This symposium essay appears in the Fall 2014 issue of Modern Age. To subscribe now, go here.
The political system of the allied powers is essentially different . . . from that of America.
—James Monroe, Message to Congress, 1823 (the Monroe Doctrine)
In looking for the sources of American exceptionalism, historians should avoid subjective or emotional evaluations. There is an objective criterion that sets the United States apart. That criterion is our structure of law. The common law and the U.S. Constitution set us apart. Together their unspoken presumption is that man is a fallen creature and that human nature will never change. To protect the rights of the individual citizen, the machinery of government must place obstacles in the way of the corrupt acquisition of power by any faction in society.
The rest of the world operates under a very different system, called civil law, or sometimes Roman law, updated by fashionable ideology. At the heart of that ideology is the presumption of the perfectibility of human nature under the wise guidance of the state. The right of the individual is subordinated to the order of the common good. The civil law is imperial in design; it demands that the common good be achieved by the benevolence of the state whether the people want to be changed or not.
Unfortunately, civil law is the basis of so-called international law and the law of treaties. Just as civil law molds the individual through the consensus of experts, so international law seeks to mold nation-states into the consensus of international institutions, whether the nation-state is willing or not. The rest of the world is genuinely puzzled by the planned chaos of our internal political arrangements, and our resistance to the rule of consensus. The world thinks America, clinging to its guns, its God, and its Constitution, is a threat to world peace.
Yet the United States has flourished as the exception to the rule. In other words, our constitutional structure justly may be called the basis of American exceptionalism.
* * *
Twenty years after the founding of the United Nations, a major project of the UN’s International Law Commission was completed. The Vienna Convention on the Law of Treaties was adopted on May 22, 1969, and it was opened for signature. That law defines the way the language of treaties between states is to be interpreted.
By January 27, 1980, a sufficient number of countries had ratified the convention so that, in the parlance of international law, it “entered into force.” To date, 114 state parties have ratified the convention. Fifteen states have signed but not ratified it. That list includes Afghanistan, Bolivia, Cambodia, Côte d’Ivoire, El Salvador, Ethiopia, Ghana, Iran, Kenya, Madagascar, Nepal, Pakistan, Trinidad and Tobago—and the United States. Why is the United States included in this group of pariahs and B-list nations? The answer is very simple: no U.S. president in the past four decades has dared to submit the treaty draft for consideration by the U.S. Senate. We have not ratified the convention, and we cannot rationally do so.
For example, the rules of interpretation set forth by the Vienna Convention specify that parties to disputes cannot refer to precedents as a way of determining the meaning of a text; in the United States, precedent is one of the most important ways of deciding a case. Under the Vienna Convention, litigants are forbidden to refer to the original intent of the drafters; in U.S. courts, jurists up to and including Supreme Court justices are likely to invoke original intent as a clue to understanding the law. Under the Vienna Convention, even a close reading of the text itself is rejected, since the authentic text exists in five languages. Virtually every rule of interpretation in the Vienna Convention contradicts our understanding of law and justice.
If the United States were to ratify the Vienna Convention, that act would, under the U.S. Constitution, make the convention the law of the land. The rules of interpretation laid forth would be invoked in U.S. courts. Unlike other treaties where the subject matter might affect our jurisprudence directly, the Vienna Convention is about the interpretation of law itself and could introduce into our judicial system methods of interpretation that would override the U.S. Constitution with its powerful protection of individual rights.
Because words don’t have a fixed meaning under international law, a consensus often emerges to define words exactly opposite from common sense. “Human rights” means the redistribution of private property. “Individual rights” means the dissolution of family structure. “Women’s health” means the killing of unborn women. The seabed, the planet, and even the moon become “the common heritage of mankind,” to be managed by highly paid UN experts.
The rules of interpretation set forth in the Vienna Convention are incompatible with the U.S. legal system, including common law, U.S. statutes, and the body of constitutional law. The Vienna Convention systemizes the rules of “customary international law.” In turn, the rules of international law are taken from the procedures of civil law, the legal system found in most nations of the world. But the American Founders in the eighteenth century rejected the continent’s civil law movement and instead gave a new life to the British common-law tradition along with the historic charters of liberty that had been developed by the British to hold Crown and Parliament in check.
