The Online Library of Liberty

A project of Liberty Fund, Inc.

• Acknowledgment
• The Declaration of Independence
• Chapter I: The Declaration of Independence
• Chapter II: Historical Antecedents of the Declaration: the Natural Rights Philosophy
• Chapter III: Historical Antecedents of the Declaration: Theory of the British Empire
• Chapter IV: Drafting the Declaration
• The Rough Draft ( As It Probably Read When Jefferson First Submitted It to Franklin .) 1
• The Rough Draft As It Probably Read When Jefferson Made the ‘fair Copy’ Which Was Presented to Congress As the Report of the Committee of Five .
• The Declaration of Independence ( As It Reads In the Lee Copy, Which Is Probably the Same As the Report of the Committee of Five, With Parts Omitted By Congress Crossed Out and the Parts Added Interlined In Italics .)
• The Declaration of Independence ( As It Reads In the Parchment Copy .)
• Chapter V: The Literary Qualities of the Declaration
• Chapter VI: The Philosophy of the Declaration In the Ninteenth Century

CHAPTER III

HISTORICAL ANTECEDENTS OF THE DECLARATION: THEORY OF THE BRITISH EMPIRE

When the controversy with Great Britain began in 1764, the preconceptions of the Natural Rights philosophy lay quiescent in colonial minds, ready to be drawn upon in case of need, but never yet having been called forth in the service of any concrete issue. With a possible exception here and there, the colonists had never even contemplated the idea of independence. They were, on the contrary, proud to be counted British subjects and citizens within the empire, the burdens of which, such as they were, had never rested heavily upon them. Each colony had its own government, consisting of a governor, appointed by the Crown in most cases, and a legislature of which the lower house was in all cases elected by certain defined classes of people resident in the colony. Before 1764 the British Parliament had in the main confined its supervision to the regulation of colonial trade, so that each colony had long been accustomed to exercise, in respect to all internal affairs, a pretty full measure of self-government. Laws passed by the colonial legislatures were often vetoed by the governors, or disallowed by the Crown; but the British government had rarely intervened with regulations of a positive sort, and it had never, with some slight and negligible exceptions, laid a tax on the colonies by act of Parliament.

With this situation the colonies were in the main well satisfied; and when they thought of the constitutional relations by which the colonies were connected with the British empire, they thought of them as relations which permitted the colonists, and doubtless would always permit them, to regulate their own affairs in their own way: the immunities which they in fact enjoyed, they thought of as ‘rights’ which they ought constitutionally to possess. The truth is, however, that the colonists had not given a great deal of thought to these matters. They had thought a good deal about the respective ‘rights’ of their assemblies as against the ‘rights’ of their governors; but there had been no great occasion to ask what were the rights of the assemblies as against the rights of Parliament. The Sugar Act suddenly raised this question; and suddenly called upon to define their rights as colonies within the empire, called upon to say what constitutional barriers there were, if any, against an unlimited Parliamentary control of the colonies, they could immediately find at hand no elaborate or very convincing answer. What most men were thinking was doubtless well enough expressed by two men who committed their opinions to writing in this year of 1764 — Stephen Hopkins, afterwards one of the signers of the Declaration of Independence, and Thomas Hutchinson, afterwards a self-exiled Loyalist.

In a pamphlet entitled The Rights of the Colonies Examined, Hopkins argued that all colonies, in ancient and modern times, have always enjoyed “as much freedom as the mother state,” and it could hardly be supposed, he thought, that the British colonies were an exception to that rule. Until now, at all events, the British Parliament had understood the rights of the colonies in this sense. Why then should the ancient practices be changed?

Hopkins does not really define the rights of the colonies; he raises questions about them. Have we not rights? We have always enjoyed rights and privileges, why should we not continue to enjoy them? We have been very dutiful.

Thomas Hutchinson, writing to a friend in England, speaks of the rights claimed by the colonies a little more precisely, but still in much the same sense.

Such were the first, tentative steps in the effort to find a theory that would meet the emergency — a kind of timid groping about in the dark in search of the half-forgotten British Constitution. During the year 1765, as a result of the discussion which was accompanied by the passage and the practical nullification of the Stamp Act, the conception of colonial rights began to take on a more definite form. Forcible resistance to the Stamp Act, which few people anticipated, proved to be singularly easy, because the act could not take effect without the use of stamped papers, and the bundles of stamped papers, when they were once landed, could be easily destroyed without any one in particular being held responsible for their destruction. The colonists therefore found themselves facing a new emergency. They had to find good and sufficient reasons for having ventured to violate, by open and forcible means, an act of Parliament. They had to have a definition of colonial rights which would make the Stamp Act out to be, not merely an inexpedient measure, but an unconstitutional measure, a measure which the British Parliament had no ‘right’ to pass.

To meet this emergency, the colonists seized upon the well-established tradition that British liberty had originally been won, and had always been maintained, by a stubborn and persistent parliamentary opposition to arbitrary taxation. This opposition, as a matter of sober historical fact, had never been more than intermittently effective until the seventeenth century; but the parliamentary party of that time, in defense of their rights, maintained that the parliamentary control of taxation was as old as Magna Carta. And so in the eighteenth century it was commonly accepted as a principle of the British Constitution that no Englishman could be legally taxed except by his own consent, that is, by his representatives in Parliament. This being so, the colonists reasoned, we, being British subjects with all the rights of Englishmen born within the realm, cannot be legally taxed except with our consent; and therefore, we cannot be legally taxed by the British Parliament since we are not represented in it.

