II INDEPENDENCE DECLARED The archbishop of Canterbury (Laud) kept a jealous eye over New-England. One Burdett of Piscataqua was his correspondent. A copy of a letter to the archbishop wrote by Burdett was found in his study and to this effect, viz. “That he delayed going to England that he might fully inform himself of the state of the place as to allegiance, for it was not new discipline which was aimed at but sovereignty, and that it was accounted perjury and treason in their general court to speak of appeals to the King." (Thomas Hutchinson, The History of the Colony of Massachusets-Bay, Vol. I, 1764, p. 86.) There were no reason that one man should take upon him to be lord or judge over another; because, although there be according to the opinion of some very great and judicious men a kind of natural right in the noble, wise, and virtuous, to govern them which are of servile disposition; nevertheless for manifestation of this their right, and men's more peaceable contentment on both sides, the assent of them who are to be governed seemeth necessary. (Richard Hooker, Of the Laws of Ecclesiastical Polity, 1594, Church edition, 1868, Book I, Section 10, p. 54.) For there are no Examples so frequent in History, both sacred and prophane, as those of Men withdrawing themselves, and their Obedience, from the Jurisdiction they were born under, and the Family or Community they were bred up in, and setting up new Govern ments in other Places; from whence sprang all that number of petty Commonwealths in the Beginning of Ages, and which always multiplied, as long as there was room enough, till the stronger, or more fortunate, swallowed the weaker; and those great ones again breaking to Pieces, dissolved into lesser Dominions. (John Locke, Two Treatises of Gov ernment, 1690, Book II, Ch. VIII, section 115, Works, Edition of 1714, Vol. II.) Thus, though looking back as far as Records give us any account of peopling the World, and the History of Nations, we commonly find the Government to be in one Hand; yet it destroys not that which I affirm, viz. That the Beginning of politick Society depends upon the Consent of the Individuals, to joyn into, and make one Society; who, when they are thus incorporated, might set up what Form of Government they thought fit. (John Locke, Two Treatises of Government, 1690, Book II, Ch. VIII, section 106, Works, Edition of 1714, Vol. II.) Men being, as has been said, by Nature, all free, equal, and independent, no one can be put out of this Estate, and subjected to the political Power of another, without his own Consent. The only Way whereby any one devests himself of his natural Liberty, and puts on the Bonds of civil Society is by agreeing with other Men to joyn and unite into a Community, for their comfortable, safe, and peaceable Living one amongst another, in a secure Enjoyment of their Properties, and a greater Security against any, that are not of it. (John Locke, Two Treatises of Government, 1690, Book II, Ch. VIII, section 95, Works, Edition of 1714, Vol. II.) Section 1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. Sec 2. That all power is vested in, and consequently derived from, the people; that magistrates, are their trustees and servants, and at all times amenable to them. Sec. 3. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that, when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal. (Virginia Bill of Rights adopted June 12, 1776. Ben: Perley Poore, The Federal and State Constitu 19 tions, Colonial Charters, and other Organic Laws of the United States, Part II, 1877, pp. 1908-1909.) We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor. (The unanimous Declaration of Independence of the thirteen united States of America, in Congress, July 4, 1776, Revised Statutes of the United States, 1878, p. 5.) The writer whose ideas and phrases are most deeply impressed upon American political history is, beyond all doubt, John Locke. It is not difficult to explain the cause of his great influence. His Treatise on Government," published in 1690, was a justification of the Revolution of 1688. The principles of that Revolution, as expounded by him, became the orthodox Whig doctrine. “His treatise," says Mr. Leslie Stephen, in his able "History of English Thought in the Eighteenth Century," 'became the political bible of the following century." Hallam says that it opened a new era of political opinion in Europe, and that the theory there propounded has been fertile of great revolutions and perhaps pregnant with more. From the beginning of their dispute with England, the colonists found themselves fully sustained by the great Whig philosopher. What could be more acceptable than the doctrine that a people are absolved from obedience when illegal attempts are made upon their liberties, and that it is then their duty to make an appeal to heaven? When the colonies in 1776 formed their Bills of Rights, the great authority as to those rights was Locke. The Bills of Rights of Massachusetts, Pennsylvania, Maryland, and other States set forth, almost in the exact language of Locke, that "all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole." The Declaration of Independence, which has long ago been apotheosized, did not escape contemporary criticism. Adams said that it was a commonplace compilation. Richard Henry Lee charged that it was copied from Locke's treatise on Government. To this charge it is certainly open. All those truths which the Declaration holds to be