More Historical Inaccuracies from Gregg Frazer
Bill Fortenberry
Gregg Frazer has long been a critic of the actions of the American colonists during the Revolutionary era. His book and his lectures both include the claim that the Revolutionary War was an unjust war on the part of the Americans, but I have been frustrated to find that he seldom presents a fully developed argument for this claim.
Then, in May of last year, Gregg published an article in the Journal of Military Ethics entitled "The American Revolution: Not a Just War." Gregg told me (here and here) that this article contained the evidence and arguments necessary to support his claim, but he was not willing to share the contents of the article with me unless I purchased a subscription to the journal. Now, more than a year later, Gregg's article has finally become freely available online, and I can see that his reluctance to share it was fully justified.
Bad History
As I noted in my review of Gregg's book, he is a master at weaving original source material and historical commentary into an apparently seamless account, but when his sources are actually read in detail, the cloth rapidly unravels. There is a great example of this near the beginning of Gregg’s article where he claims that:
"An anonymous American Revolutionary commented on the uniqueness of this revolution and what separated it from others: ‘In other revolutions, the sword has been drawn by the arm of offended freedom, under an oppression that threatened the vital powers of society.’ Noted scholar Gordon Wood finishes the thought..."
Gregg then quotes Wood as saying:
"But this seemed hardly true of the American Revolution. There was none of the legendary tyranny that had so often driven desperate peoples into revolution. The Americans were not an oppressed people; they had no crushing imperial shackles to throw off. In fact, the Americans knew they were probably freer and less burdened with cumbersome feudal and monarchical restraints than any part of mankind in the eighteenth century. …The Americans’ response was out of all proportion to the stimuli. The objective social reality scarcely seemed capable of explaining a revolution."
To the unwary reader, it may seem that Gregg is implying an agreement between the sentiments of this unnamed American revolutionary and the statement by Gordon Wood, but when we read the context of the gravely abbreviated quote, we find a different idea entirely. Here is what our revolutionary actually wrote:
"Nor was the point, on which her revolution commenced, that sort of immediate evil, which, by torturing the heart, prevents the reasoning of the understanding ... The progress of usurpation was slow, and gave to principle all its glory. It was not of that pressing nature, that denying men the privilege of acting from conviction, drives them to that sad alternative, in which nature, at the head of the passions, performs the duties of necessity by her own instincts.
"In other revolutions, the sword has been drawn by the arm of offended freedom, under an oppression that threatened the vital powers of society. But the American revolution took place as a necessary result of long established opinions. The occasion advanced with the progress of usurpation -- not sudden, not blown into existence by the breath of incendiaries. Flowing from the source of system, and supported by the energies of well weighed choice, it was moderate, resolute, and irresistable."
To phrase it more simply, our loquacious revolutionary claimed that the American Revolution differed from other revolutions because it was the product of a long period of wise deliberation rather than of a sudden inflammation of unguarded passion. He praised the Americans for progressing slowly with reason and logic rather than reacting hastily out of vengeance and spite. In other words, this revolutionary saw the American Revolution in a very different light than Gregg has presented in his article.
Self-Contradictions
In addition to such misrepresentations, Gregg's article also contains several self-contradictions. For example, in the second paragraph under the heading of "No Taxation without Representation," Gregg claims that:
"It is interesting that the colonial writers never pointed to a specific part of the British Constitution in the numerous pamphlets making the ‘no taxation without representation’ argument."
Now, I've taken issue before with Gregg's strange understanding of the word “never,” so I was not as surprised as the reader may be to learn that, just two paragraphs later, Gregg also wrote:
"James Wilson’s ‘Considerations on the Nature and Extent of the Legislative Authority of the British Parliament’ is arguably the best example of the argument because it actually appealed to specifics in the British Constitution."
Such a blatant contradiction should be sufficient to give any reader a reason to doubt the veracity of Gregg’s entire argument. Add to this the fact that Gregg completely ignored the Novanglus Essays by John Adams which are filled with legal citations (See Novanglus 11 for Adams’ treatment of the same subject as Wilson), and even the most forgiving of critics must begin to suspect some amount of foul play.
