Prelude to Independence

The period from May 15 to July 4, 1776, has been happily called the prelude to independence. It could so easily­—and so wrongly—have been called the prelude to revolution. But the truth about the American Revolution is that it was essentially what it claimed to be, the dissolution of the “political bands” which bound the colonies to the British crown and the assumption of a “separate and equal station” “among the powers of the earth.” In other words, it was a political act, not a social revolution of a nationalist uprising, or a combination of the two, with which we are so familiar today.

The social and economic changes which, consciously or unconsciously, were being sought were not so great, I venture to say, conscious of my recklessness, as those which led the American people in November 1932 to turn from the hope of salvation by faith to the doctrine of salvation by works.

As for nationalism, there was scarcely a trace of it. In fact, never was a nation so long and so reluctantly aborning. When it came, it seemed at the time more a mechanism than an organism. “Until well into the nineteenth century,” Professor Boorstin tells us, “Jefferson—and he was not alone in this—was using the phrase ‘my country’ to refer to his native state of Virginia.” Wholly absent, also, was the obverse of nationalism, xenophobia, that potent force which, in a flash, can whip up the mobs of Peiping, Cairo, or Bagdad. In fact, in the Declaration of Independence the eloquence of denigration was reserved solely for the villain of the piece, King George III, of unhappy memory. The British people are referred to as “our Brittish [sic] brethren,” and are gently chided because their “native justice and magnanimity” did not lead them to prevent the impairment of the hallowed rights of Englishmen.

A strange revolution, this, and one which should lead us to turn with keen interest to the two great documents of the prelude to independence—the Virginia Declaration of Rights and the Declaration of Independence. If we are struck with their similarity, we should not be surprised, since the authors of both were Virginians, members of a politically conscious class, and men widely read in English law—George Mason, in the library of his lawyer uncle, John Mercer of Marlborough; Jefferson, as a matter of professional training under the learned George Wythe. Both were superb legal draftsmen. We may note, too, that only one spokesman of a revolution of our own day was a lawyer—Lenin, who soon abandoned the practice to put his gloss on Marx. Stalin was trained for the priesthood; Hitler was a house painter, Nasser and Kassim both colonels; and Mao Tse-tung got his training beyond normal school as an assistant in the library of the National Peking University, thus refuting Emerson’s observation that “meek young men grow up in libraries.” The modern revolutionary’s view of lawyers has been more akin to that of Dick Butcher in Henry VI: “The first thing we do, let’s kill all the lawyers.”

The construction of the two documents is basically the same. They both begin with a brief overture and move swiftly into the principal theme. Both overtures derive from the same concept; so do both themes. In each, the overture is spirited, emotional, romantic, a sparkling chain of generalities, the latest and most fashionable importation from France—the Rights of Man. Then, in each, follows the theme, sober, specific, practical, and English, the rights of Englishmen, the conception, not of an ethical or philosophical principle, but of a restraint on power itself. This carries the weight and significance of each document. Overture and theme are, of course, related, as all thought is related. Each has enriched the other. But they represent different approaches to a common problem and, even more important, different courses of experience.

The Rights of Man, with which each of our documents begins, are “self-evident” truths. “All men are created equal” and “endowed by their creator with certain inalienable Rights.” Then follows the “social compact.” Governments were instituted by equal and free men to secure these inalienable rights, derive their just powers from the consent of the governed, and may rightly be overthrown if they infringe upon inalienable rights. These truths had to be self-evident, for they rested upon no observed and recorded human experience. In the world of political thought they were the counterpart of Lafcadio Hearne’s conception in romantic thought of the “eternal haunter,” the vision of woman who has never existed. Both conceptions have inspired and bedeviled man.

Not long after the adoption of the Declaration of Rights at Williamsburg and of the Declaration of Independence at Philadelphia these abstract doctrines received more complete expression in the Declaration of the Rights of Man and the Citizen, adopted on October 5, 1789, in the first stage of the French Revolution. Retained by the subsequent regimes of the First Republic, the Terror, and the Directory, the Rights of Man and the Citizen became the classic creed of European libertarians and eventually inspired similar statements throughout the world. A flurry of guarantees of natural rights accompanied the European revolts of 1830 and 1848, but most were short-lived. The winning of independence in South America brought other guarantees of rights, in this instance more directly influenced by the United States. Japan in the Constitution of 1889 adopted a declaration of rights and duties of the subject. The Czar followed in 1905; the Shah, in 1906; and the Sultan, in 1908. After the First World War came another flood—Germany, Austria, Poland, Afghanistan, Siam, and so on.