self-evident are set forth with just as much clearness and force in Locke's treatise. (W. T. Brantly, Of the Influence of European Speculation in the Formation of the Federal Constitution, 1880, in Southern Law Review, New Series, Vol. VI, pp. 352–353.) The doctrine of the equality of all men, which is so striking in the Declaration, was accepted without controversy. This acquiescence was partly due to the condition of the country as a settlement in a wilderness. Before the Revolution, a common characteristic of all the colonies was the essential equality of the people. It is sometimes said, however, that we derived the doctrine of the equality of mankind from a French source. Sir Henry Maine observes, in his "Ancient Law," that the opinions then fashionable in France led Jefferson to join what he denominates the specially French assumption, that all men are born equal, with the assumption, more familiar to Englishmen, that all men are born free. Mr. Morley, in the Fortnightly Review for October, 1879, declares that "nobody who has examined so much as the surface of the question would dream of denying that the French theories of society played an important part in the preparation of American independence." (W. T. Brantly, Of the Influence of European Speculation in the Formation of the Federal Constitution, 1880, in Southern Law Review, New Series, Vol. VI. pp. 353-354.) It is true that Jefferson afterwards "drank a deep draught from the intoxicating cup of the French Revolution," but we do not think that in 1776 he had felt the French political influence. He was, we know, a student of Locke, and Locke asserted the natural equality of man as strongly as his natural liberty. In Jefferson's original draft of the Declaration, now in the State Department, we see that he first wrote "all men are created equal and independent," and afterwards erased the words 'and independent." In the second chapter of the "Treatise on Government," Locke says: "To understand political power aright, we must understand what state men are naturally in, and that is a state of perfect freedom. . . . A state also of equality. . . . In the state of nature, men are all equal and independent,”—the very phrase first employed by Jefferson. (W. T. Brantly, Of the Influence of European Speculation in the Formation of the Federal Constitution, 1880, in Southern Law Review, New Series, Vol. VI. p. 354.) The Declaration of Independence is singularly suggestive of the Virginia Bill of Rights which was adopted on June 12, 1776. They are both streams from the same prolific fountain. The first article of the Virginia Bill declares, "that all men are by nature equally free and independent, and have certain inherent rights the which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity,- namely, the enjoyment of life and liberty with the means of acquiring and possessing property and pursuing and obtaining happiness and safety." The Virginia Bill was the work of George Mason, a man deeply versed in English parliamentary history, but who was not indebted for any of his opinions to French literary men. (W. T. Brantly, Of the Influence of European Speculation in the Formation of the Federal Constitution, 1880, in Southern Law Review, New Series, Vol. VI. p. 354.) The origin of the idea of a state of nature wherein all men are equal has been traced to the Roman lawyers. Locke received it from Hobbes and Grotius. But it was so stamped with the authority of the Whig philosopher that it colored all the political thinking of the last century in America. The conception of man as the signatary of a social compact is an absurd one, and has long since fallen into disrepute with the best thinkers. Hume's refutation of the theory is complete, but it is not without advocates at the present day. Sir Henry Maine is astonished at the extraordinary vitality of this speculative error. The circumstance that the Bills of Rights of so many of these States continue to assert in terms that all government is founded in compact, may serve to show us that the value of a sonorous maxim in politics is not proportioned to its credit with philosophers. (W. T. Brantly, Of the Influence of European Speculation in the Formation of the Federal Constitution, 1880, in Southern Law Review, New Series, Vol. VI. pp. 357–358.) That there were thirteen colonies, with separate governments in each, without any control by one over another, is admitted; that they assembled by different representations; that they voted, acted, and signed the declaration by their separate delegates, is apparent on the journals of congress, and the face of the paper. The members who assembled as the delegates of colonies, were the same, who, as the representatives of the states, made the declaration in the name, and by the authority of the good people of these colonies; which was:-"That these united colonies are, and of right ought to be, free and independent states." (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, p. 78.) The Fundamental Right Colonial Imperial CHAPTER II INDEPENDENCE DECLARED ON July 4, 1776, the representatives of the United States of America in Congress assembled proclaimed their independence in a declaration setting forth the right and the duty of all peoples to organize themselves into nations, with governments of their own choice, to change those forms of government when they have not subserved the purpose for which they were created by the peoples, and submitted facts to a candid world