Was the Declaration of Independence Legal?

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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.

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. This also, of course, answers the question of the why the South was not allowed to secede: Because they lost the Civil War.

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  1. Of course it was legal! We won! The pettifogging nonsense of this approach to the Declaration illustrates one of the absurdities of our present time: the treatment as legal questions of things which clearly are not legal questions. I think this is done because too many people are uncomfortable making moral arguments, but quite comfortable telling other people what to do if a legal case, no matter how strained, can be made.

    English history had been replete with rebellions and revolutions, some of which succeeded and some of which had not. The sides in those contests always attempted to make the case that their cause was moral and just, the same sort of case Mr. Jefferson made in the Declaration. To attempt to address this as a legal question is to completely miss the point. Darn lawyers, they have much to answer for! 🙂

  2. I did think it was nicely clever of the American lawyers to cite the “Glorious Revolution” as creating a precedent for overthrowing the legitimate government:

    “The English had used their own Declaration of Rights to depose James II and these acts were deemed completely lawful and justified,” they say in their summary.

    But that’s really just another variant on the “because we won” justification.

  3. I had deleted my order post because Don said basically the same thing, only better. I still think the DoI and the War of Independence are a bit different. The founders knew what they were doing was illegal by English law, but the DoI was only meant to be a “legal” document in that it was a formal notice from one political body to another, even if the former was illicit. They were making a case on based on natural law and morality (which even the Church recognizes a difference between legal and lawful.

    It could be judged that their demands were or were not justified or even that their grounds weren’t sufficiently rooted in necessity (there have been a lot worse occasions of injustice by rulers before and since). It could be argued that even if just, the harm caused would outweigh the benefit. Aside from being grateful for having born in this time and place as a Catholic looking back I tend to sympathize with the founders’ cause. I don’t necessarily think they were as terribly oppressed as they acted, but I appreciate that they were quite unique in that they were full British subjects, but in some ways were being exploited, and were having whatever benefits from their status being eroded. I view it as justified because:

    1.) they did NOT really overthrow the king (think of the evil in France).

    2.) They were subjects of George, but that’s all they had in common with the English. They had their own culture and society by that time and the common good would be best served if they governed themselves.

    3.) We always ask if they were justified in declaring their independence, but it can just as easily be asked if George was justified maintaining such an empire – especially since it was capable of being self-sufficient. [I actually enjoy thinking about this last one. It seems the most antagonist people to the founders usually rail on about the evils of jingoism. The irony escapes them.]

  4. I swear, I get sloppier and sloppier in my writing by the day. I really need to proofread before hitting the send button. Sorry for my horrible grammar and typos.

  5. Of course, the American revolutionists stood in a different relationship vis-a-vis England than the South did to the Federal Union: The Colonies were just that: politically subordinate units of the empire of England.

    The individual states, on the other hand, were sovereign prior to entering into the federal union. Having ceded only so much sovereignty as they deemed needful to effectuate the purposes of a federal union, they retained all other aspects of sovereignty, and did not become mere colonies of the federal government.

    Moreover, the federal Constitution, which is one of only expressly enumerated powers, did not include the power forcibly to compel membership in what was designed to be a voluntary union of sovereign states.

    That the federal government militarily conquered the seceding states does not establish the principle that there is no right to withdraw from the Union, it merely establishes that the north was militarily more powerful than the south.

  6. The patriots contended that their legislatures stood in relationship to the King in each colony as Parliament stood in relationship to the King in the United Kingdom. The fact that they were living in their colonies did not abrogate in the slightest their traditional rights. When the King attempted to rule them against their wishes, and paid not the slightest heed to their legislatures, they revolted, as did the majority of Parliament in similar circumstances in 1642.

    In regard to the Civil War, the states had no political existence except as part of the United States. They went straight one day from being colonies to being states, a fact that was recognized by Great Britain at the conclusion of the American Revolution when there was one peace treaty signed rather than 13. The Articles of Confederation, approved by each of the states during the Revolution, spoke of perpetual union. The Union pre-dates the Constitution and dates from the Declaration. A new nation was then created, not a mere temporary alliance. The states of the Confederacy had no right to withdraw from the Union without the consent of the people of the Union as a whole. A majority of the people of the United States opposed secession, and their wishes were brought to fruition through the successful outcome of the Civil War.

  7. The individual states, on the other hand, were sovereign prior to entering into the federal union.

    Would point out that 35 of the 50 states were artifacts of Congress.

  8. In regard to the Civil War, the states had no political existence except as part of the United States. They went straight one day from being colonies to being states

    Well, for the original 13 perhaps, but Texas was its own sovereign state prior to joining the union. Also, would that mean if the EU signed some treaty with a hypothetical Arab state to end a war of conquest over Europe, that the individual european countries are not sovereign states? Not an expert on the EU, but it seems that would not be correct. Perhaps the EU charter (or whatever it’s called) has some sort of exit clause.

  9. Regardless, there are few debates that could be as academic as whether the DoI was legal or not. Might may not necessarily make right, but it often makes rights (that is, obligations or conditions that can be enforced).

  10. The states had to ratify the Constitution; if they were not independently sovereign, it would be a useless exercize to engage in ratification, which necessarily implies the choice of NOT ratifying, and hence, remaining outside the union.

