Constitutional History of the American Revolution, Volume II
The Authority to Tax
Publication Year: 1987
Published by: University of Wisconsin Press
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Title Page, Copyright, Dedication
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Scholars who would explore eighteenth-century British constitutionalism must steer an uncharted course. The problem is not that the headlands and channels are unmarked; it is that they are not identified with the certainty of precise definition. Even the shores that confine the limits of the word "constitution" were not accurately surveyed in the eighteenth century. ...
Chapter 1: The Constitutional Imperative
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There is a preliminary consideration so often overlooked that it must be noted here: to write the constitutional history of the American Revolution is to write the history of more than one constitution. The point is so elementary that once stated it becomes obvious, yet it has generally been misunderstood, ignored, or left unmentioned. ...
Chapter 2: The Other Taxes
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A final introductory point to be made also pertains to the constitutional heritage that the colonies shared with their mother country and helps to explain the magnitude of the constitutional issue posed by Parliament when it attempted to tax Americans for purposes of raising a revenue. ...
Chapter 3: The Internal-External Criterion
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There were occasions during the revolutionary controversy when British imperialists and American whigs simply did not understand one another. They listened to the words spoken, believed they were in communication, but what one side said the other did not comprehend. ...
Chapter 4: The Trade Regulation Criterion
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Occasional American writers of the 1760s insisted there was no constitutional difference between internal and external taxation. The Stamp Act Congress made no distinction in the various pronouncements that it issued, nor did most of the colonial assemblies. As an anonymous London pamphlet in 1766 said of the constitutional argument: ...
Chapter 5: The Second Original Contract
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The lesson of the internal-external material leads to one conclusion. Most American whigs claimed that the colonies enjoyed an absolute immunity from parliamentary taxation imposed for the purpose of raising a revenue. The next question to be asked is what were the constitutional grounds upon which this immunity was based. ...
Chapter 6: The Imperial Contract
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The fourth contract contributing to the revolutionary debates along with the social contract, the original contract, and the settlement contract was the imperial contract. On the matter of Parliament's authority to tax the colonies, the imperial contract was perhaps the most important and certainly the most frequently mentioned of the contracts, ...
Chapter 7: The Commercial Contract
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The colonial factual argument against the imperial contract was not as strong as American whigs would have liked. Although it is not possible in a constitutional history to evaluate the strengths and weaknesses of both sides, a point to be noted is that neither side persuaded the other. ...
Chapter 8: The Taxation-Legislation Dichotomy
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When Charles Townshend was in the opposition in the House of Commons, attached to the leadership of William Pitt, he became discouraged over his chances of ever advancing schemes for taxing the North American colonies. "Mr. Pitt," he mourned to the duke of Newcastle, "I find is against all taxation." ...
Chapter 9: The Defense of Charter
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When the Sugar and Stamp Acts began to menace the constitution under which they and their ancestors had lived for a century and a half, American whigs swiftly developed a consensus of opposition. Voiced in New England town meetings, the declarations of middle-colony grand juries, the resolutions of southern trade associations, ...
Chapter 10: The Doctrine of Consent to Taxation
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Unlike the plea of charter and the argument of contract, the doctrine that taxation was unconstitutional without consent was central to the revolutionary controversy. Thomas Hutchinson noted early in the period that the whig slogan was "No representation, no taxation." ...
Chapter 11: The Status of the Doctrine
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Two constitutional contentions supported the claim that Americans could not be taxed without consent. One was that the rule requiring consent for taxation had always been constitutional law. The second was that in Great Britain the rule still was constitutional law: that subjects "born within the Realm of England have a Property in their own Estate, ...
Chapter 12: Theory of Precedent
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Sometime before May of 1764, a Rhode Islander wrote a letter to the Providence Gazette. "It is true," he said, referring to news that Parliament was considering a stamp tax for the North American colonies, "the one proposed would be small and equal, therefore in itself not an object for opposition; ...
