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Constitutional History of the American Revolution, Volume III

The Authority to Legislate

John Phillip Reid

Publication Year: 2092

This is the first comprehensive study of the constitutionality of the Parliamentary legislation cited by the American Continental Congress as a justification for its rebellion against Great Britain in 1776. The content and purpose of that legislation is well known to historians, but here Reid places it in the context of eighteenth-century constitutional doctrine and discusses its legality in terms of the intellectual premises of eighteenth-century Anglo-American legal values. The third installment in a planned four-volume work, The Authority to Legislate follows The Authority to Tax and The Authority of Rights. In this volume, Reid shows that the inflexibility of British constitutional principle left no room for settlement or change; Parliament became entrapped by the imperatives of the constitution it was struggling to preserve. He analyzes the legal theories put forward in support of Parliament’s authority to legislate and the specific precedents cited as evidence of that authority. Reid’s examination of both the debate over the authority to legislate and the constitutional theory underlying the debate shows the extent to which the American Revolution and the Declaration of Independence were actions taken in defense of the rule of law. Considered as a whole, Reid’s Constitutional History of the American Revolution contributes to an understanding of the central role of legal and constitutional standards, especially concern for rule by law, in the development of the American nation.

Published by: University of Wisconsin Press

Title Page, Copyright, Dedication

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pp. 2-7

Contents

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pp. vii-x

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Introduction

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pp. 3-16

Power was feared in the eighteenth-century British Empire: the power of government, the power of "factions," power that was arbitrary, corrupt, unchecked, and unconstitutional. Above all, political theorists, constitutionalists, and just plain citizens were apprehensive of the arbitrariness of "will and pleasure," ...

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Chapter 1: Culture of Constitutionalism

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pp. 17-33

Before taking up the main topic of this book, the constitutionality of direct parliamentary legislation for the North American colonies, there are two preliminary points that deserve attention if we are to understand the issue of the authority to legislate as it was understood in the eighteenth century. ...

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Chapter 2: Passage of the Declaratory Act

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pp. 34-46

The marquis of Rockingham became the king's first minister during the Stamp Act crisis. American whig refusal to pay the stamp tax was irrevocable and Rockingham knew the statute had to be modified or repealed for the colonists could not be compelled to obey except by overwhelming force. ...

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Chapter 3: Scope of the Declaratory Act

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pp. 47-62

Many months after the revolutionary war had begun, and members of Parliament were asking where British policy had gone wrong, Lord Beauchamp could not make up his mind whether repeal of the Stamp Act had been the fatal mistake. "He would not pretend to decide, whether the repeal was a wise measure," Beauchamp told the Commons, ...

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Chapter 4: The Logic of Supremacy

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pp. 63-78

"We have neither knowledge nor system nor principle," Governor Thomas Pownall complained of the governance of the British empire following passage of the Declaratory Act, "we have but one word . . . sovereignty—and it is like some word to a mad-man which, whenever mentioned, throws him into his ravings."1 ...

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Chapter 5: Limits of Supremacy

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pp. 79-86

There is a tendency among students of the American Revolution to isolate American political thought from British political thought. Whatever validity that practice has it would be wrong to extend it to constitutional thought. American constitutional thought was British constitutional thought because both were the direct, ...

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Chapter 6: Constraints of Trust

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pp. 87-96

Shifts in eighteenth-century legal theory sometimes were signalled by resistance to words, and there were no words adherents to the old constitutionalism of constraints resisted more than the noun "omnipotence" and the pronoun "omnipotent." ...

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Chaper 7: Constraints of Consent

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pp. 97-110

The constitutional doctrine that the legitimacy of governmental authority came from the consent of the governed was not an American invention.1 Although there were political commentators in Great Britain who doubted the rule's constitutionality, thought it "absurd," or questioned its antiquity,2 ...