Unfortunately, the United Kingdom took the off-ramp from its history in 1972, when it acceded to the 1957 Treaty of Rome, and Parliament passed the European Communities Act of 1972. Under articles 2 and 3 of the ECA, Britain obligated itself to consider European law as a valid and binding source of U.K. law. If there is an inconsistency between U.K. law and European law, the European law and decisions of the European Court are paramount, even over sovereign acts of Parliament. The pandemic of relativism gushing from Brussels continues to overthrow Britain’s ancient social customs and sovereignty.
That leaves the United States as the odd man out in matters of international relations. While foreign policy analysts usually discuss international affairs with regard to specific policy goals, long-term strategy, and the resolution of conflict, the real problem is that our system of law causes us to look at the world differently. For example, we believe in fair competition and victory for the winning side, not consensus. Our legal system is based on an adversarial process, not the shaping of society. The goal of our economic system aims for the free market rather than a planned economy. We believe that legal precedents should be binding for the sake of social stability. We believe that individual property rights are the bulwark of freedom. We believe that laws should be responsive to the people, not to a group of experts. Finally, we don’t believe in the validity of international law.
That last sentence bears repeating. The United States cannot accept the validity of international law, and conforms to it only as a matter of convenience, not obligation. In contrast, the international community insists that international law is an obligation, binding on all nations—even if a particular nation has not signed or ratified the treaty in question.
The definitive analysis that defines the relationship of international law to U.S. law is a publication of the American Law Institute entitled Restatement of the Law, Third, Foreign Relations Law of the United States, that is, the third edition, completed in 1986. As far as the United States is concerned, this is the standard reference work intended for jurists and lawyers currently practicing in the field. It is objective, nonpartisan, and nonideological. Yet this is what the Restatement says in trying to come to grips with fantasy:
The international political system is loose and decentralized. Its principle components—“sovereign” states—retain their essential autonomy. There is no “world government” as the term “government” is commonly understood. There is no central legislature with general law-making authority; the General Assembly and other organs of the United Nations influence the development of international law but only when their product is accepted by states. There is no executive institution to enforce law; the United Nations Security Council has limited executive power to enforce the provisions of the Charter and to maintain international law generally; within its jurisdiction, moreover, the Council is subject to the veto power of its five permanent members. . . . There is no internal judiciary with general, comprehensive and compulsory jurisdiction; the International Court of Justice decides cases submitted to it and renders advisory opinions but has only limited compulsory jurisdiction.
The term “international law,” therefore, is a contradiction in terms. It is “law” only by analogy; that is, by comparison with true law enacted by legislatures responsible to the people and endowed with the authority to enforce it. It is “law” only to the extent that a nation-state chooses to accept it. True laws can be repealed or altered through the constitutional process, but there is no constitution governing the making of international law. Yet international legal experts would have us believe that once a nation-state accepts a principle of international law, its assent can never be revoked except through the agreement of all nations. As the Restatement says:
In the international system, law is observed because of a combination of all forces, including the unarticulated recognition by states generally of the need for order, and of their common interest in maintaining particular norms and standards.
For the United States, international law has no essential validity, but we conform for the sake of pragmatic convenience. In theory we, like addicts, believe we are strong enough to quit at any time; but in practice the junkies of our ruling class feel it would be bad form to look like we were opting out of the cocktail party. The internal danger is that our national sovereignty is under assault by intimations of international indeterminacy.
* * *
In 1823 President James Monroe sent his seventh message to Congress and included the principles we have come to know as the Monroe Doctrine. Like any State of the Union proclamation, the message covers many topics, with the statements on foreign policy inserted at different places. The Principles of 1823 have been much misused and little understood. Indeed, the U.S. secretary of state boasted at a recent meeting of the Organization of American States that the Monroe Doctrine is dead. But it is dead only if the U.S. Constitution is dead.
It is important therefore to reexamine what Monroe actually said. The catalyst was this: “The political system of the allied powers is essentially different . . . from that of America.” He makes no charges against “the allied powers,” nor does he accuse them of evil designs. The problem with the allied powers is existential; it is their political system itself that is the problem. Their system is not just different from the system we enjoy in America—it is essentially different.
Monroe goes on: “This difference proceeds from that which exists in their respective Governments.” The organization of their governments contrasts with the governing system the United States has “achieved by the loss of so much blood and treasure.” He modestly omits the fact that this loss of blood included his own and that the Hessian rifle ball that severed his artery at Trenton is still imbedded in his shoulder. However, the contrast he is drawing is between two “systems”—their system against our system. The American system works better, because, as Monroe says, it is a system “under which we have enjoyed unexampled felicity.”