Unreasonable Contempt
One of the most indelible impressions that I have garnered from Gregg's various comments about the founders is that his scholarship suffers from a contempt for the intelligence of those whom he is studying. He seems very quick to conclude that the scholars of former ages were less informed of their world than he is, and this article displays that same derision.
In reference to Wilson's arguments, Gregg writes:
"He begins his ‘constitutional’ argument with the decision in the so-called ‘Calvin’s Case’ (1608) that Scotland was not subject in her internal affairs to the laws of Parliament ‘because they do not send knights to parliament: but their persons are the subjects of the king …’ Wilson says that it referred to Ireland, so to avoid confusion, the discussion here will refer to Ireland as he did."
The number of historical errors contained within these two sentences is astounding, but they are far overshadowed by Gregg's condescension toward Wilson's "error" in referring to Ireland instead of Scotland. Had Gregg devoted even the slightest bit of time to actually reading and attempting to understand Wilson's pamphlet, he would have noticed that the statement which he attributed to Wilson was actually a quotation that Wilson derived from a citation made in Calvin's Case to a decision from the Court of Exchequer nearly a century prior. It was not Wilson who referred to Ireland but rather the Court of Exchequer which was subsequently quoted in Calvin's Case and then quoted again by Wilson.
Wilson devoted seven lengthy paragraphs to explaining the quoted phrase from the Court of Exchequer. No historian familiar with Calvin's Case would ever conclude from these seven paragraphs that Wilson was referring to that case. Wilson states very clearly that he is referring to a case which was heard in the second year of King Richard III (1485) whereas Calvin's Case was decided under the reign of King James I in 1608. Wilson identified the case in question as being decided by the Court of Exchequer, but Calvin's Case was decided by The Court of King's Bench. Wilson claimed that the primary question before the court was "whether the people in Ireland were bound by an act of parliament made in England," but the primary question in Calvin's Case was whether Robert Calvin had the right to hold land in England. There is quite literally nothing at all in Wilson's discussion of this case which could justify Gregg's derision. Wilson said that the case in question referred to Ireland because the case in question was not Cavin’s Case but rather a previous case heard by the Court of Exchequer in regards to a question about the authority of Parliament over the nation of Ireland.
Wilson’s discussion of this case forms the foundation for his entire legal argument, and Gregg doesn’t even realize which case is being discussed. How can he be thought to have refuted Wilson’s arguments when he hasn’t even taken the time to discover which case Wilson was discussing?
Now, Wilson did eventually discuss Calvin's Case in the course of his argument, but it was the fourth case that he discussed and not the first as Gregg claimed, and Wilson only referenced Calvin's Case directly in order to point out a portion of that decision which did not apply to the American colonies. But we will get to that point in due time.
Blissful Ignorance
When I attempted to discuss Gregg’s claims with him last year, I suggested that he appeared to be “blissfully ignorant of some key aspects of British and American law.” Now that I have read his argument in full, I have the great misfortune of knowing that I was right. Gregg really has no idea what he is talking about when he speaks on the subject of British law.
For example, Gregg claimed that:
“the decision in Calvin’s Case declared that Ireland was subject to the King of England, so extending this to the American colonies would make them subject to Parliament anyway because King George instructed them to obey the laws passed by Parliament.”
Had Gregg made this statement in 18th century England, he would have been laughed out of the room by Whigs and Tories alike. What if Gregg had said that the citizens of Alabama are subject to the laws of California because the President ordered the state of Alabama to obey the laws of California? No one would take such a statement seriously. We would all assume that he was joking. Could he possibly be so ignorant as to think that the President can just order one state to submit to the laws of another state? Surely not.
And yet, this is the same level of ignorance that Gregg has displayed in regards to the laws of England, for the British king, just like the American President, had no authority to make laws. His legislative authority consisted solely of the power to veto laws passed by the legislative body. The king could not simply make up a law declaring that the American colonists were subject to the laws of Parliament.
