and the Townshend Duties (1767) – Parliament had committed this very crime, knowingly or unknowingly, and effectively called into question the true nature of the Anglo-American relationship. Political implications aside – which were many – they had struck at the heart of something core to the cultural identity of British Americans. Wilson perceived this with characteristic insight, claiming in the third paragraph of Considerations that the virulent reaction the offending acts of Parliament received in America were rooted in, “A regard for that nation, from whom we have sprung, and from whom we boast to have derived the spirit which prompts us to oppose their unfriendly measures [.]” Colonial Americans, though in truth descended from French, Dutch, and German stock as well as English, Scottish, and Irish, strongly identified with British culture and history. The Magna Carta (1215) and the Glorious Revolution (1688) loomed large in their collective understanding of acceptable legal and political norms, and an affection for Parliament as a model of responsible administration conditioned the way they perceived their respective local legislatures. While it is true, based on firsthand accounts, that certain 18th century colonists lucky enough to travel to Britain proper were struck by their own comparative provincialism and began to self-identify as “American,” British law and British culture was still in many ways the wellspring of American identity as late as the 1770s.    
  
With this in mind, Wilson’s assertion that his fellow colonists were too proud of their British cultural inheritance to allow even the British government to threaten it isn’t all that surprising. As discussed in weeks past, he identified the core of his adopted-countrymen’s opposition to 1760s British tax policy as an attachment to, “The principles of justice and freedom, and of the British constitution.” For many people in Britain and in America, these concepts were at the centre of who they thought they were as a people. Beyond the folk songs, and the Morris Dancing, and stories about saints and dragons, 18th century English/British identity was really rooted in the dense, often confusing, and not-infrequently bloody political history of “splendid Albion.” Legal concepts like habeas corpus – the “Great Writ” first recorded during the reign of Henry II (1133-1189) – and trial by jury – a fusion of Norse, Saxon, and Norman practices – carried the inexorable weight of tradition. British liberties had been fought for over centuries, in civil wars and rebellions between kings, and barons, and common people, and the resulting sense of legacy exerted a powerful effect on the way politically-active Britons (wherever they were in the world) perceived themselves. To be British was to be a part of something ancient and immeasurably important, to know one’s rights and actively utilize them.

Considerations communicates this sense of pride – in the liberties inherent to British citizenship and the people who helped establish and protect them – in a rather poetic, though no less effective, fashion. “Such is the admirable temperament of the British constitution!” Wilson declared in paragraph thirty-three.

Such glorious fabrick of Britain’s liberty – the pride of her citizens – the envy of her neighbours – planned by her legislators – erected by her patriots – maintained entire by numerous generations past! may it be maintained entire by numerous generations to come!

Though he was of British birth and education, Wilson wrote these words as an American and for an American audience. Unless he was particularly tone-deaf, it thus seems sensible to conclude that many of his fellow colonists shared his enthusiastic regard for Great Britain’s political and legal culture. Indeed, it is noteworthy when one considers how heavily influenced later phases of the American Revolution would be by the abstract, natural rights philosophy of the Enlightenment – thanks in no small part to the efforts of men like Thomas Jefferson and James Madison – that Considerations is almost entirely preoccupied with preserving a distinctly British socio-political ideal. Rather than appeal to a moral principle that had no overt cultural association – Jefferson’s self-evident truths, for example, or his allusion in the Declaration of Independence to “Nature” and Nature’s God” – Wilson identified himself, and indeed the entire opposition to the Stamp Act and Townshend Duties, as the proud heirs of “generations past” whose sacrifices in the name of British liberty were eminently worthy of veneration.

The thirty-fourth paragraph of Considerations also bears this sentiment out. Continuing on from his passionate declaration of pride in British legal and political customs, Wilson asked his readers, “Can the Americans, who are descended from British ancestors, and inherit all their rights, be blamed – can they be blamed by their brethren in Britain – for claiming still to enjoy those rights?” Through this rhetorical inquiry Wilson appeared to voice a degree of disbelief, presumably aimed at any in Britain who expressed surprise or incredulity at the vehement reaction of the American colonists to being taxed without representation in Parliament. How was it that the elected representatives of the British people had forgotten that the American colonists were British, too?  How could they fail to see that their attempts to tax the people of British America violated the rights and liberties that they themselves cherished? In the mind of James Wilson, it seemed that there was no inherent difference between British people who lived in Britain and British people who lived in America – they all valued their rights, derived them from the same source, and based their shared cultural identity upon them. Certainly, being from Yorkshire was not quite like being from Bristol, which was in turn not entirely like being from Massachusetts, or Georgia, or New York. But the paltry differences in accent and local custom between these regional identities surely paled in comparison to the core cultural legacy they all shared.

