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 18^th 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 18^th 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, 18^th 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 18^th 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 18^th 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 21^st 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 18^th 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