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Constitutional History of the American Revolution, Volume IV

The Authority of Law

John Phillip Reid

Publication Year: 2093

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 John Phillip 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 Authority of Law is the last of a four-volume work, preceded by The Authority to Tax, The Authority of Rights, and The Authority to Legislate. In these previous volumes, Reid argued that there would have been no rebellion had taxation been the only constitutional topic of controversy, that issues of rights actually played a larger role in the drafting of state and federal constitutions than they did in instigating a rebellion, and that the American colonists finally took to the battlefield against the British because of statutes that forced Americans to either concede the authority to legislate or leave the empire. Expanding on the evidence presented in the first three volumes, The Authority of Law determines the constitutional issues dividing American whigs from British imperialists. Reid summarizes these issues as “the supremacy issue,” “the Glorious Revolution issue,” “the liberty issue,” and the “representation issue.” He then raises a compelling question: why, with so many outstanding lawyers participating in the debate, did no one devise a constitutionally legal way out of the standoff? Reid makes an original suggestion. No constitutional solution was found because the British were more threatened by American legal theory than the Americans were by British theory. British lawyers saw the future of liberty in Great Britain endangered by the American version of constitutional 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

Contents

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pp. 8-11

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Introduction

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pp. 3-8

"The dispute between Great-Britain and her colonies is now reduced to a single pOint," a "Citizen of Philadelphia" reminded the American public in 1774. That question was, "Whether the Parliament shall give laws to America?"1 All other constitutional issues dividing the American colonies and the mother country of Great Britain, including the controversy ...

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Chapter 1: The Coercive Acts

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pp. 9-26

The Boston Tea Party caused an even greater sensation in the mother country than had the Stamp Act riots. "There never was, since the [Glorious] Revolution, so important a crisis in the constitution of this country," a London newspaper told its readers.l Even the opposition in Parliament said something had to be done about Boston. There was, in fact, little ...

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Chapter 2: The Coercive Grievance

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pp. 27-42

There was a dynamic to the eighteenth-century British constitution propelling events to a degree that is not often appreciated. It may be thought that the process was due to the nature of the constitution: that because it was prescriptive, customary, or unwritten, it forced Parliament ever to be watchful lest the crown regain authority or the Irish establish rights. ...

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Chapter 3: The Supremacy Issue

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pp. 43-51

There is no need to examine the statutes Parliament enacted to reassert the claim to sovereignty over the North American mainland after London realized that all thirteen colonies would resist enforcement of the Boston Port Act and the Massachusetts Government Act. Giving colonial whigs another governance grievance, these laws certainly helped push Americans ...

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Chapter 4: The Glorious Revolution Issue

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pp. 52-68

Contemporaries did not much heed the arguments of Governor George Johnstone, but we should. He had a knack for explaining the issues separating Great Britain and the American colonies more clearly than his more influential and better remembered colleagues. For one thing, he knew where to look for the source of colonial whig constitutional doctrines. "It ...

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Chapter 5: The Liberty Issue

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pp. 69-82

A few historians have doubted the significance of the Glorious Revolution predicament in part-and it must be stressed only in part-because of a commonality of ideology uniting the trans-Atlantic political culture. "Indeed," Colin Bonwick noted in the 1970s, "the consonance between colonial thought and contemporaneous English radical thought was so close ...

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Chapter 6: The Representation Issue

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pp. 83-96

In eighteenth-century British constitutional theory, representation was more than an element of liberty. It was the institutionalization of liberty in the House of Commons, the guardian created for liberty by the Glorious Revolution. The Continental Congress knew it was defying revolution principles, but believed it was expounding good constitutional law when, ...

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Chapter 7: Representation Solutions

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pp. 97-107

To consider for the last time the representation grievance it may be helpful to state the issue in words incorporating both the British and American constitutional theories of representation. "We present, as a grievance of the first magnitude, the right claimed by the British Parliament to Tax us, and by their Acts to bind us in all cases whatsoever," the grand jury told the judges ...

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Chapter 8: Intermediate Solutions

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pp. 108-118

It would have been easier to resolve the controversy over Parliament's authority to bind the colonies in all cases whatsoever had it been possible for Americans to be represented in the House of Commons and had they been willing to accept representation on British terms. Unable to utilize the representation solution, political theorists sought alternatives somewhere between absolute ...

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Chapter 9: Parliamentary Solutions

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pp. 119-133

The earl of Chatham was full of plans. He had led Great Britain in the last war that added Canada to the British empire, and more than most imperial leaders was alarmed by the threat the American controversy posed to that empire. He was also a man torn by conflicting considerations. Perhaps coached by his friend Earl Camden, he was persuaded of the essential ...

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Chapter 10: "Right," "Acknowledgments," and "Renunciation" Solutions

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pp. 134-150

We must return to 1774. Parliament's Conciliatory Acts of 1778 might have been a solution to the "autonomy" grievance had they been offered four years earlier, but even had they been, the constitutional controversy would not have been resolved. As Edmund Burke had argued during the debates on the Conciliatory Bills, to make peace with the Americans, ...

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Chapter 11: Prerogative Solutions

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pp. 151-162

Generally it is not useful to single out for criticism assertions of history that are obviously false. Occasionally, however, there are claims so erroneous their very restatement serves to clarify the record just by being completely wrong. An instance, dealing with the authority of Parliament to bind the colonies in all cases whatsoever, has recently been published. ...

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Chapter 12: Conclusion

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pp. 163-173

The prerogative solution was constitutionally impossible. British tories as well as British whigs could not allow American colonists to secure their constitutional liberty at the expense of British constitutional liberty. There can be no mistaking where British constitutionalists located liberty and which institution everyone, even members of the ministry, identified as ...

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Acknowledgments

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pp. 177-178

Research for this study, as well as for the previous three studies in this series, 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 ...

Short Titles

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pp. 179-220

Notes

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pp. 221-266

Index

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pp. 267-279


E-ISBN-13: 9780299139834
E-ISBN-10: 0299139832
Print-ISBN-13: 9780299139803
Print-ISBN-10: 0299139808

Page Count: 288
Publication Year: 2093