THE DECLARATION OF INDEPENDENCE
THE PRINCIPAL MANIFESTO OF THE AMERICAN REVOLUTION, AND OF AMERICAN POLITICS IN GENERAL , IS THE DECLARATION OF INDEPENDENCE. Though not a legal document strictly speaking, this is the closest thing we have to an official credo.
That is, the Declaration neither required, permitted, nor altered anything in a legal sense, but rather explained the act of Congress (two days before) officially severing ties with England. It nonetheless appears in the U.S. Code, before the Articles of Confederation.
In its well-chosen words, the themes of freedom and equality, liberty under law, government by consent, and the right of resisting abusive power are set down with classic force and eloquence.
Because of its symbolic status, the Declaration has been the subject of relentless myth-making, some of it in the well-meaning but simplistic vein of Parson Weems, a great deal more in the form of tendentious pleading. Either way, we have been told a lot about the Declaration that isn’t so. The effect has been to muddle understanding not only of the document itself, but of the action that it justified, and thus the origins of our republic . As with other matters we have considered, the main objective of such treatment is to prove the secular-Enlightenment basis of American freedoms.
In most efforts to show that our revolution was a radical undertaking, the Declaration is Exhibit A. Here, supposedly, is the analogue to the effusions of the French, the a priori appeal to abstract concepts, the secular-rationalist view of Thomas Jefferson, America’s leading Francophile and skeptic. And since the Declaration is the most remembered statement of our revolution, it seems to follow that the people who waged the struggle were doing something like the saturnalia that occurred in France.
It is also here, of course, that emphasis is chiefly given to John Locke . The Declaration stated a theory of social contract and government by consent, and renounced allegiance to the King of England on this basis. Locke had stated a theory of social contract and justified resistance to another English king in the preceding century. The conclusion is that Jefferson read Locke and copied down his doctrines, and that on these grounds Americans decided they should opt for independence. Since Locke and Jefferson were both philosoplies of the Enlightenment, the radical nature of our freedoms is established.
This reading or something like it is accepted not only by the usual historians, but also by some otherwise fairly sensible people. A few iconoclasts have challenged the Lockean thesis, but even these have done so in order to tout some other Enlightenment source supposedly responsible for the Declaration. Whatever the variations, such analyses distort the meaning of the statement, and of the action that it defended. In fact, the Declaration and the colonial move to independence were fully continuous with the developments we have been describing.
While the facts that go to prove the point are legion, they are screened from view by the selective methods used in weaving the fabric of the standard history . Foremost among these is the device of fixating on “key” documents or people, to the exclusion of many preceding or contemporaneous data that establish context for what is being said . In this approach, doctrines and manifestoes seem to spring up without historical basis, and thus appear to be completely novel and surprising. Manna Carta, the Vindiciae, the Mayflower Compact, and Locke’s Second Treatise are examples we have already met with.
Nowhere is this technique more commonly used than with the Declaration of Independence . In the usual teaching the Declaration is treated as an abstract, philosophical statement to be dealt with through methods of literary sleuthing, as a critic might parse the meaning of an abstruse poem . A whole library of books has been devoted to figuring out what Jefferson must have meant when he expressed himself in a certain way, where he might have come up with specific phrases his relationship to the thought of Locke or other Enlightenment figures, what works he read (or owned), and so forth.
This approach leads to results that are sometimes astonishing. For example, “no taxation without representation,” government by consent, social contract, and other concepts in the Declaration have all been portrayed as radical innovations dreamed up by Jefferson, or by the secular theorists he consulted. As we have seen, however, these ideas were rooted in centuries of British, and American, practice, and by the era of the Declaration were anything but new .
ONLY BY NEGLECTING THE GROWTH OF THE ENGLISH COMMON LAW, RELIGIOUS-FEUDAL CONTRACT DOCTRINE, THE COVENANTAL THEOLOGY OF THE PURITANS, AND A GREAT DEAL ELSE, COULD ONE ARRIVE AT THESE CONCLUSIONS. SUCH ARE THE INTELLECTUAL WAGES OF IGNORING HISTORY.
With this in mind, a good place to begin analysis of the Declaration is with its own specific history, which is drastically different from the standard teaching. There is, for instance the fact that the decision for independence was not in context very radical, considering what had been going on between the colonists and the English for upwards of a decade. As has been shown, the colonial protest against British power was in many respects the opposite of revolutionary. But even if the struggle for independence could be properly described as “revolution” the colonists were most reluctant revolutionaries. Rather than rushing headlong into things, they agonized, equivocated, and delayed before they took the plunge, and did so only after every other option had been considered and discarded.