Though perhaps not spoken quite so explicitly, the significance of his American countrymen’s abiding Britishness permeated much of the case Wilson put forth in Considerations. “No taxation without representation,” the famous cry in opposition to the Stamp Act that has since become a cultural touchstone in American political discourse, was itself based on well-established (as of the 1760s) British parliamentary practice. Much is made by Wilson in his pamphlet of the importance of this principle to Britain’s historical and cultural identity. Taxation by consent was one of the demands obtained from John I (1166-1216) when he was made to sign the Magna Carta in 1215, attempts by Charles I (1600-1649) to tax his subjects outside the authority of Parliament were one of the core causes of the English Civil War, and the Bill of Rights (1689) accused James II (1633-1701) of unjustly extracting money from the people via the prerogatives of the Crown. Considerations touched on all of these historical examples, and went into significant detail as to the importance contemporary Britons placed upon paying taxes only in exchange for representation in the House of Commons. From Wilson’s perspective, it seemed, “no taxation without representation” was not a novel challenge to the status quo, but rather the reassertion of a long-established custom. Time and tide would come to alter the tenor of the discussion that Considerations put forward – British intransigence would in short order sour the colonists on the prospect of reconciliation – but in 1768 it was still possible to hope the native soil which first nurtured the rights that 18th century Americans cherished had not been completely poisoned against their continued growth.

The final ingredient in the Wilson cocktail – law – requires perhaps the least elaboration then the previous two. A prior entry in this series has hopefully already made clear that Considerations nearly groans under the weight of the precedents Wilson saw fit to cite. A lawyer by trade, and a scholar by inclination, it should come as no surprise that his interest in statue and case law and his talent as a litigator shaped the kinds of arguments he chose to make in defence of his American countrymen’s threatened liberties. That being said, by way of a conclusion, a few more words on the subject would seem appropriate.

Because there is more to Wilson’s evident attachment to the common law practice of citing precedent than might appear at first blush. Yes, he clearly nurtured a high regard for the laws and customs of the country of his birth. And yes, his inclination and ability to argue in favor of preserving the political and legal status quo of late 18th century British America speaks to how widespread such conservative sentiments likely were. But on a more personal level, James Wilson’s tendency to seek out past examples as a guide to present action, and his faith in structure, law, and consensus, speak volumes about his character. And they also speak volumes about how we in the 21st century should endeavor to understand the Founding Generation and their legacy. Though Wilson is not, and indeed has never been, the most well-known among his cohorts – that prize usually falling to George Washington, Thomas Jefferson, or more recently to that perennial upstart Alexander Hamilton – his particular brand of legalistic conservatism is no less representative of the ideology of the American Founding than Jefferson’s radicalism, Washington’s affection for classical republican ideals, or Hamilton’s penchant for realpolitik. Granted, his attachment to British liberties, British law, and British customs might conceivably appear rather limp and reactionary against the radical break with tradition that the Revolution ultimately became, but even in a narrative full of war heroes, gentleman-philosophers, and charismatic diplomats, a conservative Scottish country lawyer still had an important role to play.

  Though his face adorns no mountainside, James Wilson unequivocally shaped what the United States of America is today. As a member of the Philadelphia Convention of 1787, his deep knowledge of government, politics, history, and law made him one of the most prominent contributors to the discussions therein. He spoke, it has been recorded, over one hundred sixty times during the assembly’s proceedings – second only to fellow political scholar James Madison – recommended the three-fifths compromise as a solution to lingering disagreements between the northern and southern states over the apportionment of taxes and Congressional representatives, and helped produce the first complete draft of the Constitution as a member of the five-member Committee of Detail. Though they may be impossible to quantify exactly, his contributions to the form and character of the United States Constitution – still in force and substantially unchanged two hundred twenty-seven years later – were accordingly far from insubstantial. His subsequent service on the Supreme Court as an Associate Justice between 1789 and 1798 further extended his influence on the nation’s public life. Granted, the Court only heard nine cases during his tenure, but the significance of his presence should not be dismissed. Every disagreement that came before the assembled justices had the potential to draw upon his understanding of law, and precedent, and history. And so, every decision they handed down in part belonged to him. Though not a legislator, he nonetheless helped make law in America by lending his expertise to the highest judicial body in the land. Consequently, Wilson’s attention to detail, and his regard for precedent, logic, and principle, is incredibly significant to understanding how and why America looks the way it does.

Because, I hope it has become clear by now, the American Revolution was a collaborative effort. Thirteen colonies, and from each of them dozens if not hundreds of soldiers, merchants, statesmen, farmers, and artisans, banded together in the common pursuit of the freedom to enjoy the liberties they understood to be theirs by right of birth. Some, it must be said, exerted a greater influence on the end result than others. Or at least, some of them have enjoyed more colorful legacies than others. This is the nature of things, it seems. Jefferson and Washington and Hamilton have come to define what we think about the Revolution and its meaning in no small part because their personalities and their accomplishments fit very easily into a pleasing, straightforward, self-affirming narrative. James Wilson, with his steel-trap mind and highly structure rhetorical style, is conversely a little harder to locate within the accepted story of the American Founding.  He was British-born and British-educated, cautious, highly pragmatic, and well-versed in the law. And, like fellow Pennsylvanian John Dickinson, he was a moderate. He came to support the cause of independence gradually, and by inclination would seem to have preferred reconciliation with Britain. Characterized thusly, it would be all too easy to think of Wilson as some sort of reluctant revolutionary – someone out of step with the radical mainstream who had to be coerced into accepting what many of his colleagues believed was inevitable.