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Chaper 8: Constraints of Contract

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pp. 111-125

Direct representation was the coming manifestation of constitutional consent in the 1770s. It would be the constitutional norm in the nineteenth century. In the age of the American Revolution the dominant manifestation of constitutional consent was still not expressed but implied, not personal but vicarious, ...

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Chapter 9: Constraints of Constitutionalism

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pp. 126-141

There was a touch of irony to eighteenth-century British constitutional theory. The strongest, most popular, most cherished restraint on arbitrary power was also the least well defined. It was the concept of constitutionalism. Although everyone utilized the concept of constitutionalism ...

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Chapter 10: Constraints of Liberty

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pp. 142-150

Liberty was the most cherished right possessed by English-speaking people in the eighteenth century. They boasted of enjoying the best liberty known in the world and gloried in the belief that all the other peoples of Europe envied them their liberty. Liberty for the British was more than the mark of their national uniqueness. ...

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Chapter 11: Constraints of Law

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pp. 151-158

During the eighteenth century, British constitutional theorists engaged in a lengthy debate that has generally and mistakenly been described as a debate about history. It was, in fact, a debate about law. It turned on the writings of Dr. Robert Brady, who, scoffing at the notion that the seventeenth-century English constitution was the ancient Gothic constitution ...

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Chapter 12: Precedents of History

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pp. 159-171

The topic of precedent deserves more attention from historians of the American Revolution than it has received. It is not just the legal authority of precedents that should be considered, but the many types of precedents and the different uses of precedent in the eighteenth century. At its weakest, precedent was merely advisory. ...

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Chapter 13: Precedents of Charter

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pp. 172-191

There is one other area of imperial constitutional law that, like precedents of history, provided the revolutionary controversy with precedents that in the twentieth century would no longer be thought legal precedents. Also involved was a branch of constitutional law that has been dealt with before,1 ...

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Chapter 14: Precedents of Analogy

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pp. 192-206

We must give particular attention to a familiar word. It has been mentioned many times for it was used frequently on both sides of the pre-revolutionary constitutional debate by participants explaining either the authority of charter or the original understanding. The word is "realm." ...

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Chapter 15: Precedents of Regulation

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pp. 207-221

It is possible that more would have been made of the authority of analogy had participants in the debate felt the need. One reason they did not appears to be the strength of available precedents. Especially on the imperial side, there seemed little point to developing the Irish analogy when precedents of direct legislation ...

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Chapter 16: Authority to Regulate

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pp. 222-245

"It has not been made a question, that I know of, whether the parliament hath a right to make laws for the regulation of the trade of the colonies," Samuel Adams wrote in the Boston Gazette at the relatively late date of January, 1772. After making that observation, Adams next answered one of the questions asked in this chapter: ...

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Chapter 17: Precedents of Legislation

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pp. 246-272

There was more going on than meets the eye. It does not do to dismiss the New York General Assembly as a loose cannon on the whig revolutionary deck, defying the other colonies and addressing the British directly rather than through the Continental Congress. ...

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Chapter 18: Legislation of Supremacy

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pp. 273-299

Thomson Mason summed up American whig constitutional strategy when telling his fellow colonists that one way to oppose parliamentary sovereignty was not to admit the authority of imperial laws that could become precedents for that sovereignty. On the other side of the controversy, imperial constitutional strategy sought to enact ...

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Chapter 19: Conclusion

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pp. 300-312

There are factors both striking and puzzling about Parliament's risking the loss of America by enacting legislation of supremacy. It is striking that Parliament deliberately forced the very constitutional issue that colonial whig leaders were studiously striving to avoid. ...

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Acknowledgments

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pp. 313-314

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

Short Titles

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pp. 315-394

Notes

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pp. 395-476

Index

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pp. 477-496

Production Notes

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pp. 508-509


E-ISBN-13: 9780299130732
E-ISBN-10: 0299130738
Print-ISBN-13: 9780299130701
Print-ISBN-10: 0299130703

Page Count: 508
Publication Year: 2092