Wednesday, October 19, 2011 - 4:15 PM
Last night in Philadelphia, a debate was held in Philadelphia, sponsored by the Temple American Inn of Court, between teams of British and American lawyers, on the subject of whether the U.S. Declaration of Independence is illegal. Not surprisingly for an event held just a few blocks away from where the Declaration was signed, the crowd voted with the Americans at the end. (It would be a pretty good "Decline Watch" candidate if they hadn't.) But was it the right call?
Here's the British case, as summarized by BBC.com:
The Declaration of Independence was not only illegal, but actually treasonable. There is no legal principle then or now to allow a group of citizens to establish their own laws because they want to. What if Texas decided today it wanted to secede from the Union?
Lincoln made the case against secession and he was right. The Declaration of Independence itself, in the absence of any recognised legal basis, had to appeal to "natural law", an undefined concept, and to "self-evident truths", that is to say truths for which no evidence could be provided.
The grievances listed in the Declaration were too trivial to justify secession. The main one - no taxation without representation - was no more than a wish on the part of the colonists, to avoid paying for the expense of protecting them against the French during seven years of arduous war and conflict.
The Americans, on the other hand, argued that the Declaration's "validity is proven by subsequent independence movements."
I think the Brits here are relying on the same faulty assumption that some opponents of Palestinian statehood have recently employed, that there are specific and universally applicable rules governing when a country can be considered independent.
In any case, wasn't breaking British laws kind of the point? Maybe next time we can debate the legality of colonizing other people's countries in the first place.
All law, as all authority, is ultimately based on physical force
Of course the Declaration of Independence was illegal according to British law. I am sure England's rebellion against Danish Viking rule was illegal according to the wishes of the Viking kings at the time, and hence "illegal" in a time when the wish of the king was law. The silly game above illustrates one things only; the legality, if not morality, of what you do will retroactively depend on whether you win or not. So if you want to start a revolution or rebellion, you had better win it.
I notice that the British (in part) based their arguments on the actions of Lincoln. In other words they compared a rebellion over taxes with a civil war over slavery.
Secession is legal only when it succeeds. Nobody would care about Lincoln's opinion on it if the Union didn't win.
"In any case, wasn't breaking British laws kind of the point? Maybe next time we can debate the legality of colonizing other people's countries in the first place."
Technically, wasn't every single country in the world created by colonization? Out of a bunch of tribes, the most powerful one conquers all the rest and its leader calls himself king. The king tries to conquer more land, but eventually fails, and that's where borders come from. Fast-forward a few hundred years and the monarchies are gone, but the territorial entities remain and can be recognized by the contemporary observer as England, France, Spain and Italy.
Anyway, the Declaration of Independence was most likely illegal. Was it morally wrong? Well that depends on whether you think the Americans had good reason to secede from Britain. Since the issue was taxes levied to repay the debt incurred during the French-Indian War, well maybe there wasn't a good reason to secede. Oh well, whoops?
Implication for international law
This silly exercise just shows that the logic of international law and legitimacy is a farce.
Of course the Declaration was illegal. But it was good. Law and morality only occasionally align.
I hope the next time someone gets their panties in a knot asking if a foreign policy action is legal or not they remember this amusing case.
British Lawyers Missed the Point
Of course the Declaration of Independence was Illegal especially when you look at it from their point of view.
Let’s look at what was going on. This land of America was being contested for by Four Powers – Great Britain, France, Spain and The American Indians.
Let’s start with the Indians – They didn’t get along with each other let alone the foreigners that were moving in. The big problem was the foreigners had technology far beyond the Stone Age existence they were living. (That is my Cherokee Heritage speaking.) These foreigners offered this technology which help tribes to settle issues between tribes which created more issues down the line.
Spain – They were pretty much taken care of by Elizabeth I and for the most part kept their head low.
Britain and France – They were the Super Powers of that time. I have not read much about how France treated their subjects in this land, but if Britain is an example they’d had the same problem as Britain would have after the French/Indian War.
The French were beaten – and the people living in Britain were happy that they would make profits on the backs of those of us living on this Continent and when the bill came due for the War, well their attitude was let them over there pay the bill. They could get away with that because we on this continent had no voice in the affairs of the Nation we were supposed to be a part of.