To prove this point, we need only turn to the Commentaries of William Blackstone where we read:
“very properly therefore the share of legislation, which the constitution has placed in the crown, consists in the power of rejecting, rather than resolving; this being sufficient to answer the end proposed. For we may apply to the royal negative, in this instance, what Cicero observes of the negative of the Roman tribunes, that the crown has not any power of doing wrong, but merely of preventing wrong from being done.”
The king had no authority to order the colonies to submit to Parliament. He could approve or disapprove of an act from a given colonial government declaring themselves to be under Parliament's authority, but he could not change the law on his own as Gregg claims.
Perhaps we could forgive Gregg for his ignorance of this incredibly important point of British law if it weren’t for the fact that Wilson addressed this very claim within his argument when he wrote:
"Upon what principle does the British parliament found their power? Is it founded on the prerogative of the king? His prerogative does not extend to make laws to bind any of his subjects."
Gregg further exposed his ignorance of British law by claiming that:
“Ireland’s exemption was due to its ‘conquered’ status, so for the exemption to apply to the American colonies, they would have to have ‘conquered’ status as well.”
This claim is crucial to Gregg’s rebuttal of Wilson’s argument as well as to his belittling of Wilson’s character, and yet, he does not deign to include a single footnote or quotation to support this claim. Where did he get the idea that exemption from the laws of Parliament only comes as a result of a nation’s status as a conquered nation?
If Gregg thinks that Ireland’s conquered status is the only means by which they could not be subject to the laws of Parliament, then he is very sorely mistaken. Wilson did not address this claim, himself. Perhaps he thought it unnecessary to refute such a ludicrous concept. But we can disprove the claim ourselves easily enough if we but look to the nation that Gregg thought Wilson was originally referring to. In Blackstone’s Commentaries, we find this statement regarding “The Countries Subject to the Laws of England:”
“The kingdom of Scotland, notwithstanding the union of the crowns on the accession of their King James VI to that of England, continued an entirely separate and distinct kingdom for above a century more.”
Blackstone referred to England and Scotland as “two large and uncommunicating jurisdictions” and to their separate Parliaments as “two distinct and independent parliaments.” Even when England and Scotland were united under a single monarch, they still maintained separate and distinct parliaments. Eventually, the two kingdoms were merged into one under the authority of the British Parliament, but this was not the result of conquest. The submission of Scotland to the authority of the British Parliament came as a result of a vote in both Parliaments in 1707 to agree to the 25 articles of union. Thus, Scotland, which was never successfully conquered by England, maintained a separate and independent government which was not subject to the British parliament for more than 100 years even though they were subject to the British king for the entirety of that time.
The point which Wilson was making in reference to Ireland was “that it is by no means a rule, that the authority of parliament extends to all the subjects of the crown.” According to Wilson, the reason why Ireland was not bound by the laws of Parliament was that they did not send any representatives to parliament, and Wilson properly supports this claim with an appeal to the highest authority on British law, the Court of Exchequer. We can see that the incidental happenstance which produced the state of affairs in which Ireland was not represented in Parliament is of no consequence to the findings of the court, for Scotland had arrived in the same state of affairs as Ireland via a completely different means. What these two instances have in common is that neither nation was subject to the laws of Parliament during the time that they were without representation in Parliament.
More Contempt and Misrepresentation
Toward the end of Gregg’s section on Wilson’s arguments, he asserts that:
“Wilson presents conveniently selected partial statements out of context and, it should be emphasized, never actually appeals to any statute or law, but only to judicial decisions.”
Then, two paragraphs later, Gregg states that Wilson and the other pamphlet writers were “Unable to identify any actual statute or part of the British Constitution.” And again in the next paragraph Gregg proclaimed that “There was no actual statutory or constitutional basis for the ‘no taxation without representation’ claim.” It sure seems to me that Gregg is accusing Wilson of neglecting to provide any support for his argument from the British Constitution, but compare these statements with Gregg’s own definition of the British Constitution:
“The British Constitution … consists of historical legal documents such as Magna Carta, laws passed by Parliament, treaties, and legal decisions made by British courts.” (emphasis mine)
In one part of his paper, Gregg argues that the legal decisions of the British courts are part of the British Constitution, but then he later accuses Wilson for only referencing the decisions of the British courts and not the British Constitution. Unfortunately, I have found these little equivocations and word games to be far too common in Gregg’s material.
