Friday, January 19, 2018

Declaration of the Causes and Necessity of Taking up Arms, Part VIII: More British than British

            As if the last several entries in this present series weren’t fodder enough for confusion – with their mazy meditations upon national identity, mythmaking, and the nature of the colonial founding – the essay that follows will attempt to argue, in apparent contradiction to what preceded it, that the text of Jefferson and Dickinson’s 1775 Declaration in fact made clear that the crux of local opposition to British tax and trade policy in late 18th century British America was fundamentally British in character. That is to say, while there is indeed an argument to be made that the document in question represents an early official assertion of a distinctly American political and cultural identity, certain declarations made therein also conversely point to the British origins and British inspirations behind much of the Patriot struggle for what that faction perceived to be justice at the hands of Parliament and the Crown. Granting the possibility that this author may not actually know what it is he’s talking about and has stumbled into a contradiction without knowing how it might be reconciled, let it be offered here that reconciliation is perhaps not entirely necessary.

The American Revolution – as this series has long-since attempted to explain – represents a frightfully complex and tangled topic of study.  In it are bound up strains of law, history, culture, religion, philosophy, and politics. It has no definitive beginning or end, no single cause or origin. Attempting to understand it, therefore, in anything like a comprehensive manner can be both intensely difficult and intensely rewarding. Consider, for example, the nature of the disagreement – rooted in certain specific pieces of contemporary British legislation – which culminated in a state of war between Great Britain and the united colonies. Was it a matter of law or philosophy – i.e. were the actions of Parliament justified by statute or by the dictates or reason – or was the question at hand one of simple morality? The answer, of course, depends on how one intends to understand the Revolution, and what literature a person resorts to, and in what context the inquiry is made. Just so, attempting to determine whether the justifications offered by the Continental Congress in its Declaration of the Causes and Necessity of Taking up Arms represented an assertion of a distinct American identity or an adherence to fundamentally British custom and British law may well lead to more than one answer. Having gone to some lengths to assert the viability of the former – that Jefferson and Dickinson seemed particularly concerned with communicating the uniqueness of the American position – and desiring as always to develop a nuanced and well-rounded understanding of the American Founding, it therefore now seems prudent to give some thought to the latter.

As discussed in weeks past, the text of Jefferson and Dickinson’s 1775 Declaration leaves little doubt that some portion of the contemporary population of the united colonies continued to identify with and feel affection for certain personalities within the British socio-political elite. Furthermore, said document also makes clear that the primary institutions of the British state – the House of Common, the House of Lords, the Crown, etc. – continued to enjoy the respect and admiration of the reigning monarch’s American subjects. William Pitt, for example, the Great Commoner himself, was cited by Jefferson and Dickinson as a prominent supporter of America whose praise and commemoration of the inhabitants of that land during the late war with France was warmly and freely returned. Just so, George III, his grandfather and predecessor George II, and Parliament were all referred to with unfailing respect and courtesy, and certain specific British municipalities were made mention of in an attitude of undisguised esteem and appreciation. The Continental Congress, in short, seemed to believe that the people it represented still had quite a number of reasons to feel enthusiastic in June, 1775 about their continued membership in the British Empire, and were accordingly willing to extend a degree of deference and devotion to the institutions and personalities in which they located that passion. Certainly there were factions, interests, or individuals operating within the framework of the British state that had abused their responsibilities and damaged the Anglo-American relationship in the process. But the text of Jefferson and Dickinson’s 1775 Declaration most emphatically did not find cause for a separation between Britain and America in any supposed flaw or shortcoming of British customs or institutions.

What that document does seem to assert, however, is that the devotion nurtured by the people of the united colonies for the rights and liberties they enjoyed as British subjects was so pure, so true, and so wholly unshakable that the continued failure by the government of Lord North – Earl of Guilford and Prime Minister from 1770-1782 – to recognize and respect the same may indeed have been just cause for a breach in relations. What this amounted to, in essence, is that at least one of the arguments presented by the Continental Congress in June of 1775 for taking up arms against Great Britain was an accusation that British authorities had forgotten what it meant to be British. The people of America, it seemed, had not, and were willing to shed blood and die to prove it. This assertion was born out in the text of Jefferson and Dickinson’s 1775 Declaration, and further corroborated by actions being undertaken at that same point in time by certain rebellious citizens of British America. These various elements all serve to attest that, while the inhabitants of the united colonies loved Britain very deeply and located in its history and its culture a source of pride and inspiration, they believed more even more fervently in what they believed Britain was supposed to stand for.