Finally, he gets to the heart of the Monroe Doctrine: the United States would “consider any attempt on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety.” In other words, the two systems are incompatible when laid side by side. This is indeed an extraordinary claim. The U.S. system is an exception to the rules by which Europe has been dominated. Monroe’s view is that the difference is so great that its extension to the Western Hemisphere would be a clear and present danger to the hemisphere’s peace and security.
What is this difference? Diplomatically, Monroe refrains from particulars, although he knows the continental systems intimately. He was one of a handful of Americans living at that time with deep experience in international affairs. Washington sent him as minister to Paris, where he arrived ten days after the execution of Robespierre and wrote an unvarnished account of the upheaval—a diplomatic report that eventually was leaked to all the major colonial newspapers. Yet in the chaos he was able to negotiate treaties for war reparations and to open trade with France.
Jefferson sent him to France to revive the stalled negotiations seeking to open the port of New Orleans to the export of U.S. commerce. Working with such cynical officials as Barbé-Marbois and Talleyrand, Monroe cut an unprecedented deal with First Consul Napoleon to buy the whole Louisiana territory for $15 million—a deal that greatly exceeded his original instructions but grew into his vision to make the United States a transcontinental power. Jefferson then sent Monroe to England, where he was presented to his old enemy, George III. Monroe stated in his memoirs that the king treated him kindly.
Dispatched next to Spain in 1804, he stopped in Paris to be present in Notre Dame Cathedral for the coronation of Napoleon as emperor. In Spain his quest to obtain Florida was temporarily stymied by the stagnation and suspicion of the court of Charles IV. The king himself had little interest in statecraft and left policy to the intrigues of his queen and his ministers. Three years later, with Napoleon’s troops already moving into Spain, Charles abdicated.
Clearly Monroe was no xenophobe. He understood perfectly the ways of the great world. He had had enough of benevolent despotism. When he attacked the problem of the “allied powers,” he had a very precise knowledge of their systems.
The “allied powers” to which Monroe referred were called variously “the Triple Alliance” and “the Holy Alliance.” The three nations indicated were Russia, Prussia, and Austria. The sobriquet “Holy” was used because their three sovereigns were, respectively, Russian Orthodox, Protestant, and Catholic. It had nothing to do with their piety. The monarchs in question were Czar Alexander I of Russia, King Frederick William III of Prussia, and Emperor Francis I of Austria. They all maintained huge standing armies, which marched back and forth across Europe. No ruthless tyrants here; they all considered themselves to be benevolent despots and children of the Enlightenment. Yet Monroe considered their systems to be a threat to the Western Hemisphere. Despite their claims to benevolence, the law and the legal systems were arbitrary expressions of unchecked imperial power. Reform, when it came, came from the ruler above, without the consent of the people.
Nevertheless, historians steeped in the worldview of the establishment culture have admired all three despots and admired the imperial regimes of their predecessors even more extravagantly. In Russia, Empress Catherine was called “the Great,” even though she gained the throne by staging a coup that murdered her weakling husband, Peter III. Her program of imperial expansion abroad, coupled with vigorous cultural institutions imitated from western Europe, changed the face of Russia. Famous for her correspondence with Voltaire, she called into session an appointed legislative commission in 1767 and introduced a code of civil law in 1774.
Her son, Alexander I, also came to power after being implicated in the plot to overthrow the short reign of his father, Paul I, a plot that ended in Paul’s assassination. He engaged in wide-ranging wars, first forming an alliance with Napoleon, then defeating Napoleon after the Moscow winter campaign. He wasn’t called great, but at the time of the Monroe Doctrine, Alexander was the most powerful monarch in Europe.
In Prussia, Monroe’s unspoken target was Frederick William III, the third in succession to Frederick the Great, who had died childless. Frederick the Great had begun to compile the Prussian civil code, the Allgemeines Landrecht, promulgated by his successor, Frederick William II, in 1796. The Prussian code, with legendary Prussian thoroughness, attempted to cover every conceivable administrative and criminal topic with seventeen thousand paragraphs. The intent was to set out a legal model of the perfect state and to forestall judicial decisions based on the past.