Thus stated, the argument was open to attack at two points: it could be affirmed that Parliament had as a matter of fact taxed the colonies in the past without any opposition on their part; and it could be said that the colonies were represented in Parliament in the same sense that Englishmen were. Soame Jenyns, in a pamphlet widely read in England,1 pointed out that many English communities, such as Manchester and Sheffield, were taxed without being privileged to send representatives to Parliament, so that the colonies were represented as much or as little as these English communities; either Manchester is not represented in Parliament, in which case Parliament can and does tax Englishmen without their consent, or else Boston is represented in Parliament, in which case she has no grievance. In other words, it was held that relatively few Englishmen had a right to vote for their representatives in Parliament; that they were nevertheless ‘virtually represented’ by the members of Parliament chosen by those who had a right to vote; and that accordingly the people residing in the colonies were also ‘virtually represented’ in Parliament in the same way as the non-electors residing in Great Britain.

This argument was most effectively answered by Daniel Dulany, of Maryland, in a pamphlet entitled Considerations on the Propriety of Imposing Taxes in the British Colonies for the Purpose of Raising a Revenue by Act of Parliament. The people of the colonies, says Dulany, are in a very different situation from the non-electors residing in Great Britain, because in the latter case the interests of

The situation of the colonists was manifestly different. If every inhabitant of America possessed the necessary freehold “not one could vote, but upon the supposition of his becoming a resident of Great Britain.” Besides, the colonists already pay taxes levied by their own legislatures, and therefore they would not be exempt from taxation if not taxed by the British Parliament, as the non-electors in Great Britain would be. Most important of all,

Dulany’s refutation of the doctrine of ‘virtual representation’ was complete — almost too complete. The inference from it was, either that the colonies should be permitted to send representatives to the Parliament, or that the Parliament had no right of taxing the colonies in any way whatever. Sending representatives to Parliament was a perfectly possible thing to do; but the colonists commonly rejected this solution, because it was obvious that sending a few representatives to England would serve only to justify parliamentary taxation without doing anything to prevent it. But, on the other hand, could the colonists stand uncompromisingly on the ground that Parliament had no right to tax them in any way whatever? The Sugar Act was a tax. The Parliament had for over a century imposed trade duties. These were in some sense taxes; and at this early date almost no one was ready to deny that Parliament had the right to impose taxes of this sort. In face of this difficulty, certain writers drew a distinction between ‘internal’ and ‘external’ taxes, denying the right of Parliament to lay the former but admitting, by implication at least, its right to impose the latter. This was no doubt a dangerous admission, and many were inclined to avoid the difficulty by ignoring it. That, for example, is substantially what the Stamp Act Congress did in framing its resolutions of protest against the Stamp Act and the Sugar Act. Expressly affirming that the colonists owed the same allegiance to the Crown of Great Britain as subjects residing in England, the Resolutions declared that “no taxes. . . can be constitutionally imposed upon them but by their respective legislatures”; but without explicitly drawing a distinction between ‘internal’ and ‘external’ taxes, the wording of the Resolutions is such as to imply that distinction; the Stamp Act is mentioned as “imposing taxes” which have “a manifest tendency to subvert the rights and liberties of the colonies,” while the Sugar Act is only vaguely referred to as among “several late acts” which imposed “duties” that “will be extremely burthensome and grievous.”1

Thus at the time of the repeal of the Stamp Act in 1766, the colonies did not deny that the British Parliament possessed of right a general legislative jurisdiction over them; they maintained only that this jurisdiction did not include the right of laying taxes upon them without their consent; and that at least direct internal taxes, such as the Stamp Tax, were not only contrary to custom but were a violation of constitutional rights.

The repeal of the Stamp Act was greeted with general rejoicing and thanksgiving, and was accepted for the most part as an admission by the British government of the validity of the colonial contention. It is true, the Parliament categorically refused to admit, in principle, any such thing; on the contrary, the same day the king signed the Repeal bill he signed also the Declaratory Act, which affirmed that the king and Parliament “had, hath, and of right ought to have, full power and authority to make. . . laws and statutes. . . to bind the colonies and people of America. . . in all cases whatsoever.”1 But the colonists were not, for the moment, over sensitive to the assertion of abstract rights, being well content to have won a practical victory. They felt that the Parliament, having repealed the Stamp Act, would be unlikely to pass a new one, or any similar measure laying direct or internal taxes. And if the Parliament in practice held to their distinction between internal and external taxes, what more could they ask, this being the ground on which they had elected, somewhat uncertainly and apprehensively to be sure, to stand in defense of their rights?