This, it must be made exceedingly clear, was not the case. In 1768, the year Considerations was written and the year British troops were dispatched to occupy Boston in light of continued resistance to the Townshend Duties, Wilson’s position was the mainstream. American independence remained an open question well into 1774 and 1775, and gained traction only after peaceful measures aimed at reconciling Britain and the colonies had been rebuffed by the former. Up to that fateful turning point, the conversation taking place in state legislatures and inter-colonial assemblies was as Wilson described in the first paragraph of Considerations: “Does the legislative authority of the British parliament extend over [America?]” The text of said pamphlet attempted exhaustively to answer that question, and in so doing exposed the true contours of the controversy at hand. In that sense, and because it was evidently very well-regarded at the time of its publication, Considerations can be looked upon by students of America’s Founding as a kind of guide to the true nature of the crises that precipitated the Revolution. It really wasn’t, as it so often stated, about taxes, and it wasn’t, though it might be comforting to think so, about the repudiation of monarchism. Rather, as Wilson capably and painstakingly explained, the late 18th century dispute between Britain and the American colonies began as a disagreement about the nature of empire, citizenship, and rights.   

Give it a read.

http://www.constitution.org/jwilson/legislative_authority_british_parliament.html

Friday, October 14, 2016

Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, Part IV: Reason, Liberty, and Law

Having discussed the conservatism of James Wilson’s Considerations, and its abundant use of English/British political, historical, and legal precedents, it remains to unpack certain additional elements of Wilson’s rhetorical style before we part ways in our customary fashion. Specifically, I’d like to take a look at what I’ve taken to referring to as the “James Wilson Cocktail.” There are, in my estimation, three points of focus that seemed to guide Wilson’s overall approach in Considerations. Each are touched upon with a similar degree of consideration, and together they combine to quite effectively drive home the pamphlet’s central conceit. They are, as the title of this post suggests, reason, liberty, and law. Wilson’s perspective on the nature of the Anglo-American relationship seemed to be defined by each in turn, and the questions he periodically asked of his hypothetical critics seemed mainly intent on one or all of these basic concerns. Reason: does the alteration of the connection between Britain and American the colonies embodied by the Stamp Act and the Townshend Duties serve a useful purpose? Liberty: is said alteration harmful or beneficial to the fundamental rights possessed by every Englishman? Law: is the selfsame alteration grounded in established law and practice, or is it an unjustified innovation? If the supporters of late 18th century British tax policy had managed to satisfy all of these inquiries, no doubt they would have satisfied Wilson. Considerations, however, makes it clear that they did not, and in explaining why, the pamphlet provides tremendous insight into the thought process of one of America’s most intellectually rigorous Founders.

Let us begin with reason, as all good policy arguably must. Throughout Considerations, Wilson asserted that utility was the most basic, and often the most important, rationale by which a measure, or a structure, or an institution ought to be judged. The very existence of government itself, he argued accordingly in paragraph eight, was owed to this manner of evaluation. “All lawful government is founded on the consent of those who are subject to it,” he claimed, and, “Such consent was given with a view to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature.” In effect, having required a surrender of independence, any legitimate government must offer a gift of safety and stability in return, beyond what any single person could provide on their own. In light of the ubiquity of this fundamental social transaction, Wilson evidently believed it to be a basic maxim that, “The happiness of the society is the first law of every government.” From this statement it follows that the author of Considerations understood the ends of government to be of greater importance than the means at their disposal. Laws, and customs, and institutions, and power structures were all well and good, but unless they served the needs of the general population, they were fundamentally without purpose.       
    
In relation to the subject of his 1768 pamphlet – the validity of Parliament’s attempts to directly tax the citizens of British America – Wilson’s utilitarian understanding of government gave rise to a series of fairly simple questions. “Will it ensure and increase the happiness of the American colonies,” he asked in paragraph ten of Considerations,

That the parliament of Great Britain should possess a supreme, irresistible, uncontrolled authority over them? Is such an authority consistent with their liberty? Have they any security that it will be employed only for their good?

Above any discussions of the authority Parliament possessed or the precedents that validated it, Wilson seemed keen that his fellow colonists ask themselves whether bending to the declared will of the British government would make their lives better or worse. If they determined that the latter was true, it begged the further question: what purpose did continuing to recognize British authority serve? As Wilson elaborated further in paragraph sixty of Considerations, America was not a conquered nation. The citizens of Virginia, Pennsylvania, or Massachusetts recognized the authority of the British Crown because they chose to, rather than because it had been forced upon them as a consequence of invasion. This being the case, it followed that they should expect something in exchange for their loyalty. The Anglo-American relationship, as Wilson characterized it, was in large part a transaction – access to natural resources and consumer markets in exchange for protection and consumer goods, more or less. If this unspoken contract ceased to be advantageous for its American participants – if the Stamp Act was indicative of Britain’s priorities going forward – it would seem only logical for the colonists to sue for a return to the status quo or seek a fundamental renegotiation.