In Austria, Empress Maria Theresa in 1760 set in motion a group of legal scholars with a similar project, namely, to compile the General Civil Code, the Allgemeines Bürgerliches Gesetzbuch. The code was finished and promulgated in 1812 under Francis I, the archduke of Austria, who had taken the title emperor in 1804.
In France, the first consul and soon to be emperor had imposed the influential Code Napoleon in 1804, but by the time of the Monroe Doctrine, the exiled Napoleon had already died on St. Helena two years earlier.
* * *
The idea that new laws should be imposed by the emperor was not a new idea with the Enlightenment. It was just a new twist on a process that purported to go back to the Roman Empire. The most primitive example of Roman law was “the Law of the Twelve Tables,” actually engraved on bronze tablets in the Roman Forum about 450 BC. The last codification of Roman law took place in 532 AD in Byzantium. By that time, the western empire had disintegrated under barbarian invasions, civil wars, and contending factions. Justinian I, sometimes called “the Great,” ruled from Byzantium.
Justinian was the last Roman emperor whose native language was Latin. Because of the collapse of the western empire, Justinian ordered his quaestor, Tribonian, to compile a new codification of Roman law. Justinian’s action set the pattern that became a key component of Roman and civil law: the legal system should be drawn up afresh by groups of unelected experts, without input from representatives of the people. A quaestor was a kind of legal adviser, perhaps not unlike a modern attorney general. Tribonian obviously presided over a group of specialists because the Corpus Juris Civilis amounted to four large volumes. The most famous was the Digest, a rewriting of previous law, and the Pandects, a systematic compilation of Justinian’s own edicts.
Justinian ruled as a despot, a word that technically means someone who rules with all power in his hands. The essential feature of civil law was that it was a framework decreed for the reform of society. The second feature was that it was intended to replace all previous laws or customs. It rejected precedent. No judge was allowed to decide a case on any other basis than on the new texts.
It is not clear from history how effectively the Justinian code was implemented throughout the empire. Most local communities depended upon local lawgivers and the customs of their region. But the lamp of learning was kept burning by the community of scholars gathered in the monasteries and religious institutions that preserved and copied ancient manuscripts. These gatherings of scholars in medieval cities were to create the modern university.
One of the earliest universities was established in Bologna in 1088, dedicated, many believe, solely to the recovery and analysis of the Justinian code. The scholars who were analyzing and writing commentaries on the Pandects were training students who became a body of legal technicians who spread their program throughout Europe. The influence of civil law dominated the major centers of learning and administration in the continent, and its principles were accepted in almost all nations.
For Monroe that system would never be acceptable, because his legal tradition was quite different. One region of Europe had escaped the spell of the civil law system. The northwest coast of France frequently had been subject to raids from the Vikings, and eventually these men from the north began to infiltrate the area for settlement. These “north-men” so changed the culture that the region became an enclave known as Normandy. Soon the men from the north had achieved dynastic control, and one of them, William, Duke of Normandy, would cross the English Channel in 1066 and impose the Norman system on all of England.
* * *
The characteristics of British law were these: instead of blotting out the past, it enshrined past law and the decisions of justices as precedent. Instead of writing a new code as a plan for society, it was never codified at all. It drew its strength from the slow accretion of actions of many jurists throughout the millennium. Instead of being handed down by edict of an emperor, it slowly wended its way through the clash of social and political forces, solidified from time to time by charters in which the king promised to obey the law. Instead of law created from the opinions of academic scholars with little experience of real life, it was tempered by men who had felt the harsh experience of reality. As much as possible, the law set the power centers of the kingdom against each other so that one could counteract or block the attempts of another to seize power.
After the Battle of Hastings, William the Conqueror moved quickly to consolidate his victory. The whole land was apportioned to his barons to secure their loyalty. William set up courts with Norman judges who used Norman customary law to regularize the Anglo-Saxon law that had been written by Edward the Confessor. The conqueror wanted a single legal system that would be common to every shire in the provinces of his realm, a common law.
In those days, kings did not have standing armies; kings depended upon the goodwill of their liege men, and the kings needed to obtain acquiescence of the barons to ensure a supply of troops and funding. The barons met only at the call of the king and could pass no legislation on their own authority. These assemblies would eventually be called “parliaments” and did not constitute a continuing body. Lacking legislative authority on their own, they could only petition the king. They developed a legislative device known as a “petition of right.” The format opened with a preamble of ritual obeisance, followed by a list of abuses they wanted corrected. For centuries the petition of right became a pivotal device in the fight for freedom in England as Parliament gradually wrested power from the monarchy. It is not surprising that the American colonists would use the same legal format in 1776.
