November 8, 2011 essays

“That Audacious Document”: Notes on the Declaration of Independence

Smith begins a series of essays on the Declaration of Independence by examining colonial reaction to its list of grievances.

When modern readers think of the Declaration of Independence, they usually associate it with the celebrated second paragraph. This paragraph begins:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Later in the Declaration we find the list of grievances—those “Facts…submitted to a candid world” that explain why Americans were justified in dissolving “the political bands” that connected them to Britain, and why they had a right “to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”

Few Americans today are familiar with the Declaration’s grievances, but to most readers in 1776 they were far more important than the political principles summarized in the second paragraph. Consider a critique of the Declaration written in 1776 by the English barrister John Lind. Titled An Answer to the Declaration of the American Congress, this 132-page book bypasses the second paragraph and focuses instead on the grievances listed in “that audacious document.”

We find the same focus in another critique of the Declaration, also published in 1776, by the American loyalist and former governor of Massachusetts, Thomas Hutchinson. In Strictures Upon the Declaration of the Congress at Philadelphia, Hutchinson declares that the British Parliament must be the “sole judge” of the actions of the American Congress, so it would be “impertinent” for him “to show in what case a whole people may be justified in rising up in oppugnation [i.e., opposition] to the powers of a government, altering or abolishing them, and substituting, in whole or in part, new powers in their stead; or in what sense all men are created equal; or how far life, liberty, and the pursuit of happiness may be said to be unalienable….”

Nevertheless, while declining to discuss the political philosophy summarized in the Declaration, Hutchinson could not resist taking this passing swipe: “I could wish to ask the Delegates of Maryland, Virginia, and the Carolinas, how their constituents justify the depriving more than an hundred thousand Africans of their rights to liberty, and the pursuit of happiness, and in some degree to their lives, if these rights are so absolutely unalienable….” Hutchinson goes on to state his intention “to show the false representation made of the facts which are alleged to be evidence of injuries and usurpations, and the special motives to Rebellion.”

The significance of the list of grievances is poignantly illustrated by the dilemma of Peter Van Schaack, a New Yorker who suffered a crisis of conscience in his effort to determine which side he should take in the conflict between America and Britain.

Van Schaack was no Tory. On the contrary, he repudiated the doctrine of passive obedience and supported American resistance to what he regarded as oppressive measures by the British government. But Van Schaack understood that a wide chasm separates resistance to particular unjust laws from revolution against an established government. This passage from the Declaration expresses the principle involved:

Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

This was a key part of the Whig theory of revolution: Before revolution can be justified, it must be shown that the injustices of a government are not merely isolated and unrelated events but are part of an overall plan to establish despotism.

Here was the sticking point for Van Schaack and many other Americans who agreed with the political philosophy of the Declaration. Even if some measures of the British government were oppressive, were those measures part of a deliberate design to establish “absolute despotism” in America? If this question could not be answered in the affirmative then a revolution could not be justified – and this is why the list of grievances was viewed as the most crucial feature of the Declaration.

After secluding himself at his New York farm to reread and study the works of important political philosophers — including Locke, Vattel, Grotius and Pufendorf —Van Schaack reached the following conclusion:

[M]y difficulty arises from this, that taking the whole of the acts [of the British government] complained of together, they do not, I think, manifest a system of slavery, but may fairly be imputed to human frailty, and the difficulty of the subject. Most of them seem to have sprung out of particular occasions, and are unconnected with each other, and some of them are precisely of the nature of other acts made before the commencement of his present Majesty’s reign, which is the era when the supposed design of subjugating the colonies began…. In short, I think those acts may have been passed without a preconcerted plan of enslaving us, and it appears to me that the more favorable construction ought ever to be put on the conduct of our rulers. I cannot therefore think the government dissolved…. I cannot see any principle of regard for my country, which will authorize me in taking up arms.

Van Schaack – a close friend of John Jay (a co-author of The Federalist Papers and first Chief Justice of the U.S. Supreme Court) — sympathized with the American cause, so he refused to fight as a loyalist. He moved to England and remained there for seven years, after which he returned to New York and resumed his law practice.

It is interesting to compare Van Schaack’s analysis of the Declaration with the two critics mentioned above.  Whereas Van Schaack did not challenge the accuracy of specific grievances, claiming instead that they did not establish a conspiracy, Lind and Hutchinson analyzed each allegation, point by point, and rejected each as unjustified.  Indeed, Hutchinson claimed that American radicals had desired independence for many years, and that the list of grievances was concocted to serve as a rationale for a decision that had already been made.  

The preceding examples illustrate why the list of grievances was widely regarded as the crux of the Declaration. Many critics of independence, including some American loyalists, agreed with the political principles articulated in the second paragraph. Their problem was the same as the one that haunted Van Schaack, namely: Did the actions of the British government, however unwise or unjust they may have been, signify a deliberate design to extinguish American freedom?

When opponents of the Declaration criticized its political principles, as expressed in the second paragraph, they typically resorted to ridicule rather than undertake a serious analysis. A case in point is found in The Scots Magazine, a periodical (edited by James Boswell and published in Edinburgh) that closely followed events in America. When the Declaration was printed in the August 1776 issue of this periodical, a sarcastic note was added that criticized its statement of unalienable rights. This note reads, in part:

The meaning of these words the Congress appear not at all to understand, among which are life, liberty, and the pursuit of happiness. Let us put some of these words together. — All men are endowed by their Creator with the unalienable right of life. How far they may be endowed with this unalienable right I do not say, but, sure I am, these gentry assume to themselves an unalienable right of talking nonsense. Was it ever heard since the introduction of blunders into the world, that life was a man’s right? Life or animation is of the essence of human nature, and is that without which one is not a man; and therefore to call life a right, is to betray a total ignorance of the meaning of words. A living man, i.e., a man with life, hath a right to a great many things; but to say that a man with life hath a right to be a man with life, is so purely American, that I believe the texture of no other brain upon the face of the earth will admit the idea. Whatever it may be, I have tried to make an idea out of it, but own I am unable…. The word unalienable signifies that which is not alienable, and that which is not alienable is what can not be transferred so as to become another’s; so their unalienable right is a right which they cannot transfer to a broomstick or a cabbage-stalk; and because they cannot transfer their own lives from themselves to a cabbage-stalk, therefore they think it absolutely necessary that they should rebel; and, out of a decent respect to the opinions of mankind, allege this as one of the causes which impels them to separate themselves from those to whom they owe obedience.

After this bit of sophistry, the critic makes a more credible point:

The next assigned cause and ground of their rebellion is, that every man hath an unalienable right to liberty; and here the words, as it happens, are not nonsense; but then they are not true; slaves there are in America; and where there are slaves, their liberty is alienated. If the Creator hath endowed man with an unalienable right to liberty, no reason in the world will justify the abridgement of that liberty, and a man hath a right to do everything that he thinks proper without control or restraint; and upon the same principle, there can be no such things as servants, subjects, or government of any kind whatsoever. In a word, every law that hath been in the world since the formation of Adam, gives the lie to this self-evident truth (as they are pleased to term it); because every law, divine or human, that is or hath been in the world, is an abridgement of man’s liberty. Their next self-evident truth and ground of rebellion is, that they have an unalienable right to the pursuit of happiness.

So what did Thomas Jefferson have in mind when he wrote about the unalienable rights to life, liberty, and the pursuit of happiness? I will discuss this issue in a subsequent essay.