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CHAPTER EIGHTEEN LEGISLATION OF SUPREMACY 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 and to enforce parliamentary statutes in support of Parliament's claim to sovereignty over the colonies. This chapter considers that legislation, which was jurisprudentially different from the precedents of legislation discussed in the previous chapter as it was enacted after repeal of the Stamp Act, when American whigs were on guard against assertions of parliamentary supremacy and the British administration was on guard against any erosion of the mother country's legislative authority. Parliamentary imperialists passed four statutes or resolutions that were designed to strengthen Britain's claim to legislative supremacy. These four were the Act of 7 George III suspending the legislative authority of the New York General Assembly, resolutions to enforce the Act of 32 Henry VIII authorizing trials within the realm for treason committed outside the realm, the Townshend Acts which included the tea tax, and the Tea Act. Certain aspects of this legislation related to taxation and have been discussed elsewhere. l That discussion did not exhaust the con273 274 LEGISLATION OF SUPREMACY stitutional matters in dispute. Just as legislation requiring colonial billeting of British soldiers raised constitutional issues of taking American money without the consent of the billets' owner or of the owner's representative , so statutes placing a duty on imported tea, quartering troops in taverns, and suspending the authority of an assembly raised constitutional issues of freedom, equality, the legality of standing armies,2 and, most significantly, parliamentary supremacy. The point that deserves emphasis is that these issues were not accidents. They were the deliberate result of a carefully devised imperial legal strategy. In fact, from one perspective, the law to suspend the New York General Assembly and the Tea Act were potentially the most constitutionally gravid statutes enacted by Parliament during the revolutionary controversy. They were intended to assert legislative supremacy. The New York law, Sir William Blackstone noted with satisfaction, was designed to carry "into effect" the "authority" of the Declaratory Act,3 and the Tea Act, when considered as legislating Parliament's supremacy, was nothing more or less than the Declaratory Act executed. Had American whigs no strategy of constitutional avoidance, Parliament would not have had to enact the statute suspending the authority of the New York General Assembly. It was because colonial whigs, avoiding precedents of parliamentary supremacy, tried to keep the Mutiny Act from being a precedent of internal legislation, that Parliament, to force compliance and to obtain the precedent, suspended the New York General Assembly. American whigs, in turn, had to devise a strategy permitting both compliance with Parliament's demands and avoidance of precedent. The section of the Mutiny Act precipitatingsuspension of the New York legislature directed colonial assemblies to supply any troops London might station within their jurisdiction "with Sundry necessaries," as the governor of Pennsylvania put it. All costs were "at the Expense of the Province," the imperial government not "paying anything for the same."4 Besides raising the constitutional issue of billeting soldiers that had long been controversial in the mother country as well as in the colonies,5 this provision of the imperial Mutiny Act legislated parliamentary supremacy and colonial legislative subordination. Indeed, it placed in constitutional jeopardy what the Massachusetts House of Representatives called "the very Nature of a free Constitution." After all, that House was commanded by the Mutiny Act to spend specific amounts of money raised by taxing the citizens of the colony, but given no discretion as to how the funds were to be spent. "[I]f we are not free and independent Judges we can no longer be free Representatives, nor our Constituents free subjects ," the House contended. "[M]uch less can we be free Judges, if we LEGISLATION OF SUPREMACY 275 are but blindly to give as much of our own and of our Constituents Substance, as may be commanded, or thought fit to be expended, by those we know not."6 That was the flip side of parliamentary supremacy, American legislative subordination. Few other questions gave colonial assemblies as much difficulty. The sums involved were so small they were not worth contention, but the constitutional principle was teeming with peril. It is true that even after the Stamp Act crisis some...

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