Today seventy-seven nations have in their basic law guarantees of natural rights. Included in the list are all the Communist peoples republics, except China. Their rights on paper are more extensive than ours. For instance, they guarantee the natural right to family, health, and motherhood, which does not appear in the basic law of the United States or the countries of the British Commonwealth, except India, which is losing enthusiasm for motherhood. Over fifty nations have accepted the Universal Declaration of Human Rights of the United Nations.

One would like to report that in fact the rights of the individual had become more secure and more respected as their verbal glorification has spread. But this is not the case. The great majority of these declarations of rights are, and remain, abstractions—one might almost say, in Lincoln’s phrase, pernicious abstractions, for by pretending they deceive. To understand what gives reality to limitation upon power and security for individual rights we must turn to that other strand of human experience which is the more strongly stressed in our two documents.

The second and more important strand in the American documents was wholly different. The rights of Englishmen were not abstractions derived from speculation. They were the fruits of action, of strife. They were specific and detailed restraints upon power, to transgress which might—and on occasion did—mean death, and certainly meant a fight.

The very idea of a limitation upon power is a startling one. As Mr. Justice Holmes has said, “If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.” This is what the peoples republics do. They have no doubt that their premises will achieve the happiness of man, or that their power is supreme; they desire their ends with all their hearts. So they enact revolutionary law, liquidate the counterrevolutionaries, and sweep aside the anti-party dissidents.

But Englishmen have put limitations upon the exercise of power itself. Where did this extraordinary idea come from and what in the soil of England made it grow uniquely there?

“In historical sequence,” says a great scholar, “order precedes freedom.” So it was in England. Immediately upon the conquest three Norman monarchs of great ability and insight, William I and Henry I and II, set about establishing a strong central government by profoundly modifying feudal institutions as they imported them from Normandy. The Conqueror, as McKechnie puts it, “encouraged the adoption in England of feudalism, considered as a system of land tenure and of social distinctions based on the possession of land; but he successfully checked the evils of its unrestrained growth as a system of local government and jurisdiction.” The Norman kings rested their central authority on those foundations upon which any strong government must be based—a civil service of men of humble birth owing allegiance to the king; a local authority, the sheriff, also responsible to the king; a strong treasury which audited the sheriff’s collections twice a year in London and by surprise visits in the counties. Nevertheless, as William and the two Henry’s proceeded to build a strong monarchy, the feudal forces, which were to limit its power, were growing also.

All went well as long as the monarchy was successful. So long, that is, as taxes were bearable, administration was honest and capable, the king’s justice remained a brand superior to that of the barons, and order was preserved. The barons grumbled over the king’s growing power, but the country, and especially the towns, prospered. On the other hand, failure produced crisis. Richard’s fecklessness and John’s mismanagement drove the perfected financial machinery to squeeze ever higher taxation, and to impose new forms of it on merchandise and goods which hurt the towns. Ecclesiastical appointments were sold and so was justice. Three principal elements in the state were alienated from the monarchy—the barons, the Church, the freemen of the towns.

The result was revolt and Magna Carta. The Great Charter was a medieval and feudal document. In no sense was it revolutionary, forward-looking, or a declaration of the rights of man. The contemporary use of the word “Great” was not to describe its importance, but its length. The sixty-one clauses of the Charter were not statements of ideals, but of the law as it was. Here were definitions of relationships between the king and his vassals; solutions to specific points at issue between John and the barons; statements of procedures that the royal administration would henceforth follow; and extensions of certain limited rights to the Church, the towns, and the freemen, including, Congress will be interested to know, the right to leave and reënter the kingdom “safe and secure by land and water.”

Yet, in at least two respects the Charter contributed to the development of restraints on power in a broader fashion than the limited intentions of the barons might imply. First, it stated a medieval conception of kingship as contract between the overlord and his vassals, the validity of which depended upon performance. Here, in the principle that the ruler was restrained by law, was the kernel of constitutionalism. Second, in important instances the language of the Charter in forbidding specific violation by John of feudal law did so in language which later became the basis of far broader claims of right. The great example is the confirmation in clause 39 of judgment by peers, where the Charter provided:

No freemen shall be taken or [and] imprisoned, or disseised, or exiled or in any way destroyed, nor will we go upon him, nor send upon him, except by the lawful judgment of his peers or [and] by the law of the land.

