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Chapter 17: Precedents of Legislation
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CHAPTER SEVENTEEN PRECEDENTS OF LEGISLATION 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. If we look again at what the New York legislators said, we may learn something further of how much American whig thought was shaped in the common-law tradition , as well as learn something of American whig legal strategy. After reciting the colony's "principal grievances," the General Assembly, in its petition to the House of Lords, rephrased the theory of Parliament's constitutional authority of trade regulation that it previously had stated to the House of Commons. [W]e shall always cheerfully submit to the CONSTITUTIONAL exercise of the supreme regulating power, lodged in the King, Lords and Commons of Great Britain; and to all acts calculated for the general weal of the empire, and the due regulation of the trade and commerce thereof. We conceive this power includes a right to lay duties upon all articles imported directly into the colonies, from any foreign country or plantation, which may interfere with products or manufactur- PRECEDENTS OF LEGISLATION ers of Great Britain, or any other part of his Majesty's dominions; but that it is essential to freedom, and the undoubted rights of our constituents, that NO TAXES be imposed on them but with THEIR CONSENT, given personally or by their lawful representatives. l 247 What interests us is the tactic of legal argumentation adopted by the General Assembly. It was a tactic that American whigs, hoping to control the premises of the debate, had been employing since 1765. The procedure resembled the common-law plea in confession and avoidance, of admitting the truth of an allegation but asserting other matters calculated to avoid the legal consequences. Colonial whigs were "confessing" that Parliament possessed authority to regulate their trade but "avoiding " another constitutional authority that otherwise would have followed from the statutory precedents enacted by Parliament exercising its authority to regulate trade. It was a vital plea, because, except for the doctrine of sovereignty, there was no legal principle more damaging to the American claim of a constitutional right to legislative autonomy than the authority of statutory precedent. As discussed in the companion volume, The Authority to Tax, colonial whigs were remarkably successful in separating the constitutional authority to tax from the constitutional authority to legislate. They found it much more difficult to separate constitutional authority of trade regulation from constitutional authority to legislate in all cases whatsoever. Many participants on the imperial side ofthe controversy paid no heed to the distinction. Their practice was to cite regulatory precedents as well as internal-legislation precedents to prove parliamentary authority to legislate in all cases whatsoever, and to cite nonregulatory as well as regulatory precedents to prove parliamentary authority to regulate trade. Sir William Blackstone, for example, claimed the military Quartering Act and the White Pine Act were statutory precedents proving Parliament's authority to tax the colonies for purposes of revenue, William Knox and Charles Mellish cited an act for the suppression of piracy to prove by statutory precedent Parliament's authority of general superintendence , and John Shebbeare used three laws-one encouraging silk manufacturing, another making debts owed to British residents provable in colonial courts on oaths taken in Great Britain, and a naturalization statute-as precedents for Parliament's jurisdiction over internallegislation . '1\11 these are unanswerable proofs of their being and acknowledging themselves subject to the British parliament," Shebbeare concluded, referring to colonial acceptance of the constitutionality of the three statutes.2 The amount of time imperial propagandists invested in substantiating PRECEDENTS OF LEGISLATION precedents of Parliament's jurisdiction to legislate for the colonies is simply amazing. Those actively engaged on the British side of the dispute attached much more significance to this law than would be realized by reading histories of the American Revolution written in the twentieth century. Again we find the imperial side unable or unwilling to rely on the authority of sovereignty alone. Instead of saying that Parliament was sovereign and resting their case on the Blackstonian constitution, most imperial commentators argued precedents of legislation much as if the prescriptive, precedential constitution was the only constitution. Some, even those compiling long lists of precedents, relied wholly on precedents of regulation,3 but the more common tactic was to lump together precedents of every...