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CHAPTER SEVEN THE COMMERCIAL CONTRACT 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. The argument, after all, was forensic, and lack of persuasion did not have to be fatal if there was yet a counterargument to be offered. American whigs and their British supporters, realizing they had not proven their factual case against the imperial contract, attempted to nullify its implications with a novation or yet-another contract. That contract, the fifth, or what can be called the commercial contract, was based on a deceptively simple contention. If Great Britain had, in fact, gone to war to protect the colonies, she had not done so "out of disinterested regard for them; but to secure the profits of their trade; a trade, which, had they become subjects to France, must have been lost to England." What had Britain been protecting, David Hartley inquired of the Commons in 1775, "yourselves or them?" The trade of the colonies was controlled by the mother country for the profit of the British people. Even if London provided the colonies with protection, what difference did it make, the commercial-contract argument asked? "Have they not paid for it by the benefits of their commerce?"l 75 THE COMMERCIAL CONTRACT There were various theories upon which the commercial contract could be propped. Daniel Dulany cited the general benefits the colonies contributed to Great Britain's economic prosperity and the principle of equity, Virginia's House of Burgesses cited the restrictions that the mother country placed on colonial trade and the principles of justice or reasonableness , and South Carolina's Commons House of Assembly cited American purchase of British manufactures to the exclusion of those of other nations and the principle of fair exchange. No matter what the consideration - Great Britain's legislative monopoly over the trade of the colonies, the profits of American exports that by law had to be shipped to Europe through the mother country, or the additional strength American numbers brought to the British military- the debt owed under the imperial contract was continually being repaid. "By these means, the colonies not only pay for their own protection, but help to protect all his Majesty's dominions, in all parts of the world. It is upon this trade to the plantations , that the safety of the whole nation depends, and more particularly of Great Britain itself."2 ThE BENEFIT CONFERRED The refutation of the imperial contract on the basis of commercial considerations was rationalized in a variety of ways. Samuel Estwick, agent for Barbadoes, barrister, and future member of Parliament, made it an issue of constitutional dogma. "[CJommercial colonization," he contended, "by historical authority, by fact, by reason, by the definition of the terms themselves, excludes the very idea of taxation." Isaac Barre thought it less a legal than a moral obligation. "When I stand up an advocate for America," he explained, "I feel myself the firmest friend of this country. We owe our greatness to the commerce of America." The Continental Congress elaborated: "It is universally confessed, that the amazing Increase of the Wealth, Strength, and Navigation of the Realm, arose from this Source; and the Minister, who so wisely and successfully directed the Measures of Great-Britain in the late War, publicly declared, that these Colonies enabled her to triumph over her Enemies." The argument was generally stated as a benefit, for the additional wealth had resulted from the fact that America "purchased our goods, encreased the revenue by that purchase- enriched our merchants - employed our men - raised seamen for our fleets." Because of these "solid benefits," the mother country had never thought of taxing the colonies. As the member for Liverpool told the Commons, "Our advantage from America arises from their buying our manufactures."3 According to the American whig perception of the trade laws, at least THE COMMERCIAL CONTRACT 77 when arguing the commercial contract, all the benefits were conferred on the British, all the detriments were suffered by the colonists. The mandate that most colonial products could be sold nowhere but within the Empire or to the mother country meant not only that British merchants obtained goods more cheaply, but also that they had a monopoly of resale to the remainder of the world. The reverse rule, that the...

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