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CHAPTER TWO PASSAGE OF THE DECLARATORY ACT 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 American whig refusal to pay the stamp tax was irrevocable and Rockingham knew the statute had to be modified or repealed for the colonists could not be compelled to obey except by overwhelming force. Members of his administration understood that Americans objected to the Stamp Act for constitutional reasons, not economic reasons. They also appreciated that due to the grounds of colonial opposition the Act could be modified and made constitutionally acceptable only by giving up the object of raising revenue, without which it had no purpose. The tax had to be repealed, but how without acquiescing to America's constitutional argument?l Reasons of state, politics, and constitutional law prevented repeal without some formula reserving Parliament's legislative authority over the colonies. There was a constitutional need and a political need. The constitutional need was thrust upon Parliament by the substance of colonial opposition to the Stamp Act. To repeal without a constitutional saving left a precedent implying that American claims of legislative autonomy were constitutional. Repeal either had to save the right or evade the precedent. The political need was caused by the fact that there were not enough votes for any repeal that might become a tacit, implied relin34 PASSAGE OF THE DECLARATORY ACT 35 quishment of Parliament's authority to legislate for North America. Members of both houses wanted to restore law and order to that part of the empire but not at the risk of weakening parliamentary authority over the colonies. Rockingham had to find a way around both the constitutional and political predicament. The constitutional solution was easy. The Rockinghamites adopted the standard parliamentary maneuver for avoiding constitutional precedents . They repealed the Stamp Act for reasons of economic expediency. Repeal on expediency rather than on constitutional grounds converted what would have been a constitutional action into a political decision. The method was to announce that although the right was indisputable its exercise was, under present circumstances, inconvenient.2 It was a well-known legal tactic-shift the grounds and avoid the precedent . The Massachusetts House of Representatives, when first protesting the Sugar Act of 1764, had been persuaded by Lieutenant Governor Thomas Hutchinson to adopt the expediency excuse. It had objected to the stamp tax on the grounds of economic expediency instead of constitutional right, and then had to draft additional, "constitutional" resolutions when it found it was the only colony not to stand on the right. There were serious risks for the colonies if their leaders were too passive, as Governor Francis Bernard inadvertently explained when he urged the Massachusetts General Court to keep opposition to the Stamp Act limited to pleas of expediency. It is said that the gentlemen who opposed this act in the House of Commons, did not dispute the authority of Parliament to make such a law, but argued from the inexpediency of it at this time, and the inability of the colonies to bear such an imposition. . . . The power of the Parliament to tax the colonies may be admitted, and yet the expediency of exercising that power at such a time, and in such a manner, may be denied. But if the questions are blended together so as to admit of but one answer, the affirmation of the right of Parliament will conclude for the expediency of the act. It would be well to understand just what Bernard was saying. He was the first participant in the revolutionary controversy to outline the constitutional reasons why, once Parliament exercised legislative authority, the American Revolution crisis became constitutionally insoluble. No matter the excuse of expediency or other strategy for exercising the right, the mere exercise asserted the authority. What the colonists could not afford was to ignore or fail to recognize the constitutional implications of a parliamentary statute, to "suffer," that is, "the Expediency of the Mea- PASSAGE OF THE DECLARATORY ACT sure, to prevent their examining into it's Legality." It was such constitutional pitfalls that led the earl of Abingdon to exclaim, "Inexpediency! curse on the terml What is inexpedient to-day, may be expedient tomorrow . Inexpediency is as the tyrant's sword, that hangs over the head, suspended by a thread; and which Discretion only is to keep from falling . But are Englishmen to be thus worded out of their Rights?"3 The excuse of expediency was part of eighteenth-century British constitutional government, and...

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