justifying the Declaration of Independence in their particular case. With the facts submitted by the Congress to a candid world we are not here concerned. We are, however, concerned with the right to set up a government for themselves, which the signers of the Declaration asserted, claimed and exercised. For, if the right exist, its exercise becomes a matter of expediency, and the facts merely the cause or pretext of its exercise by peoples bent on exercising the right. Before dealing with this matter, it is advisable to advert to the state of things which produced the Declaration and called into being the United States of America. The thirteen American colonies forming the original thirteen United States and extending from Florida, on the south, to Canada, on the north, were either settled originally by British subjects or had passed into the possession of Great Britain. These colonies, whether under a charter such as Connecticut; under a charter to a proprietor as in the case of Maryland; or governed directly as a province by the crown as Virginia, claimed the right of local self-government by means of assemblies of their own choice; for, to quote Sir John Seeley, "assemblies were not formally instituted, but grew up of themselves, because it was the nature of Englishmen to assemble." 1 Recognizing themselves as subjects of the mother country, provided such regulation was external and they were left to settle their internal affairs as seemed to them to be just in view of local conditions, with which they were familiar and of which they felt that the mother country was not cognizant, naturally, the colonists looked at their relations with the mother country from the colonial point of view. The recognition that there was a mother country implied another point of view, which did in fact exist. Great Britain held that the colonists were British subjects and possessed of the rights and liberties of such; that the colonists could have no greater rights than British subjects, and that, as such, they were subject to the Crown, the Parliament, or both, as were their fellow-countrymen of Great Britain; that the colonies were, as trading companies and bodies politic, entitled to 1 Sir John Robert Seeley, The Expansion of England, 1883, p. 67. make laws within the charter but not ultra vires, and therefore subordinated to the law and the control of their creator; that, as colonists, they were subject to the burdens of the empire, as were their fellow-countrymen at home, and as colonies they were subject to regulation and control, internal as well as external; that the nature and extent of the duties to be imposed upon the colonists and the supervision and control of the colonies were matters of expediency, to be determined by the King, Lords and Commons of Great Britain, the supreme authority in all matters domestic, colonial, foreign. As was natural, the mother country looked upon its relations with the colonies from the standpoint of the empire. The colonists, if admitting these rights in point of law, were unwilling to allow the mother country to exercise them in fact or to determine the matter of expediency. The mother country, possessing the rights, was unwilling to allow the colonists to determine the expediency of their exercise. There was no indifferent party to which the colonists could, or to which the mother country would, submit their differences. Each, therefore, appealed eventually to the arbitrament of the sword. To obviate the resort to force which lurked in the background, the colonists petitioned the Crown, the Parliament and the people of Great Britain for a redress of grievances, and, conscious that the cause of each was the cause of every colony, a congress of their delegates assembled in 1774, in Philadelphia, just as Hutchinson happily said that, in 1619, "a house of burgesses broke out in Virginia." This assembly, extending beyond the confines of a colony A Continental and affecting the destinies of a continent, they aptly called a Continental Congress, and the first of these bodies, composed of representatives of all the colonies, with the exception of Georgia, met, in 1774, in the city of Philadelphia in the month of September. As the blow which threatened all the colonies had first fallen in Massachusetts, it was natural that that province should have taken the initiative. Therefore, on June 17, 1774, one year to a day before the battle of Bunker Hill, the Massachusetts House of Representatives, under the leadership of Samuel Adams, resolved: That a meeting of Committees from the several Colonies on this Continent is highly expedient and necessary, to consult upon the present state of the Colonies, and the miseries to which they are and must be reduced by the operation of certain acts of Parliament respecting America, and to deliberate and determine upon wise and proper measures, to be by them recommended to all the Colonies, for the recovery and establishment of their just rights & liberties, civil & religious, and the restoration of union & harmony between Great Britain and the Colonies, most ardently desired by all good men. Therefore, Resolved, that the Honble. James Bowdoin, esq., the Honble. Thomas Cushing, esq., Mr. Samuel Adams, John Adams, & Robert Treat Paine, esq., be, and they are hereby appointed a Committee on the part of this province, for the purposes aforesaid, any three of whom to be a quorum, to meet such committees or delegates from the other Colonies as have been or Congress |