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 18^th 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 18^th 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 21^st century context, it carries any number of complex connotations; passports, border checks, extradition treaties, and swearing-in ceremonies. In the 18^th 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 18^th 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 18^th 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 15^th 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 16^th, 17^th, and 18^th 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 21^st 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 18^th 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 18^th 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 18^th 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 18^th 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.