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 15^th 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 18^th 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 15^th 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 18^th 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 18^th 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.