The Declaration of independence, an interpretation and an analysis

Preface

It has been my endeavor to show, in the first five chapters, the close interrelation between the development of the authority and jurisdiction of the Continental Congress and the evolution of the sentiment for independence. The gradual, though occasionally rapid manner in which the Congress acquired power, and the ways in which this was exercised, went side by side with the growth of the idea that independence was a necessary outcome of the controversy between England and America, that had been raging for nearly fifteen years. As the authority and jurisdiction of the Congress were extended, it adopted various means to further the desire for independence. Also, as this desire became more widely spread, the Congress, the embodiment of the union sentiment, acting for all and in behalf of all, gained additional strength. The highest point of its power was reached on July 4, 1776. It was never again so powerful as on the day it declared independence of England. The decline of its authority dates from this time, when the first steps were taken to define the limits to its jurisdiction, by means of the Articles of Confederation. The states then began to acquire power at the cost of the Congress, ultimately culmi-

Vlii PREFACE

nating in its complete overthrow and the establishment of a new federal government under the Constitution.

In order to describe the beginnings of the Congress and of independence it has not been thought necessary to go over again the oft-told, though as yet inadequately told story of the rise of the American revolutionary movement. A familiarity with the main facts of that history is assumed. Only such of the earlier phases of the controversy, as bear immediately upon independence, have been touched upon in the opening chapter. In one sense Chalmers was correct in dating independence from the first days of the settlement of the colonies. In another, the events preceding the Congress of 1774, are to be differentiated from those happening after that date, when ideas of establishing independence first had their rise. There is no evidence of a conscious striving for independence in the earlier period; there is none even previous to November, 1775, but after that date it appears on every hand with a force that rendered the final outcome inevitable.

In the explanation of the meaning of the various clauses of the Declaration, embodied in chapters X and XI, I have not attempted to deal with every example of a colonial grievance that might with propriety be assumed to have been held in mind by the framers of that document. Only the grievances of

PREFACE IX

particular significance, and those that had attained greatest prominence are referred to. The limit (1763) fixed by the Congress of 1774 as the starting point of the controversy, has been adhered to in the main ; not, however, because it is any part of my intention to hold that the causes of the revolution had their origin at so late a period, but for the reason that the principal grievances complained of reached their most aggravating development after that date.

The earlier chapters are in some respects a preliminary studv, in part an abstract of a larger, more detailed work on this subject for which I have been collecting material for some years. The first incentive to undertake it was received under the guidance of Professor John Bach McMaster, to whom is owing a debt which it is a pleasure to acknowledge here. He has put me under additional obligation by his kindness in reviewing a portion of the manuscript, and for encouragement given me to push the work to completion.

For helpful criticism of some of the manuscript and all of the proofs, I am indebted to Prof. John L, Stewart. And I have to thank my kind friends. Miss Henrietta Szold, Mr. Joseph Jacobs, Dr. Cyrus Adler, and Mr. C. L. Sulzberger, for reading the proofs and for many valuable suggestions.

For purposes of convenience I have throughout cited Peter Force's well-known American Archives

X PREFACE

as Force. The references to Jefferson's Writings are to Ford's edition, and those to Mass. State Papers to Bradford's Speeches of the Governors of Massachusetts, from 1765 to 1775; and the Answers of the House of Representatives to the same, etc., Boston, 1818.