It presently appeared that their rights could not be defended on this ground. In 1767 Parliament passed the Townshend Acts. Townshend himself thought the distinction between ‘internal’ and ‘external’ taxes “perfect nonsense”; but since the colonists had made a point of it he thought it wise to humor them by laying only ‘external’ taxes. Certain duties, to be collected in American ports, were accordingly laid upon the importation of various kinds of glass, lead, paper, and tea.1 The measure was avowedly a tax measure, and it was estimated that the duties might bring in some £40,000 of revenue if efficiently collected; and that these and other duties might be efficiently collected Customs Commissioners were appointed and sent to Boston. Here was an emergency which the colonists had not anticipated. The Commissioners were as great a nuisance as the Stamp Collectors, and more effective, since they did not resign as the Stamp Collectors had done, under pressure, but called in British troops to support them, and actually collected the customs duties, something relatively unknown before. Under the circumstances, the colonists were disposed to agree with Townshend that the distinction between ‘internal’ and ‘external’ taxes was “perfect nonsense.” After all, a tax was a tax; and the essence of the whole matter was that Parliament had no constitutional power to “take money out of their pockets,” as Pitt said, without their consent, by any kind of tax whatever.

A more skilful dialectic was required to maintain this ground than to maintain the old one. It was a somewhat stubborn fact that Parliament had for more than a hundred years passed laws regulating colonial trade, and for regulating trade had imposed duties, some of which had brought into the Exchequer a certain revenue. The Americans could not well say at this late date that Parliament had no right to lay duties in regulation of trade. Must they then submit to the Townshend duties? Or was it possible to make a clear distinction between duties laid for the regulation of trade and duties laid for bringing in a revenue? John Dickinson, in a series of widely read and very influential essays, entitled Letters from a Farmer in Pennsylvania to the Inhabitants of the British Colonies, attempted to make this distinction. Arguing at length in the old manner that Parliament had no right to tax the colonies without their consent, he maintained that the sole question in respect to the Townshend duties was whether they were duties laid for revenue or for regulation of trade. A difficulty arose from the fact that any duties laid on trade might be both and were likely to be both. Well, said Dickinson, we must determine this question by the ‘intention’ of the framers of the law. Did the British Parliament pass the Townshend Act primarily with the ‘intention’ of raising a revenue, or primarily with the intention of regulating trade? Clearly the former, since the intention of raising a revenue was explicitly avowed in the act itself. Hence the Townshend duties were taxes, and as such unconstitutional.

The Townshend Act presented no difficulty on this score; but Dickinson was aware that his method might be difficult to apply in case, as might well be in the future, Parliament should lay duties on trade with the real intention of raising a revenue while openly professing the intention of regulating trade. How then? “It will be difficult for any person but the makers of the laws to determine which of them are made for regulation of trade, and which for raising a revenue.” True enough! Well, in that case, since “names will not change the nature of things,” the intention of the makers must be inferred from the nature of the law; and Dickinson hoped, for his part, that his countrymen “would never, to their latest existence, want understanding sufficient to discover the intentions of those who rule over them.” To derive the nature of an act from the intention of its framers, and the intention of its framers from the nature of the act, was no doubt what logicians would call reasoning in a circle; but whatever the technical defects of the argument might be, the colonists could, and did, lay firm hold of the general conclusion that Americans have “the same right that all states have, of judging when their privileges are invaded.”

Meantime, it appeared that their privileges were being invaded in other, and perhaps even more vital, ways than by parliamentary taxation. In 1768, after the Massachusetts Assembly had sent a circular letter to the other colonial assemblies asking for concerted action in defense of their liberties, the Earl of Hillsborough, speaking in the name of the king, categorically directed the Assembly “to rescind the resolution which gave birth to the circular letter from the Speaker, and to declare their disapprobation of, and dissent to, that rash and hasty proceeding.”1 At an earlier date, Governor Colden of New York had been instructed to suspend the meetings of the Assembly of that province until it should have made provision, according to the terms of the Quartering Act, for the support of British troops stationed there.2 These were measures of ominous import. Of what value was it to safeguard the right of being taxed exclusively in their own assemblies, if the British government could by administrative order abolish their assemblies? If the British government could abolish colonial assemblies, it could destroy every vestige of colonial self-government. Clearly, therefore, the question which was now coming to include all others was the question of preserving the legislative independence of the colonies.

To meet this emergency, a theory which denied the jurisdiction of the British government in this or that particular matter, such as the taxing power, was inadequate; what was needed was a theory which would define the respective jurisdictions of the British and colonial governments in terms of some general principle. Dickinson had said that the colonies were “as much dependent on Great Britain as one free people could be on another.” This might seem to be as indefinite as anything could well be; but the assumption on which it rests was to be the foundation upon which the colonists built up their theory from this time on. That assumption was that the Americans were one ‘people,’ the English another, and each a ‘free’ people. No doubt an Englishman might have said that this was begging the question; the precise question at issue, he might have maintained, is whether the Americans are a ‘free’ people. We maintain that they are subject to the British Parliament. The Parliament has always exercised jurisdiction over them in fact; and to prove this we point you to any number of statutes duly passed and recorded and submitted to. If positive law is any test, the colonies are not a ‘free’ people, but a subject people; and any privileges which they may have are privileges granted or permitted by the British Parliament.

