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CHAPTER ELEVEN THE STATUS OF THE DOCTRINE Two constitutional contentions supported the claim that Americans could not be taxed without consent. One was that the rule requiring consent for taxation had always been constitutional law. The second was that in Great Britain the rule still was constitutional law: that subjects "born within the Realm of England have a Property in their own Estate, and are to be taxed only by their own Consent, given in Person or by their Representatives." The validity of the doctrine was so widely assumed that most writers relying on it did not cite any authority to support its authenticity . It was even suggested that since the doctrine "is so well established " as one of the highest rights Britons possessed, "it is unnecessary to attempt a Demonstration of it to Englishmen, who feel the Principle firmly inplanted in them diffusing through their whole frame Complacency and Chearfulness," a claim that may not have been an exaggeration . The doctrine of consent to taxation, the historian of the revolutionary press found, was the constitutional rule most commonly mentioned in British newspapers and periodicals. It was, a magazine writer asserted, a legal principle "which no writer of any credit had disputed in this country , since the [Glorious] Revolution, until our controversy with the Colonies seemed to require the propagation of doctrines less favourable to freedom and the just rights of mankind."l III 112 THE STATUS OF THE DOCTRINE Due to the nature of the British constitutional system, the question of whether taxation without consent was constitutional was seldom litigated in the courts or referred to the attorney general for an official opinion. For contemporary testimony of how the principle stood in Great Britain during the 1760s and 1770s, therefore, we must turn to the popular literature as well as to constitutional-law texts. When we do, evidence is readily found not only that the doctrine was considered basic law in Great Britain, but that it was Irish constitutional law as wel1.2 Indeed, it was stated as much as a self-evident truism in Britain as in America, and would continue to be throughout the remainder of the century , after the American Revolution had been fought and lost. 3 It was also enunciated in writings and speeches during the rev9lutionary era that were not concerned with colonial affairs,4 even by lawyers who insisted that Parliament could constitutionally tax the unrepresented Americans . Those lawyers often admitted that for Parliament to do so was unconstitutional , but they contended that Parliament, as sovereign, had sovereign (and therefore lawful) power to refuse to accord the colonists whatever constitutional rights it pleased, even the right not to be taxed without consent.5 The variety of ways in which the doctrine of taxation only by consent was stated as a component of the eighteenth-century constitution in Great Britain is well worth our attention because it helps explain the confidence with which American whigs relied on the doctrine. One way was to promulgate the doctrine as a fundamental principle. Even Richard Price- a critic of how deceptively the doctrine operated in practice because of defects in how the word "representation" was defined in contemporary Britain- termed the doctrine of taxation only by consent "the fundamental principle of our government" and "the principle on which our government , as a free government, is founded."6 Lord Shelburne, who had presided over the Board of Trade and was secretary of state for colonial affairs during a brief period after the Stamp Act was repealed, believed that the right of the people to grant their own money was the most important privilege possessed by the British. He was reported to have said that Great Britain was robbing the Americans of this right, agreeing with a parliamentary writer who asserted that to tax the colonies without consent "would be an attempt to deprive them of that privilege which is the chief privilege enjoyed by all British subjects in any part of the British dominions, because it is the only privilege we can depend on for the preservation of all the privileges and immunities we have a right to." Before concluding that this argument was a bit overblown , it would be well to note that the premise upon which it rested THE STATUS OF THE DOCTRINE was little different from one on which William Blackstone, generally thought of more as a tory than a whig, fixed his imprimatur; in the Commentaries he had only a short catalog of personal...

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