Consider, by way of explanation, the accusation leveled by Jefferson and Dickinson in the first paragraph of their 1775 Declaration. Whereas, it read, “Government was instituted to promote the welfare of all mankind” – a notion that is itself very much in keeping with the philosophy of English political theorist John Locke (1632-1704) –

The legislature of Great Britain […] stimulated by an inordinate passion for power, not only unjustifiable, but which they know to be peculiarly reprobated by the very Constitution of that Kingdom, and desperate of success in any mode of contest where regard should be had to truth, law, or right, have at length, deserting those, attempted to effect their cruel and impolitick purpose of enslaving these Colonies by violence [.]

Accusing the British legislature of having violated the British Constitution – regarded then and since by countless citizens of that nation as the embodiment of “truth, law, and right” – was a bold and damning tactic, particularly when offered so early in the body of a document whose ostensible purpose was to facilitate reconciliation. Worse yet – or quite possibly better, depending on one’s perspective – was the exact manner in which the accusation was offered. It wasn’t that Jefferson and Dickinson believed Parliament had unthinkingly or unknowingly flouted the Constitution in pursuit of some ultimately noble objective. Rather, they avowed, in pursuit of the total subordination of British America, the members of that noble institution allowed themselves to be, “stimulated by an inordinate passion for power […] which they know [emphasis added] to be peculiarly reprobated by the very Constitution of that Kingdom [.]” It was this image of knowing, willful disregard for the foundational principles of British law and citizenship with which the Continental Congress most emphatically pointed the finger of accusation at the contemporary government of Lord North.

            Less explicit, though still quite damning, were certain of the observations later offered by Jefferson and Dickinson in paragraphs three, four, and five of their 1775 Declaration. Of the first of these it will suffice to say that an enumeration was made of the various ways in which the provisions of the Intolerable Acts (1774) violated the rights and privileges customarily possessed by the people of British America. These included, notably, the levying of taxes without the consent of the taxed, the abrogation of the right of trial by jury, and the maintenance of a standing army during a time of peace. The second cited paragraph added to this list a further statute – the earlier Declaratory Act (1766) – by which Parliament claimed the authority to, “Make laws and statutes of sufficient force and validity to bind the colonies and people of America [...] in all cases whatsoever [,]” and offered in turn the response that any reasonable person was bound to arrive at. “What is to defend us,” Jefferson and Dickinson inquired, “against so enormous, so unlimited a power?” The fifth paragraph capped this three-part takedown by echoing the cited accusation leveled at Parliament as to that body’s commission of a crime against the essence of British liberty. “Administration,” it read, referring to the governments responsible for enforcing the various offending legislation, “Sensible that we should regard these oppressive measures as freemen ought to, sent over fleets and armies to enforce them.” Note here both the observation that the relevant ministries were aware that the inhabitants of British America would react in a manner requiring particularly thorough enforcement and the use of the term “freemen” as a kind of ideal to which Jefferson and Dickinson seemed keen their countrymen should aspire.

            The implication of the first element of this passage is plain enough, though far from insubstantial. If, after all, the offending governments – specifically, those of the Marquess of Rockingham, the Earl of Grafton, and Lord North – were indeed “sensible that [the colonists] should regard these oppressive measures” in such a way as to necessitate military assistance in their enforcement, the most likely reason would seem to be that they understood that what they were doing was likely to be interpreted in the colonies as illegal, illegitimate, or morally questionable. While the particular phrasing of this accusation would seem to leave open the possibility that the named ministries were acting in what they believed to be good faith – that they understood their policies would not be well-received in America while at the same time believing sincerely that they were just, legal, and valid – the threat of military force attached to their efforts at implementation begs a question which the delegates to the Continental Congress doubtless believed was crucial to the nature of their protest against Britain’s administration of the Thirteen Colonies. Regardless of the validity of the policy itself or the ultimately honorable intentions of its sponsors, does not the use of military force in seeing it carried out constitute a grave violation in itself? Judging from the tenor, tone, and content of their 1775 Declaration, Jefferson and Dickinson’s answer was very much in the affirmative. The offending ministries had known full well what the response to their actions would be, they asserted – just as they knew that the actions themselves were “reprobated by the very Constitution” of Great Britain – furthermore knew that military force would be necessary to see them carried out, and chose to proceed regardless of the many and various injuries they were preparing to visit upon their American brethren.  