On this ground it was indeed difficult to meet the British contention. In order to maintain the rights of a free people, the colonists were accordingly forced to change the question; and from this time on we find them less disposed to ask, What are the rights which we possess as British subjects? and more disposed to ask, What are the rights which we possess as members of the human race? This latter question was one which Samuel Adams had been thinking about since the year 1743 when, upon receiving the degree of Master of Arts from Harvard College, he argued the thesis, “Whether it be lawful to resist the Supreme Magistrate if the Commonwealth cannot otherwise be preserved.” In the present crisis, therefore, he was able to formulate a theory (best stated in a letter to Dennys De Berdt, January 12, 1769) designed to show that the colonies were ’subordinate’ but not ’subject’ to the British Parliament.1 Adams’ theory of ’subordination’ may be taken as the first reasoned elaboration of Dickinson’s general proposition that America is “as dependent on Great Britain as one free people can be on another.”

For a major premise, Samuel Adams turned as a matter of course to the current philosophy of Natural Rights, familiar doctrine to him, and often enough expounded in newspaper articles or at the Caucus Club; and in bringing it in to solve a practical issue, he doubtless felt that he was only grounding the discussion upon commonly accepted axioms of political thinking. The delimitation of colonial and parliamentary jurisdictions, Adams achieved by subordinating all legislative authority to an authority higher than any positive law, an authority which no legislature could “overleap without destroying its own foundation.” This higher authority was the British Constitution. The British Constitution, Adams said, “is fixed,” having its foundation in “the law of God and nature.” In the British empire there are many legislatures, all deriving their authority from, and finding their limitations in, the Constitution. Parliament has certainly a supreme or superintending legislative authority in the empire, as the colonial assemblies have a ’subordinate’ in the sense of a local, legislative authority; but neither the Parliament nor any colonial assembly can rightly extend its jurisdiction beyond the limits fixed by the Constitution. And therefore, since the Constitution is founded “in the law of God and nature,” and since it is “an essential natural right that a man shall quietly enjoy and have the sole disposal of his property,” the Americans must enjoy this right equally with Englishmen, and Parliament must be bound to respect this right in the colonies as well as in England; from which it followed that the consent of the colonies must be sought exclusively in their own assemblies, it being manifestly impossible for that consent to be “constitutionally had in Parliament.”

Obviously, according to this reasoning, the authority of the British Parliament over the colonies would ultimately always have to stop where the “essential natural rights” of the colonies began. Adams had found at least one of these rights — the right which every man had of “quietly enjoying and having the sole disposal of his property.” But perhaps there were other essential natural rights. What were they? Was there any sure way of finding out? Above all, in case there should be, as might well happen, between Britons and Americans any serious difference of opinion on this point, which opinion should prevail? Admitting that the British Parliament had a supreme or supervising jurisdiction in the empire, it might well be argued that in case of conflict the ’supreme’ rather than the ’subordinate’ jurisdiction should decide. Some authority would have to determine, in concrete cases, what were and what were not essential natural rights. If this authority were the British Parliament, the essential natural rights were likely to be few indeed; while if the colonial assemblies were to have this authority, the list of essential natural rights was likely in the end to be a long one.

Few men could go more directly to the heart of a question, once he gave his mind to it, than that shrewd old friend of the Human Race, Dr. Benjamin Franklin. Since 1764 he had been giving his mind more or less continuously to this question of colonial rights, and, without making much noise about it, had advanced farther than most men along the road that led to independence. In 1765 it did not appear to him that the Stamp Act was a measure beyond the constitutional jurisdiction of the British Parliament. An inexpedient measure it was certainly, highly burdensome to the colonies, and prejudicial to the true interests of Great Britain; but the only advice Franklin could give his countrymen at that time was to submit to the law as a legally valid act, while protesting against it as in effect an unwise one.

In the meantime Franklin had been reading and reflecting upon all that had been written, pro and con, about the respective rights and prerogatives of British and colonial legislatures. Among other things, he had read and reflected upon the writings of John Dickinson and Samuel Adams. The reasoning of these men seemed to him ingenious and interesting, but not altogether free from over refinement, a quality which was likely to prove a defect in the handling of practical questions. In the year 1768 he formulated the result of his reflections on the whole matter thus:

Here at last was a clear-cut alternative — that Parliament had a power of making all laws for the colonies, or else that it had a power of making no laws for them. Which should it be? If it must be one or the other, the arguments for the latter contention would naturally seem to the colonists to be more numerous and weighty than for the former. From this time on Franklin at least assumed that the empire was composed of separate states all subject to the king, but each possessed of its own legislature outside the jurisdiction of the British Parliament. By 1770, Franklin felt that this was a position which should be taken for granted, and no longer argued.

Franklin’s conclusion was better adapted to the purposes of controversy than the methods by which he reached it. His pragmatic mind, instinctively avoiding speculative theory, sought in historical precedent the proof of colonial rights: the Parliamentary legislation for the colonies since 1660 might be regarded as ‘usurpation,’ because the ‘original charters, and the whole conduct of the Crown and nation’ demonstrated that the colonies were in origin intended to be independent of Parliamentary jurisdiction, and were so in fact until the Restoration. For practical purposes, this was perhaps an unstable foundation upon which to rest the whole weight of the colonial contention. The Restoration was after all a long time ago; and the contention that early precedent established the legislative independence of the colonies might be met by the contention that late precedent abolished it. Franklin’s conclusion was admirably clean cut, one that the average man could easily grasp; but the argument on which it was founded depended upon nice points in law and history which gave the conclusion at best something less than the force of a self-evident truth. If Franklin’s conclusion could be derived from the nature of the universe as well as from the practices of the British empire, it would leave little to be desired as a ground on which to stand in defense of colonial rights.