The British effort to tighten the noose around the colonies had been in progress, after all, since the end of the French and Indian War. Repeated efforts to tax the Americans, the stationing of troops in Boston, suspension of jury trials, etc., had gone on throughout the 1760s, accompanied by the most expansive claims of parliamentary power. This provoked a torrent of manifestoes, concerted efforts at resistance, and demands for redress but no move toward independence.
Nor were Americans quick to renounce allegiance even when it came to military conflict. Martial law had been imposed on Boston as of June 1774; the Continental Congress assembled that September; Lexington and Concord erupted the following April, Bunker Hill in June; in July the colonists declared the need for a resort to arms. Despite all this, Congress took no formal steps toward independence until May of 1776, (two long years) casting its final votes to this effect two months thereafter. This was more than fourteen months from Lexington, two years after martial law arrived in Boston, and eleven years beyond the Stamp Act. Hardly a record of precipitous haste in making revolution.
We know from notes of the proceedings and the comments of Jefferson, John Adams, Ben Franklin, and Richard Henry Lee that many in Congress were loath to cut the tie with England, wanted compromise, or thought the colonies were not yet ripe for independence. And “olive branch” petition had been adopted in the summer of 1775, after the resolution on the necessity of resort to arms. At this juncture, as Jefferson would recall, “a separation from Great Britain and establishment of republican government had not yet entered into any person’s mind...... Contemporaneous comments from many other Founders say the same.
As late as the spring of 1776, in fact, the issue was being thrashed out daily in the Congress. That resistance was still strong but that things were moving in the right direction was indicated by a letter from Franklin at this period. “The novelty of things deters some,” he wrote Josiah Quincy, “the doubts of success others, the vain hope of reconciliation , many.
But....... every day furnishes us with new causes of increasing enmity, and new reasons for wishing an eternal separation, so that there is a rapid increase in that formerly small party, who were for an independent government.”
What was in prospect here, it bears repeating, was not a socio-political earthquake like the French Revolution, but the highly specific act of cutting an already frayed colonial nexus so Americans could keep existing freedoms. Yet even steps in this direction were taken slowly, with such as John Dickinson and Edward Rutledge opposing independence to the bitter end.
(Since Adams was Dickinson’s main antagonist and the chief “radical” in Congress as usually depicted—his comments on the subject are worth recording. “There was not a moment during the revolution,” he would write, “when I would not have given everything I possessed for a restoration of the state of things before the contest began.”
A review of these events is useful also in assessing the notion that Jefferson was the chief guru of independence, and that his opinions are the only ones that need to be consulted. This is patently in error .
This essay, as by now should be apparent, is not bent on debunking Jefferson; if anything, our argument is that his contributions have been both misunderstood and underrated. It is curious to note, however, that in the critical months in Congress that led up to the decision for independence, Jefferson played no role whatever. This is a readily ascertainable fact of record, albeit one that is seldom mentioned.
The main congressional struggle over independence extended from February through May of 1776, when the Adamses, Richard Henry Lee, and others pushed hard to break the link with England, against the go-slow tactics of Dickinson and Rutledge. This effort reached an apogee of sorts in motions of May 10 and 15, declaring British power a nullity in America and urging the colonies to set up governments of their own devising. As John Adams exulted, this was independence in everything but name, though further steps would still be needed to formalize the separation. These three and a half months were thus the crucial period in which opinion was tilted in favor of independence.
The historical oddity is that Jefferson was gone from Congress for all this time, having left the previous December and not returning until May 14. Why he was gone is not entirely clear, but the fact that he was not around when most of the heavy lifting was being done for independence is well established. The true “Atlas of Independence,” as Lee would put it, was John Adams, constantly in the forefront of debate, the drafting of the pivotal resolutions, and the maneuvering required to get them voted. Jefferson had been a part of the Patriot bloc in Congress the preceding year, but he was by no means the leader of it, and when the major push occurred for independence he was at home in Monticello.
In the drafting of the final Declaration, Jefferson’s role was of course immense, justifying the view of Adams that he should be given the job because of his “peculiar felicity of expression.”