            In fairness to its author, Considerations did not suggest that independence was a viable solution to the Anglo-American crisis, or endorse any variation thereof. Rather, Wilson seemed intent on probing the British position, holding its various arguments to a rigorous standard of inquiry, and encouraging his fellow colonists to do the same. Parliament, he argued throughout the bulk of paragraphs eighteen to thirty, made sense. It was well balanced and well structured, elections to the House of Commons were protected by a multitude of statutes and customs, the powers of the House of Lords was checked, the prerogatives of the Crown were sensible, and the whole of it was grounded upon an abiding respect for the foundational rights enjoyed by all British subjects. It served a purpose, he asserted, and served it well. Allowing Parliament to extend its authority over the unrepresented colonists of British America, however, in violation of most of the laws that governed its operation and the essential principles of the British Constitution could serve no purpose that wasn’t directly harmful to the interests of the colonies. The conclusion, for the people of British America, was thus a fairly simple one; allowing Britain to levy direct taxes in America, as they had attempted with the Stamp Act and the Townshend Duties, was manifestly impractical. What this meant going forward, beyond endorsing a return to the status quo, Wilson seemed disinclined to speculate. 

            In spite of his seeming lack of interest in contemplating a future for the American colonies absent British supervision – a position that was, it bears repeating, very common among Americans in the early 1770s – Wilson’s tendency to probe his chosen subject of inquiry with rigorous logic seemed to nonetheless reveal a latent flaw inherent in the prospect of maintaining the Anglo-American relationship. As he maintained throughout Considerations, a large part of what Wilson felt rendered Parliament’s efforts to extend its taxing authority into American climes invalid was the fact that every citizen of British America possessed the same right to be taxed only by their elected representatives as the people of Britain proper. While the ancestors of the late 18th century colonial population – and in some cases immigrant colonists themselves – had given up the prospect of being any longer represented in Parliament, they had not relinquished the associated rights. They were, they maintained, British subjects, and happily so. But only the colonial legislatures that they themselves elected could collect from them the direct taxes that Parliament claimed in Britain. Wilson wholeheartedly endorsed this position, but also asked a number of questions that seemed to call into doubt the logic behind this particular characterization of British citizenship.

            Really, though, citizenship is the wrong word. In a 21st century context, it carries any number of complex connotations; passports, border checks, extradition treaties, and swearing-in ceremonies. In the 18th century, being a British citizen was a somewhat more informal and fluid prospect. A native-born person living in Britain after, say, 1700 could certainly be assured of certain legal protections based on their being a subject of the monarchy. They were entitled to representation in Parliament, protection by the “great writ” of habeas corpus, and could expect a jury trial in the event of being charged with a crime, In addition, by the terms of the Bill of Rights of 1689 were guaranteed the right to bear arms, petition the Crown for a redress of grievances, and be free from cruel and unusual punishment. None of these rights, however, were accompanied by formal documentation on an individual level. There were no cards or certificates by which one could assert their citizenship if needed, and the whole concept wasn’t really suited to operate outside of a fairly condensed geographic area. This could, and did, create problems. If a British merchant, for example, moved to the French city of Nantes, in Brittany, they would effectively be forced to give up a number of their rights. They would not be able to vote in Parliamentary elections, and would be subject to French law in their day-to-day life. They would still be a British citizen, or course, but their ability to exercise the associated rights would be constrained by any number of practical limitations. No doubt this would seem entirely natural. Having left the green fields of England for a foreign land, in which foreign people speak foreign languages and recognize foreign laws, one could not reasonably expect Parliament to hold any legal or social standing.   

            Now imagine that same British merchant had departed for Boston instead of Brittany. Though he would be three thousand miles away instead of five hundred, he would similarly be unable to participate in Parliamentary elections. He may still expect the monarch to hear his petitions, but the time between sending them and receiving a reply would have increased dramatically. He would find himself subject to the laws of Massachusetts, in the main, and yet the reach of Parliament would find him still. Though the people of British America made it quite clear in the 1760s and 1770s that they were generally unwilling to render direct taxes to British authorities, they were far more amendable to British laws that attempted to use taxation as a means of regulating commerce. The Molasses Act (1733), for instance, placed a tax of six pence per gallon on (coincidentally) molasses that was imported to the American colonies from any non-British territory. Intended to shore up the economies of the various British possessions in the West Indies by making their product cheaper than that formerly supplied by Dutch, Spanish, or French Caribbean colonies, the act remained in force until it was replaced by the Sugar Act in 1764. American colonists regularly flouted its provisions, and thanks to the efforts of a fleet of intrepid smugglers maintained a thriving molasses trade with the French and Dutch West Indies. All the same, its imposition did not result in the kind of vociferous outrage that the Stamp Act and Townshend Duties later elicited. Confronted by this at least outward acquiescence to certain acts of Parliament, Americans’ seemingly contradictory insistence on being taxed only by their local legislators, and their generally high degree of affection for British culture and British custom, our immigrant British merchant could be forgiven for being a little confused. Was he still in Britain, or a foreign country? Did British law apply in America, or not? Was he still entitled to all the rights of British citizenship, or had he given them up when he stepped off the dock in Portsmouth?

            Though doubtless somewhat more certain of the answers than our theoretical Boston transplant might have been, James Wilson posed a similar set of questions in the thirty-seventh paragraph of Considerations. Parliament, through the passage of the Stamp Act and the Townshend Duties, had claimed the right to tax the people of British America. Because Parliament was composed of the elected representatives of the British people, it thereby followed that the general population of Great Britain considered themselves in some sense superior to their American cousins. Legislators in colonial Massachusetts would be hard-pressed to attempt to collect tax revenue from the people of London, yet it was evidently acceptable for the latter to claim a right to the monies of Boston, or Philadelphia, or Williamsburg. This, Wilson reasoned, was a puzzling notion. “What acts of ours has rendered us subject to those, to whom we were formerly equal?” he asked.