            As to Jefferson and Dickinson’s choice of the word “freemen,” the significance is somewhat more esoteric. Within the dense legal hierarchy of feudal English/British society, freemen was a generic term intended to refer to any male individual who was not bound in servitude to a particular title or holding. While this naturally excluded slaves, peasants, or any type of tenant farmer or liege servant, it necessarily included such diverse social classes as yeomen (independent small-scale farmers), gentlemen (non-aristocratic landlords), knights and baronets (low-level nobility), and peers (possessors of hereditary title). While the resulting socio-legal body is accordingly somewhat vague and mutable, the vital significance of the possession of freeman status – a circumstance which persisted throughout the Medieval and Early Modern periods – was its attachment to a set of specific rights and liberties. Unlike the aforementioned peasant, border, slave, or tenant, a freeman enjoyed legal standing in a court of law. They could own property and pass it on to a designated inheritor, make suit against a person, or persons, or institution by which the felt they had been wronged, and enjoyed the benefit of a handful of basic procedural guarantees.

By the terms of the Magna Carta, for instance – a charter pressed upon John of England (1166-1216) by rebellious barons in 1215, ratified by Parliament in 1297, and consulted for centuries thereafter as an essential cornerstone of English jurisprudence – the monarch made known that it was, “Granted also, and given to all the Freemen of our Realm, for Us and our Heirs for ever, these Liberties under-written, to have and to hold to them and their Heirs, of Us and our Heirs for ever.” Among these liberties was included the seminal guarantee that,

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

This promise, rooted in a desire by fitful magnates to erode the authority of the monarch, has since given rise to such essential legal rights as trial by jury and due process. Indeed, the very notion of the freeman – i.e. one whose default position is that of legal un-encumbrance – as a protected class in time became the core object of an entire regime of guarantees and assurances within the British legal tradition intended to limit the exercise of arbitrary executive power at the behest of the commoner and the institutions intended to serve their interests.

            Jefferson and Dickinson’s invocation of the word freemen while decrying the behavior of successive British government thus possessed a quality of cultural potency that would have been difficult to ignore. To behave “as freemen ought to do,” centuries of conflict between the Crown, the peerage, and Parliament had shown, was to maintain both a cognizance of one’s rights under the law and a willingness to defend said rights to whatever ends were necessary to see them respected. A number of monarchs, from the aforementioned John, to the beheaded Charles I (1600-1649), to the dethroned and exiled James II (1633-1701) had ran afoul of this conviction among their subjects, and by 1775 there was surely little doubt among the British people – a great many more of whom were freemen then than had been the case in 1215 – that the freedoms they enjoyed were among the most substantial and the most secure in the world. Having imbibed these same lessons, the contemporary inhabitants of British America most certainly shared this sense of socio-cultural pride. As a free people – discounting, as was so often the case, the slave population – Americans therefore fully expected that the same guarantees which collectively formed the foundation of British society and law – the so-called British Constitution – applied to them in the same manner and to the same degree as to any resident of Surrey, Aberdeen, or Swansea. That the actions of successive governments had called this into question – that the people of British America had been persistently treated as though they were not freemen – was therefore understandably cause for alarm and consternation.

            Eager to address this evident contradiction in the behavior of successive British ministries, Jefferson and Dickinson sought validation by calling attention in their 1775 Declaration to certain of the protections to which the freeman was entitled under the aforementioned Constitution. Recall, to that end, the aforementioned transgressions enumerated in the third paragraph therein. Among other abuses committed against the inhabitants of British America, Jefferson and Dickinson made sure to cite taxation without consent, disregard for the practice of trial by jury, and the maintenance of a standing army in time of peace. Surely it was no coincidence that specific protections against precisely these violations formed a central part of both the aforementioned Magna Carta and the Bill of Rights (1689). The latter document – an act of Parliament ratified upon the ascension of join-monarchs William III (1650-1702) and Mary II (1662-1694) in the aftermath of the Glorious Revolution and the overthrow of the aforementioned James II – enshrined into law a number of fundamental guarantees of both the liberty of the individual and the sovereignty of the British legislature. While the Magna Carta declared that the reigning monarch would not attempt to condemn any freeman “but by lawful judgment of his Peers [,]” the Bill of Rights asserted that,

Levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal [and that] the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law [.]