Chapter 13: Historical Aspects of the Doctrine
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History and precedent should not be confused. History is evidence, and precedent is authority; to mix the two can produce misleading distortions. They are, of course, not unconnected: history provides evidence of precedent and is one of the sources from which precedent is drawn, a source in which precedent and custom blend. ...
Chapter 14: The Authority of Analogy
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During his examination before the House of Commons in 1766, Benjamin Franklin was asked whether Americans were acquainted with the English Bill of Rights and if they knew "that, by that statute, money is not to be raised on the subject but by consent of parliament." "They understand that clause to relate to subjects only within the realm," ...
Chapter 15: Precedents for Taxation
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The General Assembly of Pennsylvania, combining an argument of both custom and precedent, maintained that until 1765 there was no statutory precedent for parliamentary taxation of the North American colonies. "This Right in the People of this Province," it asserted, "of being exempted from any Taxations, ...
Chapter 16: Doctrine of Custom
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When Samuel Adams contended that the Greenwich hospital fee had not been paid by American fishermen "from the first settlement of the country to this day," he was not teaching a lesson of history but making an argument of law. Adams was casting doubt on the constitutionality, even on the legality, of efforts to collect the hospital tax in the colonies. ...
Chapter 17: Issue of the Sugar Act
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Discussion of the authority of custom completes the survey of the constitutional arguments advanced by American whigs against Parliament's attempt to raise in the colonies taxes for purposes of revenue. The next four chapters consider how those arguments were applied to the Sugar Act, the Stamp Act, ...
Chapter 18: Issue of the Stamp Act
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In 1774, one of America's most persistent and outspoken tories wrote that a decade earlier nearly everyone in the colonies had felt that the Stamp Act was "contrary to all our ideas of American rights."1 Few historical studies have quarreled with that statement. ...
Chapter 19: Issue of the Townshend Duties
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American whig constitutional arguments must not be read too loosely. It is not enough to recognize that legal questions were raised; legal distinctions must also be taken into account. Although ideological arguments were blended with economic complaints in revolutionary pamphlets and petitions, ...
Chapter 20: Issue of the Tea Act
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People on both sides of the prerevolutionary debate seem to have realized two facts more or less simultaneously. The first was that the Townshend duties were a failure and would have to be repealed. The second was that the imperial dispute about parliamentary taxation was now dominated by constitutional considerations ...
Chapter 21: Proposed Constitutional Solutions
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On the first day of October 1765, at the height of the Stamp Act crisis, a future loyalist wrote to the future governor of rebellious New Jersey wondering if there was a solution to the taxation question. "No man see[s] in a stronger light than I do," Jared Ingersoll insisted, ...
Chapter 22: The Administration's Solution
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From the American constitutional perspective, the solution of requisitions demanded by and paid to the Crown was supported — even demanded — by the logic of constitutional tradition. First, it avoided the implications of parliamentary taxation by giving Parliament no immediate role to perform. ...
Chapter 23: The British Perspective
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The predicament Lord North had to solve with his plan to end the taxation controversy was constitutional. He no longer had to be concerned with members of Parliament who wanted to obtain revenue from the Americans. That hope was no longer seriously entertained. ...
Chapter 24: The American Perspective
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The American whig perspective on the constitutional issues was much less complicated than the British perspective; there were fewer differences between extremes and more general agreement on the solution. About the only area of uncertainty concerned the commercial contract. ...
Chapter 25: The Shared Perspective
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There was a third constitutional perspective in addition to the British and American perspectives. It is the perspective that has been the emphasis of this book and might be called the "shared," or "common," or even "Atlantic" perspective. It was a way of looking at government and law from a taught or received cultural heritage. ...
Chapter 26: Conclusion
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The arguments on both sides of this important question on the right of taxation, must by this time be nearly exhausted," a writer remarked in the April 1774 issue of London's Monthly Review. He was almost correct. Except for the final pruning of the "right" issue and the determination of the line beyond which neither side would go, everything had been understood. ...
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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 DAgostino Greenberg and Max E. Greenberg Faculty Research Fund ...
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Page Count: 432
Publication Year: 1987