Because most philosophies that frown on reproduction don't survive.

Wednesday, October 19, 2011

Was the Declaration of Independence Legal?

American and British lawyers squared off recently in a discussion over whether the Declaration of Independence was legal. The BBC reports as follows:
On Tuesday night, while Republican candidates in Nevada were debating such American issues as nuclear waste disposal and the immigration status of Mitt Romney's gardener, American and British lawyers in Philadelphia were taking on a far more fundamental topic.

Namely, just what did Thomas Jefferson think he was doing?

Some background: during the hot and sweltering summer of 1776, members of the second Continental Congress travelled to Philadelphia to discuss their frustration with royal rule.

By 4 July, America's founding fathers approved a simple document penned by Jefferson that enumerated their grievances and announced themselves a sovereign nation.

Called the Declaration of Independence, it was a blow for freedom, a call to war, and the founding of a new empire. This also, of course, answers the question of the why the South was not allowed to secede: Because they lost the Civil War.

It was also totally illegitimate and illegal.

At least, that was what lawyers from the UK argued during a debate at Philadelphia's Ben Franklin Hall.
(The rest of the article can be read here.)

It strikes me that this misses a crucial distinction: The Declaration was essentially an announcement that if certain demands were not met, the colonists would fight a war for their independence. Such things are not intended to be legal. No sane country is going to provide legal basis for its sub-regions to secede at will -- and as the British lawyers point out further on in the article, the US certainly didn't give it's Southern half that right under Lincoln. Instead, the colonists were making a last ditch appeal and (more realistically) an appeal for public and international sympathy as they prepared to fight a war of independence. If the British had won, the signers would probably have been hung as traitors. Given that they won, they are considered to be founders of the republic.

Rather than trying to put forward some theory under which the document was legal within the context of the British Empire, it seems to me that the correct answer is that the Declaration was legal by right of conquest -- an aged yet still apt concept.


TC said...

As a person of Irish it pains me to say the Brits are right on this one; treason is never legal.

Let's not forget the founders were largely anti-Catholic Masons and Deists.
The colonists generally were loyal subjects only so long as the British to protect them from the (Catholic) French and Spanish Empires.

So the Founders, come down to it, were a bunch of ingrates who didn't want to pay their fair share of taxes to pay for a war fought at least partly in their defence.

All of which is not to say I'm glad they won.

Hans Georg Lundahl said...

Remember: "lawful and justified" is not exact synonym of "legal".

Of course, as a Jacobite*, I do not find the deposition of James VII and II "lawful and justified" at all. But none argues that was simply legal either.

You see, besides "legal" and "illegal" when it comes to positive law, there is also the question of "lawful and justified" before eternal or divine law - or not. St Thomas Aquinas believed this as firmly as anyone else. Up to recent Prussian spirits, that is.

Whigamores argue that deposing James VII and II was lawful and justified in 1688. Real Tories that taking up arms for James VIII and III was, in 1713 and 1745.

It is in that sense that the Declaration of Independence is to be read: was it lawful and justified or not. But of course it cannot have been merely legal. It was either far worse than illegal or far better than legal.

Thank you for letting me know about the news./HGL

*I am also a Jackobite when it comes to Jack Lewis' work, but that is another matter.

Lex said...

It is for posts like this that I love your blog!
You hit the nail on the head when you say that the purpose of the Declaration of Independence was not to be a legal document. The purpose was to lay down an ultimatum & to rally public support. We fought a war for our independence, and won it in the terms of surrender.

Andy said...

I saw a clip of an old Firing Line where William F. Buckley had a Black Panther (Huey Newton?) on. The Black Panther asked Buckley what side of the American Revolution he would have been on. Buckley thought about it for a while a said he hoped he would be on the side of the Colonists.

I would also like to think I would have been on the side of the Colonists, but being conservative by nature, eventually came to the realization I probably would have sided with England. If I was sitting in my little log cabin in 1770, I would likely think the revolutionaries were crazed and ultimately more dangerous than the system I already knew.

I also agree with your analogy that the biggest difference between 1776 and 1861 is that the rebels won the former war. While the Colonists may have wanted representation or to escape taxation and the Confederates wanted to keep their slaves, both England and the North were fighting to hold together their country, largely for their own economic benefit. If the South would have won, Lee would be the 19th century version of Washington (granted, in some sections of the country, he already is) and if the Colonists would have lost, Jefferson would have looked at crazy as Alexander Stephens.

Hans Georg Lundahl said...

Andy, George III was preparing abolition of slavery - that was one cause for George Washington's rebellion.

Texan adherence to Union also came in part because Mexico had prohibited slavery and freed slaves.

The Confederacy was loyal to the Founding Fathers and to the President who recived Texas into the Union.

And back in the War of Independence, which did not have that excuse of loyalty, there were black men who were loyalist and got over to Canada because they were abolitionist.

As Chesterton pointed out, it is in the world of ideas, ideals and ideologies nonsense to side both with George Washington against George III and with Abraham Lincoln against Jefferson Davies.