PROCEEDINGS OF THE FINCASTLE COUNTY COMMITTEE (OF SAFETY)
JANUARY 20, 1775
"In obedience to the resolves of the Continental Congress, a meeting of the freeholders of this county was held this day, who, after approving of the association framed by that augusto body in behalf of all the colonies, and subscribing thereto, proceeded to the election of a committee, to see the same carried punctually into execution, when the following Gentlemen were nominated: Reverend Charles Cummings, Colonel William Preston, Colonel William Christian, Captain Stephen Trigg, Major Arthur Campbell, Major William Inglis, Captain Walter Crockett, Captain John Montgomery, Captain James M'Gavock, Captain William Campbell, Captain Thomas Madison, Captain Daniel Smith, Captain William Russell, Captain Evan Shelby, and Lieutenant William Edmondson.
After the election, the committee made choice of Colonel William Christian for their chairman, and appointed Mr. David Campbell to be their clerk.
The following address was then unanimously agreed to by the people of the county, and is as follows:
To the Honourable Peyton Randolph, Esquire, Richard Henry Lee, George Washington, Patrick Henry Jr., Richard Bland, Benjamin Harrison and Edward Pendleton, Esquires, the delegates from the colonies who attended the Continental Congress at Philadelphia the Delagates from this colony who attended the Continental Congress held at Philadelphia.
Gentlemen,
Had it not been for our remote situation, and the Indian war which we were lately engaged in, to chastise those cruel and savage people for the many murders and depredations they have committed amongst us (now happily terminated, under the auspices of our present worthy Governour, his Excellency the Right Honourable the Earl of Dunmore) we should before this time have made known to you our thankfulness for the very important services you have rendered to this country, in conjunction with the worthy Delegates from the other provinces. Your noble efforts for reconciling the Mother Country and the Colonies, on rational and constitutional principles, and your pacifick,steady, and
uniform conduct in that arduous work, entitle you to the esteem of all British America, and will immortalize you in the annals of your country. We heartily concur in your resolutions, and shall, in every instance, strictly and invariably adhere thereto.
We assure you, Gentlemen, and all our countrymen, that we are a people whose hearts overflow with love and duty to our lawful sovereign George III. whose illustrious house, for several successive reigns, have been the guardians of civil and religious rights and liberties of his subjects, as settled at the glorious Revolution; that we are willing to risk our lives in the service of his Majesty, for the support of the Protestant religion, and the rights and liberties of his subjects, as they have been established by compact, law, and ancient charters.
We are heartily grieved at the differences which now subsist between the parent state and the colonies, and most ardently wish to see harmony restored, on an equitable basis, and by the most lenient measures that can be devised by the heart of men.
Many of us, and our forefathers, left our native land, considering it as a kingdom subjected to inordinate power, amd greatly abridged of its liberties. We crossed the Atlantick, and explored this then uncultivated wilderness, bordering on many nations of savages, and surrounded by mountains almost inaccessible to any but those very savages, who have incessantly been committing barbarities and depredations on us since our first seating the country. These fatigues and dangers we patiently encountered, supported by the pleasing hope of enjoying those rights and liberties which have been granted to Virginians and were denied us in our native country, and of transmitting them inviolate to our posterity. But even to these remote regions the land of unlimited and unconstitutional power hath pursued us, to strip us of that liberty and property with which God, nature, and the rights of humanity, have vested us. We are ready and willing to contribute all in our power for the support of his Majesty's government, if applied to constitutionally, and when the grants are made by our own representatives; but cannot think of submitting our liberty or property to the power of a venal British parliment, or to the will of a corrupt ministry.
We by no means desire to shake off our duty or allegiance to our lawful sovereign, but on the contrary shall ever glory in being the loyal subjects of a Protestant prince, descended from such illustrious progenitors, so long as we can enjoy the free exercise of our religion, as Protestants, and our liberties and properties, as British subjects.
But if no pacifick measures shall be proposed or adopted by Great Britian, and our enemies will attempt to dragoon us out of those inestimable privileges which we are entitled to as subjects, and to reduce us to a state of slavery, we declare, that we are deliberately and resolutely determined never to surrender them to any power upon earth, but at the expense of our lives.
These are our real, though unpolished sentiments, of liberty and loyalty, and in them we are resolved to live and die.
We are, Gentlemen, with the utmost esteem and regard, your most obedient servant.
Anyway, the Declaration of Independence was most likely illegal. Was it morally wrong? Well that depends on whether you think the Americans had good reason to secede from Britain. Since the issue was taxes parentingguide levied to repay the debt incurred during the French-Indian War, well maybe there wasn't a good reason to secede. Oh well, whoops?
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