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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