all men are by nature equal and free -- 2/21/22

Today's selection -- from The Life and Career of Justice James Wilson, edited by Randy E. Barnett. In 1774, two pamphlets were written challenging Parliament’s authority over the American colonies. One was written by Virginian Thomas Jefferson, the other by Philadelphian James Wilson. It was Wilson’s, rather than Jefferson’s, that included the radical notion that, “All men are by nature equal and free: No one has a right to any authority over another without his consent.” It was an idea Jefferson later included in his epochal draft of the Declaration of Independence:

"The first was Jefferson's Summary View. The second appeared about three weeks later. It was called Considerations on the Nature and the Extent of the Legislative Authority of the British Parliament. You will recall that Jefferson's pamphlet was beautifully written and very angry. This new pamphlet was different. It was not as eloquent, and the tone was much cooler-at times almost pedantic. But it did something Jefferson's pamphlet did not. Remember that Jefferson had made a profoundly revolutionary assertion: 'The true ground on which we declare these acts void is, that the British parliament has no right to exercise authority over us.' That is a dramatic claim. But Jefferson does not offer an argument. He merely states the proposition as though it is obvious.

"The new pamphlet is entirely devoted to providing that argument. It starts where Jefferson left off. Its goal is to analyze the central question that Jefferson had left hanging: What authority does parliament have to legislate for the colonies? It provides thirty-two pages of close analysis. And the answer is the same as Jefferson's: None. Parliament has no authority to legislate for the colonies on any matter whatsoever.

"The new pamphlet makes a couple of remarkable philosophical maneuvers. To see just how remarkable, you need to immerse yourself in the earlier pamphlet literature. Most of the legal argumentation had taken place inside the traditional legal framework of the British Constitution. But this new pamphlet, although it goes deeply into the common-law precedents, also stands back from the entire British constitutional tradition and attempts to examine its foundations. It contains a remarkable attack on Blackstone's theory of parliamentary sovereignty -- what amounts to both a philosophical and a legal assault on the British conception of the constitutional structure of the Empire.

"This anonymous pamphlet landed like a bombshell in the third week of the Continental Congress. Everyone asked: Who wrote it? An answer quickly appeared. The first part of the pamphlet was reprinted on October 20 on the front page of Rivington's Gazetteer in New York. It now had the title, 'The Celebrated Dr. Franklin's Considerations on the Nature and the Extent of the Legislative Authority of the British Parliament.' That was enough to guarantee widespread publicity. Benjamin Franklin was the most famous human being in the Western Hemisphere. He had recently returned to America after nearly two decades in London. So people on both sides of the Atlantic studied his words -- or what they believed to be his words.

"This misattribution persisted for about six crucial weeks, during which the First Continental Congress met and dissolved. But then came a retraction. It almost certainly came from Franklin, or from one of his associates. He wished to make clear that the pamphlet went too far. So there was an anonymous letter to Rivington's Gazetteer, published on December 1:

Mr. Rivington, You have been misinformed in attributing to Dr. Benjamin Franklin the piece entitled Considerations on the Nature and Extent of legislative Authority of the British Parliament over the American Colonies. His political principles are quite different. That gentleman always acknowledged that Great Britain has a right to regulate our trade.--The real author of that performance is Mr. Wilson, of this province, a native of Scotland, and a warm patriot.

"In other words, as of December 1774, the argument in Wilson's pamphlet was still too radical for Benjamin Franklin to endorse, and be disassociated himself from it.

"Neither Jefferson nor Wilson attended the First Continental Congress. But by the end of 1774 their writings had made them famous throughout British America. They were both elected as delegates to the Second Congress that began meeting after the bloodshed of Lexington and Concord in 1775.

"I said that Wilson's Considerations pamphlet make some remarkable philosophical maneuvers. One paragraph in particular deserves close attention. It comes close to the beginning of the pamphlet. Here it is:

All men are by nature equal and free: No one has a right to any authority over another without his consent: All lawful government is founded on the consent of those who are subject to it: 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. The consequence is, that the happiness of the society is the first law of every government.

"There is no trace of such an argument in Jefferson's Summary View. Nor will you find it anywhere else in Jefferson's papers before 1776. The argument first appears in his 'original rough draft' for the Declaration of Independence. The crucial sentence is this:

We hold these truths to be sacred & undeniable; that all men are created equal and independant [sic], that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty & the pursuit of happiness; that to secure these ends, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government shall become destructive of these ends, it is the right of the people to alter or to abolish it, & to institute new government, laying it's foundation on such principles & organizing it's powers in such form, as to them shall seem most likely to effect their safety & happiness.

"Could Wilson's Considerations pamphlet have influenced the Preamble of the Declaration? Historians have long thought so, and the evidence is strong. Of the five members of the Committee charged with drafting the Declaration, three certainly knew Wilson's pamphlet: Benjamin Franklin (who was suspected of having written it), John Adams (who wrote to Abigail Adams about his admiration of Wilson), and Thomas Jefferson (who not only read Wilson's pamphlet, but took the trouble to copy out long extracts into his commonplace book)."



Randy E. Barnett


The Life and Career of Justice James Wilson


Georgetown Center for the Constitution


Copyright 2019 Georgetown Center for the Constitution


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