The Pre-history of the Declaration of Independence
A guest post from Almost Chosen People commenter Fabio Paolo Barbieri.
To be honest, this post ought to be made on July 4; but if I waited that long, I would probably have forgotten all about it by then. I have repeatedly said that I regard the Declaration of Independence as just one step below the Sacred Scriptures, and its central statement – “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their creator with certain [and] inalienable rights; that among these rights are Life, Liberty and the pursuit of happiness…” – as words to live and die by.
However, while these words last for ever, there is a danger that the rest of the sentiments of the Declaration – a work very much of its time, after all, intended to bring about action and change then and there – can be misunderstood when not only the circumstances, not even the laws, but the very meaning of words have changed. The danger, in particular, is that our ignorance of the meaning of facts, laws and terms of language in the eighteenth century should give King George more credit than he deserves, and make the Founders, in spite of the nobility of their ideals, sound rather more sophistical in their political arguments than they actually were. In point of fact, once things are understood in their own contemporary colours, it will be seen that the case of Jefferson and Congress was literally unanswerable, because it was based on established law.
First and foremost, the meaning of the word colony has changed in the last two hundred years. To us, a colony is a distant territory ruled and administered from a distance, for whose governance it is the mother country – or colonial overlord – that is responsible. But that is by no means what a colony was in Jefferson’s time. In effect, imperial oversight and direct rule only became the norm after the shock of the great Indian war of 1858. The British government concluded, rightly or wrongly, that it had been caused by the maladministration of the East India Company, the private body that ruled India; and decided, even more arguably, that the answer was to dispossess the Company altogether and make the governance of India its own direct responsibility. This is in general the default reaction of the London government down the century to any crisis – take control from Westminster. But that the enormous Indian colony, much larger than the Thirteen Colonies had ever been, could have been administered until 1858 by a private corporation ought to show that direct control from the central government was, to say the least, not the universal rule of colonial governance.
In actual fact, the law and legal precedent under which the American colonies organized themselves has a surprisingly long prehistory. It begins with the huge legal difficulties experienced through the middle ages by the merchants who came from the Christian West to trade with the Muslim powers of Mediterranean Asia and Africa. To trade was indispensable to both parties, but neither would allow its citizens to be under the power of the other. A practice evolved – independently, to the best of my knowledge, from the temporary formation of crusader kingdoms that imported Western feudal law to Palestine, Syria and Anatolia – whereby Western merchants, mostly Italian, would settle closely together in single areas of Eastern harbour and trading cities, often a single street separated from the rest. These quarters were legally treated like independent Italian city states – their chief magistrates being called Consuls – even when they only amounted to a few families living in a Muslim and Eastern Christian sea of people. They were responsible for their own administration and justice, in so far as it didn’t clash with the larger government. At the same time they were regarded as colonies of the European mother countries from which the merchants came. I am not quite clear how this link worked in practice, but an offence made against a colony in Aleppo or Gaza would be felt as an act of war against the mother country. The largest number of these merchant settlements were Italian, but there were also quite a few from France, Aragon, and so on, and the principles on which they were based were universally understood in Europe.
As time went on, especially because of the destructive Turkish attitude to trade, the colonies withered; but they left behind a curious legal fact. Successive treaties between the Turkish Empire and France, as well as other European trading powers, allowed the Western party to keep “Consuls” as civil representatives in Turkish trading cities, for the benefit of Western merchants and travellers. The title of Consul for the legal authority of a country in an alien land remained as a kind of ghost, even when the settlements of which the Consul was meant to be the head no longer existed; and this is the beginning of the modern institution of the Consul, a diplomat who does not represent his government to a foreign government but rather guarantees its legal and other services to fellow-citizens in its territory.
Now my point is that the English colonies in America, and especially on the American mainland, were built on this precedent. In fact, their original mission was not necessarily mass settlement so much as trade with the natives, which brings them even closer to the medieval merchant colonies in the East Mediterranean. As with the merchant colonies, they were associated with the mother country, but they had their own civil – and increasingly military – authorities. Virginia, the first North American colony, set up its own legislature on the English model practically as soon as it began to exist, and all the others followed suit.
What this means is that, in modern terms, these were not colonies at all. They did not depend from a Ministry of Colonies in London – which at any rate did not exist; most of them had been set up by private companies chartered by the King. It was the King’s Charter that established them as political entities, and to it was the King, not any other authority, that they vested with sovereignty. Legally, they were free states sharing one King or Queen with England; like Ireland, and, until 1707, Scotland. (And as for anyone who wants to sneer at the independence of Ireland from England in the age of Cromwell and of the broken treaty of Limerick – I said legally.)
This places the Declaration in its proper context. From beginning to end, it is addressed to the King alone, because the King is the one authority the colonists’ law recognized. It is not easy to understand today, but the most savagely contemptous passage in the whole document is aimed at the Parliament in London: they are the “others” with whom the King “has combined… to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws”. The give-away is in the words that follow – “…giving his Assent to their Acts of pretended Legislation”. What else is Jefferson speaking here, except of the Royal Assent given to the Acts of a Parliament? His language is technical and precise, and thus his avoidance of the very word “Parliament” is the more telling. By giving the Royal Assent to Acts enacted by the Parliament in London pretending to legislate over countries on which they had never had any legal power, the King had connived at their usurpation. The contempt of Jefferson for the mighty assembly in Westminster is supreme; they barely deserve mention as a group – they are simply a mob of “others” whose “acts of pretended legislation” have the value of hot air.
Jefferson’s argument is unanswerable, because it is correct. The Colonies had been chartered by the King, and their authority was involved with him, not with the Parliament of one – if much the largest – of his other dominions. They had always legislated by themselves, and on occasion carried on war (in particular King Philip’s War) on their own authority and independently of London. There was no valid precedent for Parliament or the Government of England/Great Britain to intervene in their affairs. The King alone, and his appointees and officials, had that right – a right he had, in the colonists’ view, abused with a view to making himself their absolute lord rather than king under law.
And that is why, from beginning to end, the issue is what the King has done, the wrongs he has committed, against his own dominions and their laws. The point is not to be free of the government of London; as far as the colonists and Congress were concerned, they had never been anything but. The point was to uncrown the King; to show that his own steps had made it intolerable and positively dangerous for them to acknowledge his authority. That is what the Declaration of Independence does, and does it supremely well.