This fusion of historic and natural rights, which is so perfectly achieved in the Declaration of Independence, was gradually and hesitatingly effected during the years following 1769. James Wilson’s pamphlet, Considerations on the Nature and Extent of the Legislative Authority of the British Parliament,1 is perhaps the best example of how the force of circumstances and the exigencies of argument were preparing the minds of the colonists for the general theory which Jefferson was later able to take for granted as the common sense of the matter. Wilson’s pamphlet was not published until 1774, but it was written earlier — probably in the year 1770. “The following sheets,” the author says, “were written during the late non-importation agreement; but the agreement being dissolved [1770] before they were ready for the press, it was then judged unseasonable to publish them.” Wilson, like Franklin, found his ideas of colonial rights expanding with the progress of the controversy; and the process of expounding those rights led him to conclusions which he had not anticipated.

Wilson’s conclusion is thus the same as Franklin’s — that Parliament has no legislative jurisdiction over the colonies; but his argument in support of that conclusion has a wider sweep, the jurisdiction of Parliament being made to depend not merely upon what is “consistent with law,” but equally, and indeed fundamentally, upon what is consistent with “the principles of liberty, and with the happiness of the colonies.” Those who maintain that the Parliament has power to bind the colonies in all cases, says Wilson, are likely to rest their contention upon the statement of Blackstone, “That there is and must be in every state a supreme, irresistible, absolute, uncontrolled authority, in which the jus summi imperii, or the rights of sovereignty, reside”; and they argue, with Blackstone, that in the British Constitution this supreme authority is vested in the king, lords, and commons. This principle, particularly since it was affirmed by Blackstone, no lawyer (and Wilson was a lawyer) could deny. Wilson does not deny it; but he maintains that the importance of the principle “is derived from its tendency to promote the ultimate end of all government”; and accordingly, “if the application of it would, in any instance, destroy, instead of promoting, that end, it ought, in that instance, to be rejected; for to admit it, would be to sacrifice the end to the means, which are valuable only so far as they advance it.”

Thus expeditiously does Wilson shift the issue from the positive conception of British sovereignty to the “ultimate end of all government.” What then is the ultimate end of all government?

This reminds us of the Declaration of Independence, and sounds as if Wilson were making a summary of Locke. No doubt he was; but it is significant that he keeps as close to his positive law moorings as possible. It is evidently Wilson’s aim, or at least it is the effect of his work, so inextricably to unite the positive law applicable to British subjects with the natural law applicable to all men that any apparent conflict between them must necessarily be rejected. If, therefore, any one is disposed to say that Mr. Wilson’s assertions about the law of nature are not to be taken seriously as against the eminent Blackstone’s affirmation that a “supreme, irresistible, absolute, uncontrolled” authority is vested in the king, lords, and commons, Mr. Wilson immediately stops his mouth by another quotation from the eminent Blackstone: “the law of nature is superior in obligation to any other.” Do you quote your Blackstone in support of the sovereignty of the British Parliament? Well, I accept him, as who does not; but I in turn quote him in support of the superior sovereignty of the law of nature. The inferior sovereignty is obviously limited by the superior; and accordingly the British Parliament must be limited by the law of nature, which affirms that the “happiness of the society is the first law of every government.”

What has to be asked, therefore, in any discussion of colonial rights, is this:

Thus the power of sovereignty, being limited by the superior law of nature, which affirms that the happiness of the governed is the ultimate end of all government, must be subject to control by the governed in order that that ultimate end may be attained. How then is this control exercised in the British Constitution?

From this point on Mr. Wilson has only to tread the familiar path of history and positive law. Once more we follow through the old argument that Englishmen are virtually and actually represented in Parliament, while Americans are not represented there in any sense. The Parliament accordingly exercises its ’supreme, irresistible, absolute, uncontrolled’ sovereign power over Englishmen with their consent; and is therefore supreme, absolute, uncontrolled only in the immediate action, only so to speak in determining the present direction of its power, being controlled ultimately by the British electorate which may, at a subsequent election, give another direction to the irresistible power of Parliament by requiring it to annul its former action. The Americans have not this power of ultimate control; and if the Parliament had a legislative power over them its sovereignty would not only be absolute in respect to the immediate action, but in respect to any future action; which is only to say that its power over them would be arbitrary and despotic, something contrary to the spirit of British history and the genius of the British Constitution. In further support of this familiar argument, Wilson digs up numerous cases out of “the books of the law,” going back to the time of Richard III, to that famous Calvin’s case (properly cited, as became a lawyer — 4. Mod. 225. 7. Rep. 22.) in which the highest British court had decided that the Irish were not bound by British statutes “because they do not send knights to Parliament.” In the reigns of William and Mary similar decisions had been made in respect to Jamaica and Virginia.

