Chapter 2

But it is not necessary, it would seem, to resort to external evidence to prove that the Declaration is based on the doctrine of the Reformation. In several places it seems to expressly declare that the rights claimed by America are claimed under the law of nature and of nations based on divine revelation and on human reason. In the first sentence, it declares that "the law of Nature and of Nature's God" entitles the Americans,--it having "become necessary" for them "to dissolve the political bands which have connected them with" the people of Great Britain,--to "assume a separate and equal station among the powers of the earth." In the next it declares not only "that all men are created equal," but that they have "unalienable rights of life, liberty and the pursuit of happiness," not by virtue of any social contract or other form of consent, but by "endowment,"--that is, by voluntary gift and grant--of "their Creator." This doctrine of "endowment" of men with "unalienable rights," by "their Creator," is of course the Christian doctrine. In the concluding part of the Declaration, it is declared not only that the United Colonies, as "the United States of America," are "free and independent states," but that they "of right ought to be" such, and in that paragraph the "connection between them and the State of Great Britain" is not merely declared to be "totally dissolved" but it is also declared that it "ought to be" so dissolved. There was certainly no "right" of the United Colonies, as the United States of America, to be free and independent states and to declare the connection between them and the State of Great Britain to be dissolved except upon principles of some implied common law which was supreme over the Constitution of the State of Great Britain and the Charters and Constitutions of the Colonies, for none of these Constitutions or Charters made provision for the dissolution of the connection on any contingency.

There is necessarily implied in the statement that "all men are created equal" and that "they are endowed by their Creator with certain unalienable rights, among which are life, liberty and the pursuit of happiness," the conception of the right of human equality as a divine right. But is there any other basis than divine right on which to rest a doctrine of human equality? A doctrine of human equality by human right, is a doctrine of equality by consent. But if a man can consent regarding his equality with another man or with other men, he can, as has been often pointed out, consent himself into a state of permanent inequality, inferiority and slavery, even supposing that a basis can be found for the assumption of an original state of equality arising from consent.

Assuming then, for the sake of argument at least, that the proposition that all men are created equal is and was intended to be a statement of the Reformation doctrine in its broadest and most universal form, a clue is given for the interpretation of the propositions which follow. If politics, as well as religion, assumes as its basis the proposition that all men are spiritual beings in direct and permanent relationship with God, and hence equal as regards one another, then the purpose of both politics and religion is to preserve this equality,--politics by compulsion and religion by persuasion. Because all men are spiritual beings in direct relationship with a common Creator who has established laws under which He is the final judge, which men can ascertain and apply through revelation and reason, men are declared to have rights. Man is thus distinguished from animals, who have no rights because they have no capacity to know the law--a knowledge which must inevitably precede a knowledge of the right. Politics looks at the universal needs of all men,--those needs which each man has in common with all humanity--and from the universal needs assumes a universal unalienable right of each against each other and against all, and a universal duty of each toward each other and toward all, to supply these needs. Religion regards the supplying of these universal needs as a duty toward God. Hence politics adopts as its second self-evident truth, the proposition that all men "are endowed by their Creator with certain unalienable rights, among which are life, liberty and the pursuit of happiness." The primary and universal needs of all mankind, regarded as equal creatures of a common Creator, are the need of life, the need of liberty and the need of pursuing happiness. These needs are unalienable. No man can rid himself of them without destroying himself as an equal creature of a common Creator. Consequently the rights and duties corresponding to these unalienable needs are themselves unalienable. There is no denial here of alienable rights and duties. But it is clearly laid down as a fundamental principle of the all-pervasive common law, that rights given by the Creator are unalienable, and that no human being, however emphatically he may declare, or will, or agree to the contrary, may by any possible act of any other human being or of any set of human beings, whether calling themselves a government or not, or by any possible means, deprive himself, or be deprived of the right of life, liberty and the pursuit of happiness--these being necessarily incidental to the original right of equality.

