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Constitutional History of the American Revolution, Volume I

The Authority of Rights

John Phillip Reid

Publication Year: 2087

John Phillip Reid addresses the central constitutional issues that divided the American colonists from their English legislators: the authority to tax, the authority to legislate, the security of rights, the nature of law, the foundation of constitutional government in custom and contractarian theory, and the search for a constitutional settlement.

Published by: University of Wisconsin Press

Contents

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pp. vii-ix

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Introduction

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pp. 3-8

Rights were taken seriously in the eighteenth-century British Empire: the rights of the individual, the rights of Englishmen, the rights of mankind. People cherished them, championed them, and defended them. "I speak, Sir, as a friend of England and America," John Wilkes boasted...

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Chapter 1: The Englishness of Rights

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pp. 9-15

When the ailing James Otis retired to the country on the advice of his physician, the people of Boston, assembled in their town meeting, voted him thanks "for his undaunted Exertions in the Common Cause of the Colonies, from the Beginning of the present glorious Struggle for the Rights...

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Chapter 2: Rights in General

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pp. 16-26

The American colonists were interested in "two great points," Thomas Pownall, former governor of Massachusetts, asserted in 1764. Those two points were "the establishment of their rights and privileges as Englishmen, and the keeping in their own hands the revenue, and the pay of...

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Chapter 3: The Right to Property

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pp. 27-33

In the eighteenth-century pantheon of British liberty there was no right more changeless and timeless than the right to property. There is probably also no other right that today is more closely associated with eighteenth-century American whigs. Students of the Revolution have occasionally...

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Chapter 4: The Right to Security

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pp. 34-38

The words of John Davies should be marked. When American whigs said the same, and they often did, their thoughts have sometimes been traced back to John Locke and they have been called Lockean. Locke did express the same principle and many eighteenth-century writers on...

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Chapter 5: The Right to Government

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pp. 39-46

In seeking to reconstruct the foundations of American government as they were laid by the Founding Fathers, the greatest risk we run is that we no longer understand the purpose and scope of eighteenth-century rights as they were understood in the eighteenth century. Do we today...

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Chapter 6: The Jury Right

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pp. 47-59

The right to trial by jury, unlike the rights of property, security, and eighteenth-century government, is a right we think we know. We do, but only in an attenuated form. We no longer know the right as it existed in the age of the American Revolution. Certainly we cannot recapture...

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Chapter 7: Equality of Rights

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pp. 60-64

"The excise has been lately extended in this country," Richard Hussey, barrister and bencher of the Middle Temple, was quoted as telling his colleagues in the House of Commons, but he believed "no Minister would dare to propose to take away the trial by jury in all cases relating to the...

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Chapter 8: Authority of Rights

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pp. 65-73

In the preface to the Virginia edition of John Dickinson's Farmer's Letters, Richard Henry Lee praised Dickinson for "contending for our just and legal possession of property and freedom. A possession that has its foundation on the clearest principle of the law of nature, the most evident...

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Chapter 9: Constitutional Authority

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pp. 74-81

The customary, static constitution of eighteenth-century legal and political theory was on the mind of an anonymous London pamphleteer in 1774. He was searching for ways to resolve the imperial controversy that seemed headed toward civil war, and asked what "ground" held the...

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Chapter 10: The Right to Isonomy

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pp. 82-86

John Dickinson was consistent throughout the revolutionary controversy. The concept of "happiness" that he employed when instructing Pennsylvania's delegates to the Continental Congress, he had also used nine years earlier in his Address on the Stamp Act. "If," he then wrote,...

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Chapter 11: The Authority of Nature

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pp. 87-95

The search for authority does not stop with finding that equality was a source for rights. Beyond equality lay another source--nature. Just as the right to equality was the source of other rights, so nature was an authority for the right to equality.1 In this chapter we are concerned with...

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Chapter 12: Rights as Property

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pp. 96-102

When he delivered law lectures at Cambridge University during the nineteenth century, Frederick William Maitland defined the law of equity. "What is Equity?" he asked. "In the year 1875 we might have said 'Equity is that body of rules which is administered only by those Courts which...

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Chapter 13: Property in Rights

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pp. 103-113

For seventeenth-century English and eighteenth-century Americans to speak of civil rights as private property or an inheritance was not merely a convenience of expression, a borrowing of words from the common law that, passing into everyday use and becoming idioms, lost their...