CHAPTER I The Popular Uprising 1-29 CHAPTER H The Congress Finding Itself 30-49

CHAPTER HI

The Idea of Independence Takes Root, and the Congress Prevails So-76

CHAPTER IV The Congress and the Democracy 77-98

CHAPTER V Independence in the Making 99-120

CHAPTER VI Adopting and Signing the Declaration 1 21-15 1

CHAPTER VII The Declaration and Its Critics 152-171

CHAPTER VIII xi

Xll CONTENTS

CHAPTER IX The Philosophy of the Declaration 184-207

CHAPTER X (i) The " Facts Submitted to a Candid World ". 208-239

CHAPTER XI (2) The " Facts Submitted to a Candid World ". 240-259

• APPENDIX

AN INTERPRETATION AND AN ANALYSIS

CHAPTER I

During the period of more than one hundred years preceding the Declaration of Independence, repeated occasion offered for differences of opinion to arise between the crown and the colonies, over questions of policy and the interpretation of constitutional law. Beginning in controversy over governmental methods, earnest discussion led on to serious dispute that finally culminated in engendering much bitterness of feeling. Owing, however, to the lack of a definite British colonial policy consistently carried out, or, more exactly, the failure to carry out consistently the existing policy, the colonies were in large measure allowed to grow up neglected. When laws were passed by Parliament designed, in pursuance of the mercantile theories of the age, to control the commerce and productions of the colonies, for the benefit of England, they were either not enforced at all, or enforced with such laxity, as practically to nullify their intended purpose.^ This neglect had a double effect: it deprived the home country of the commercial rewards that would have been hers had these acts been enforced rigidly, and it allowed the colonists to develop their commerce largely on the lines suggested by an intelligent perception of the natural advantages of their geographical relation to the West Indies. In like manner, the control of their political aifairs by the crown was exercised with such leniency, in the main, as ultimately to produce a condition that has been admirably described as " virtual independence with relations of mutual good-will."^

Upon the accession of Grenville to power in 1763, the attempt was made to accomplish the impossible task of subverting peacefully the multiform customs and precedents that a century of license had permitted to be established. If at this time King, ministry and Parliament could have fashioned a statesman in whose mind would be found a combination of the wisdom of a Moses and a Solomon, with the philosophy of a Plato and an Aristotle, he might have carried through to success the policy which

'The number of British acts of Parliament affecting the commerce and industry of the colonies in force at this time, footed up a total of thirty.

^ C. F. Adams, Life and Works of John Adams, 1, 133.

Grenville undertook to initiate. But nothing short of some such superhuman aggregate of mental resources could have accomplished it. On the other hand, it would appear as if Grenville and his successors endeavored to carry out their plans in a manner pre-designed to create as much irritation as the circumstances would allow. If, instead, the British authorities had, in dealing with the colonies, exercised some of the tactful diplomacy which has won so many triumphs in the larger field of international affairs, the separation might have been postponed for a considerable term of years.^

Further, a serious tactical blunder was made, by yielding to the clamor of the colonies against the Stamp Act, by reason of which it was repealed on March 17, 1766. At the same time the act since generally known as the Declaratory Act was made into law.^ It was unwise to pass laws and then allow them to be annulled by non-enforcement. It was in the highest degree injudicious to enact a measure containing many of the provisions of the Stamp Act. But the crowning act of folly came with the repeal of an obnoxious act upon the occasion of the first show of resistance to it, by means of the revolutionary memorials of the Stamp Act Congress of 1765. Had the Grenville ministry or its successor, the

' This was Franklin's view. = See Chapter XL

Rockingham Whigs,^ determined at all hazards to enforce the law with a high hand, for this purpose calling in the military arm of the government, there would have been an end to resistance, and the revolution would have been postponed for many years. When troops were finally sent over they availed little, for they were few in number, were utilized in no spirited manner, and served only to raise the issue of quartering troops without consent, in time of peace, causing the additional irritation which culminated in the clash at Boston on March 5, 1770. But in the beginning a large force would have had a decided effect. For no sort of extra-legal, intercolonial political organizations existed as yet, nor any sufficient feeling of the necessity for united action, such as grew up during the first ten years of the controversy. At the end of that time the ramifications of the newly created committees of correspondence and the like, were so widely extended as to touch the popular mind at every point. This is evidenced

' The fact that the Rockingham Whigs were of a different political complexion from the Grenville ministry, and consequently had no interest in enforcing the unwelcome acts of its predecessors, does not affect the case. For they immediately proceeded to pass the Declaratory Act, which (though little attention was paid to it at the time by the colonists) ultimately proved more serious in its consequences than was anticipated, when an attempt was made to live up to its provisions. The colonists at first regarded it as but another British act passed with no intention of being enforced.