Gregg also claims that:
“Wilson dismisses a part of a decision with which he disagrees with the following statement: ‘These positions are too absurd to be alleged; and a thousand judicial determinations in their favour would never induce one man of sense to subscribe his assent to them’ … In other words, Wilson contends that judicial decisions with which he agrees are legally binding and conclusive and those with which he disagrees are for that reason without foundation and unimportant.”
This is a scandalous misrepresentation of what Wilson actually wrote.
Wilson’s only actual reference to Calvin’s Case was to point out, in full disclosure, that the Court of King’s Bench added an exception to the aforementioned opinion of the Court of Exchequer. As Wilson honestly points out, the court of Calvin’s Case added the phrase “which is to be understood, unless it (Ireland) be especially named” to convey the idea that Ireland was still subject to the laws of Parliament whenever one of those laws contained a specific reference to Ireland. However, Wilson argued that this exception was not part of the original opinion of the Court of Exchequer and that the lower court added it without providing any justification. He then concluded:
“I answer, in the words of the very accurate Mr. Justice Foster, that 'general rules thrown out in argument, and carried farther than the true state of the case then in judgment requireth, have, I confess, no great weight with me.'”
In other words, Wilson dismissed the exception added in Calvin’s Case because it had no legal foundation whatsoever. He then explained that merely naming a given nation in an act of Parliament cannot in any way actually give Parliament authority over a nation that is otherwise independent of Parliamentary rule. In regards to this explanation Wilson asked:
“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? These positions are too absurd to be alleged; and a thousand judicial determinations in their favour would never induce one man of sense to subscribe his assent to them.”
And here we see the context of the statement that Gregg claims was a dismissal of a court decision with which Wilson disagreed. In reality, Wilson did not say that the opinion of Calvin’s Case was “too absurd to be alleged” and that a man of sense could never “subscribe his assent to them.” This statement was made in reference to the idea that naming someone in a law actually gives the one doing the naming a right to force the one named to submit to the law. Wilson correctly identified this idea as absurd, and he then provided a more reasonable explanation for the insertion of the exception in Calvin’s Case.
“In my Lord Coke’s Reports, it is said, ‘that albeit Ireland be a distinct dominion, yet, the title thereof being by conquest, the same, by judgment of law, may be, by express words, bound by the parliaments of England.’ In this instance, the obligatory authority of the parliament is plainly referred to a title by conquest, as its foundation and original.”
It is at this point, that Wilson makes his argument against treating the American colonies as conquered countries. He argues that the colonies cannot be considered under a title of conquest because the citizens of those colonies had never been conquered by England. Thus, Wilson argued that the original ruling of the Court of Exchequer was applicable to the American colonies and not the exception clause found in Calvin’s Case.
Conclusion
I could fill many additional pages with analyses of other portions of Gregg’s article. For example, his derision of the Declaration and Resolves of the First Continental Congress further displays his woeful illiteracy in the area of British law, for the portions of these declarations and resolutions which Gregg criticized can be found in nearly the exact form in Blackstone’s Commentaries.
Compare Gregg’s criticism with Blackstone’s declaration that:
“if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony … What shall be admitted and what rejected, at what times, and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature, subject to the revision and control of the king in council.” (emphasis mine)
In this case, as in so much Gregg’s argument, Gregg has completely missed the legal argument being made, and as a result, has presented a criticism which is humorously foolish. As I read Gregg’s article, I found myself frequently recalling a statement made by Gouverneur Morris in regards to similar arguments which abounded in his time.
“Not only those who have participated in the conduct of national affairs, but those also, whose attention has been engrossed by personal concerns, cannot have failed to observe, that facts, as well as motives, are frequently misrepresented. That events are attributed to causes which never existed, while the real causes remain concealed. Presumptuous writers affecting knowledge they do not possess, undertake to instruct mankind by specious stories founded on idle rumour and vague conjecture. Those who are well informed smile at the folly.”
