Dr. Carson, well known to FREEMAN readers, is Chairman of the Social Science Department of Okaloosa-Walton Junior College in Niceville,
A government of law rather than of men is hardly a recent idea. It was not even a new notion in the fateful winter of 1775-1776 that had been suddenly conceived by rebellious American colonists as a pretext for revolution. There were precedents and antecedents for this belief in government by law in the British tradition, in medieval thought and practice, and among Roman thinkers in classical antiquity.
But whether government should have its source in law or in men was no pretty abstract question to be pondered by contemplative philosophers for Americans during this winter. It was rooted in problems which were practical, pressing, and immediate. Government by men had resolved itself into the question of whether or not they should any longer be governed by a single man, King George III. It was a question that burned itself into the center of the customs, habits, loyalties, rights, and prerogatives of Americans.
How hard it was to decide what to do! Blood had already been spilled in anger: the battles of Lexington and Concord, and of Bunker Hill had already been fought. A continental army was encamped against a British army. The Second Continental Congress had been in session since May of 1775. It had already taken action which led almost irrevocably to rupture between England and America. George Washington had been appointed commander of the continental force. Congress had authorized an expedition against Quebec, approved of the construction of a navy, and sent a commission abroad to seek friends among other countries. Yet the "shot heard round the world" had apparently ceased reverberating. Congress affirmed its loyalty to the King of England, and George Washington and his officers toasted the health of the King during that winter.
The Right to Tax
Step by step, over a period of ten years, leaders of the colonists had edged toward separation from England. When Parliament passed the Stamp Act, they had taken the position that it was unlawful because Parliament did not have the authority to levy an internal tax. When Parliament retreated to advance along a different line with the Townshend Duties, colonists took the position that Parliament could not levy external duties for the purpose of raising revenue. A chastened Parliament repealed most of these duties but then attempted to give the East India Company a monopoly of the sale of tea in the American colonies. Faced by this action, colonists denied the rightfulness of the creation of a monopoly. By 1774-1775, such varied men as James Wilson, Thomas Jefferson, and John Adams questioned that Parliament should have any legislative authority over America.
But from 1765 to 1775 it was always the powers of Parliament that were at issue. Protests were always made within the framework of preserving the connection with Britain and a professed loyalty to the King.
Why, we may well ask, did the colonists have so much trouble focusing their ire upon the King? It is likely that had a poll been taken among those who had given thought to the matter that an overwhelming number of Americans would have opted for government by law. And what better symbol of arbitrary government could have been found than that of monarchy? Hardly a century had passed since the Stuart kings had claimed that all authority stemmed from them by divine right. Were not most of the governors "royal" governors? Were not the customs agents who beset the colonists, agents of the "crown" in the final analysis? Were not the very soldiers encamped against Americans, soldiers of the king? Government by men could be traced finally to government by a man.
But the matter was not so simple. For it was not only that a few hateful laws were promulgated in the name of the king. Cherished rights and liberties could be traced to the same source. A title search for the ownership of property in colonial times would lead one backward to the source of that title—the monarch who had granted the land to some company or proprietor from whom a colonist had acquired it. It was no different with those liberties which the colonists loved. Many of the charters upon which the colonies had been founded specifically stated that those who settled in America should retain all their rights and liberties as if they had remained in England. The right of governing themselves traced back to the rights recognized by kings in times past.
If they should cast off their ties to the monarch, what then would be the status of their property and their liberties? Thus far they had based their opposition upon the unconstitutionality of the action taken by parliament, upon their position that their rights as Englishmen had been violated. If they cast off this last tie with England, how then would they defend their life, liberty, and property?
The answer was lying ready to hand, of course. It was to be found in the arguments of the Roman Stoics, familiar to American thinkers. It had been given fairly recent statement by John Locke in his justification of the Glorious Revolution in England. The French philosophers had embroidered upon it. Many Americans had embraced—philosophically—beliefs which would provide a new foundation for liberties. This new foundation was that this universe is ruled by natural law, that this is a law above and beyond the power of man to alter, and that it requires no human sanction for it to prevail. The most that man can do is to recognize it and live in accord with it.
In that winter of decision, then, all that was needed was for the breath of life to pass into these new foundations. It required only that abstract ideas be given the force of human will and be made relevant to the American situation. That man, more than any other, who performed this task for America was Thomas Paine. Paine had only lately come to America. He could be aptly described as a man with a nose for revolution—an itinerant revolutionist. He published a pamphlet called Common Sense in January, 1776. It sold by the tens of thousands, spreading like a wildfire through the colonies, confirming men in a new determination and galvanizing them to action. Paine went to the heart of the matter, minting deep philosophical beliefs into the coin of slogans and shibboleths.
He hacked into shreds the arguments against the final break. "But Britain is the parent country, say some. Then the more shame upon her conduct. Even brutes do not devour their young nor savages make war upon their families…." More, "Ye that tell us of harmony and reconciliation, can ye restore to us the time that is past? Can ye give to prostitution its former innocence? Neither can ye reconcile Britain and America. The last cord now is broken, the people of England are presenting addresses against us."
As for the matter of a king, Paine went straight to the jugular vein. "But where, say some, is the king of America? I’ll tell you, friend, he reigns above, and does not make havoc of mankind like the royal brute of Britain." Let the world know, he declares,—and this is the crux of his argument—"that in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other."
We do not know after what readings, following which discussions, after what lonely contemplation, particular Americans made their decisions. We do know that when a resolution was introduced to Congress in 1776 for independence that the Congress approved. We know that a committee was appointed to draw up a declaration, and that the task of preparing a draft fell to Thomas Jefferson. And we know that Jefferson based his declaration upon the new foundations, and cast into unforgettable phrases the argument for government by law.
Read again the introductory paragraphs of the Declaration of Independence:
"When in the Course of Human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
"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…."
With the adoption of this declaration, the Continental Congress and with them—as it turned out—the American people, turned their back on the last relics of government by men and turned their faces toward the rule of government by law.
That was the decision which had issued from that winter of deliberation.