After William’s death, his son Henry I sought the throne of England. But the barons insisted on conditions and guarantees before they would accept him. Their demands were written out in the form of a petition of right, which was then proclaimed in 1200 as the Charter of Liberties. Henry established his court at Westminster, and the King’s Bench achieved prestige as the high court of the realm. Today Westminster, with the Houses of Parliament, remains the center of the English law tradition.
In 1215 another such document was presented to King John at Runnymede, a document that today is revered as Magna Carta, the Great Charter of Freedom. Another version of the petition of right, Magna Carta has some sixty paragraphs of demands under the common law. Today’s secularists may be surprised to reflect upon the circumstance that the principal organizer of the Runnymede confrontation and certainly the main author of the document was Stephen Langton, the archbishop of Canterbury. Besides being a man of action, he was a great scholar who had participated in Paris in the editing of a uniform edition of the Bible. To Langton has been attributed the numbering of the verses of the Bible, an innovation that facilitated the study of scripture; with the later advent of printing, numbered verses made the Bible accessible to any layperson. To one man, Bishop Langton, goes the credit of putting a firm foundation on the two sources of English law, Magna Carta and the Holy Bible.
In 1628 Parliament was in dispute with Charles I, who was attempting to levy taxes and fight wars without the assent of that body. The Speaker of the House was Sir Edward Coke, the foremost jurist of his time. Coke composed a document in the usual form that was formally entitled the Petition of Right. It sought the restoration of the ancient rights, drawing upon tradition and reaffirming Magna Carta. The petition restored habeas corpus, rejected unapproved taxes, and blocked the quartering of troops in private houses.
The execution of Charles I in 1649 led to forty years of monarchial instability. Parliament and Cromwell blocked the accession to the British throne of the late king’s son Charles II, who had been proclaimed by the Scottish Parliament as king of Scotland. Charles II fled to France, but the monarch was restored nine years later when Cromwell, and his dictatorship, died. The Restoration led to a period of harmony and prosperity, but the death of Charles II brought his brother, James, to the throne. Unfortunately, the Catholicism of James brought him into conflict with the powerful Protestant Whig aristocracy. James II was eventually deposed and sent into exile.
The tug-of-war between Parliament and the monarchy led Parliament to seek guarantees of parliamentary supremacy before the monarchy next was offered to William of Orange and his wife, Mary. William was acceptable because he was a Protestant, but he was also the grandson of the executed Charles I. Mary, as daughter of James II, was the next in the line of succession, but of course James had been deposed and sent into exile. Therefore both were tainted with memories of monarchial struggle and upheaval.
In 1688 William of Orange and Mary were invited to take the throne but only after Parliament had obtained their consent to a document known as the Bill of Rights. It completed the subordination of the monarch to Parliament and repeated the language of Coke’s 1628 Petition of Right. In 1689 Parliament also passed the Act of Habeas Corpus to expand and strengthen the rights of due process for the individual and to protect against false imprisonment.
These five charters—the Charter of Liberties, Magna Carta, the Petition of Right, the Bill of Rights, and the Act of Habeas Corpus—are considered to be the unwritten constitution of British law. They embody a doctrine of “the rights of Englishmen,” which protect the individual from oppression by the state and its apparatus. They emerged not by edict but through adversarial struggle.
Since the common law as applied in the courts was never a product of academic speculation, it was never taught in the universities. Finding the right precedents to put in briefs submitted to the court was a practical matter of searching through past decisions. Court proceedings were carried on in Norman French and doggerel Latin. During the court sessions, barristers lodged in nearby inns to search out the law, prepare briefs, and meet clients. Eventually this system was institutionalized as the Inns of the Court. Young men wishing to learn law would apprentice themselves to a barrister in the Inns of the Court, just like an apprentice in any other trade. English law was not taught at Oxford until the 1870s.