While this was by no means trial by jury, it was capable of being developed into that right with the evolution of legal procedure.

Two centuries and more of national experience with the practices and ideas of Magna Carta—the dispersal of domestic force among the landed proprietors, their control in Parliament of many forms of taxation, and specific and court-enforceable individual rights—had a profound effect when, later on, the national state was emerging. Its development was very different on either side of the channel. In France under the first Bourbons, guided at the outset by Cardinals Richelieu and Mazarin and brought to completion by Louis XIV, the barons were separated from their roots in the country by the bribe of privileges and wealth provided they became courtiers and dependents of the king. Very soon the control of all force in the kingdom was in the hands of the Sun King. His will was supreme because his power was.

The same forces at work in England produced two revolutions. While the Bourbons were making one national state, the Tudors and Stuarts were endeavoring to make another. The Tudors liquidated the last vestiges of the Middle Ages, ended the Wars of the Roses, and made a national state in England. But it was a society still carrying, not in its slogans, but in its law for which men fought, the specific, down-to-earth, procedural rights over which any arbitrary act stumbled and upon which the king’s justices could be required to pass judgment.

This was a vast difference from what occurred across the channel. But it would not have endured but for another divergent course. In England the landed aristocracy did not surrender their power to the king and become courtiers living off his bounty. Quite the reverse. Under the Tudors, though their personnel changed, they increased their power by despoiling the Church. Elizabeth, imperious as she was, knew the limits of her power and the importance of inspiring a romantic attachment between herself and her people. Under Elizabeth, as under Victoria, the local force upon which the regime itself rested was controlled by the gentry who were the justices of the peace and local administrators. It did not rest upon a royal military establishment.

This irked the Stuarts, strongly influenced as they were from France and Spain. They pushed toward the concentration of domestic force and finance in the court. At one time under the able, vigorous leadership of Thomas Wentworth, Earl of Strafford, the chances seemed better than even that the tide of absolutism would engulf England as it was engulfing France. But Charles I did not have the stuff of dictatorship in him. The Civil War which was to destroy him broke out over his struggle to gain control over the ultimate instrument of coercion, armed force.

The curious fact is that for a brief span in the seventeenth century absolutism did triumph in England, but under Cromwell—or rather, under the New Model Army—and not under Charles. For the first time a monopoly of force was held by the army. And the army dictated the death of the King and Parliament—though both did their best to make any other outcome nearly impossible. But these two acts sealed the fate of dictatorship by alienating both the cities and the gentry, particularly when we add one further fact: that Cromwell did not have the heart and mind of a dictator. He was swept along by the irresistible power he had created in the army. But he would not use it as Louis was doing and, as later, Lenin and Stalin did, to liquidate dissent. Then, too, Cromwell had no successor. So almost by unanimous consent the English people found that they had had enough. Back came the Stuarts in triumph to try once again, with a stupidity which amounted to genius, to overcome the fundamental determination of British society to keep power dispersed and limited. In 1688 the Stuarts were once more rejected by force—this time for good.

The next year Parliament enacted the Bill of Rights (An Act Declaring the Rights and Liberties of the Subject and settling the succession of the Crown), the immediate ancestor of our documents of the prelude of independence. This was sent to the Prince and Princess of Orange, as the contract upon which they could and did become King William Ill and Queen Mary.

It wasted no time over the Rights of Man, but plunged into an indictment of James II, as less than a hundred years later the Declaration of Independence, after a slower start, indicted George III and for the same unconstitutional proceedings. It then catalogued, and again specifically, the law regarding restraints on power: It was illegal for the Crown to suspend or dispense with laws or their execution, or to levy money without grant of Parliament, or to interfere with the right to petition, or to bear arms (for Protestants), or to maintain a standing army in the country without leave of Parliament. Elections to Parliament were to be free and the debates and proceedings there not subject to question. Excessive bail or fines and cruel and unusual punishments were illegal. Jurors must be impaneled and in treason cases must be freeholders. Promises of pains or favors before conviction were illegal. Parliaments must be held frequently.