Then, in May of last year, Gregg published an article in the Journal of Military Ethics entitled "The American Revolution: Not a Just War." Gregg told me (here and here) that this article contained the evidence and arguments necessary to support his claim, but he was not willing to share the contents of the article with me unless I purchased a subscription to the journal. Now, more than a year later, Gregg's article has finally become freely available online, and I can see that his reluctance to share it was fully justified.
Bad History
As I noted in my review of Gregg's book, he is a master at weaving original source material and historical commentary into an apparently seamless account, but when his sources are actually read in detail, the cloth rapidly unravels. There is a great example of this near the beginning of Gregg’s article where he claims that:
"An anonymous American Revolutionary commented on the uniqueness of this revolution and what separated it from others: ‘In other revolutions, the sword has been drawn by the arm of offended freedom, under an oppression that threatened the vital powers of society.’ Noted scholar Gordon Wood finishes the thought..."
Gregg then quotes Wood as saying:
"But this seemed hardly true of the American Revolution. There was none of the legendary tyranny that had so often driven desperate peoples into revolution. The Americans were not an oppressed people; they had no crushing imperial shackles to throw off. In fact, the Americans knew they were probably freer and less burdened with cumbersome feudal and monarchical restraints than any part of mankind in the eighteenth century. …The Americans’ response was out of all proportion to the stimuli. The objective social reality scarcely seemed capable of explaining a revolution."
To the unwary reader, it may seem that Gregg is implying an agreement between the sentiments of this unnamed American revolutionary and the statement by Gordon Wood, but when we read the context of the gravely abbreviated quote, we find a different idea entirely. Here is what our revolutionary actually wrote:
"Nor was the point, on which her revolution commenced, that sort of immediate evil, which, by torturing the heart, prevents the reasoning of the understanding ... The progress of usurpation was slow, and gave to principle all its glory. It was not of that pressing nature, that denying men the privilege of acting from conviction, drives them to that sad alternative, in which nature, at the head of the passions, performs the duties of necessity by her own instincts.
"In other revolutions, the sword has been drawn by the arm of offended freedom, under an oppression that threatened the vital powers of society. But the American revolution took place as a necessary result of long established opinions. The occasion advanced with the progress of usurpation -- not sudden, not blown into existence by the breath of incendiaries. Flowing from the source of system, and supported by the energies of well weighed choice, it was moderate, resolute, and irresistable."
To phrase it more simply, our loquacious revolutionary claimed that the American Revolution differed from other revolutions because it was the product of a long period of wise deliberation rather than of a sudden inflammation of unguarded passion. He praised the Americans for progressing slowly with reason and logic rather than reacting hastily out of vengeance and spite. In other words, this revolutionary saw the American Revolution in a very different light than Gregg has presented in his article.
Self-Contradictions
In addition to such misrepresentations, Gregg's article also contains several self-contradictions. For example, in the second paragraph under the heading of "No Taxation without Representation," Gregg claims that:
"It is interesting that the colonial writers never pointed to a specific part of the British Constitution in the numerous pamphlets making the ‘no taxation without representation’ argument."
Now, I've taken issue before with Gregg's strange understanding of the word “never,” so I was not as surprised as the reader may be to learn that, just two paragraphs later, Gregg also wrote:
"James Wilson’s ‘Considerations on the Nature and Extent of the Legislative Authority of the British Parliament’ is arguably the best example of the argument because it actually appealed to specifics in the British Constitution."
Such a blatant contradiction should be sufficient to give any reader a reason to doubt the veracity of Gregg’s entire argument. Add to this the fact that Gregg completely ignored the Novanglus Essays by John Adams which are filled with legal citations (See Novanglus 11 for Adams’ treatment of the same subject as Wilson), and even the most forgiving of critics must begin to suspect some amount of foul play.