by the fact that only nine colonies were represented at the Stamp Act Congress, all but three of the delegations having been elected by the respective legal assemblies. Ten years later, when but one colony failed to respond,^ only five of the delegations to the Congress of 1774 were elected by the assemblies. The revolutionary organization was by this time so complete that it mattered little whether or not assemblies were in session ; delegates were elected none the less in a regular and orderly manner throughout the colonies.^

If anything approaching an adequate conception respecting the temper and attitude of mind of the colonies existed in England, it was not shown in any of the legislation enacted, beginning with the passage of the Townshend Acts of 1767;' nor is there any evidence of the existence of an appreciation of the extraordinary ability for dialectics that had developed in the minds of the foremost Americans. Moreover, through the Stamp Act Congress, by its successful resistance to the Stamp Act, the colonists had their first taste of the efficiency of united action against Great Britain, when the interests of all were thought to be at staLe. It had

■ Georgia.

' New Hampshire, Virginia, North Carolina, and Georgia were not represented at the Stamp Act Congress because their respective assemblies were not in session and there was no other organization to supply the deficiency.

' See Chapter XI.

been the custom for a colony to appeal by petition to the King when any grievance weighed too heavily upon it, and often with success. It was natural, therefore, that they should appeal in common when all were concerned alike.

But by adopting memorials to Lords and Commons, at the Stamp Act Congress, at the same time as a petition to the King was formulated, they went further than they had any idea of going, and took the first step on the road to independence. For this marks the beginning of an 'entire change in the character of the controversy. Hitherto dispute had always been with the crown. But Parliament, by the Sugar Act^ and the Stamp Act, had projected itself into American affairs, by passing laws having the purpose of raising revenue by direct taxation, and the colonists were not slow to make that branch of the British government a party to their disputes. This, however, is the only occasion on which the colonists as a body addressed Parliament directly, and demonstrates the unformed character of the colonial opposition. After opportunity had been given for an interchange of views respecting the grounds of the colonial contentions, and a definite stand had been taken, the tactical error of appealing to Parliament was not repeated. As the controversy advanced, though Parliament was held

'April 5, 1764. See Chapter XI.

at fault, the doctrine was consistently maintained that the King had it within his power to right their wrongs, and to him must all appeals be made. The colonists gradually renounced all consideration of parliamentary control, and they would stultify themselves by appealing for redress to a power whose authority they would not recognize.

Further, an examination of the declaration of rights and of the petition and memorials of the Stamp Act Congress discloses a fundamental difference between them and the documents issued subsequently. The theory of the natural right of Englishmen to enjoy the blessings of the British constitution, to representation, to taxation only by Representatives, and to trial by jury, figure conspicuously, it is true, in the state papers of the Stamp Act Congress. But, side by side with these, and raised to equal importance, were put the economic reasons why the enforcement of the Stamp Act and the recently revised trade laws would prove burdensome. The colonies would be drained of specie, they held, rendering it impossible to pay the debts due England's merchants ; the profits Great Britain would derive from her trade with the colonies would-be decreased materially, because they would be made so poor as to be unable to purchase needed commodities ; and they would, therefore, be unable to bear the burden of paying the taxes imposed by the Stamp Act, short of absolute ruin. Another point should be noted: the tone of these appeals is far more moderate. Rights are asserted with much less vehemence, and there is much more show of a conciliatory spirit than is evident in any of the documents produced by the next congress.^

But a new phase was entered upon with the repeal of the Stamp Act and the passage of the Declaratory Act. In this the assertion of the colonists that their own assemblies had the sole and exclusive right of imposing duties and taxes was denounced, and it was specifically declared that the colonies " have been, are, and of right ought to be, subordinate unto, and dependent upon the imperial crown of Great Britain; and that the King's majesty, by and with the advice and consent of the lords spiritual and temporal, and commons of Great Britain, in parliament assembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever."^ The economic burdens of which the colonies com-

' The proceedings of the Stamp Act Congress are to be found in Niles' Principles and Acts of the Revolution, 1822, 451 et seq.