To apply this interpretation to the relationship between ourselves and our brethren of the Insular regions: They are, according to the universal and common law of nature and of nations, as we and all other human beings are, equally creatures of a common Creator and equal with us. Under that all-pervasive law, they, with us, and all other human beings, are created with the unalienable need of life, liberty and the pursuit of happiness, and therefore with corresponding unalienable rights. Under that law we cannot deprive them of these unalienable rights, nor allow them to deprive themselves of their unalienable rights, nor allow a part of them to deprive the others of their unalienable rights. According to the philosophy of the Revolution, every man, every community, every state and every nation is bound to enforce, and cause to be enforced, this law of nature and of nations, which prevents the voluntary or involuntary alienation by any man, any community, any state or any nation of his or its rights of life, liberty and the pursuit of happiness.

The Declaration, having thus described the ends of all government, proceeds to describe the methods by which these ends are accomplished. It declares that "to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed." Governments, it is declared, are instituted solely to secure to each and every being his and their unalienable rights, as equal creatures of a common Creator, to life, liberty and the pursuit of happiness. Here is a plain denial that government is universally the expression of the will of the majority, for it is matter of common knowledge that in only a few of the most highly civilized countries of the world does the will of the majority, as it is expressed, secure to each and every person his and their unalienable rights of life, liberty and the pursuit of happiness.

There is also an implied denial of the proposition that government is the will of the majority, in the proposition that "governments are instituted among men." If the Fathers had meant that government was the will of the majority they would have said, "Men have the right to institute governments for themselves, according to the will of the majority." What they did was simply to state as a fact that "governments are instituted among men," which fact is wholly inconsistent with the hypothesis of a universal right of each and all communities to institute government for themselves.

There is, however, it would seem, clearly implied in the statement that "to secure these rights governments are instituted among men," the statement that governments are universal, that they begin with and continue through human existence,--that government is, as Calvin said, of "not less use among men than bread and water, light and air, and of much more excellent dignity," and therefore the prime necessity of human life,--and that there is a universal right of all men, all communities, all states and all nations, to such government as will secure these rights; for the rights which are to be secured being universal, government, which is the instrumentality for securing them, must also be universal.

Having thus declared governments of a kind suitable to secure the unalienable rights of the individual to be a universal right, and having by implication declared that it is not essential in all cases that governments should be instituted by the people governed, and that therefore there may be cases in which governments may justly be instituted by an external power, the Declaration proceeds to lay down as a universal proposition that all governments,--existing, as they do, solely for the purpose of securing to each and every individual his and their unalienable rights,--do, universally, whether instituted by the consent of the governed or not, "derive their just powers from the consent of the governed." The expression "deriving their just powers from" is generally read as if it were "by," and the expression "the consent of the governed" as if it were "the will of the majority." Both of these readings are so plainly inconsistent with both the text and the context as to be clearly inadmissible. If the words are taken in their usual and proper meaning and read in the light of the context and the surrounding circumstances, it seems at least reasonable to conclude that the expression "deriving their just powers from the consent of the governed," is and was intended to be an epitome of the two fundamental principles of the law of agency, brought over into the English law from the Roman. These principles are: "_Obligatio mandati consensu contrahentium consistit,"_ a translation of which is, "The powers of an agent are derived from the consent of the contracting parties," and "_Rei turpis nullum mandatum est_," a translation of which is "No agent can have unjust powers." If this interpretation be correct, the expression "that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed" means that there is no universal absolute right of communities, states, or nations, to institute their own governments, but that every government, however instituted, is universally the agent of the governed, to secure to every individual, every community, every state, and every nation governed, his and their unalienable rights of life, liberty and the pursuit of happiness and to effectuate the equality of all men as the creatures of a common Creator.