Here, as in the case of Magna Carta, no new principle was introduced, but specific rights procedurally enforceable were reiterated; and, again, the control of domestic force was dispersed among the local gentry. It has remained under local control to this day.

The heritage of the Glorious Revolution became, if anything, even more sacred in the American colonies. For, while the homeland through the first three-quarters of the century witnessed a further increase in the power of Parliament, the Americans adhered with unfailing constancy to the traditions of 1689.

Although a spirit of colonial self-reliance bordering at times on independence developed during these years, it was unconscious and well concealed beneath continuing loyalty to England. Every contest for freedom and self-government—and there were many of them between 1700 and the last great crisis of the ’sixties and ’seventies—was in reality a demand for the legal rights of Englishmen. “God be thanked, we enjoy the Liberties of England” was a frequently voiced sentiment.

The Americans demanded the same kind of limitation of power for which British subjects had been contending since the feudal era. These were not contests in the name of liberty and freedom for all mankind, but demands for specific rights and privileges, centering usually in the colonial assemblies—demands for free legislative discussion, for controls over appropriations for executive salaries, or for the exclusion of royal appointees from the lower house. All had clear precedents in the English history.

Before 1763 the colonial quest for the rights of Englishmen was entirely successful. The thirteen American legislatures, to be sure, did not possess all the privileges and power of the English Parliament, but they were capable of exercising an effective restraint on royal and imperial authority. Hence the effort of the British government at the end of the Seven Years War to tighten imperial administration and to contract freedom of action in the colonies could not fail to arouse Americans to the controversy that led ultimately to the Declaration of Independence.

Independence was, nevertheless, not an inevitable consequence of the crisis of 1763-76. The dispute began as a demand for the same basis for taxation traditionally guaranteed by the British Constitution—the old theme of the rights of Englishmen again. It was not until after ten troubled years that the colonists chose independence as a last resort. Even so, political separation from the Mother Country was largely a means of preserving traditional rights, as a cursory reading of the “new” state constitutions of the Revolutionary era will demonstrate. So we come to the apparent paradox of Americans declaring themselves independent of Great Britain in order to preserve British liberties.

The ideas which moved the Americans during the prelude to independence still move us today at home and in one important respect in our foreign policy. In our domestic affairs the vital importance of written rights, duties, and legal procedures controlling the conduct of government and private affairs is plain enough. Perhaps we are less conscious of the diffusion of power in our society until we compare ourselves with a Communist state. It is not merely the separation of the legislative, executive, and judicial powers of government, but the separation of the government and the sovereign, the official and the voter.

The idea that the voter can turn out the government and install another is held in a comparatively small part of the world and is a tremendous limitation upon power. One has to experience it to realize just how great it is. But this is not all. In our society great areas of activity are largely withdrawn from the control of government. The Church remains a competitor with all secular authority for control over conduct and thought. Vast authority over economic life is exercised by business, labor, farm, and financial organizations. The difficulty which inflation presents is not so much that the causes and remedies are obscure as that most of the forces which are producing it—for instance, private spending in replacing perfectly useful buildings, automobiles, etc., and the steady increase in prices and wages by organized business and organized labor—are as tough as the barons at Runnymede. So is entrenched local authority over education when it comes to making our schools capable of meeting the demands of our day.

In our relations with the world around us we can see—if we will only open our eyes—that one of the ideas we have discussed must be a guiding principle. Power can be limited only by counterbalancing power. Without that, treaties, international organization, and international law are of no use whatever. The possessor of unopposed or unopposable power can sweep them aside and make his will law.

With the decline in this century, and in some cases the disappearance, of the great empires which maintained a balance of power in the world during the nineteenth century and the emergence of a powerful and aggressive state in the Soviet Union, it has been and should be the policy of the United States to put restraint upon it by forming various coalitions to preserve the area of freedom. This is essential to any future expansion of the area of law in the direction of international affairs. It is also costly, risky, and often unpopular because of its demands. Often, too, it is regarded as backward looking, inflexible, and unimaginative.

But do not let us worry about that. All this was said about the great ideas and actions which make their contribution to the prelude to independence. Their authors were stating nothing new. They were preserving old rights, not asserting new ones. Their own interests were deeply involved. But in their singlemindedness, their insistence upon detail, their refusal to be put off by pernicious abstractions, their realization that what they sought for themselves must be broadened to include others and win their support, they preserved liberty and law upon this earth.