The enduring fame of the Declaration is testimony to his talents . Yet even here, the idea that the document was merely a statement of Jefferson’s personal outlook misconceives the whole endeavor. Not only was the Declaration vetted by a committee (with Adams again the principal player); there is the more significant point that it was a corporate statement of the Congress, which assumed responsibility for what was said and took an active role in rewriting the final product.
In particular, Congress wasn’t bashful about removing things it considered troublesome—such as Jefferson’s convoluted accusations against George III concerning slavery and adding others it felt to be important such as two explicit references to a providential God. In all, Congress adopted more than eighty editorial changes and removed almost five hundred words of Jefferson’s text.
Whatever the merits of these excisions, they make it plain that anything the Congress or a substantial part of it saw as problematic would have been deleted. Conversely, what Jefferson privately believed, outside the boundaries of the agreed position, was no more relevant than the private opinions of other delegates who helped to shape its contents.
Jefferson wanted to condemn the king both for having permitted the development of slavery in America and for having urged that the slaves rebel—to fight against the colonists. (Jefferson himself was a slaveholder who would have been in considerable jeopardy from such an uprising.) That Congress made many changes in his draft, and that the document was materially different from what he had written, were matters that Jefferson took great pains to stress. His unhappiness with the changes was well known in Congress at the time, and he continued to advertise it for many years thereafter. He went to elaborate lengths to point out the differences between the two drafts, circulated copies among his friends, and included the comparison in his Antobiography.
This becomes the more important when we recall that Congress included many influential people senior to the youthful Jefferson (then thirty-three). Among these were the antiphilosophe John Adams, Presbyterian divine John Witherspoon, pious Calvinist Roger Sherman, old-fashioned Puritan Sam Adams, Tidewater conservative Carter Braxton, merchant princes Robert Morris and John Hancock, common lawyers James Wilson and George Wythe (Jefferson’s own teacher), and so on. These were smart, experienced men who in temper and conviction were far from the unbuttoned theorizing of the French. That they were converted into philosophes at the dawn of independence, didn’t know what they were signing, or were led into radical by-ways by their malingering colleague may all be doubted.
Congress, of course, was perfectly within its rights to make the changes that it did, since the Declaration was to be a corporate statement. This is apparent on its face, though neglected in much modern comment. John Adams was to write that “there was not an idea in it but what had been hackneyed in Congress for two years before.” Jefferson himself would basically confirm this, saying his object was “not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before, but to place before mankind the common sense of the subject ...... Neither aiming at originality of principles or sentiments, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind.. .....
It is against the backdrop of corporate purpose that the text of the document needs to be examined. Considered in this light, many aspects of the Declaration that otherwise seem strange become quite comprehensible. Taking the least philosophic portions first, since these may be handled rather briefly, the most obvious thing to be observed is that in form and content the Declaration closely resembles other resolutions of the Congress. All of these, for evident reasons, offer a similar mix of features: An assertion of belief or principles about the proper conduct of the state, a list of offending actions by the British, and conclusions about the measures required to get the harm corrected.
This is, of course, precisely the form of the Declaration. By far the greater part of it, roughly two-thirds, is taken up with a recital of the abuses supposedly committed by George III—some twenty-eight in all. These include such matters as suspending colonial governments, taxation without consent, denial of trial by juty and so forth. None of this was in the least unusual. These charges had been made many times before---—in newspapers, pamphlets, colonial resolves, and statements of the Congress.
For instance, the resolves of the first Congress (October 14 ,1774) contained an enumeration of the acts of Parliament that allegedly violated the rights of the colonists, including the various revenue measures of the 1760s, suspension of jury trials, excessive l)ail, the closing of the port of Boston rescission of the Massachusetts charter, maintenance of a standing army, and other asserted abuses. A summary of these same actions was offered the following week in the resolves of Congress concerning nonimportation of British goods (October 20, 1774) and thereafter in an appeal to the inhabitants of Canada (May 29, 1775). (Henry Steele Conunager, ed., Docnments of American History, Appleton Century Crofts, 1963, pp. 83—85, 93)
Oddly enough, this connection was one of the things that Congress edited out of Jefferson’s draft, or rather condensed so much as to obscure its meaning. Jefferson’s version said: “We have warned them from time to time of attempts to extend a jurisdiction over these our states...... We had adopted one common King, thereby laying a foundation for perpetual league and amity with them; but that submission to their Parliament was no part of our constitution ...... if history may be credited.” Congress altered the first sentence slightly, and dropped the rest. (Koch and Peden, op cit., p. 26; italics added)
The form was also in keeping with the lists of particulars familiar in British constitutional history—the sixty-three articles of Magna Carta, thirty-three charges lodged against Richard II, twenty-five charges and provisos in the Declaration of Right, etc.)