By drawing attention to the manner in which successive governments had appeared to violate these fundamental principles of British law, Jefferson and Dickinson doubtless aimed to expose the actions of their opponents as illegitimate, void, and of no effect.

            Granted, the premise embodied by this tactic – the exposure of ministerial hypocrisy – was perhaps not quite so cut and dried as the above citations might indicate. Parliament was not about to be so easily cowed into submission by a pair of farmer-philosophers from the ragged fringe of the British Empire, and with adequate reason enough in the letter of the law if not in its spirit. Consider, once more, the exact phrasing of the relevant passages of the Bill of Rights. “Levying money for or to the use of the Crown,” the first stated, “Without grant of Parliament […] is illegal.” “The raising or keeping a standing army within the kingdom in time of peace,” the second affirmed, “Unless it be with consent of Parliament, is against law [.]” The Stamp Act (1765), which levied taxes upon a host of paper goods purchased in British America, and the Quartering Act (1774), which mandated that British troops stationed in America were to be housed, if necessary, in privately-owned buildings and at the expense of the colonial legislatures, had in fact both been ratified via the grant/consent of Parliament. Bearing this fact in mind, the relevant ministries would indeed seem to have possessed a mandate to accomplish precisely that which the Continental Congress labeled as abuses, crimes, or offences against the rights and liberties of British America.

            As Jefferson and Dickinson rather subtly indicated in their 1775 Declaration, however, this type of literal justification flew somewhat wide of the mark. After all, the purpose of the British Constitution – and of the individual statutes and charters of which it was comprised – was not to permit a legislature elected to represent one group of British subjects to enjoy legal sanction while violating the rights of a second group. The Bill of Rights, for instance, did not prohibit the raising taxes without the consent of Parliament so that Parliament could in turn raise taxes upon those who possessed no voice in its proceedings. Laying aside the necessary details upon which all statutes depend for their meaning and effect, the spirit of this specific provision was to ensure that no British subject was made to suffer the burden of taxation without some opportunity to determine the particulars thereof. As a protection against the vast and arbitrary power of the Crown to raise revenues via the customary royal prerogatives – most notoriously employed by Charles I – the Bill of Rights served adequately and well, though it did not constitute a principle in and of itself. Rather, it was represented a given means by which a desired principle could be served. In consequence, while it may indeed have accorded with the specific text of the Bill of Rights for Parliament to have consented to the taxation of British America, it most certainly did not align with the spirit in which that document had originally been conceived.

Jefferson and Dickinson seemed to address this notion in their 1775 Declaration by asking the question cited above in response to the blunt display of arbitrary authority embodied by the Declaratory Act (1766). “What is to defend us against so enormous, so unlimited a power?” they inquired, simply and yet powerfully. The answer, implicit if unspoken, was the British Constitution. Its provisions may not have applied so neatly or explicitly to the inhabitants of British America as they did to those of Britain proper, but the spirit of the thing – the basic principles which the Magna Carta, the Bill of Rights, the Statement of Right (1628), and the Habeas Corpus Act (1679) were intended to uphold – surely pertained to the Crown’s subjects in America as well as they did to their counterparts in Amersham. Naturally, Parliament could not be expected to adequately represent communities living some three thousand miles distant on the other side of a vast and turbulent ocean, but this surely need not have disqualified Americans from enjoying the same basic constitutional protections as their British cousins. To that end, as the various colonial legislatures stood in for Parliament for the purpose of administrative efficiency, did they not also take up Parliament’s role as the guarantor and repository of the sovereignty of their constituents? In short, did they not serve to ensure that the provisions of the British Constitution were upheld regardless of their distance from the seat of British authority? The answer, as numerous American pamphleteers, the Stamp Act Congress, and the Continental Congress had argued, was a most emphatic yes. 

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