Constitutional History of the American Revolution, Volume III: The Authority to Legislate

Notes

NOTES INTRODUCTION 1 Authority to Tax, pp. 247-59. 2 Authority oj Rights, pp. 196-98. 3 Caplan, "Ninth Amendment," p. 230. 4 For the original contract and its variations, see Authority of Rights, pp. 132-58. For the colonial original contract and its variations, see Authority to Tax, pp. 53-84. Also, see "In Our Contracted Sphere," pp.21-47. 5 "Irrelevance of the Declaration," pp. 47-69 (for the irrelevance of John Locke to the American case, see pp. 69-80); Authority to Tax, pp. 53-60; Authority of Rights, pp. 87-95. 6 Bailyn, Ordeal, p. 377. See also Becker, Declaration, pp. 102-3. Of course, there were those in the eighteenth century who were dogmatic about sovereignty. Thomas, British Politics, p. 195 (quoting Lord Lyttleton). 7 Grey, "Unwritten Constitution," pp. 866-67. 8 Thomson, Constitutional History, p. 397; Schlesinger, "Revolution Reconsidered ," p. 77. 9 McIlwain, Revolution, pp. 196-98; Robert Livingstone Schuyler, "Book Review," Political Science Quarterly 39 (1924): 151. Similarly, see Schuyler, Empire, p. 1. 395 NOTES TO PAGES 7-12 10 "Schuyler's evidence is legally unanswerable." Madden, "Relevance of Experience ," p. 23. 11 Black, "Constitution of Empire," pp. 1160-74; Flaherty, "Empire Strikes Back." 12 Schuyler argued a second proof from acquiescence. "[I]f an American Congress were to take legal steps resulting in American statehood for Newfoundland , would an acceptance by Newfoundland amount to an admission on her part that American statutes had traditionally applied to her? Obviously not, though it was a roughly similar type of proof that Professor Schuyler sometimes relied on." Wheeler, "Calvin's Case," pp. 591-92. 13 Middlekauff, Glorious Cause, p. 120. See similarly Wood, Creation, p. 352. Also, there were many contemporaries who understood or professed to believe that colonial whigs denied only Parliament's power to tax, not its authority to legislate. E. g., Boston Post-Boy, 22 June 1767, p. 1, col. 3 (reprinting Benevolus, London Chronicle, 11 April 1767); Anon., Inquiry into the Nature, pp. 28-30; Anon., Supremacy of Legislature, p. 12. 14 Authority to Tax, pp. 85-96. 15 Virginia Resolves, 30 May 1765, Rhode Island Resolves, September 1765, Pennsylvania Resolves, 21 September 1765, Connecticut Resolves, 25 October 1765, Massachusetts Resolves, 29 October 1765, South Carolina Resolves, 29 November 1765, New Jersey Resolves, 30 November 1765, New York Resolves, 18 December 1765, Maryland Resolves, 28 September 1765, Morgan, Prologue, pp. 48, 50-51, 51, 55, 57, 58, 60, 61, 53; Maryland Resolves, 17 December 1765, Boston Post-Boy, 30 December 1765, p. 3, col. 1. 16 Declarations of Stamp Act Congress, October 1765, Morgan, Prologue, pp. 62-63. In the Memorial to the House of Lords the Congress acknowledged "a due Subordination to that August Body the British Parliament," and in the Petition to the House of Commons said that "their Subordination to the Parliament, is universally acknowledged." Ibid., pp. 65,68. 17 [Knox,] Controversy, p. 29. 18 Weir, Most Important Epocha, p. 19. See also Letter from the Committee of the South Carolina Commons House to Charles Garth, 4 September 1764, Gibbes, Documentary History, pp. 2-3. 19 Instructions of 26 May 1766 and of 17 June 1768, Boston Town Records 16:183, 258; Answer of the Massachusetts House to Governor Francis Bernard, 24 October 1765, Boston News-Letter, 31 October 1765, p. 1, col. 2. See also Address from the Massachusetts House to the King, n.d., Boston Post-Boy, 8 December 1766, p. 3, col. 1; Petition from the Representatives of the Counties Upon Delaware to the King, 27 October 1768, Gentlemans Magazine 39 (1769): 28. 20 [Knox,] Controversy, p. 28; Declaration of both Houses to Charles I, 9 March 1641142, Rushworth, Historical Collections: Third Part 1:531. 21 Countryman, Revolution, p. 68; Morgan, "Colonial Ideas," p. 324. A similar word that has misled nonlegal scholars is "superintendence": "Because the Parliament may, when the relation between Great Britain and her NOTES TO PAGES 12-18 397 colonies calls for an exertion of her superintendence, bind the colonies by statute, therefore a Parliamentary interposition in every other instance is justifiable, is an inference that may be denied." Dulany, Considerations, reprinted in Bailyn, Pamphlets, p. 620. See also Petition from Virginia to House of Lords, 16 April 1768, Revolutionary Virginia 1:57; Letter from Massachusetts House to Henry Seymour Conway, 13 February 1768, Boston Post-Boy, 28 March 1768, p. 2, col. 2. 22 Mayhew, Snare Broken, pp. 25-26; [Bancroft,] Remarks, p. 5. Of course, colonial tories said the...