As to the single novelty in the indictment—that the charges were leveled at the king instead of Parliament—there is no mystery at all, if the historical background is considered. A great deal of speculation about this subject would be obviated by a survey of the preceding record. As we have seen, the colonists denied that they had ever owed allegiance to Parliament, and had based their theory of resistance precisely on this denial. (“As to the people and Parliament of England,” said the congressional advocates of separation, “we have always been independent of them.”) It was to the king alone that they had pledged allegiance, and it was this allegiance that had to be suspended. Given all the previous declamation on the subject, this was a perfectly obvious method of proceeding.
As separation from England required the colonists to renounce the king, it also required a shift in philosophic focus. As has been shown, their protests from the Stamp Act forward had been intensely legalistic, and stayed that way until the hour of independence. The dispute was handled as a case of constitutional and imperial law, through addresses to the crown, state papers, and diplomatic missives. Once the decision had been made for independence, however, such legalisms became irrelevant—though the habit of thinking in terms of English constitutional history would continue.
Since the colonists were leaving England altogether, it no longer served, and would have made no sense, to stress the “rights of free-born Englishmen.” And since they were appealing for support from a “candid world,” and not from the king or Parliament, they sought to phrase their case in terms persuasive outside of Britain.
It is fairly clear from the statements of Lee and others at the time, indeed, that the “candid world” was the chief intended audience for the Declaration. The colonists were in search of foreign aid, which they could not hope to get until they were formally independent. And the principal source of expected help was France— where “the rights of free-born Englishmen” have never been considered a valid reason to do anything.
All of which meant the Patriots needed to couch their appeal in general maxims. This is the major difference between the Declaration and other colonial statements, and even so it is not that different. The colonists had previously talked this way, for instance, in disputes about the powers of Parliament; when the British said Parliament had become supreme by virtue of accepted precedent, the Americans answered that principle, not precedent, should be controlling.
Likewise, a mix of legal and axiomatic appeals, drafted by John Adams, had been adopted in 1774 stressing “the immutable laws of nature, the principles of the English constitution, and the several charters or compacts” as a way of covering all the argumentative bases.” The axioms had been there all along. The decision for independence merely pushed them to the forefront.
So much, perhaps, is obvious. What is obscure, given the emphases of the standard treatment, is where the axioms came from. As typically explained, the radicalism of the Declaration shines through the passages about these topics, specifically the famous opening creed: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, and that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.
Creator with certain unalienable rights, and that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”
If we are to believe the usual teaching, these were secular concepts that sprang full-blown from the brow of Jefferson— with an assist from Locke, or perhaps some other Enlightenment theoreticians . This construction is, at best, obtuse. In fact, there is nothing in the axiomatic passages of the Declaration that any phiiosophe invented. Everything expressed had been part of the mental equipment of the West from the Middle Ages forward, and part of the American outlook from the beginning. And far from being secular, as we have seen, the principal sources of such thought were all religious.
Among the most notable features of the Declaration, indeed, is its theistic character. It both opens and closes with references to God —two at the outset in the draft that Jefferson handed over, two at the conclusion inserted by the Congress:
“the Laws of Nature and Nature’s God,” “endowed by their Creator,” “the Supreme Judge of the World,” “a firm reliance on the Protection of Divine providence.” While “Nature’s God” and “Supreme Judge” are eighteenth-century natural theology phrases, the God referred to is clearly providential, superintending, and creative—the God, in sum, appearing in the Bible.
We need only consider in this regard the Declaration’s clarion statements about equality and freedom as inherent attributes of human beings. While there has been debate about the application of these phrases, the general pedigree of such ideas in Western thinking is not in doubt. They stem from the biblical view examined in Chapter VIII, repudiating the authori tarian doctrines of the Greeks and Romans. As noted there, biblical teaching rejected the pagan concepts of “great souled men” and “natural slavery,” asserting instead that all human beings were the children of God, created in His image, but fallen and in need of grace—and thus in the most significant terms of their existence equal. This is so basic a tenet of biblical faith, and so radically different from the world-view of the ancients, that it is hard to believe the most dogged secularist could fail to see it.
