In lieu of an abstract, here is a brief excerpt of the content:

CHAPTER SIXTEEN DOCTRINE OF CUSTOM When Samuel Adams contended that the Greenwich hospital fee had not been paid by American fishermen "from the first settlement of the country to this day," he was not teaching a lesson of history but making an argument of law. Adams was casting doubt on the constitutionality, even on the legality, of efforts to collect the hospital tax in the colonies. So, too, voters of Providence, Rhode Island, believed they were making a statement of law when they declared that their "particular Rights as Colonists" were "precisely known and ascertained, by uninterrupted Practice and Usage from the first Settlement of this Country, down to this Time." They were instructing the town's representatives to ignore the Stamp Act because, among other reasons, Rhode Islanders had since the colony's founding "enjoyed the Right of being governed by their own Assembly, in the Article of Taxes," a right that had "never been forfeited." As a result of that continuous, uninterrupted enjoyment, the Assembly was said to possess "the only exclusive Right to lay Taxes and Imposts upon the Inhabitants of this Colony: and ... every Attempt to vest such Power in any Person or Persons whatever, other than the General Assembly aforesaid , is unconstitutional, and hath a manifest Tendency to destroy British, as well as American Liberty." The colony's Assembly made the same argument , also using words like "right," "power," and "unconstitutional."l 181 182 DOCTRINE OF CUSTOM Adams and the voters of Providence were saying that legal rights had been created either because certain actions had always been performed by defined institutions or in defined ways or because actions had been abstained from. The authority of custom for which they contended is clear and the evidence generally uncomplicated, yet there are few other legal doctrines of the revolutionary era so misunderstood. Two examples should be sufficient to illustrate how custom has been misstated and colonial arguments of custom have been dismissed. One is from the writings of George Louis Beer, the other from a biography of Samuel Adams. "From the legal standpoint," Beer observed, Parliament 's claim of authority to tax the colonies "was unassailable. It was somewhat vulnerable from the historical standpoint, as Parliament had hitherto not exercised all its legal powers, notably that of taxation." One of the biographers of Samuel Adams wrote that even though Adams "could find no legal precedents for [his] contention" that American assemblies alone had the constitutional right to tax the colonies, "he could find ample justification for it in the facts of colonial history. For decades, the Americans had enjoyed self-government not by virtue of any formal grant of power, but by prescriptive right, and nothing is easier for the emotional enthusiast than to confuse custom with law."2 Eighteenth-century common lawyers would not have understood either of these observations. For them Adams and his fellow whigs were appealing to the authority of custom, not to history, and custom had authority because in many situations custom was law. There was no misunderstanding in revolutionary Great Britain. Educated laity as well as common lawyers knew the legal theory upon which colonial whigs rested this part of their argument against parliamentary taxation and appreciated that the theory was constitutional, not political or historical. American whigs, the Political Register noted, were appealing to the authority of custom, claiming that the right to be taxed only by the consent of representatives chosen by themselves was "a privilege to which they think they are intituled, in common with their fellowsubjects in Britain, both by their birth-right, by their charters, and by constant usage and custom, the foundation of all the laws of the realm." It would be error to accept the last assertion too literally; custom was no longer the authority for all law. Command of the sovereign, though, had not yet become the sole basis of legal sanction. A remarkably large school of legal theory during the revolutionary era still accorded custom equality with, even superiority over command. "There are some oldfashioned People," Arthur Lee boasted, "who will be constant in thinking , that what has prevailed from the Beginning of the Colony, is Part of the Constitution; and that ancient and undoubted Rights are of all DOCTRINE OF CUSTOM other the most sacred and valuable." Lee was writing in 1774, toward the end of the revolutionary controversy. Ten years earlier, before the Stamp Act had been enacted, the Connecticut Assembly summed up the colonial claim to constitutional autonomy...

Share