Unreasonable Contempt
One of the most indelible impressions that I have garnered from Gregg's various comments about the founders is that his scholarship suffers from a contempt for the intelligence of those whom he is studying. He seems very quick to conclude that the scholars of former ages were less informed of their world than he is, and this article displays that same derision.
In reference to Wilson's arguments, Gregg writes:
"He begins his ‘constitutional’ argument with the decision in the so-called ‘Calvin’s Case’ (1608) that Scotland was not subject in her internal affairs to the laws of Parliament ‘because they do not send knights to parliament: but their persons are the subjects of the king …’ Wilson says that it referred to Ireland, so to avoid confusion, the discussion here will refer to Ireland as he did."
The number of historical errors contained within these two sentences is astounding, but they are far overshadowed by Gregg's condescension toward Wilson's "error" in referring to Ireland instead of Scotland. Had Gregg devoted even the slightest bit of time to actually reading and attempting to understand Wilson's pamphlet, he would have noticed that the statement which he attributed to Wilson was actually a quotation that Wilson derived from a citation made in Calvin's Case to a decision from the Court of Exchequer nearly a century prior. It was not Wilson who referred to Ireland but rather the Court of Exchequer which was subsequently quoted in Calvin's Case and then quoted again by Wilson.
Wilson devoted seven lengthy paragraphs to explaining the quoted phrase from the Court of Exchequer. No historian familiar with Calvin's Case would ever conclude from these seven paragraphs that Wilson was referring to that case. Wilson states very clearly that he is referring to a case which was heard in the second year of King Richard III (1485) whereas Calvin's Case was decided under the reign of King James I in 1608. Wilson identified the case in question as being decided by the Court of Exchequer, but Calvin's Case was decided by The Court of King's Bench. Wilson claimed that the primary question before the court was "whether the people in Ireland were bound by an act of parliament made in England," but the primary question in Calvin's Case was whether Robert Calvin had the right to hold land in England. There is quite literally nothing at all in Wilson's discussion of this case which could justify Gregg's derision. Wilson said that the case in question referred to Ireland because the case in question was not Cavin’s Case but rather a previous case heard by the Court of Exchequer in regards to a question about the authority of Parliament over the nation of Ireland.
Wilson’s discussion of this case forms the foundation for his entire legal argument, and Gregg doesn’t even realize which case is being discussed. How can he be thought to have refuted Wilson’s arguments when he hasn’t even taken the time to discover which case Wilson was discussing?
Now, Wilson did eventually discuss Calvin's Case in the course of his argument, but it was the fourth case that he discussed and not the first as Gregg claimed, and Wilson only referenced Calvin's Case directly in order to point out a portion of that decision which did not apply to the American colonies. But we will get to that point in due time.
Blissful Ignorance
When I attempted to discuss Gregg’s claims with him last year, I suggested that he appeared to be “blissfully ignorant of some key aspects of British and American law.” Now that I have read his argument in full, I have the great misfortune of knowing that I was right. Gregg really has no idea what he is talking about when he speaks on the subject of British law.
For example, Gregg claimed that:
“the decision in Calvin’s Case declared that Ireland was subject to the King of England, so extending this to the American colonies would make them subject to Parliament anyway because King George instructed them to obey the laws passed by Parliament.”
Had Gregg made this statement in 18th century England, he would have been laughed out of the room by Whigs and Tories alike. What if Gregg had said that the citizens of Alabama are subject to the laws of California because the President ordered the state of Alabama to obey the laws of California? No one would take such a statement seriously. We would all assume that he was joking. Could he possibly be so ignorant as to think that the President can just order one state to submit to the laws of another state? Surely not.
And yet, this is the same level of ignorance that Gregg has displayed in regards to the laws of England, for the British king, just like the American President, had no authority to make laws. His legislative authority consisted solely of the power to veto laws passed by the legislative body. The king could not simply make up a law declaring that the American colonists were subject to the laws of Parliament.
To prove this point, we need only turn to the Commentaries of William Blackstone where we read:
“very properly therefore the share of legislation, which the constitution has placed in the crown, consists in the power of rejecting, rather than resolving; this being sufficient to answer the end proposed. For we may apply to the royal negative, in this instance, what Cicero observes of the negative of the Roman tribunes, that the crown has not any power of doing wrong, but merely of preventing wrong from being done.”