    The Articles of Confederation, likewise, implicitly by their consensual nature recognized the primordial sovereignty of the states.

    I’m not aware that nationwide polling was conducted to establish that most Americans wanted enforced union. Certainly the majority of southerners did not, realizing that it is indeed not much of a union that has to be imposed by the slaughter of 600,000 souls.

  11. The Articles of Confederation and the Constitution were governing instruments for the pre-existing Union Tom, they did not create the Union. In regard to the South, I would assume that almost all Black slaves and free Blacks were against the experiment in Rebellion to continue to hold them in bondage. Every state in the Confederacy, except for South Carolina, eventually raised white regiments to fight for the Union. Kentucky and Maryland elected legislatures that were strongly Unionist. Delaware was completely Unionist in the War. Even in the slave holding states taken as a whole I doubt if a solid majority existed for secession. Add in almost all the people of the North except for some renegade Copperheads, and the people of the Union were clearly opposed to secession. Of course this is why secessionists did not simply go to Congress in 1861 and raise the issue of secession there for the whole country to debate and vote on.

  12. Although George III was technically still head of the executive, Britain by the 1770s had Cabinet government. A hundred years previously Charles II had responded to the jibe that “he never said a foolish thing, nor ever did a wise one” by remarking “true, since my words are my own, and my actions are my ministers’ “. It is worth remembering that George was the first of the Hanoverians to enjoy genuine popularity. Unlike his grandfather and great-grandfather he ‘gloried in the name of Briton’ and referred to Hanover as a ‘despicable electorate’. Nor did he lack the common touch, and his interest in agricultural improvement earned him the sobriquet ‘Farmer George’. It was the high-handedness of the Westminster parliament, rather than that of the King, which precpitated the revolt (this is not to say that the King was without influence, but the relationship of Crown, ministers and parliament had changed greatly since 1642).

    A Declaration of Independence is an act of defiance, a manifesto and a call to arms. As such it is bound to be illegal in the strict sense of the word. Had England succeeded in bringing the rebellious colonists to heel, it would still have stood as a symbol of nationhood. In 1916 Pearse proclaimed the Irish Republic from the General Post Office in Dublin at the start of the Easter Rising. Lacking public support and with no chance of foreign intervention, the rebellion was doomed to failure, and the leaders knew it. As a devout Catholic and a lawyer Pearse would also have known that it contravened the ‘just war’ principle. In the event the rising was crushed in six days. But the 1916 Declaration is the key document in the emergence of Ireland as an independent nation.

  13. .

    “As such it is bound to be illegal in the strict sense of the word.”

    “A rebellion is always legal in the first person, such as “our rebellion.” It is only in the third person – “their rebellion” – that it becomes illegal.” Ben Franklin, 1776

  14. Who cares if anyone from Great Britain thinks the Declaration of Independence was illegal?

    Was England’s centuries-old occupation of and its suppression of the Catholic Church throughout the British Isles legal just because might made right?

    Was England’s privateers who harassed Spanish shipping legal? Not to Spain, it wasn’t.

    England has a lot to answer for in its own history without judging that of the US – including establishing slavery in its colonies who told King George to take a flying leap.

  15. Obama has been cow-towing to most leaders throughout the world.

    Surely, he could go cap in hand to Her Majesty Queen Elizabeth II and humbly submit himself and the Unired States of America to British suzerainty, and all the citizens of the USA would happily join hands and sing “God Save the Queen” and “Rule Brittania” and go Morris Dancing.

    Imagine the money you’d save on not having presidential elections?

    And best of all, you could all be called British subjects along with the Canucks and Aussies and Kiwis.
    Now wouldn’t that just make for a wonderful world 🙂

  16. Don, I think the Texans toyed with the idea of joining the British Empire but were cold-shouldered by Palmerston. To reverse your scenario, when the UK joined the then Common Market some wag suggested it might be better to apply to become the 51st state and have the Duke of Edinburgh run for President. Unlike continental Europe the USA has a legal system based on Common Law and we speak (almost) the same language.

    Penguins Fan, you certainly have a point; there are good laws and bad laws, and just when we thought the bad ones had all been repealed, a raft of equality laws, badly drafted and threatening both freedom of speech and freedom of conscience is being foisted upon us. Privateering was legally dubious even in the 16th century, but the Elizabethan government did not recognize the Treaty of Tordesillas which established a Spanish-Portuguese monopoly in the New World. Drake could never be sure that on his return from a voyage of plunder he would not be executed as a pirate, but then as now money talks.

    A few lawyers holding an academic discussion is hardly going to change the balance of power. The general tenor of your remarks about English history betrays a strange inferiority complex which I have noticed before and which is very unusual in a superpower. Don’t forget that England was a Catholic country for a thousand years (the evidence is all around us) and no serious historians now buy into the Whig interpretation of the protestant ‘Reformation’. Say what you like about the British Empire, but its most enduring legacy remains the United States of America.

  17. The Texans were never serious about joining the Empire John. They feinted towards England in order to overcome anti-annexation sentiment in Congress that had been blocking their admission, and the stratagem worked.

  18. Donald,

    Count on Ben Franklin to sum it up pithily.

    Don the Kiwi,

    But then we wouldn’t get to come in late to every war…

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