The precedents, collected every term in yearbooks, became voluminous. Eventually a wise judge, Thomas de Lyttleton, in 1482 wrote a commentary, a kind of guide to these collections. It was one of the earliest printed books and immediately popular. In 1628 Sir Edward Coke, the same distinguished jurist who had drafted the Petition of Right of that year, also published an updated commentary on Lyttleton, usually referred to as Coke upon Lyttleton. Coke’s book became the most influential factor in the exposition of the common law in England. Not surprisingly it was one of the books that were carried most often across the seas to the American colonies, second only to the Authorized Version of the King James Bible. The publication of Coke was followed by Blackstone’s Commentaries in 1765, a work still studied.
The glory of the common law is that it was never frozen into an arbitrary code. The courts instead are bound by a multitude of past decisions and statutes enacted by an elected Parliament. Common law is not written by one hand, or a committee biased by shifting current concerns. Rather it is shaped by invisible hands working impartially over the centuries. Moreover, the fundamentals of law were decided by judges working in the common culture of Christian civilization, with reference both to the natural law and a received morality. This circumstance resulted in stability without stagnation.
A common law proceeding is an adversarial one, a sort of trial by combat with words and evidence instead of sword and buckler. The judge, like a king overseeing a trial by combat, takes a neutral stance above the fray. The prosecutor tries to make the case, but the defendant is held innocent until proven guilty. The question of guilt is decided by an impartial jury, selected from ordinary citizens who have no bias in favor of the interests of the state. Once declared innocent, the accused cannot be tried again for the same crime.
These procedures of common law, which seem so self-evident as fundamental principles of justice, were all obtained through hard-fought confrontation. They were all aimed at the protection of the liberty of the individual. Virtually none of these protections are found in civil law proceedings where the interests of the state are paramount. There the defendant is guilty until proven innocent, but has no counsel sitting at the table. The judge takes an active role in shaping the outcome. The conduct of the accused is considered against the template of the public good. The purpose is to shape a remedy to protect the social order under the prescripts of the code, rather than to identify whether the action violated specific terms of the statute.
* * *
In 1765 Parliament passed the Stamp Act. The stamp was to be a heavy tax on every piece of paper—every court pleading, every marriage license or will, every newspaper. Parliament thought it was a trifling thing, necessary to pay the costs of keeping British troops in the colonies for their protection, and that nobody would complain. But the colonists thought it a despotic action.
On May 29 the Virginia House of Burgesses was meeting at Williamsburg and a new member arrived, a backwoods lawyer named Patrick Henry. Many of the important burgesses had already left the session, and no one expected much when Henry arose with seven resolutions against the Stamp Act. Suddenly a stream of eloquence filled the chamber, punctuated by brilliant legal arguments. Cries of “Treason!” filled the air, but so strong was his case that four of his resolutions actually passed.
The first resolution said that the settlers of “his Majesty’s colony” brought with them “all the liberties, privileges, franchises, and immunities that have at any time been held, enjoyed, and possessed by the people of Great Britain.”
The second resolution said that two royal charters granted them all these liberties “as if they had been abiding and born within the realm of England.”
The third resolution said that only taxation levied by the people themselves, or their representatives, was “the distinguishing characteristic of British freedom, without which the ancient constitution cannot exist.”
The fourth resolution said it was the right of the colonists to govern themselves, and “that the same has never been forfeited or yielded up, but has been constantly recognized by the kings and people of Great Britain.”
These are all arguments taken from Coke upon Lyttleton. Henry never wrote down his speech but said later that he had just jotted a few notes “on the flyleaf of an old law book.” His argument that the ancient rights granted by English law were transferred to America by the Royal Charters, that Parliament did not create the colonies and had no jurisdiction over them, and therefore had no power to tax them, and that only the Virginia legislature could do so—all these arguments became the intellectual underpinning of the American drive for independence.
Henry’s resolutions indeed touched off fiery debates throughout the colonies.
On February 27, 1766, Richard Henry Lee called together 115 freeholders of Westmoreland County at Leedstown, Virginia, about twelve miles south of Stratford Hall. He had drawn up resolutions that, as usual, were in the form of a petition of right. His arguments were the same as Henry’s. There was a respectful preamble addressed to the king, but the operative clauses bordered on sedition. He stated that it was “a birthright privilege” of every British subject, including the people of Virginia, to be tried by a jury of one’s peers, and a citizen could not be taxed except by a legislature “where he is represented by representatives chosen by the people.” In other words, taxation is legitimate only when it is agreed upon by representatives in the Virginia House of Burgesses, and not by Parliament in England, where the colonists have no such representation. Finally, the resolutions promised “immediate danger and disgrace” to any “abandoned wretch” who dared to use stamped paper.
