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CHAPTER TWELVE THEORY OF PRECEDENT Sometime before May of 1764, a Rhode Islander wrote a letter to the Providence Gazette. "It is true," he said, referring to news that Parliament was considering a stamp tax for the North American colonies, "the one proposed would be small and equal, therefore in itself not an object for opposition; but should this internal tax be effected, it might in any future times be a dangerous precedent, in the hands of a bad ministry, for laying insupportable burthens, to the privation of that liberty and property claimed by every Briton as his birth-right." In February of the next year, before the Stamp Act had been passed by Parliament, Thomas Whately, member for Ludgershall and private secretary in the treasury of George Grenville, contemplated passage of the Stamp Act by considering the same legal principle that had occurred to the Rhode Islanderthe principle of precedent. "The great Measure of the Sessions is the American Stamp Act," Whately declared. "I give it the appelation of a great measure on account of the important point it establishes, the Right of Parliament to lay an internal Tax upon the Colonies."l After the stamp tax had been enacted and before it went into effect, people in the colonies continued to write of it in terms of the theory of precedent. The Stamp Act, a September issue of the New York Post-Boy warned, "must be considered as an entering wedge, or introduction to 122 THEORY OF PRECEDENT 123 future oppressions and impositions." Thirteen days later, the inhabitants of Boston agreed when they voted instructions to their representatives in the General Court. "[T]his Act," they asserted, "if carried into Execution , will become a further Grieveance [sic] to us as it will afford a Precedent for the Parliament to Tax us in all future Time, and in all such Ways and Measures, as they shall Judge meet without our Consent." The Boston Evening-Post repeated the theme over a month later. '~nd why," it asked, "may not this act, in subversion of the privileges of our charters, in future time, be improved, as a precedent against Magna Charta itself, and the other charters in England, to the ruin of their Privileges, with equal and stronger forces than the Post Office is used in this case?"2 The Evening-Post referred to two different precedents. One was the Post Office Act of the ninth year of Queen Anne, a statute we will have to look at in some detail when examining specific, statutory precedents of parliamentary taxes levied on the colonies, because it had been relied on as a precedent establishing Parliament's right to impose the Stamp Act. The second precedent was the Stamp Act itself. As all the people just quoted said, it could be used as a precedent for other taxes and other parliamentary mandates. It could become a precedent in two distinct senses: first, the very fact of having been enacted by Parliament and entered on the British statute books; second, by operating as a parliamentary tax and being paid by Americans to the British treasury. Colonial whigs had that second aspect in mind when they took to the streets and prevented execution of the stamp tax. A tenable precedent furnished by London's claim of the right to tax North Americans, made a more persuasive precedent by Parliament's assertion of that right when it passed the Stamp Act, could have become an irrefragable precedent had many colonists in fact paid taxes. Under the doctrine of precedent, had Americans purchased the stamps they would have provided imperial authorities with evidence acknowledging the legality of parliamentary taxation. Put in more legal terms, failure to have resisted the Stamp Act would have given London the argument that the Americans had waived the claim of unconstitutionality.3 FuNCTION OF PRECEDENT The theory of precedent may be better understood by contrasting it to the theory of innovation previously discussed. The doctrine of innovation warned that an action was legally dubious because it had not been done before. Precedent was evidence of legality or constitutionality because something had been done before. Since the stamp tax was enacted 124 THEORY OF PRECEDENT by Parliament, payment of it by Americans would have furnished the imperial government with a precedent for future taxes. The fact that prior to the Stamp Act Parliament had never imposed on the colonies a direct, internal tax was not a precedent but evidence of a third legal...

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