The king had no authority to order the colonies to submit to Parliament. He could approve or disapprove of an act from a given colonial government declaring themselves to be under Parliament's authority, but he could not change the law on his own as Gregg claims.
Perhaps we could forgive Gregg for his ignorance of this incredibly important point of British law if it weren’t for the fact that Wilson addressed this very claim within his argument when he wrote:
"Upon what principle does the British parliament found their power? Is it founded on the prerogative of the king? His prerogative does not extend to make laws to bind any of his subjects."
Gregg further exposed his ignorance of British law by claiming that:
“Ireland’s exemption was due to its ‘conquered’ status, so for the exemption to apply to the American colonies, they would have to have ‘conquered’ status as well.”
This claim is crucial to Gregg’s rebuttal of Wilson’s argument as well as to his belittling of Wilson’s character, and yet, he does not deign to include a single footnote or quotation to support this claim. Where did he get the idea that exemption from the laws of Parliament only comes as a result of a nation’s status as a conquered nation?
If Gregg thinks that Ireland’s conquered status is the only means by which they could not be subject to the laws of Parliament, then he is very sorely mistaken. Wilson did not address this claim, himself. Perhaps he thought it unnecessary to refute such a ludicrous concept. But we can disprove the claim ourselves easily enough if we but look to the nation that Gregg thought Wilson was originally referring to. In Blackstone’s Commentaries, we find this statement regarding “The Countries Subject to the Laws of England:”
“The kingdom of Scotland, notwithstanding the union of the crowns on the accession of their King James VI to that of England, continued an entirely separate and distinct kingdom for above a century more.”
Blackstone referred to England and Scotland as “two large and uncommunicating jurisdictions” and to their separate Parliaments as “two distinct and independent parliaments.” Even when England and Scotland were united under a single monarch, they still maintained separate and distinct parliaments. Eventually, the two kingdoms were merged into one under the authority of the British Parliament, but this was not the result of conquest. The submission of Scotland to the authority of the British Parliament came as a result of a vote in both Parliaments in 1707 to agree to the 25 articles of union. Thus, Scotland, which was never successfully conquered by England, maintained a separate and independent government which was not subject to the British parliament for more than 100 years even though they were subject to the British king for the entirety of that time.
The point which Wilson was making in reference to Ireland was “that it is by no means a rule, that the authority of parliament extends to all the subjects of the crown.” According to Wilson, the reason why Ireland was not bound by the laws of Parliament was that they did not send any representatives to parliament, and Wilson properly supports this claim with an appeal to the highest authority on British law, the Court of Exchequer. We can see that the incidental happenstance which produced the state of affairs in which Ireland was not represented in Parliament is of no consequence to the findings of the court, for Scotland had arrived in the same state of affairs as Ireland via a completely different means. What these two instances have in common is that neither nation was subject to the laws of Parliament during the time that they were without representation in Parliament.
More Contempt and Misrepresentation
Toward the end of Gregg’s section on Wilson’s arguments, he asserts that:
“Wilson presents conveniently selected partial statements out of context and, it should be emphasized, never actually appeals to any statute or law, but only to judicial decisions.”
Then, two paragraphs later, Gregg states that Wilson and the other pamphlet writers were “Unable to identify any actual statute or part of the British Constitution.” And again in the next paragraph Gregg proclaimed that “There was no actual statutory or constitutional basis for the ‘no taxation without representation’ claim.” It sure seems to me that Gregg is accusing Wilson of neglecting to provide any support for his argument from the British Constitution, but compare these statements with Gregg’s own definition of the British Constitution:
“The British Constitution … consists of historical legal documents such as Magna Carta, laws passed by Parliament, treaties, and legal decisions made by British courts.” (emphasis mine)
In one part of his paper, Gregg argues that the legal decisions of the British courts are part of the British Constitution, but then he later accuses Wilson for only referencing the decisions of the British courts and not the British Constitution. Unfortunately, I have found these little equivocations and word games to be far too common in Gregg’s material.