On this interpretation a rule is laid down to determine under what circumstances a community, state, or nation has the right to institute its own government. Its rights are to be determined by the principles of agency. Agencies among individuals are of several kinds, express and implied, voluntary and involuntary. There may be co-agencies, in which the performance of one general agency is distributed among several agents. A person of full capacity has the right, according to the common law of persons, to appoint his own agent, unless he is in such just relationship with others that the common interests require that he should adopt as his agent an agent appointed by the others. So communities, states and nations which are of full capacity, have the right, assuming the existence of this common law of nature and of nations, to appoint their own governments, subject to the necessary limitations growing out of their just relationships to other communities, states and nations. Infants, and persons _non compos_ or spendthrift, are subject, by the principles of the common law of persons, to have an involuntary agency created for them by the Chancellor until the disability is removed, if the disability is temporary, or permanently, if the disability is permanent. The same is true by the law of nature and of nations, if the interpretation I have suggested be correct, regarding communities, states and nations, which are in a condition of infancy or anarchy, or are spendthrift. The Chancellor or Justiciar, whether a person, a state, or a nation, must possess the qualities and attributes of a Chancellor and Justiciar, and proceed as a Chancellor and Justiciar. Otherwise the attempt to create an involuntary agency for the suitor is nugatory. The fact that a person who is an infant, or _non compos_, or spendthrift, has an involuntary agency created for him by the Chancellor, does not destroy, or in any way affect, the juridical personality of such person, or his political equality with other persons; and, by parity of reasoning, the fact that a community which would otherwise be recognized as having free statehood and political personality and equality with other free states, has an involuntary government appointed for it by a Justiciar State, on account of its being in a weak or infantile condition, or on account of its being anarchic or spendthrift, can not destroy or in any way affect its free statehood,--or, what is the same thing, its political personality,--or its equality with other free states.

A further meaning apparently is that the first object of all government is to do justice, and the second object to do the will of the governed. A government which recognizes itself as deriving its just powers from the consent of the governed, is bound to do justice in such manner as will conform to the just public sentiment of the governed. It is in no case bound to execute the will of the governed, much less the will of the majority, unless that will conforms to justice in the particular case. Nor can it do an unjust act and plead in justification the consent of the governed, for the consent of the governed to an unjust act is void by the law of nature and of nations. This principle was often appealed to by the Americans, notably in the final manifesto of 1778, as an answer to the British claim that the Americans were bound by the restrictive Acts of Parliament on account of their acquiescence in them. They said that an attempted consent to an unjust act of government was a nugatory act, an unjust act of government being itself nugatory, and deserving obedience only from motives of policy.

This doctrine that government is the doing of justice according to public sentiment is, of course, utterly opposed to the doctrine that government is the will of the majority. If government is the doing of justice according to public sentiment, government is the expression and application of a spiritually and intellectually educated public sentiment, since the knowledge of what is just comes only after a course of spiritual and intellectual education, and the forms and methods of government should be such as are adapted to such spiritual and intellectual education. Education takes place by direct personal contact, and can best be accomplished only through the establishment of permanent groups of individuals who are all under the same conditions. The formation and expression of a just public sentiment, therefore, requires the establishment of permanent groups of persons, more or less free from any external control which interferes with their rightful action, under a leadership which makes for their spiritual and intellectual education in justice. Such permanent groups within territorial limits of suitable size for developing and expressing a just public sentiment, are free states. Territorial divisions of persons set apart for the purpose of convenience in determining the local public sentiment, regardless of its justness or unjustness, are not states, but are mere voting districts. Just public sentiment, for its expression and application, requires the existence of many small free states, disconnected to the extent necessary to enable each to be free from all improper external control in educating itself in the ways of justice; mere public sentiment, for its expression and application, requires only the existence of a few great states, unitary in their form and divided into voting districts. Just public sentiment, as the basis of government, is a basis which makes government a mighty instrument for spirituality and growth; mere public sentiment, regardless of its justness or unjustness, as the basis of government, is a basis which makes government a mighty instrument for brutality and deterioration. Human equality, unalienable rights, just public sentiment, and free statehood, are inevitably and forever linked together, as reciprocal cause and effect.