' The text of the act can be found most conveniently in MacDonald's Select Charters Illustrative of American History, 1606-1775, 316.

plained having been removed, they were led to hope that since the change in the ministry, and the return to power of the Whigs, Rockingham would not enforce the revised trade regulations. Their economic grievances being practically at an end, the Declaratory Act, another of Great Britain's measures of unwisdom, was made the means of carrying on the controversy, whose entire character was now transformed from one in which economic and political elements played an equal part to one having almost exclusively a political basis. Complaint respecting the effects and workings of any of the subsequent British acts, is never again based on grounds that may be regarded as primarily economic. The only economic phase of the subsequent controversy is found when non-importation agreements are entered into, with the view to oppressing British merchants engaged in colonial commerce to such an extent as to induce them to espouse the cause of the colonists, and make them work to have the obnoxious acts repealed to save themselves from ruin.

The repressive measures of Hillsborough of 1768, and the retention of the duty on tea in April, 1770, when the other Townshend taxes of 1767^ were repealed, are of a piece with the Declaratory Act in their effect in emphasizing the transformation of the

' The nature and effect of these several acts are described in chapters X and XI.

lO THE DECLARATION OF INDEPENDENCE

character of the dispute. The tea duty was retained for the same reason that prompted the passage of the Declaratory Act — to maintain the principle of parliamentary authority — and was but another in the long list of deeds of unwisdom of the British government. By repealing the other duties Parliament yielded to popular clamor, as in the repeal of the Stamp Act, but retained an obnoxious measure that was to prove a fruitful source of further irritation. A partial repeal, with the retention of one duty designed for a purpose only too well known in America, was folly worse confounded, and showed that there was no real conception in England of the earnestness and determination of the Americans, nor of the nature of the independent development of political institutions produced by a century of experience. The events that had transpired in the five years succeeding the passage of the Stamp Act were productive of great results, so that by 1770 the controversy had been pushed to the point from which must issue either complete submission of the colonies to England, or else independence.

In Great Britain at the end of the hundred years subsequent to the Puritan Revolution, the reaction had reproduced a virtual kingly autocracy, though within certain legal and constitutional bounds. By force of his dominating personality, the King, though nominally guided by his ministers, had made

THE POPULAR UPRISING II

himself the directing head of the nation's affairs, and practically controlled his cabinet and Parliament as he saw fit. In America, where the structure of society was far simpler, there had been no such reaction. On the contrary, there had been a constant development along the democratic lines made familiar by the popular uprisings under Cromwell. In consequence the political ideas of Locke passed current not alone in the Puritan colonies of New England, but were received at their face value in the other colonies which at their foundation had nothing in common with the Puritan ideals. By reason of the extent to which the colonists participated in their political affairs throughout the colonies, the laxity with which parliamentary enactments were enforced, and the leniency shown by the crown, a complete administrative machinery of their own was developed in many respects far in advance of anything of a similar nature existing in Great Britain. In other words they had brought over with them a perfect familiarity with British constitutional and administrative forms, which, owing to the more democratic nature of the conditions under which they lived, produced a body politic in which practically every property owner had a stake. Out of this was evolved an attachment for their own methods, as strong as that of any parent for its child. The questions at issue previous to 1763 had been argued with the crown, either directly or through the royal governors, often with great earnestness, though only on occasion with a show of heat. But with the change in the nature of the dispute from one between King and colonies, in which the points of disagreement were localised, were peculiar to each colony, and did not permit of any united opposition, to one between Parliament and colonies, in which, among others, the principle of taxation was at issue, affecting all alike, the natural passions were aroused that are ordinarily engendered when the attempt is made by an outsider to appropriate and convert to his own use what one believes to be his own property, the fruit of his toil. Their point of view was admirably stated by Burke when he said " a great people who have their property, without any reserve, disposed of by another people at an immense distance from them, will not think themselves in the enjoyment of liberty."^ That taxation without representation was tyranny, and nothing less, became the doctrine universally held. It was repeatedly reiterated that, by the nature of their location, they had and could have representation only in their assemblies, by which alone they would therefore consent to be taxed.^ As one man they flung back

'Speech on "State of the Nation," Works II, 170.