Is British freedom denominated from the soil, or the people of Britain? If from the latter, do they lose it by quitting the soil? Do those, who embark, freemen, in Great Britain, disembark, slaves, in America? […] Whence proceeds this fatal change?

Wilson, as the substance of Considerations made quite clear, was of the opinion that British liberties transcended geography –the same rights applied to those who had left Britain behind and could no longer be expected to participate in the domestic political process. Nevertheless, the questions he asked in the thirty-seventh paragraph of his 1768 pamphlet were likely more difficult to answer than he let on.

British/English political and legal customs, as generally understood at the end of the 18th century, were not well-adapted to the reality of a widely dispersed empire. While Common Law jurisprudence and jury trials may have been amenable to importation into foreign climes, British political culture was very much centered on a centrally-located and sovereign Parliament. Leaving Britain therefore meant, in a very practical sense, leaving the protection and the authority of Parliament behind. Colonial legislatures, in places like Massachusetts, or Virginia, or Jamaica, were designed in large part to act as substitutes for the British assembly from which they derived. In keeping with the common understanding of British liberties, they were elected, held sole authority over direct taxation, and served to guard the rights of the people against the prerogatives of Crown-appointed governors. While it is unlikely that any colonial assembly in the 18th century British Empire would have claimed to possess sovereign authority equal to Parliament, the practical reality was very much in that vein – Parliament looked to the people it directly represented in Britain, and the various far-flung assemblies did the same for their constituents, in the style and adhering to the customs that Westminster had set. By attempting to make law for the American colonies in the same way it made law for Britain itself, however, Parliament effectively shattered this pragmatic and mutually tolerable status quo and called into question the compatibility of British citizenship with the physical reality of the contemporary British Empire.

It was quite perceptive of Wilson to ask his audience whether British liberties derived from the soil of Britain itself or from the blood of its inhabitants. Prior to the era of widespread European exploration – beginning roughly in the late 15th century – this distinction didn’t really exist. Few people of English descent lived outside of England before the era of European colonialism, and those that did were subject to the laws of whatever realm, kingdom, or empire served as their host. The emergence of an English (later British) empire in the 16th, 17th, and 18th centuries rendered this simplistic definition invalid by dispersing English/British people across distant territories over whom no established political entity laid claim. People born of British parentage in these colonial territories were thus unusual in the history of Western civilization by being native subjects of a European power without necessarily being citizens. The difference, in the parlance of the 21st century, was essentially between citizenship by birth and citizenship by descent. The implication of this dichotomy was that a choice for one or the other, as Wilson observed, would either expand or contract the number of people who could claim the associated legal and political rights. If British liberties sprung from residing in Britain itself, then those who departed to found colonies in North America, the West Indies, or Asia were in effect creating new nations, derived from Britain but legally and political independent. If, on the other hand, British liberties were the birthright of every person born of British blood, the geographic scope of Parliament’s authority was theoretically limitless, provided the logistical challenges of administering a global empire could be surmounted.

Unfortunately, the British Empire of the late 18th century was as limited as any of its European rivals by contemporary communication technology from guaranteeing every one of its subjects the same political liberties. A resident of 1760s Boston simply could not be represented in Parliament – the distance between Massachusetts and England was too vast, as was the time involved in transmitting information between them. The people of British America was still subjects of the British Crown, still held true to the foundational rights and customs of British legal and political culture, but they were functionally incapable of enjoying all of the privileges that residents of Britain proper had come to expect. Though Wilson did not admit as much, or at least did not intend to, Considerations does seem to draw out this incongruity. The British liberties that 18th century Americans so dearly cherished may simply have been incompatible with their collective status as the caretakers of a distant colonial outpost. However much they thought of themselves as the inheritors of the Magna Carta, the Glorious Revolution, and the Bill of Rights, Parliament could not belong to them like it belonged to their British cousins, or serve their collective interests quite so directly. Colonial assemblies could, and did, serve as adequate surrogates, but only as long as Parliament itself respected their jurisdiction. In the event that the assembled delegates to Westminster attempted to extend their authority beyond what was mandated by prudence and practicality – an occurrence Wilson seemed to think inevitable, given that, “Parliaments are not infallible; they are not always just” – a constitutional crisis would appear to be the inescapable result.

It bears repeating that this was not the point Wilson was trying to make in Considerations. By and large, he seemed to hold that the preservation of the status quo – a firm division between the domestic authority of Parliament and the colonial legislatures – would mend whatever rift the passage of the Stamp Act and the Townshend Duties had created. The people of British America were loyal subjects to the Crown, he repeated more than once, and held dear the liberties and customs that their forebears had handed down. It was indeed for this reason that their ire had been provoked – Parliament had violated in America what it had been created to protect in Britain. Understand this, he counselled, and there could be no question as to the rightness of the American position. All the same, the pamphlet he drafted to explain this position, and the reasoning he deployed therein, suggests that a settlement between Parliament and the American colonies may not have been sustainable. Adhering to the sense of reason that grounded his method of inquiry, Wilson hit upon the ambiguity that lay at the core of 18th century notions of citizenship and its associated privileges. Absent documentation to that effect, what made someone in the 1760s a citizen of any realm or kingdom in particular? Could a person born outside the traditional confines of an established political community expect to exercise the rights of that community? Considerations draws up just short of delving into these questions in a deep or systematic way, but modern readers would do well to consider their implications.