On this point, the usual discussions of the Declaration verge on the absurd, when they do not cross the boundary altogether. Where, it is asked, could Jefferson possibly have got the idea that “all men are created equal”? Much speculation is devoted to this tremendous puzzle . Did he perhaps get it from Locke, or from the French by way of Joseph Priestley, or possibly from the more moderate philosophes of Scotland?
All of this is propounded, worried over, and debated. Every conceivable source for this idea is minutely studied except the one from which it is so obviously derived. Our secular historians are like an army of Clousseaus----—pursuing every possible explanation of the mystery, except the one that is staring them in the face.
Missing the point about such matters is of course the essence of the standard history, but what we have here is especially feeble: The Declaration, after all, says the rights in question come from God, so the matter is not left to inference or ingenious speculation. The scriptural origin is apparent in the very wording: That “all men are created equal,” that they are “endowed by their Creator;” etc., are ideas and phrases that entered the vernacular of the West exclusively through biblical revelation. They are utterly distinctive, in the idea of creation that they express, and in the intrinsic value that they attribute to every human being—both in total contrast to the pantheist/statist systems of the ancients.
Had these notions been transmitted to America from Locke, from the English Dissenting Radicals, or from the Scottish “common sense” Enlightenment, their ultimate source in religious teaching would still be plain---—since that is where these people got them . (Indeed, Christian theism is an obvious component of all the supposedly secular sources cited by the Founders, including not only Locke, but also Grotius, Pufendorf, and Sidney ) The Founders, however needed no intellectual brokers to come up with such doctrines. As we have seen, all the relevant ideas about God-given rights, and free government constructed on this basis, had been planted on our shores while Locke was still in swaddling.
Though the fervor of the original settlers had abated by the latter part of the eighteenth century, Americans continued to be a religious people. The degree to which religious attitudes and practices were prevalent at this era is one of the great untold stories of our founding, and will be discussed more fully in a later chapter.
Here we pause only to note that, when the Patriot leaders were pressed to make an axiomatic case for freedom, they routinely did so on a religious basis. Their basic argument was precisely, that individual liberty came from God, prior to any human documents or institutions, and that this transcended all the precedents of British history. They thus opposed to the purely glacial flow of custom the axioms from which that custom was descended.
As might be guessed, some of the most emphatic statements to this effect came from New England, where the Puritan heritage was a potent factor. Sam Adams and James Otis, for example, put it that, “the right of freedom being the gift of God almighty, it is not in the power of man to alienate this gift.” Otis made the point as well in his discourse on The Rights of the British Colonies Asserted and Proved. Government, he said, “has an ever-lasting foundation in the unchangeable will of God, the author of nature, whose laws never vary... . There can be no prescription old enough to supersede the law of nature, and the grant of God almighty, who has given all men a natural right to be free....
John Adams, whose writings abound with references to “an overruling providence,” and “devotion to God almighty,” like-wise contended that human freedom was founded in the ordinance of the Creator. Recalling the accomplishments of the Puritan fathers, he urged a similar piety and dedication among their offspring. “Let the pulpit resound,” he said, “with the doctrine and sentiments of religious liberty. Let us hear of the dignity of [man’s nature], and the noble rank he holds among the works of God. . . Let it be known that British liberties are not the grants of princes and parliaments......
Hamilton’s version was: “The sacred rights of mankind are not to be rummaged for among parchments and musty records . They are written, as with a sunbeam, in the whole volume of human nature, by the Hand of the Divinity itself, and can never be erased or obscured by mortal power.” And: “The Supreme Being gave existence to man... He endowed him with rational faculties... and invested hini with an inviolable right to personal liberty.” Jay asserted that “we are... entitled by the bounty of an indulgent Creator to freedom,” and that when “attempts are made to deprive nien of rights, bestowed by the Almighty,” resistance was in order. (Rossiter, op. cit., p. 107; Harvey Flaumentiauft, The Political Science Reviewer, Fall 1976; Conimager, op. (‘it., p. 91)
The New Englanders, of course, were not only descended from the Puritans, but also the most intransigent “radicals” in the battle for independence a connection that is itself instructive. But similar views were expressed in other regions, by leaders more moderate than those of Massachusetts . John Dickinson, for instance, said of American freedoms: “We claim them from a higher source, from the King of Kings and Lord of all the earth. They are not annexed to us by parchments and seals. They are created in us by the decree of Providence, which established the laws of our nature....., they are founded in the immutable maxims of reason and justice.”” Hamilton and Jay were of the like opinion.