" It is true that Otis in his pamphlet The Rights of the British Colonies Asserted, 1764, advocated colonial representation in Parliament, but this idea did not attain to genand would have none of the British idea of virtual representation, which was that the colonies were not less represented than the people of Great Britain, five-sixths of whom had no share in the election of members of Parliament, by reason of the corrupt and inefficient British system. That a member of Parliament was as much a member for the whole empire as for the constituency which sent him, was the theory held as largely then as now. But it did not appeal to the colonists, grown accustomed to the benefits of actual representation.

The unanimity of the acceptance of the idea of the interrelation of representation and taxation, as also the wide extent of the beliefJlLihe theories that man. ;^a§^m with certaiaj^toa],, inalieoabJe, rights, and that government derived its origin from a cornpact for mutual protection, was due to the remarkable series of disquisitions on the rights of the colonies, the nature and extent of these rights, and the constitutional limitations to parliamentary control, which the five years of discussion had produced. Every man who was ready with the pen, — and the number of these indicated an unusual diffusion of skill in political debate, — contributed his share, though the productions of men like James Otis,

eral adoption. In the Declaration of Rights of 1774 it was specifically stated as the colonial contention that the colonies could be represented only in the colonial legislatures. See Declaration of Rights, article 4.

Samuel and John Adams, Richard Bland, Daniel Dulany, John Dickinson, and Stephen Hopkins, stand out in especial prominence. Without going into an examination of the merits of their arguments, it suffices to draw attention to the fact that they served to familiarize the public, in the widest possible degree, with a reasonable theory of the origins of government, and of the constitutional relations between the colonies and Great Britain. JJMX^^^^^ every freeholder believe and maintain that he possesse3 "ceHaiirTigHTr"Sia^Tpf i vlleges which were" far loo sacreHTo^pernnf or being infringed bv any acts of iCmgor Parliament, and for which it was his duty to'contetmTwifh'airthe power that in him lay. The men who wrote these often stirring pamphlets were the same who in legislative assemblies embodied their thoughts in the form of resolutions and memorials, and thus gave them not only the widest circulation, but a semi-legal character as well, making them the acts of the people. There were able counterblasts, too, notably from the well-attuned trumpet of Jonathan Boucher, proclaimer of the sacred rights of kings and government. But they were not sufficiently harmonious in these preliminary stages to make any strong impression. Not until the later point was reached of the practical denial of parliamentary authority, dating from 1774, does this opposition become in any way important.

THE POPULAR UPRISING I 5

In fact, one of the most striking elements in the preliminary stages of the revolution, is the extraordinary unanimity of opinion as to the existence of rights and of serious infringements of them prevailing throughout the colonies.