All the American public men were agreed that the American Colonies, so called, were and always had been free states, and that the State of Great Britain, acting through or symbolized by its Chief Executive or its Chief Legislature, or both of them was a governmental agency, and a connecting medium, of all the free states which were connected with it, and which with it formed what they called "The British Empire." Some based this right of free statehood and political connection on the Colonial Charters; some on the doctrine of the extension to the Colonies of the Constitution of the State of Great Britain in a partial and metaphorical manner; some thought that the Colonies had always been not only free states, but also free and independent states, and that the political connection between them and the State of Great Britain was, and always had been, by consent, that is, by implied treaty. Upon careful examination, all these theories were found to be untenable. The Colonial Charters clearly did not intend to recognize the Colonies as free states, much less as free and independent states; the doctrine of the extension to them of the British Constitution was inconsistent with their statehood in any sense; and there was not a vestige of anything which could be regarded as a treaty between the Colonies and Great Britain. Finally, therefore, all were apparently brought to see that there was nothing on which to base the American claim that the Colonies were and always had been states, free or free and independent, except "the law of nature and of nations," and not even the law of nature and of nations as it was understood by the Governments of Europe, but a law of nature and of nations which was based on the broadest principles of the Reformation. Free statehood for the American Colonies was apparently asserted as a universal right of all communities, states and nations, because free statehood was considered by the framers of the Declaration to be the universal and only means of forming and expressing a just public sentiment, and therefore to be the universal and only means of securing the universal and unalienable rights of individuals. The ultimate meaning of the expression "that to secure these rights Governments are instituted among men, deriving their just powers from the consent of the governed," seems therefore to be that by the law of nature and of nations there is a universal right of free statehood of all communities on the face of the earth within territorial limits of suitable size for the development and operation of a just public sentiment.

The Declaration denies even to all the people of a free state the right to change their government when and how they will, and according to mere public sentiment, regardless of its justness. Their right "to alter or abolish" a "form of government" is declared to exist, according to the law of nature and of nations, only when that form of government "becomes destructive of these ends," that is, when a government, instead of securing the unalienable rights of the individuals governed, attempts to destroy these rights. Moreover, it is declared that when the people alter or abolish one form of government, their right of establishing a new government is not absolute, but is limited, according to the law of nature and of nations, so that in establishing a new form of government they are obliged to "lay its foundation on such principles and organize its powers in such form, as to them shall seem most likely to effect their safety and happiness,"--that is, to secure the unalienable rights of the individual to life, liberty and the pursuit of happiness. This limitation upon the powers of even the whole people of a state necessarily results from the fact that the law of nature and of nations is universal and governs so completely every human act and relationship that no act can be done and no relationship formed which violates the unalienable rights of any individual. How the law of nature and of nations is to be enforced, the Declaration does not say. Apparently the obligation to enforce it rests upon every individual, every community, every body corporate, every state and every nation, and the ultimate force which compels its application is the just public sentiment of the world, or, as Rivier called it, "the common juridical conscience."

The declaration of the universal right of free statehood is not only made in the statement that "to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed." It is asserted with much more clearness in the concluding part of the Declaration, which reads:

"We, therefore,... declare that these United Colonies are, and of right ought to be, free and independent states,... and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved."

In the first draft of the concluding part of the Declaration, Jefferson wrote:

"We, therefore,... utterly dissolve and break off all political connection which may have heretofore subsisted between us and the people or Parliament of Great Britain, and finally we do assert and declare these Colonies to be free and independent states."

The resolution of the Virginia Convention of May 15, 1776, which was the basis of the Declaration, read:

"That the delegates ... be instructed to propose to [the Continental Congress] to declare the United Colonies free and independent states, absolved from all ... dependence upon the Crown or Parliament of Great Britain."

A comparison of the words used by the Congress with those used by the Virginia Convention and those used by Jefferson in the first draft, shows how much the judgment of the Congress was clarified by the great debate which occurred between May 15 and June 10, 1776, when the wording above quoted was agreed upon.

The wording of the Virginia resolution, if it had been adopted, would have implied that the Colonies had theretofore been "dependent upon the Crown and Parliament of Great Britain," and that their statehood, their free statehood, and their independent statehood came into existence by virtue of their declaring themselves free and independent states.

The wording of Jefferson's first draft, if it had been adopted, would have implied that a "political connection" might or might not have theretofore existed between the American people and "the people or Parliament of Great Britain," and that if such a political connection had existed, the American people had the right to secede from it, whenever they considered that the terms of the connection were not observed by the people or Parliament of Great Britain, and that by such act of secession, and by their Declaration, their rights of statehood, of free statehood and of independent statehood came into existence.