With Jefferson himself, the evidence is much the same. Though it is frequently argued that Jefferson was a Deist, this is obviously mistaken. By his own repeated statement, he believed in the creative, sovereign, and superintending God of Scripture, but thought that the original monotheism of the Bible had been corrupted by Platonic doctrine. While his unitarian faith was hardly orthodox Christianity, there is no doubt as to where he got his notion of the Deity.
Jefferson’s writings are full of phrases such as “a benevolent creator” “a superintending power,” “infinite power who rules the destinies of the universe” “God is just,” “an overruling providence,” “the common father and creator of man” “the creator, preserver, and supreme ruler of the universe,” and so on. (See Robert M. Healey, Jefferson on Religion in Public Education, Yale 1962, pp. 33— 38, 170)
We have noted Jefferson’s view that the only basis for American freedoms was a conviction among the people “that these liberties are of the gift of God.” As if to refute in advance the idea that he merely thought other people should believe this, Jefferson also stated: “The God who gave us life gave us liberty at the same time; the hand of force may destroy, but cannot disjoin them.”
From these and many other similar statements, it should be evident that the notion of God-given human freedoms was not exactly unprecedented in the founding era; this was, indeed, a commonplace among the political leaders of the time. There was accordingly nothing novel about Jefferson’s using such expressions in the Declaration, or the readiness of other members of the Congress to accept (and reinforce) them.
These matters are discussed at illuminating length, from somewhat different angles, in Gary T Amos, Defending the Declaration (Wolgeniuth & Hyatt, 1992) and Richard Vetterli and Gary Bryner, In Search qf the Republic (Roman & Littlefield, 1987). Also of interest in this regard is pamphleteer Tom Paine, whose Common Sense worked powerfully on opinion during the critical months of ‘76. Contrary to Paine’s later (and scandalous) reputation as a Deist, this philippic against kings is scriptural throughout—containing, e.g., an exposition of the passages from Samuel discussed in Chapter VIII. (Philip S. Foner, ed., The Complete Writings of Thomas Paine, Citadel, 1945, pp. 9 et seq.)
This leaves us with a final candidate for radical/secular invention in the Declaration —the concept of social contract as the basis of the state, and renunciation of allegiance to George III brought on by his supposed violation of the compact. Here is the “right of revolution” par excellence, allegedly imported into our politics from Locke, then migrating into the mind of Jefferson. As already seen, however, this is a complete misreading of social contract, both as to its general provenance and as to its arrival in the colonies.
Again, the relevant precepts go back to the Middle Ages, and to those who took up the medieval doctrine at the era of the Reformation. All these spokesmen said political authority, under God, came ultimately from the people, that kings and other magistrates were their agents, that such officials could be disobeyed if they transgressed the law of God, and, if it came down to that, replaced. The reader may readily compare the many sources cited in Chapters X and XI to the statements by American clergy and statesmen at the revolutionary era: ..... all government....., is founded in compact, or agreement between the parties, between rulers and their subjects ..... rulers, receiving their authority solely from the people, can be rightfully possessed of no more, than these have consented to, and conveyed to them.” (Rev. John Tucker, 1771)
“Those only are to be esteemed lawful magistrates, and ordained of God, who pursue the public good by honoring and encouraging those that do well and punishing all that do evil.” (Rev. Samuel West, 1776) “Power being a delegation, and all delegated power being in its nature subordinated and limited, hence rulers are but trustees, and government a trust.” (Rev. Phillips Payson, 1778)
Of similar import is the statement of the Massachusetts General Court in January of 1776, as the campaign for independence was starting up in earnest: “When kings, ministers, governors, or legislators ...... instead of exercising the powers entrusted with them, according to the principles established by the original compact, prostituting those powers to the purposes of oppression...... they are no longer to be deemed magistrates vested with a sacred character, but become public enemies and ought to be resisted.” This is the doctrine of the medieval era, of Buchanan, the Viucliciae, and the Act of Abjuration—with scarcely so much as a change of wording.
While the religious basis of these notions is apparent, there is a further aspect of the matter that needs discussing. In terms of legal doctrine, the formula used in the Declaration shows the Founders were conversant also with the feudal component of social contract, as expressed at critical junctures in the constitutional history of England. Though this point seems universally neglected, it is all-important in grasping the American theory of resistance, and the language used in foreswearing loyalty to the king. The Founders’ performance in this regard shows, once more, their penchant for British legal history even at the moment of declaring independence from Great Britain.