The model of political consciousness that had sustained the British Parliamentary system through civil wars and numerous rebellions had begun to fragment by the late 18th century. Though separated from the soil that had witnessed its evolution, British rights culture flourished in the settler-colonies of North America, and lost none of its vigilant character or its suspicion of arbitrary power. As with their cousins in Britain proper, the people of British America expected their governments to be accountable, restrained, and respectful of their rights. They were, after all, British subjects, and such was their birthright. But what did it mean to be British, and to hold fast to British liberties, three thousand miles distant from the Crown and its government? If being British was a consequence of the land beneath one’s feet, leaving the isles practically and legally negated that status. If Britishness was, on the other hand, something passed through the blood, how could one ever claim to leave behind the authority and protection of Parliament?

The legal and political assumptions held by men like George Grenville, Prime Minster during the passage of the Stamp Act, or James Wilson, Scottish-born American colonist and scholar, were not well-suited to answer these questions. They, and indeed their entire socio-economic class, had been instilled with the bone-deep conviction that the British were the freest people in the world, that their freedom was grounded upon certain specific rights, and that protecting and promoting those rights was the central purpose of government. But nothing in their shared education seemed capable of resolving what was supposed to happen when the political community that nurtured these core assumptions began to grow, and divide, and create increasingly inaccessible sub-communities. If one of these sub-units of the British cultural polity disagreed with a decision made by the government of the mother country, which of them was supposed to give way? Where the far-flung colonial populations spread across the British Empire the equals of their cousins in Surrey, and Shropshire, and Coventry, or were they subordinate to them? While maintaining that few events in the history of human civilization can rightly be thought of as inevitable, this line of inquiry – raised by James Wilson in his 1768 pamphlet Considerations – does seem to suggest that the American Revolution was at least in part an outgrowth of a functional and philosophical incongruity between contemporary British rights culture and the realities of global empire.

Friday, October 7, 2016

Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, Part III: Precedent

            As if a semi-exhaustive exploration of the history of Parliament weren’t proof enough of the hypocrisy of the British position – maintaining principle at home and discarding it abroad – Wilson elaborated further in paragraphs forty-five to sixty of Considerations as to the explicit and particular legal precedents that negated any claim of Parliament’s authority over British America. These examples, though rather dry, overly-elaborate, and, some might argue, pedantic, nonetheless demonstrate quite effectively Wilson’s peerless command of British legal scholarship. They also make it clear, in spite of how the later events of the Revolution would play out, that it was possible in 1768 for a supporter of American liberties to find justification for their claims exclusively in British jurisprudence.

            The first such piece of evidence Wilson brought to his readers’ attention dated from the reign of Richard III (1452-1485) and concerned the ability of the English Parliament to exert its authority over Ireland. The justices summoned to consider the question, characterized by Wilson as “all the judges of England,” determined that while the Irish people were subjects of the English Crown, they were also possessed of their own parliament, “who make laws; and our statutes do not bind them; because they do not send knights to parliament [.]” In point of fact, Ireland did indeed possess a legislative assembly of its own, unique and separate from that of England or Great Britain, between the years 1297 and 1800. This body, the assembled justices evidently concluded, was thus solely responsible for making law in Ireland, being the only one in which the people of Ireland could claim representation.

            To this seemingly straightforward legal reference, which on its own would seem to have served his case, Wilson added a characteristically in-depth six-part analysis. This 15th century ruling, he asserted, was not a passing, off-hand commentary. Having been heard by the Exchequer Chamber, an appellate court only the House of Lords could overrule, the case must have been of the utmost significance. Matters placed before said chamber, Wilson further explained, were,

Argued on both sides by learned counsel, and then openly on several days, by all the judges. Resolutions made with so much caution, and founded on so much legal knowledge, may be relied on as the surest evidence of what is law.

Still in existence as of 1768, it stood to reason that any prior rulings made by the Exchequer Chamber would still have been in force. Precedent, after all, was the backbone upon which the British Constitution was constructed. This being the case, Wilson keenly observed that the decision rendered by the assembled English judges in the 1480s spoke directly to the matter then under discussion concerning Parliament and the colonies of British America. “The Irish did not send members to parliament [,]” he noted,

And, therefore, they were not bound by its acts. From hence it undeniably appears, that parliamentary authority is derived solely from representation–that those, who are bound by acts of parliament, are bound for this only reason, because they are represented in it.

Lacking representation in that same august body, it logically followed that 18th century Americans were no more bound by its laws than their Irish contemporaries.