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Chapter 14: The Authority of Migration

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pp. 114-123

One authority for rights has been overlooked by most constitutional studies of the American Revolution. Quite often it is not even recognized as authority, yet it was cited from the very beginning to the very conclusion of the revolutionary debate. In fact, if we take Patrick Henry's...

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Chapter 15: The Migration Purchase

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pp. 124-131

We are not quite done with the migration concept. It was important in one other respect, one also involving disputes of fact leading to a conclusion of constitutional law. The initial argument came from the imperial side of the debate, when defenders of parliamentary supremacy...

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Chapter 16: The Original Contract

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pp. 132-138

Language is again the focus of our attention. "Contract" was another word that was used on both sides of the Atlantic; we must ask why it was used and what it meant. "Contract" was one of the most common and useful terms employed by people in the eighteenth century to express...

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Chapter 17: The Original Colonial Contract

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pp. 139-145

The doctrine that the terms of the original contract were found in governmental usage provides one explanation why English constitutional history does not contain chapters about contract renegotiations, renewals, amendments, or novations. The revolutionary settlement enacted by Parliament...

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Chapter 18: The Reality of Contract

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pp. 146-158

The suggestion has been made that the contract, whether the social contract or the original contract, was a "hypothetical" or "metaphori cal" mode of argument with no historical or factual validity, that its value lay in its rhetorical or polemical utility, permitting theories about the origins of authority to be framed in terms of some principle such as con ...

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Chapter 19: The Evidence of Charter

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pp. 159-168

There were colonial whigs so certain the original contract of migration was real that they could quote norms of construction for its interpretation - norms the original settlers formulated to guide later generatiollS. "We have ever supposed our Charter the greatest security that could...

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Chapter 20: The Colonial Grievances

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pp. 169-176

The topic of the evidence of charter completes the survey of the various authorities on which the civil rights of the people depended in eighteenth-century British constitutional theory. Before turning to our final questions-what issues the possession of rights raised in the revolutionary...

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Chapter 21: The Admiralty Grievance

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pp. 177-183

It may not have seemed to the congregation of Boston's Second Baptist Church that they had much reason for thankfulness when John Allen, preaching the annual thanksgiving sermon, recited a homily of grievances Americans shared. "See your danger," Allen urged. "[Y]our constitution...

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Chapter 22: The Duty of Rights

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pp. 184-189

Eighteenth-century constitutional theory imposed duties on the British people; one was the duty to transmit, preserve, and defend rights. William Pitt, the earl of Chatham, referred to this duty when he told the House of Lords in 1774 "that the principal towns in America are...

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Chapter 23: The Exigency of Rights

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pp. 190-198

Just as it contained fundamental rights, so also eighteenth-century British constitutional law contained their opposites, fundamental grievances, and these too were part of the American constitutional case leading to the Revolution. To say some rights were fundamental is not to say...

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Chapter 24: The Issue of Rights

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pp. 199-208

Many scholars have doubted that the grievance of rights and the defense of rights were issues leading to the American Revolution, even though much evidence must be disregarded to conclude that rights were not an issue. Contemporaries said rights were an issue over and over again. It...

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Chapter 25: The Causation of Rights

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pp. 209-217

Urging colonial assemblies and conventions to distribute among the people the constitutional arguments and statements of principle of the American whig cause, the Continental Congress contended that "the more our right to the enjoyment of our ancient liberties and privileges...

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Chapter 26: The Redress of Rights

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pp. 218-226

Today we may no longer understand the many proposals made to solve the imperial crisis about rights. One problem is that most were, at least by twentieth-century standards, too imprecise to set guidelines for either legislative solution or constitutional settlement. It is impossible to guess...

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Chapter 27: Conclusion

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pp. 227-237

None of Chatham's plans could have been accepted by the Continental Congress; perhaps no plan would have been. None of Chatham's plans would have been constitutionally successful; perhaps any plan would have failed. The task may have been constitutionally impossible by 1778, yet...

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Acknowledgments

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pp. 241-253

Research for this study was supported by a fellowship grant from the John Simon Guggenheim Memorial Foundation and by a Huntington Library-National Endowment for the Humanities Fellowship. Leave from teaching duties at New York University School of Law was provided by the Filomen D'Agostino Greenberg...

Short Titles

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pp. 243-315

Notes

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pp. 317-363

Index

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pp. 364-374


E-ISBN-13: 9780299108731
E-ISBN-10: 0299108732
Print-ISBN-13: 9780299108700
Print-ISBN-10: 0299108708

Page Count: 384
Publication Year: 2087