Thus Mr. Wilson proved that natural law, the British Constitution, and the decisions of British courts with one voice proclaimed the colonies outside the jurisdiction of Parliament; from which it followed that the colonies must be subject only to the jurisdiction of their own legislatures. If it should be objected that this was to renounce “all dependence on Great Britain,” his reply was no, the colonies are dependent on Great Britain in the sense that they owe “obedience and loyalty. . . to the kings of Great Britain.” The connection between the inhabitants of Great Britain and those of America is the connection of fellow subjects:

Mr. Wilson’s theory of the relations of the colonies to Great Britain was essentially the same as that which we find in the Declaration of Independence. Meanwhile, during the years from 1770 to 1774, the manuscript in which these views were expressed lay unread in its author’s desk. Wilson may have supposed, as many men did, that the controversy with Great Britain was at last happily in the way of being composed. But in the year 1773, when the British Parliament conferred upon the East India Company privileges which gave to that British corporation a virtual monopoly of the American tea trade, the old dispute flared up in a more embittered form. December 16, 1773, the cargo of tea which the East India Company sent to Boston was dumped into the harbor by the Boston patriots. To this act of violence, Parliament replied by passing with overwhelming majorities the Coercive Acts:1 remodelling the Massachusetts Charter; authorizing the transfer to English courts of cases involving either a breach of the peace or the conduct of officials in the performance of their duties; providing for the quartering of British troops upon the inhabitants; and closing the port of Boston until that town should have made reparation for the destroyed tea. To give these measures effect, General Gage, the commander of the military forces in America, was made governor of Massachusetts. “The die is now cast,” the king wrote to Lord North; “the colonies must either submit or triumph.”

The colonies were not disposed to submit; but they realized that a crisis had arrived, and in order to meet it effectively a congress of deputies from all the colonies was called to meet in Philadelphia. When the Congress assembled, September 5, 1774, every one thought that something ought to be done, and that that something, whatever it might be, ought to be supported by every colony, and by every man who wished to be thought an American patriot. But as to what that something was that ought to be done, there was naturally a great diversity of opinion. The general feeling was that if the colonies could convince the British people that they were in dead earnest about their rights, and without wishing for independence were thoroughly united in the determination to defend them, the British government would back down in this case as it had done before. Congress was not an association of scholars assembled to conduct a scientific investigation into the legal and historical basis of the British Constitution, but a political body endeavoring to bring about a certain practical result. This primary practical aim was to unite the colonies on measures which would be most likely to induce the British government to make concessions. Inevitably, therefore, the resulting action of Congress, both as to what it did and as to what it said, was a compromise. Its Declaration of Rights was necessarily such a compromise. The Congress, in framing its declaration, was in the nature of the case less concerned with the logical coherence and validity of the statement which it made, than with making such a statement as would be acceptable to the greatest number of Americans, and at the same time best adapted to win concessions from Great Britain.

If, therefore, the first Continental Congress did not adopt the theory of British-American relations which we find in the Declaration of Independence, it was not because the theory was a novel one. In 1774 it was familiar doctrine to all men; and the most radical were quite ready to take their stand upon it at that time. Before departing for the Virginia Convention Jefferson prepared, as he says, “what I thought might be given, as instruction, to the Delegates who should be appointed to attend the general congress.” This paper, afterwards printed as A Summary View of the Rights of British America,1 does not formulate or argue the theory that the colonies are bound to Great Britain only through the king; it takes it for granted; the theory is implicit in the statement, as it is in the Declaration of Independence. Jefferson would address the remonstrance to the king, who should be “reminded”

Unhappily the British Parliament, from an early date, usurped a power of legislating for the colonies; among other things, restricting “the exercise of a free trade with all parts of the world, possessed by the American colonists, as of natural right”; and these unjust encroachments, once established, were followed by others, which in late years had so multiplied as no longer to be tolerable. Having thus by implication set forth the theory of the constitution of the empire, Jefferson goes on to specify the several acts of the British Parliament which are obviously, from the point of view of this theory, unconstitutional.

Jefferson, falling ill on the way to the Convention, forwarded two copies of his paper, one of which was laid before the assembly by Peyton Randolph. But “tamer sentiments were preferred,” Jefferson says, “and, I believe, wisely preferred; the leap I proposed being too long, as yet, for the mass of our citizens.” Of the reception of Jefferson’s paper in the Virginia Convention, Edmund Randolph says, in his MSS History of Virginia:

If the first Continental Congress did not, in respect to the theory of American rights, occupy the lofty ground of Mr. Jefferson, neither did it take the lower ground of Mr. Dickinson; it seems, on the contrary, to have stood midway between these two positions, inviting every man to take which of them he found most comfortable. What the difficulties were that led Congress to take this stand we learn in part from that invaluable Diary of John Adams, who was a member of the committee appointed to prepare the Declaration of Rights. In some brief notes of the debates in the committee1 Adams gives us an illuminating glimpse of the conflicting opinions that had to be reconciled; and in his Autobiography, written in 1805, we find the following statement of the way in which that conflict worked itself out to a practical conclusion.