            Existing outside the legal authority of Parliament by no means indicated, however, that the citizens of colonial America were not still subjects of the British Crown. As Wilson pointed out, the 15th century ruling referenced in Considerations made it clear that though Ireland was not bound by laws passed in England by members of the English Parliament, the Irish people still owed their allegiance to the English monarchy. By this same token, he inferred, the residents of the various American colonies were subjects of George III every bit as much as their British cousins. The resulting distinction, between allegiance to the monarch and obedience to Parliament, was, Wilson avowed, an important one. The two were “Founded on very different principles,” he argued, “The former […] on protection; the latter, on representation.” The people of British America may well have been eager to acknowledge the authority and receive the protection of the British monarch, but in Wilson’s estimation their lack of political representation within the Britain’s legislative assembly precluded any obedience they might possibly have rendered to the same. Being unable to understand how Parliament and the Crown could be disconnected in this way – having always enjoyed protection and representation in equal measure – Wilson admitted that the inhabitants of 18th century Britain might have become confused as to the exact nature of the American position. Considerations, it seemed, was his attempt to provide for their education.

            The legal precedents that Wilson next deployed were not given nearly the attention lavished upon the case heard by “all the judges” of 1480s England, though they are worth noting all the same. In paragraph fifty-three, the author of Considerations turned the attention of his readers to a case that appeared before the King’s Bench – a superior court founded in 1215 – in 1693, during the joint reign of William III (1650-1702) and Mary II (1662-1694).

            At this point I feel it is my responsibility to advise my readers not to accidentally swallow their tongues. They will see why in a moment.

The plaintiff, it seemed, had been appointed provost marshal – a kind of military police officer often employed in British colonial possessions – in Jamaica, and under the authority of his office had deputized the defendant in exchange for a yearly rent. The defendant responded, Wilson explained, by giving, “His bond for the performance of the agreement.” Presumably this meant that the individual deputized by the plaintiff agreed to forfeit a sum of money if he failed to perform the duties he had been assigned. This was, it turned out, a wise action on the part of the provost marshal. “An action of debt was brought upon that bond,” ostensibly because the defendant had indeed been negligent, and the disagreement between the two was brought before the appropriate court. The defendant, in spite of the fact that he had willingly participated in the transaction, claimed that English law made it illegal for an individual to purchase a civil office. He specifically cited the Sale of Offices Act (1551), passed by Parliament during the reign of Edward VI (1537-1553), and claimed that the instrument by which he had been deputized and the resulting bond were thus both null and void. The plaintiff countered by arguing that Jamaica had been captured from the Spanish by subjects of the English Crown, and that the inhabitants were thereafter, “Regulated and governed by their own proper laws and statutes, and not by acts of parliament or the statutes of the kingdom of England.” The Sale of Offices Act, he claimed accordingly, did not apply to Jamaica, and the resulting debt remained valid.

When this case arrived before the King’s Bench, having been dealt with inconclusively in lower courts, Wilson characterized the question placed before the assembled justices as a very simple one. Specifically, “Were the acts of parliament or statutes of England in force in Jamaica?” The merits and consequences of this inquiry were weighed and argued, “By lawyers of the greatest eminence,” and Wilson noted explicitly that the proceedings were overseen by Lord Chief Justice John Holt (1642-1710). The resulting verdict, which was evidently unanimous, found in favor of the plaintiff. Neither the Sale of Offices Act, not indeed any other act of the English Parliament, could be held to apply to the citizens or the colonial government of Jamaica. Though interesting in and of itself as a piece of legal trivia, Wilson asserted that the precedent it set was exceptionally favorable to the American position in the late 18th century dispute between the colonies and Parliament. “This decision is explicit in favour of America,” he wrote in paragraph fifty-five of Considerations, “For whatever was resolved concerning Jamaica is equally applicable to every American colony.” Sensing, perhaps, that there were those among his audience inclined to doubt this conclusion, Wilson elaborated in paragraph fifty-six that Chief Justice Holt further extended this ruling so as to apply to Virginia some years after the Jamaica case had been heard.

In spite of this seemingly authoritative defense of British colonial autonomy from Parliamentary rule, Wilson acknowledged – like any scholar worth his salt – that there were certain complications still to account for when arguing against the validity of the Stamp Act, or the Townshend Duties, in America. It had, for instance, been stated by the justices of the Exchequer Chamber while they rendered their verdict in favor of Irish legislative autonomy that English legislation could be made to apply to Ireland if that jurisdiction was explicitly named in the relevant act. This maxim, Wilson further admitted, had also been applied to the American colonies in subsequent cases heard by English courts, thus presumably making valid any act of Parliament that took the trouble to name any or all of the colonies explicitly. Though such an admission would seemingly invalidate any arguments Wilson had made to the contrary – British precedents being at the core of his basic assertion – Considerations approached this latent counterargument with a dismissal based in simple logic. The cited cases, dating from 1483 and 1693, respectively, dealt with the question of whether an act of the English Parliament held any legal weight in jurisdictions that fell outside the realm of England proper. Whether explicitly naming said jurisdiction could make them apply was, Wilson declared, a secondary consideration that could not have substantively affected the final verdict. The question brought before the courts in both cases only concerned the limits of English legal jurisdiction, and not whether there were exceptions to it. This made the resulting exceptions, he asserted, “Wholly impertinent to the point of the adjudication.”

