In lieu of an abstract, here is a brief excerpt of the content:

CHAPTER TWELVE PRECEDENTS OF HISTORY 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. Precedent served "not to promote but [to] check Innovation," Lord Mulgrave explained in 1769, "by warning" legislators "to be extremely cautious, and maturely to consider the Expediency of any Step which their Ancestors have never found it necessary to take. . .." At its strongest, precedent was binding law, as Nathaniel Forster indicated when arguing that the expulsion of Sir Robert Walpole by the House of Commons established the right of the Commons to bar the reelection of John Wilkes. "What ever doubt then there might have been in the law before Mr. Walpole's case," Forster wrote, "there can be none now. The decision of the house upon this case is strictly in point, to prove, that expulsion creates absolute incapacity in law of being reelected."l The rule was even stronger if the precedent was specific legislation, especially a tax for which previously there had been no precedent . After the excise on cider and perry was announced in 1763, an opponent warned that "if this new extension of the Excise-laws is confirmed , it must effectually justify and authorise every future extension of 159 160 PRECEDENTS OF HISTORY them which can be proposed, till the Excise becomes general."2 This statement was not a political prediction. It was legal theory, an explanation of law. Two years later George Grenville asked former Attorney General Charles Yorke for an opinion on the proposed American Stamp Act. "The precedent may," Yorke replied, "be in argument extended far, to other future taxes, upon the colonies." That was one reason American whigs rioted-to keep the Act from becoming a precedent.3 Yorke was thinking of the strongest precedents for parliamentary jurisdiction : particuliar statutes enacted by Parliament that, as precedents, were cited to prove Parliament's authority to enact further legislation of the same or an analogous category. That type of"precedent-statutory precedent-was the type most frequently cited and debated during the revolutionary controversy. It is also one of the most familiar to common law, one still practiced today, and which will be discussed in chapter 17. Other kinds of precedents were also argued during the American Revolution , precedents less well known in the twentieth century, which can be put under the heading of "precedents of history." These range from the very general to the very particular. The general consisted of broad, assumptive claims as, for example, that the colonies "never disputed" the authority of Parliament to bind them "in all cases whatsoever,"4 or that "[t]he Supremacy of the Legislature of this country" had always been "acknowledged" by Americans.5 The particular relied on specific statements from the past, incidents that either had happened or had not happened , and civic habits such as the fact that when the Massachusetts General Court convened in 1769 at a moment of imperial crisis, with both houses determined to demand the removal of British troops from the colony and to challenge the supremacy of Parliament, the first order of business for its members was to take the oaths "required by Act of Parliament."6 Just taking the oath became precedent acknowledging Parliament's supremacy. "Shall we now dispute," Governor Thomas Hutchinson asked, "whether Acts of Parliament have been submitted to when we find them submitted to in Points which are of the very Essence of our Constitution?"7 We may not be impressed with Hutchinson's argument. Precedents from history are no longer argued as they were in the 1770s. That tactic belongs to the discipline of the customary, prescriptive, precedential eighteenth-century constitution. Historical precedents must have impressed lawyers and politicans then, however, for everyone argued them, even students of the constitution who professed to believe that Parliament was sovereign. They may have claimed that by inherent constitutional right Parliament could bind the colonies in all cases whatsoever, yet somewhat inconsistently they did not scruple to prove that authority PRECEDENTS OF HISTORY by historical precedent. In this chapter we can do no more than look at a few examples from a very extensive debate. The purpose is to understand what was argued and why the argument was important to the prerevolutionary controversy. It would be well...

Share