Gregg also claims that:
“Wilson dismisses a part of a decision with which he disagrees with the following statement: ‘These positions are too absurd to be alleged; and a thousand judicial determinations in their favour would never induce one man of sense to subscribe his assent to them’ … In other words, Wilson contends that judicial decisions with which he agrees are legally binding and conclusive and those with which he disagrees are for that reason without foundation and unimportant.”
This is a scandalous misrepresentation of what Wilson actually wrote.
Wilson’s only actual reference to Calvin’s Case was to point out, in full disclosure, that the Court of King’s Bench added an exception to the aforementioned opinion of the Court of Exchequer. As Wilson honestly points out, the court of Calvin’s Case added the phrase “which is to be understood, unless it (Ireland) be especially named” to convey the idea that Ireland was still subject to the laws of Parliament whenever one of those laws contained a specific reference to Ireland. However, Wilson argued that this exception was not part of the original opinion of the Court of Exchequer and that the lower court added it without providing any justification. He then concluded:
“I answer, in the words of the very accurate Mr. Justice Foster, that 'general rules thrown out in argument, and carried farther than the true state of the case then in judgment requireth, have, I confess, no great weight with me.'”
In other words, Wilson dismissed the exception added in Calvin’s Case because it had no legal foundation whatsoever. He then explained that merely naming a given nation in an act of Parliament cannot in any way actually give Parliament authority over a nation that is otherwise independent of Parliamentary rule. In regards to this explanation Wilson asked:
“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? These positions are too absurd to be alleged; and a thousand judicial determinations in their favour would never induce one man of sense to subscribe his assent to them.”
And here we see the context of the statement that Gregg claims was a dismissal of a court decision with which Wilson disagreed. In reality, Wilson did not say that the opinion of Calvin’s Case was “too absurd to be alleged” and that a man of sense could never “subscribe his assent to them.” This statement was made in reference to the idea that naming someone in a law actually gives the one doing the naming a right to force the one named to submit to the law. Wilson correctly identified this idea as absurd, and he then provided a more reasonable explanation for the insertion of the exception in Calvin’s Case.
“In my Lord Coke’s Reports, it is said, ‘that albeit Ireland be a distinct dominion, yet, the title thereof being by conquest, the same, by judgment of law, may be, by express words, bound by the parliaments of England.’ In this instance, the obligatory authority of the parliament is plainly referred to a title by conquest, as its foundation and original.”
It is at this point, that Wilson makes his argument against treating the American colonies as conquered countries. He argues that the colonies cannot be considered under a title of conquest because the citizens of those colonies had never been conquered by England. Thus, Wilson argued that the original ruling of the Court of Exchequer was applicable to the American colonies and not the exception clause found in Calvin’s Case.
Conclusion
I could fill many additional pages with analyses of other portions of Gregg’s article. For example, his derision of the Declaration and Resolves of the First Continental Congress further displays his woeful illiteracy in the area of British law, for the portions of these declarations and resolutions which Gregg criticized can be found in nearly the exact form in Blackstone’s Commentaries.
Compare Gregg’s criticism with Blackstone’s declaration that:
“if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony … What shall be admitted and what rejected, at what times, and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature, subject to the revision and control of the king in council.” (emphasis mine)
In this case, as in so much Gregg’s argument, Gregg has completely missed the legal argument being made, and as a result, has presented a criticism which is humorously foolish. As I read Gregg’s article, I found myself frequently recalling a statement made by Gouverneur Morris in regards to similar arguments which abounded in his time.
“Not only those who have participated in the conduct of national affairs, but those also, whose attention has been engrossed by personal concerns, cannot have failed to observe, that facts, as well as motives, are frequently misrepresented. That events are attributed to causes which never existed, while the real causes remain concealed. Presumptuous writers affecting knowledge they do not possess, undertake to instruct mankind by specious stories founded on idle rumour and vague conjecture. Those who are well informed smile at the folly.”