Sunday, November 6, 2011

Brits: American Revolution Illegal

The BBC asks:

"Was the Declaration of Independence legal?

On Tuesday night, American and British lawyers in Philadelphia were taking on a 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 traveled 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.

"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...”

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 event pitted British barristers against American lawyers to determine whether or not the American colonists had legal grounds to declare secession.

For American lawyers, the answer is simple: "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.

To the British, however, secession isn't the legal or proper tool by which to settle internal disputes. "What if Texas decided today it wanted to secede from the Union? Lincoln made the case against secession and he was right," they argue in their brief.

A vote at the end of the debate reaffirmed the legality of Jefferson and company's insurrection, and the American experiment survived to see another day. It was an unsurprising result, considering the venue - just a few blocks away from where the Declaration was drafted."

TVD: I'd love to have the details of the arguments. Of course, America's "separation" from the mother country was illegal in Britain's eyes. On the other hand, the English Civil Wars of the 1600s, which cut Charles I's head off and sent pro-Catholic James II packing off to Europe were kind of illegal, too.

Also often lost is that the American colonists rejected the authority of Parliament, since the states' charters came from the kings of the 1600s, not the Parliament that finally won legislative supremacy by importing the pliant William & Mary to take James II's throne in 1688.

If the English and Scots [along with assorted Welsh and Irish] could kill one king and exile another, in comparison the Americans were pretty mellow about the whole thing.

To the British barristers' argument, if Texas seceded after a pair of coups d'etat in WashDC and a new form of government and constitution imposed, who could blame them? Whatever the original deal was, it got so squirrelly that it was off.

I might have made another case, but the Declaration concentrates solely on why Americans no longer owe legal allegiance to the Crown. Having made its case there, it thumbs its nose at Parliament as a non-entity:

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us.

The King had lost legitimacy, and Parliament can go suck eggs. The king was no longer king; Parliament was. But with no representation in it, America owed it no legal allegiance either. And so:

"We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor."

The case for America rests, Your Honor. And if you don't like it, you can go suck eggs too.


secular square said...

In my opinion, the best place to go, as always, is Jack Greene.

Jonathan Rowe said...

How much have we done of John Wesley's arguments on the American Revolution? I recall a very interesting and nuanced case from him.

Unknown said...

Good job Tom.

Jason Pappas said...

Good review of the Patriots’ distinction of Parliament’s lack of jurisdiction and the King’s failure to act appropriately. As Jonathan Mayhew once said of Charles I: he “un-Kinged” himself.

A violation of law? Of course, the DoI wasn’t a violation of natural law. It set forth several constraints: the purpose of government, the failure of the King in regard to that purpose, and the natural right of the government to separate as a consequence. It doesn’t justify separation (or secession) as a fundamental principle in the pursuit of any whim or illicit purpose.

Mark D. said...

The legal predicate of the American colonists' argument is that the King had placed themselves outside of his protection (which he had done), thus releasing them from their duty of obedience to the King. Since they had never consented to Parliament's authority over the colonies (just as Parliament had no authority over the King's other non-British dominions like Hanover), Parliament was acting illegally in its assertions of authority over the American colonies. Hence, it was the Americans who were acting in defense of the their traditional rights & liberties, as well as the principles of natural law, while it was the British who were attempting to impose an unlawful regime on the Americans.

That the Brits refuse to recognize this is no surprise.