As discussed, the feudal system assumed a tie of mutual obligation—protection on the one hand exchanged for loyalty on the other. If one was withdrawn, then the other was forfeit. This was the conceptual format in which the medieval English constitution had developed. King John had been brought to heel by barons and clergy and required to recognize their feudal rights in Magna Carta, itself a form of feudal contract. Richard II had been deposed in 1399 for assertedly violating his coronation oath and Magna Carta, and for saying “the laws were in his mouth.” The estates of the realm accordingly renounced “liege homage and fealty” to him and declared the throne of England “Vacant.” This formula was adapted in 1689, in the statement, we have quoted, declaring that James had “withdrawn himself out of the kingdom,” and justifying the accession of Prince William to a once more “vacant” throne.
This legal-constitutional background, now long forgotten, was well known to American lawyers of the revolutionary era. Feudal notions of allegiance, indeed, are widely evident in their statements of resistance. John Adams asserted, for example, “we are put out of the royal protection and thus discharged of our allegiance.” James Wilson’s version was: “The duties of the king and those of the subject are plainly reciprocal, and they can be violated on neither side unless they be performed on the other.” The Virginia House of Burgesses informed the royal governor there: “By the frame of our constitution, the duties of protection and allegiance are reciprocal.”
Countless other statements might be cited to the same effect, but we shall rest content with two from Patrick Henry: “Government is a conditional compact between king and people... violation of the covenant by either party discharges the other from obligation.” “A law of general utility could not, consistently with the original compact between king and people be annulled ... a King, by disabling acts of this salutary nature, from being the father of his people, degenerates into a tyrant, and forfeits all right to his subjects’ obedience.” (Edward S. Corwin, The Higher Law Background of America n Constitutional Law, Cornell, 1971, p. 76; Moses Coit Tyler, Patrick Henrtj, Cornell, 1962, p. 53) The latter statement is from 1763—-thirteen years before the Declaration of Independence.
Among the most elaborate statements in this vein was the charge of Chief Justice William Henry Drayton to a South Carolina grand jury in April 1776, declaring formal independence from the king two months before the Congress got around to doing so. Drayton’s performance on this occasion is usually portrayed as “radical,” but this again results from ignorance of the legal record. Drayton had been a student at the Inns of Court, and was well familiar with the matters we have just examined . His approach was entirely grounded on the British constitutional precedents.
In good common law fashion, Drayton listed the asserted misdeeds of George III, his denial of chartered freedoms, and the final blow of withdrawing his protection from the colonies, comparing all this to the activities of James II. The chief justice concluded with this peroration: “George III, king of Great Britain, has endeavored to subvert the constitution of this country; by breaking the original contract between king and people; by the advice of wicked persons, has violated the fundamental laws, and has withdrawn himself and his protection out of this country. From such a result of injuries, from such a conjuncture of circumstances—the law of the land authorizes me to declare ... that George III. . has abdicated the government, and that the throne is thereby vacant; that is, he has no authority over us and we owe no obedience to him.”
As may readily be seen , this “radical” statement was as close as Drayton could make it to a verbatim rendering of the charges against James, themselves an adaption of the allegations against Richard (whose language Drayton also borrowed). Drayton obviously didn’t invent the phrases or ideas in question, nor did he get them from the French Enlightenment, or from Locke, or from any other rationalist theoretician . He took them directly from the annals of English constitutional history.
From notes provided by Jefferson himself, we know a similar discussion was conducted six weeks later at the Continental Congress, in the final debates about the impending Declaration. Now back from Monticello, Jefferson recorded the comments of the opposing sides, as advocates of independence sought to win over the still reluctant. Among those speaking for the Patriot interest were John Adams and George Wythe, both experienced common lawyers, also familiar with the precedents in question. This was the summation of the case for independence:
“That, as to the king, we had bound to him by allegiance, but that this bond was now dissolved by his assent to the late act of Parliament, by which he declares us out of his protection, and by his levying war on us, a fact which had long ago proved us out of his protection, it being a certain position in law that allegiance and protection are reciprocal, the one ceasing when the other is withdrawn. That James II never declared the people of England out of his protection yet his action proved it and Parliament declared it.”
Against this background, the idea that the official formula renouncing allegiance to George III was the invention of either Locke or Jefferson dissolves into the ozone. The relevant passages in the Declaration read as follows: “ The history of the present king of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states.., he has abdicated the government here, by declaring us out of his protection, and waging war against us ...... These United Colonies, accordingly, are absolved from al l allegiance to the British crown.”