In the light of this illuminating passage (quite possibly inaccurate in some details, having been written in 1805), we can understand the Declaration of Rights adopted by the first Congress. We can understand why the resolutions avoided theory as much as possible; why they ‘declared’ more than they argued or expounded, confining themselves in the main to stating the specific rights which the colonies claimed; why in certain cases this statement is ambiguous, being couched in phrases that could be taken to mean more or less, according to the disposition of the reader. The Declaration states, to begin with,

Every reader could take his choice, according to disposition laying most stress on the natural law, or on the principles of the British Constitution as he understood those principles, or else on the colonial charters, documents which he might indeed prefer to call compacts. Having laid this broad foundation for the rights of the colonies, the Declaration goes on to declare what these rights specifically are.

Thus far resolution number four; very carefully stated, with all possible qualification; probably satisfactory as it stands to Mr. Dickinson and many men; but not satisfactory to Mr. Adams and many others, who do not wish to admit the legislative authority of the British Parliament in all cases of external polity, or to give to it an unlimited power of regulating colonial trade. What shall be done about this knotty point? The rest of resolution four must be the phrasing by which Mr. Adams was at last able to satisfy every one in part by satisfying no one fully; a phrasing which admits the authority of Parliament as of fact, which does not expressly deny it as of right, but which by implication leaves it to be supposed that the exercise of that authority both as of fact and of right is dependent upon the consent of the colonies, which at present they give but may in future withdraw.

Rough sledding this; but once over the difficult ground, all is smooth enough going the rest of the way.

Both the objects and the methods of the first Congress were those also of the second Congress until the year 1776. In the spring and summer of 1775, even after the Battle of Lexington had precipitated a state of war, the belief still persisted that Great Britain would in the end back down if the colonies only remained united and made it clear that even now they desired reconciliation and not independence. It was still necessary therefore to satisfy the timid as well as the aggressive. The timid wished to rely primarily upon petition and remonstrance and the non-intercourse measures. One day Mr. Dickinson, following John Adams out of the Congress hall, said to him in great heat: “What is the reason, Mr. Adams, that you New England men oppose our measures of reconciliation? There now is Sullivan, in a long harangue, following you in a determined opposition to our petition to the king. Look ye! If you don’t concur with us in our pacific system, I and a number of us will break off from you in New England, and we will carry on the opposition by ourselves in our own way.” Mr. Adams was at that moment “in a very happy temper,” which was not always the case, and so, he says, he was able to reply very coolly. “Mr. Dickinson, there are many things which I can very cheerfully sacrifice to harmony, and even to unanimity; but I am not to be threatened into an express adoption or approbation of measures which my judgment reprobates. Congress must judge, and if they pronounce against me, I must submit, as, if they determine against you, you ought to acquiesce.”1

Congress did decide. It decided to adopt Mr. Dickinson’s petition; and to this measure Mr. Adams submitted, not without confiding to James Warren his opinion that “a certain great Fortune and piddling Genius. . . has given a silly Cast to our whole Doings.”2 But the Congress also decided to raise a continental army for carrying on armed resistance; appointed George Washington, Esq. Commander in Chief of that army; and in justification of these measures published a Declaration of the Causes and Necessity of Taking up Arms.

This Declaration, taking no account of Mr. Dickinson’s opposition to Mr. Adams’ measures or of Mr. Adams’ opposition to Mr. Dickinson’s measures, affirmed that “our union is perfect.” It also proclaimed the object of this perfect union.

The hope of reconciliation died slowly. Even after the king refused to receive the Petition, even after the British Government issued the Prohibitory Act, December 22, 1775, which declared the colonies out of its protection and proclaimed a blockade of all their ports, many men still clung to this hope. They clung to it in desperation, partly because they had so often and so explicitly declared that separation was no part of their purpose and utterly abhorrent to their desire. But besides all this, most Americans did in fact look forward with apprehension to a permanent disruption of the British empire. They had long been proud of the British empire, of its achievements, of its name and fame in the world; it was their empire too; they bore the name and shared the fame. What Americans clung to with desperation, and relinquished with regret, was that traditional but now vanishing conception of themselves as a people sharing the rich inheritance of English history and freely contributing to its enlargement and perpetuation. To surrender this conception was to renounce the prepossessions that had given consistence to all their thought, to suppress the emotions that had sustained and fortified their lives.

Not desire, but practical difficulties, forced them to adopt separation from Great Britain as the object of their efforts. In the winter of 1776 the trend of opinion was towards independence as the only alternative to submission. The first Congress had adopted the non-intercourse measure in order to force Great Britain to make concessions; the second Congress had taken up arms in order to force Great Britain to make concessions. If Great Britain made concessions speedily, all would be well; but if she insisted on making war the colonies would have to abandon either the war measure or the non-intercourse measure. As Mr. Zubly kept repeating in Congress, the colonies must speedily obtain one of two things — “A reconciliation with Great Britain or the means of carrying on the war.”1 They could not carry on war with one hand, while destroying the trade and prosperity of the colonies with the other. “We are between hawk and buzzard,” said Livingston; “we puzzle ourselves between the warlike and the commercial opposition.”1 To carry on war they must revive trade; to revive trade they must obtain protection for it; to obtain this protection they must have a “treaty with a foreign power.” But “in what character shall we treat?” asked Mr. Wythe. “As subjects of Great Britain — as rebels? If we should offer our trade to the Court of France, would they take notice of it any more than if Bristol or Liverpool should offer theirs, while we profess to be subjects? No. We must declare ourselves a free people.”2 Without the aid of France the colonies could not long wage war against Great Britain; and to obtain the aid of France they had to make it plain to her that they were fighting for independence and not reconciliation. From April 6, 1776, when the Congress opened the colonial ports to the trade of the world, the Declaration of Independence was therefore a foregone conclusion. “As to declarations of independency,” wrote John Adams, “read our privateering laws and our commercial laws. What signifies a word?”