Among the 115 signers of the Westmoreland Resolutions were four of the Lee brothers, four of the Washington brothers, and one Spence Monroe. His son James Monroe was eight years old at the time.
Both Richard Henry Lee and Francis Lightfoot Lee signed the document. Ten years later in Philadelphia, the same Richard Henry Lee offered on July 2, 1776, the resolution to Congress declaring
that these united Colonies are, and ought to be, free and independent States, that they are absolved from all allegiance from the British crown, and that all political connection between America and State of Great Britain is, and ought to be, totally dissolved.
Richard Henry Lee’s resolution was the legal instrument that put into effect the independence of the colonies. The familiar document of July 4 is a separate item and does not actually contain the words “Declaration of Independence.” Nor, strictly speaking, is it part of our legal system. It follows the perennial format of a “petition of right,” with a preamble and a list of grievances. The traditional format adopted one innovation: since His Majesty had been dismissed two days before, on July 2, the preamble seeks approval from “the decent opinions of mankind.” The Preamble and the introduction, so prominently a part of the mythos of the Founding, is only 282 words. The rest of the document consists of 1,123 words and is basically a list of the king’s offenses against the common law and the charters of liberty. The argument is not that British law must be overturned and rejected but that the king broke the law and ignored redress, and therefore the law can be restored only by breaking allegiance with the king and separating all political connection.
Americans have been thrilled from the beginning with the golden words of Jefferson’s Preamble. Some have attributed the document to the influence of Enlightenment ideas. But the committee of five charged with preparing the final draft cut Jefferson’s lofty rhetoric in half because they wanted to get right down to business, namely, the concrete indictment of the king’s dereliction from his obligations under law. There is much more of Sir Edward Coke than John Locke in America’s favorite historical document.
Richard Henry Lee and Francis Lightfoot Lee were the only brothers among the signers of the July 4 document. Richard Henry Lee and Francis Lightfoot Lee were also the only brothers who were signers of the Articles of Confederation. Under the Articles, Richard Henry Lee became sixth president of the United States in Congress Assembled (the Continental Congress). The seed that had been planted in the Westmoreland Resolves bloomed full forth in America’s founding.
* * *
There were three phases to the development of U.S. independence under law. The first phase was the period of the colonial charters, which had been granted by the king, not the Parliament. The second phase began in 1775 with the War for Independence followed by the Articles of Confederation. The third phase began in 1789 when certain powers were delegated to the federal government by the Constitution, and others retained by the states. The powers retained by the states in fact were among those powers granted with the colonial charters. Monroe was well aware of this. As president he wrote a very comprehensive legal memorandum on the sources of American law (his Veto Message on Internal Improvements) and pointed out that he had given public service under each of the three phases. For Monroe the law was a practical experience and not an academic theory.
The debates in the Constitutional Convention tried both to fix the deficiencies of the Articles of Confederation and to devise a fool-proof system to make the best elements of the British system permanent. Instead of having a king as sovereign, the Founders’ theory was that the people should be sovereign. But the sovereign powers of the people had to be exercised through a mechanism that resisted rapid change, to preserve the liberties of all. The Founders deliberately rejected a parliamentary system where a prime minister elected by the majority caucus has unitary power. The executive powers of the government were put into the hands of an independently elected president who had no power to create legislation, but only a limited power of veto. The Congress was divided into two bodies that had to come to agreement on a single bill to lay before the president. The system of the common law would be reserved to the states, leaving Congress with a relatively small authority to pass federal law. What could go wrong?
The underlying premise of the U.S. Constitution is that power corrupts because human nature itself is fallen, a basic tenet of the Christian religion ratified by common sense. The solution, not quite achieved, sought to prevent any power interest from subduing the rest. Our system has always rejected ideology as a basis of governing. Peace comes from confrontation. No other nation has adopted this system of divided government; rather, they have chosen the principles of civil law that seek a unitary system. Man is perfectible, but only if he submits to the expert assistance of the state, using the edicts laid down by the Emperor of Ideology.
As Monroe said, the two systems are essentially different. ♦
James P. Lucier is a former staff director of the U.S. Senate Foreign Relations Committee and served on the staff of the U.S. Senate for twenty-five years as a specialist on treaty law, national security, and global terrorism.