These citations show the reliance of the colonists on the Glorious Revolution as a precedent. They also suggest the degree of their affinity—or lack thereof—to its chief defender, Locke. As discussed, the cashiering of James II had been accompanied in the colonies by a similar rebellion, the uprising against Governor Andros that sought to restore the freedoms of New England. Americans thus saw in the events of 1688-89 an important phase of their own experience, as well as a structural parallel to the eighteenth-century contest. Mostly, of course, they saw an instance of contractual government at work, a change of magistrates based on the notion of violated compact.
As we have also noted, however, the colonists routinely denied the other main idea established by the Glorious Revolution the notion of unbounded parliamentary power. For this idea, they had no use at all, and never countenanced it for a moment. Likewise, the Patriot leaders opposed the more generalized version of the doctrine advanced by Locke—in which he sang the praises of the “supreme legislative” as the chief locus of authority in the state.*
.... . there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate .... . . In all cases whilst the government subsists, the legislature is the supreme power...... The legislature must needs be the supreme, and all other powers in any members or parts of the society derived from and subordinate to it.” (Of Civil Government, Regnery Gateway, 1955, pp. 109-110) Locke believed the legislature was in turn subordinate to the people, via election, and also that it should govern according to the laws. He suggested no method for ensuring this, however, except a right of rebellion against abuse of power . As shall be discussed, American ideas of constitutional government were entirely different.
The Americans were wholeheartedly with Locke when he expounded social contract, but ignored or rejected him when he defended unchecked “supremacy” in the legislative body.
This picking and choosing suggests, again, the primacy of axioms in American thinking, as opposed to mere reliance on British precedent. The basis for selection, moreover, was quite consistent, and left no doubt about the principles that were foremost. Social contract was congenial to the cause of freedom, when it imposed restraints on rulers and provided a basis for resisting their excesses. But the legislative theory was, the Founders saw, exactly the reverse: it could be used—and was—to justify completely arbitrary measures . Both in what they affirmed and what they denied, the Americans took their stand for liberty and limitations on coercive power.
These distinctions should be kept in mind when we are told the colonists received their ideas from Locke, or any other theoretician they happened to quote in the course of the dispute with England . Far from slavishly following Locke and/or the Glorious Revolution, the Americans selected what they wanted—no more, no less. More accurately, they received from these and other sources doctrines congruent with ‘what they already believed, useful to their case, and familiar from their own experience. Only if this point is understood can we avoid the error of many, if not most, intellectual treatments of the era, with their “key” documents and people selected to fit a predetermined thesis.
All of this is pertinent, finally, to efforts at twinning our Declaration with the French Declaration of the Rights of Man—usually treated as emanations of the same ideas. In point of fact, our Declaration was notably different from the French, and the differences arose precisely over the points that are the focus of this essay: In their attitudes toward religion, and toward questions of concentrated power. Since the American Revolution was much admired in France, the verbal and conceptual parallels are not surprising. But beneath the glaze of surface similarity, the American and French ideas about the central issues are quite distinctive.
We have noted the biblical theism of our Declaration. Reference to such matters in the French Declarations (two versions were published during their revolutionary epoch) are very different. These put the “rights” in question, in truly revolutionary fashion, on a secular, rationalistic basis. They do not attribute them to man’s status as a creature of God, but simply assert them as self-justifying concepts. There is, to be sure, a reference to the Deity in the French Declarations, but it is of a rather curious sort. They proclaim the “rights of man” “in the presence of the Snprerne Being,” implying that God is a kind of witness to the event, perhaps in the character of a notary public. At no point do the French manifestoes say these rights derive from God; the deliberate nuances of the wording (together with many other data on the subject) suggest that this was far from accidental.
The second major distinction between the French and American declarations concerns the matter discussed in our mention of the Glorious Revolution, and at many other places in these pages: The degree of power that should be vested in a legislative assembly, if it has been chosen by “the people.” In the French view, as set forth in the Jacobin declaration (and accompanying constitution), this power was completely sovereign, with no restraint beyond its own discretion. Our manifesto was the climactic statement of a long political discourse which said the opposite: That legislative power, like any other, could be extremely hazardous to freedom. The essence of the American creed had been, and would remain, that every form of human authority must be subject to the most definite limits.
The THEME IS FREEDOM.
Copyright @ 1994 by: M. Stanton Evans (pgs. 226-247)
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