“No Taxation without Representation” (Part 1)
The primary dispute between Britain and her North American mainland colonies in the 1760s and early 1770s has often been summed up in four words: “no taxation without representation.” American Whigs declared they were loyal to the British king and constitution, but that part of that unwritten constitution was that subjects (or at least wealthy white male subjects) had to be represented in any legislature that imposed taxes on them.
The American Whigs’ campaign against “taxation without representation” benefited from that pithy rhyming phrase, which boiled the complex relationship between government and subject down into an easily remembered phrase. So who came up with that slogan?
Many authors credit the phrase to the Boston lawyer and legislator James Otis, Jr. (1725-1783), based on how John Adams recalled Otis’s argument in the writs of assistance case in 1761. Adams wrote a letter to Otis’s biographer William Tudor, Jr., in 1818. After quoting that letter at length Tudor wrote in his book:
From the navigation act the advocate [Otis] passed to the Acts of Trade, and these, he contended, imposed taxes, enormous, burthensome, intolerable taxes; and on this topic he gave full scope to his talent, for powerful declamation and invective, against the tyranny of taxation without representation.
From the energy with which he urged this position, that taxation without representation is tyranny, it came to be a common maxim in the mouth of every one. And with him it formed the basis of all his speeches and political writings; he builds all his opposition to arbitrary measures from this foundation, and perpetually recurs to it through his whole career, as the great constitutional theme of liberty, and as the fundamental principle of all opposition to arbitrary power.
However, neither Adams’s contemporaneous notes on what he’d heard in 1761 nor his letter contained the “taxation without representation” phrase or argument. There was only a little newspaper coverage of this legal case, and those articles did not raise that issue, instead focusing on the issue of “general writs” and proper searches. Tudor seems to have projected the famous phrase back onto Otis’s 1761 argument.
Otis did raise the issue of where legislatures could fairly tax subjects early in 1764—but he didn’t use the memorable words “no taxation without representation.” Instead, in his pamphlet The Rights of the British Colonies Asserted and Proved, Otis concluded:
The sum of my argument is: that civil government is of God; that the administrators of it were originally the whole people; that they might have devolved it on whom they pleased; that this devolution is fiduciary, for the good of the whole; that by the British constitution this devolution is on the King, Lords and Commons, the supreme, sacred and uncontrollable legislative power not only in the realm but through the dominions; that by the abdication, the original compact was broken to pieces; that by the Revolution it was renewed and more firmly established, and the rights and liberties of the subject in all parts of the dominions more fully explained and confirmed; that in consequence of this establishment and the acts of succession and union, His Majesty GEORGE III is rightful King and sovereign, and, with his Parliament, the supreme legislative of Great Britain, France, and Ireland, and the dominions thereto belonging; that this constitution is the most free one and by far the best now existing on earth; that by this constitution every man in the dominions is a free man; that no parts of His Majesty’s dominions can be taxed without their consent; that every part has a right to be represented in the supreme or some subordinate legislature; that the refusal of this would seem to be a contradiction in practice to the theory of the constitution; that the colonies are subordinate dominions and are now in such a state as to make it best for the good of the whole that they should not only be continued in the enjoyment of subordinate legislation but be also represented in some proportion to their number and estates in the grand legislature of the nation; that this would firmly unite all parts of the British empire in the greater peace and prosperity, and render it invulnerable and perpetual.
In case you missed it within that magnificent 311-word sentence, Otis wrote: “that no parts of His Majesty’s dominions can be taxed without their consent; that every part has a right to be represented in the supreme or some subordinate legislature;…” Not as catchy as “no taxation without representation,” but Otis did establish that philosophical basis for his objections to Parliament’s taxes on the colonies.
At the time, Parliament was considering whether to renew and revamp the Molasses Act of 1733, which was about to expire. In April 1764, that legislature passed what became known as the Sugar Act, though it covered several other imported goods as well. The new law cut the duty on imported molasses in half, but it put more teeth into actually collecting that tax and enforcing other Customs rules. Parliament also explicitly said that the new law was to raise revenue, in order to pay for troops in the colonies, rather than just to regulate trade within the British Empire.
Under the leadership of James Otis’s ally Samuel Adams (1722-1803), the Boston town meeting took up the argument against taxation without representation. In its instructions to the town’s representatives in the Massachusetts legislature, the town argued:
If taxes are laid upon us in any shape without our having a legal representative where they are laid, are we not reduced from the character of free subjects to the miserable status of tributary slaves?
But still, no one had coined the phrase “no taxation without representation.”