Perhaps in acknowledgement that this explanation was not so simple or so convincing to someone not possessed of his legal acumen, Wilson added an addendum in paragraph fifty-nine that framed his assertion somewhat more plainly. As he had already made plain, the citizens of the various American colonies were not bound by the acts and statutes of Parliament because they enjoyed no representation therein. Acknowledging this as fact, he then asked,

What reason can be assigned why they should be bound by those acts, in which they are specially named? Does naming them give those, who do them that honour, a right to rule over them? Is this the source of the supreme, the absolute, the irresistible, the uncontrolled authority of parliament?

Thusly phrased, the maxim that Parliament’s authority, ordinarily confined to those jurisdictions it directly represented, could be extended beyond them simply by adding a few words to an act of law appears rather difficult to justify. “These positions are too absurd to be alleged,” Wilson accordingly declared, “And a thousand judicial determinations in their favor would never induce one man of sense to subscribe his assent to them.” Parliament, he had maintained at length throughout Considerations, was not a body whose authority and legitimacy were haphazard or ill-defined. Centuries of conflict and reform had ensured that the House of Commons in particular was capable of representing the people of Britain, seeing to their needs, upholding the rule of law, and generally comporting itself with discretion and integrity. Since the bloody events of the Civil War, and the more recent and less-bloody Glorious Revolution, the British people had accordingly come to perceive Parliament as the guardian of their liberties and the repository of their sovereign will. For this same body, or its potential defenders, to then claim that scribbling a few words onto a piece of paper made it possible for its authority to be arbitrarily extended across three thousand miles of ocean, Wilson avowed, made no sense at all.

            The reason James Wilson felt that it was important to deploy such lengthy legal citations in his 1768 pamphlet, and the reason they have been repeated here, are perhaps not immediately obvious. “Why would he subject us to this?” you may be asking yourself, and not without reason. For Wilson’s part, attacking the prerogatives assumed by Parliament with the passage of the Stamp Act and the Townshend Duties by appealing to British law and British precedent made tactical sense. In common law jurisdictions like Britain, precedents are the fundamental basis of almost all legal norms. Concepts like trial by jury, habeas corpus, or freedom of speech have power in these places because they can be attributed to established case law and legislation as much as they speak to certain basic, inviolable, “natural” rights. Consequently, applications to abstract legal principles in such jurisdictions are not always successful because the legal and political system therein is generally geared to attach the greatest importance to ideas that are already understood to have worth.

Whereas a discussion rooted in the works of French philosophes like Jean-Jacques Rousseau (1712-1778) or the Baron de Montesquieu (1689-1755) might have seemed alien, and even threatening, to British sensibilities, maintaining a discourse rooted in a clear respect for English and British law and tradition doubtless made Wilson’s contention that Parliament was in error that much harder for even pro-British critics to dismiss. Furthermore, by frequently citing examples of British case law, showing his respect for the judgements of the King’s Bench and the Exchequer Chamber, demonstrating a thorough knowledge of the history of Parliament, and expressing admiration for British legal luminaries like the aforementioned Chief Justice Holt, his predecessors Edward Coke (1552-1634) and Robert Foster (1589-1663), and Sir William Blackstone (1723-1780), Wilson effectively personified the attachment to Britain and British culture he was so keen to attribute to his fellow colonists. Far from an insurrectionist who hoped to uncouple the American colonies from their distant British masters, he demonstrated in Considerations an affection for and knowledge of British political culture and history that was distinctly conservative, and by extension distinctly non-threatening.

For my part, I felt it was important to convey some sense of the scope and weight of Wilson’s knowledge of and insight into British legal history and culture so that you, my precious readers, might better understand exactly what kind of argument Considerations was trying to make. Or, in other words, I tell you this because you needed to see it for yourself. James Wilson was not Thomas Jefferson, and his attempt to justify American resistance to British tax policy followed a different logic than that deployed in the latter’s A Summary View of the Rights of British America. Bother men were Founders in their own right and both contributed mightily to the shape their shared nation would ultimately assume, but their philosophical priorities and rhetorical styles were notably dissimilar. Whereas the Sage of Monticello maintained an understanding of the Anglo-American relationship that was strictly voluntary – the original settlers of British America retained an attachment to the Crown by choice, and their descendants maintained it out of custom – Wilson adopted a much more legalistic approach. The relationship between the colonies and Parliament, he asserted, was solidly grounded in the British legal norms and buttressed by centuries of case law. Britain being a Common Law jurisdiction, there accordingly seemed to be no valid justification that Parliament could invoke in defense of its attempts to apply direct taxes upon the citizens of British America.

In effect, Wilson was saying that the British Parliament had forgotten what it meant to be British while he and his fellow colonists had not. And evidently they refused to stand aside and allow the contemporary House of Commons to saddle subsequent generations with their warped interpretation of the “fundamental principles of the British constitution.” This was, with its thorough references to British jurisprudence and respectful allusions to various British legal authorities, a conservative position; not incompatible with subsequent developments within the Anglo-American crisis, but still very much concerned with preserving the status quo. Thomas Jefferson could not have made such an argument, radical that he was, and it may have been the case that James Wilson could not have done otherwise. Each responded to his particular inclinations and his experiences, and yet they both somehow arrived on the same side of the Revolution. Understanding how this was possible – how conservatives and radicals, philosophers and legal scholars, farmers and lawyers all united in singular purpose – is, in many ways, what makes the Founding such a marvellous and confounding thing.