Not much more was required, therefore, to make the parties at issue fall farther and farther apart. Nor was there a question as to whether the colonies or the home government had the greater weight of authoritative legal opinion on its side. It has come to be admitted that the preponderance of constitutional law was with those favoring the parliamentary contention, and that both English political parties were at one in their belief in the legality of parliamentary dominance over the colonies as embodied in the Declaratory Act, whatever may have been their differences on other points. No one had firmer faith in this doctrine than Pitt himself, the idol of America, under whose ministry the Act was passed. The extent of administrative development in America through the legislative assemblies, and the firmness of the faith that full justification for the colonists' attitude was found in the current interpretation of the origin and ends of government, should not have been overlooked by the British statesmen. That there was a power above the constitution from which rights were derived, was an idea as generally diffused as that Americans were free-born English subjects and entitled to all their rights and privileges. In contests over the interpretation of constitutional and political theories, the question is ultimately decided not by the weight of legal precedents, but by the sacrifices which the parties at issue are willing to make when points of difference prove irreconcilable. In fundamentals, as has been well said, all constitutional questions are " questions of power, and not of law."* The theories of America and England were so much at variance by this time that nothing short of absolute submission of the one or the other could bring about a peaceful solution. That the latter was not to result, the events of the four years succeeding 1770 made inevitable. Clashes between soldiery and populace were succeeded by repeated acts of violence in resistance to authority in which the military arm played little or no part. A spirit of lawlessness, so far as the enforcement of British acts was concerned, was manifested side by side with the most perfect respect for legislative acts of the colonists' own creation.

In the meantime, as assemblies were being prorogued throughout the colonies, and as this administrative machinery was in danger of breaking down, recourse was had to a new expedient for political control, the Committees of Correspondence. At first 'Sir James Fitzjames Stephen, Horce Sabbatices, III, izo.

appointed by the assemblies, they gradually came into existence almost everywhere by original authority of the people, and their variety of forms made necessary by difference of conditions, is a striking witness to the wide diffusion of, familiarity with, and capacity for political organization.^ They served to keep the colonists in touch with each other, by extending their activities even beyond the bounds of the individual colonies. ^They th us performed the function ofjn^intercolonial^^ -which thg_Jahc^j|ant,'\ oL.an.f:^ colony jvere jnade^Xfcmiliar with the occurrences taking place in another. When, therefore. Great Britain in 1774 began her policy of attempting to coerce the colonies into submission, it was too late to meet with success, for an effective instrument for resistance had been developed as the result of the previous ten years of discussion. 1VTni;eov(;-r, as was ultim ately proved, t he colonists w ere^^ning^lo^acaSc£JJh^ for the tn amten ance, pf„„tl;ie principles which they . firmty believe d wei^nv olvedj_ Familiarity with the uses to which their extra-legal committee organizations could be put, for purposes of colonial and intercolonial communication, made it natural that still greater reliance should be placed upon them when the question of convening a continental con-

' On Committees of Correspondence and their significance, see the able treatment which they receive at the hand of Dr. Edward D. Collins, in Rep't American Hist. Assn., 1901, I, 243.

gress for mutual support was before them. Thus it happened, that of the twelve colonies sending delegates to the Congress but five acted through their assemblies, though three^ of these were so completely in control of the revolutionists as scarcely to be of significance in this connection. All of the remaining delegations were chosen_j2y_some_fonii^ (^^cgnimittee-organization..

The Congress which convened at Carpenter's Hall in Philadelphia, on September 5, 1774, had, therefore, a muchmorg-j2013 ular b asis than any Congress heretofore called together. And whereas recourse was had in the past to the various committees of correspondence for purposes of united action, under the more difficult and complex conditions that had arisen, their place was now to be taken by this new engine of political organization. The Congress and the local committees bore to each other relations of interdependence: the committees created the Congress, and the Congress in turn looked to the committees to enforce its recommendations. The voice that the committees had in calling the Congress into being, thereby giving it a popular character, spoke out even to the extent of outlining the work that it was to undertake.

In their instructions, either to delegates directly, or to committees that were to have a share in the

' Rhode Island, Connecticut, and Massachusetts.

election of delegates, the people gave expression to their desires in not uncertain tones. The credentials which the delegates bore to this first Continental Congress were in the main of the same character. T hey were authorized in general to devise measure s that would extricate the colo nies from the difficulties with which they were bes et , to stat e the rights and privileges to which onconstitutionar"^oun3s°*&iey were entitled, and to endearor to^restorFnarmony, mutual confidence, and^ygionj^ Behind these credentials, however, and of a much more specific character, were the instr uctions issued to the delegates by