-
Chapter 13: Historical Aspects of the Doctrine
- University of Wisconsin Press
- Chapter
- Additional Information
CHAPTER THIRTEEN HISTORICAL ASPECTS OF THE DOCTRINE 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. History also can clarify precedent by illustrating the roots of the legal doctrine that the precedent supports, a consideration especially pertinent to the consent-fortaxation principle since its origins, well understood in eighteenth- and twentieth-century Great Britain, have become clouded in the United States due to a misplaced emphasis upon John Locke. Failure to consider the English and British constitutional antecedents of the American Revolution can lead to the error of assuming that principles such as the right to be taxed only with consent come not from positive law but from commentators on law.l It is true that an eighteenth-century British lawyer, Lord Kames, attributed the doctrine to Locke and thought its acceptance due to his "respectable authority," but Kames was a Scots advocate and judge who was not trained in English law and may not have been too well versed in English constitutional history. It also is true that some common lawyers on both sides of the Atlantic- Lord Camden, John Dickinson , James Otis, and Arthur Lee among them - mentioned or quoted 135 HISTORICAL ASPECTS OF THE DOCTRINE Locke when explaining or defending the doctrine, but none of them confused commentary with origination. They knew Locke was defining an old constitutional doctrine, not promulgating something new. "His principles ," Camden said of Locke's statement of the taxation-by-consent maxim, "are drawn from the heart of our constitution." Lee, in a letter to Junius, prefaced a reference to Locke by noting, "The mode only of giving it [property] by representation is a creature of the constitution."2 Certainly the authority that Americans had in mind when they claimed the privilege of taxation only by consent was not speculative law, theoreticallaw , or natural law, but rather constitutional law. Besides charter rights, they depended on the laws and statutes of the mother country. As the Maryland legislature asserted, "it was granted by Magna Charta, and other the good Laws and Statutes of England, and confirmed by the Petition and Bill of Rights, that the Subject should not be compelled to contribute to any Tax, Tallage, Aid, or other like Charge, not set by common Consent of Parliament." In 1775, an Edinburgh magazine listed the "law-authorities" colonial newspapers cited "against the authority of Britain to tax America": Sir Edward Coke, the Journal of the House of Commons , "Opinion of the judges of England, 20th of Henry VI," "Opinion of the judges of England, 2 Richard III," William Pitt, and Lord Camden . Locke was not mentioned. 3 Perhaps had it not been for the unfortunate emphasis on Locke's influence , there might be no need to consider the constitutional history of the taxation-by-consent doctrine. Even so, it is not necessary to conduct a comprehensive survey of the origins since what concerns us is what eighteenth-century people in Britain and America, especially those who cited the doctrine as a rule of law, thought about its authority as established by constitutional custom and proven by history. They traced it back to time immemorial, even to the gothic constitution when the doctrine was "a fundamental part of all European constitutions."4 In one respect, the quoted Maryland resolutions were unusual; few contemporaries thought of the privilege as a grant. It was instead a right; a right not derived from governmental grace but rather a limit on governmental power. "The Law of England, whereby the Subject was exempted from Taxes and Loans, not granted by common Consent of Parliament," John Pym, speaking on behalf of the Commons, told the Lords, "was not introduc 'd by any Statute, or by any Charter or Sanction of Princes, but was the antient and fundamental Law, issuing from the first Frame and Constitution of the Kingdom."5 Pym spoke in 1628. The distinction was important because, as previously noted, the doctrine was as much a check on government as it was a civil right. It had been their ancestors' wisdom, contemporaries thought, "to circumscribe HISTORICAL ASPECTS OF THE DOCTRINE 137 the regal authority, and to give to the body of the people the greatest, or rather the most important share in the government, by allotting...