From this moment the old policy of compromise was rapidly abandoned. Those who on this ground would not support the patriot cause had to be ignored or suppressed; and now that independence was the object, it was not only possible but necessary, in formulating the rights of the colonies, to adopt a theory of British-colonial relations in the light of which the act of separation could be regarded as a step that the colonies had always had a moral and legal right to take. Such a theory could only be found in a close union of the natural rights philosophy of government with a conception of the empire as a confederation of free peoples submitting themselves to the same king by an original compact voluntarily entered into, and terminable, in the case of any member, at the will of the people concerned. Such is the theory which, suggested by Franklin as early as 1768, elaborated by Wilson in 1770, and taken for granted by Jefferson in 1774, determines the form and character of the Declaration of Independence and gives to it a high degree of organic unity.

In the Declaration the natural rights philosophy, although clearly formulated, is not argued but is taken for granted; the theory of British-colonial relations is not even formulated, but lies as it were embedded in the statement of grievances against the king, a kind of concealed framework upon which Jefferson built up his finished structure of concrete oppressions. Expressly stated, the theory that is implicit in the Declaration might be put somewhat as follows:

Thus step by step, from 1764 to 1776, the colonists modified their theory to suit their needs. They were not altogether unaware of the fact. “Shall we,” cries a Virginian in despair, “Proteus-like perpetually change our ground, assume every moment some new strange shape, to defend, to evade?” This was precisely what could not be avoided; for the underlying purpose which conditioned their action was always the determination to be free. They felt that they had been free in fact, and that they ought therefore to be free in law. “British subjects,” said Franklin in 1755, “by removing to America, cultivating a wilderness, extending the domain, and increasing the wealth, commerce, and power of the mother country, at the hazard of their lives and fortunes, ought not, and in fact do not thereby lose their native rights.” Profoundly convinced that they deserved to be free, Americans were primarily concerned with the moral or rational basis of their claims. “To what purpose is it to ring everlasting changes. . . on the cases of Manchester. . . and Sheffield?” exclaims James Otis. “If these now so considerable places are not represented, they ought to be.” This “ought to be” is the fundamental premise of the whole colonial argument. But the “ought to be” is not ultimately to be found in positive law and custom, but only in something outside of, beyond, above the positive law and custom. Whenever men become sufficiently dissatisfied with what is, with the existing regime of positive law and custom, they will be found reaching out beyond it for the rational basis of what they conceive ought to be. This is what the Americans did in their controversy with Great Britain; and this rational basis they found in that underlying preconception which shaped the thought of their age — the idea of natural law and natural rights.

[1 ] Bancroft, G., History of the United States (ed. 1852), V, 206-209.

[1 ]The Objections to the Taxation of Our American Colonies, Briefly Considered. London, 1765. Works of Soame Jenyns, II, 189.

[1 ] Macdonald, W., Documentary Source Book of American History, 137. Almon, Prior Documents, 27, 28.

[1 ] Macdonald, op. cit., 140. Pickering’s Statutes at Large, XXVII, 19.

[1 ] Macdonald, op. cit., 143. Pickering’s Statutes, XXVII, 505.

[1 ] Macdonald, op. cit., 147. Massachusetts State Papers, 134. Almon, Prior Documents, 220.

[2 ] Macdonald, op. cit., 141. Pickering’s Statutes, XXVII, 609.

[1 ]Writings of Samuel Adams (ed. 1904), I, 134.

[1 ]Writings of Benjamin Franklin (Smyth ed.), V, 115.

[1 ]Ibid., 260.

[1 ]Works of James Wilson (ed. 1804), III, 99 ff.

[1 ] Pickering’s Statutes, XXX, 336, 367, 381.

[1 ]Writings of Thomas Jefferson (Ford ed.), I, 421 ff.

[1 ]Works of John Adams, II, 370.

[1 ]Ibid., 373, 374.

[1 ] Macdonald, op. cit., 162. Journals of Congress (Ford ed.), I, 63.

[1 ]Works of John Adams, II, 410.

[2 ]Warren-Adams Letters, I, 88.

[1 ] Macdonald, op. cit., 177. Preliminary drafts of the Declaration on Taking up Arms by Jefferson and Dickinson, as well as the final draft, are in Journals of Congress (Ford ed.), II, 128, 140.

[1 ]Works of John Adams, II, 469.

[1 ]Ibid., 461.

[2 ]Ibid., 486.