Too often we tend to think that the Declaration of Independence was a creature which sprang to life between June 7, 1776, when Richard Henry Lee of Virginia introduced his resolution calling for independence and Mr. Jefferson’s magnum opus which was voted on three weeks later. History teaches that the march towards independence was a process: a process clothed in intellectual and legal thought. On this 249th anniversary of our break with King George III and the British Parliament at Westminster, we explore the intellectual origins of the Declaration of Independence.
It was autumn 1774. The First Continental Congress had been assembled in Philadelphia not for the purpose of securing American Independence from the Crown, but for the purpose of persuading King and Parliament that the colonists possessed the same rights, privileges and liberties as any other Englishman residing in Great Britain. (See 1 Samuel Eliot Morrison, Henry Steele Commager and William E. Leuchtenburg, The Growth of the American Republic 161 (6th ed., London, Eng.: Oxford University Press 1969); see also Mary Beth Norton, 1774: The Long Year of Revolution (New York: Penguin/Random House 2020).
The Seven Year’s War, known in American History as the French and Indian War (1756-1763), had depleted the British treasury. Great Britain was in need of substantial revenue and they looked to the growing and prosperous American colonies to refill the coffers.
In early 1764, George Grenville, Chancellor of the Exchequer, introduced legislation to tax the American colonies. The Revenue Act of 1764, commonly called the Sugar Act in American History, was the first tax act against the colonies. (The Revenue Act of 1764 can be found at 4 Geo. III c. 15 (1764)). The preamble to the statute stated: “That a revenue be raised in your … Majesty’s dominions in America for defraying the expenses of defending, protecting and securing the same.” (See 1 S.E. Morison et al., The Growth of the American Republic at 141). At first glance the Revenue Act appears to be rational legislation as the Seven Year’s War was fought in British North America. But was the Sugar Act really rational? Or did the Act strike at the gastrointestinal system of every college student: spirits!
On November 22, 1764 the New York Gazette announced:
The Gentlemen of Yale College have unanimously agreed not to make use of any foreign spiritous Liquors. … The Gentlemen of the College cannot be too much commended for setting so laudable an Example. This will not only greatly diminish the Expenses of Education, but prove, as may be presumed, very favourable to the Health and Improvement of the Students. At the same time all Gentlemen of Taste, who visit the College, will think themselves Better entertained with a Good Glass of Beer or Cider, offered them upon such Principles, than they could be, with the best Punch or Madeira. (Id.).
The Sugar Act applied only to the colonies. But have you ever asked the salient question: If the Sugar Act had applied across the board to Great Britain and British North America would there have been an upheaval by the Gentleman of Yale College?
Crown and Parliament had not paid attention to what was transpiring in British North America: the evolution of a new and rugged personality. Nor had they observed that the colonists were laying the foundations of American intellectual and legal thought. (See Lawrence M. Friedman, A History of American Law 51-58 (1973), observing that the roots of American legal thought had their bases in the abolition of primogeniture and entail. By abolishing these ancient English legal concepts, the new American states enhanced free alienability of land, a conservative and capitalist economic view which infused more money into the economy and state coffers. Another American legal invention was registration and recordation of land. “The essence of the system was that the record itself guaranteed title to the land.” (Id., at 55).
In March 1765, Parliament enacted the Stamp Act. (See 5 Geo. III c. 12 (1765)). Taxes were laid upon the sale and purchase of newspapers, pamphlets, books, and yes, legal pleadings. Every cause of action, every answer, every motion, every brief was taxed by the Crown. But what of justice and access to justice in the King’s courts? The Stamp Act served to suppress access to the courts while producing revenue from those who had money to prosecute their claims.
Not only did the Stamp Act offend the legal profession, it struck at the sensibilities of businessmen, journalists and clergymen. And the outcome of the Stamp Act produced the “Sons of Liberty.” (See 1 S.E. Morison et al., The Growth of the American Republic at 145). In 1767, Parliament compounded their problems by enacting the Revenue Act of 1767, the first in a series of repressive legislation known as the Townshend Acts; which was designed the reduce the British land tax by imposing upon the colonies a tax upon all import duties. (See 7 Geo. III c. 46, section 10 (1767)). The Act of 1767 was a step too far even for the conservative John Dickinson of Pennsylvania. In his Farmer’s Letters, Mr. Dickinson wrote:
The Parliament unquestionably possess a legal authority to regulate the trade of Great Britain and all her colonies. … We are but parts of a whole; and therefore there must exist a power somewhere to preside, and preserve the connexion [sic] in due order. The power is lodged in Parliament; and we are as much dependent on Great Britain as a perfectly free people can be on another.
The cause of Liberty is a cause of too much dignity to be sullied by turbulence and tumult. It ought to be maintained in a manner suitable to her nature. Those who engage in it should breathe a sedate, yet fervent spirit, animating them to actions of prudence, justice, modesty, bravery, humanity, and magnanimity.
Let us behave like dutiful children, who have received unmerited blows from a beloved parent. Let us complain to our parent, but let our complaints speak at the same time the language of affliction and veneration. (See 1S.E. Morison, et al., The Growth of American Republic at 151).
The words of John Dickinson, a conservative politician, fell on deaf ears. Westminster’s arrogance was exceeded by her lack of common sense in ruling over the thirteen colonies. The Revenue Act of 1767 hit Mr. Dickinson in his tax pocketbook. The Act made clear that Parliament did not discern a difference between internal and external legislation. Businessmen like Mr. Dickinson realized for the first time that they too “could be taxed by duties on trade and therefore shifted their stance.” (See David Ammerman, The British Constitution and the American Revolution: A Failure of Precedent, 17 Wm. & Mary L. Rev. 473, 484 (1976)). No longer did New England stand alone in her opposition to British taxes. Businessmen residing in the mid-Atlantic and southern colonies were now feeling the pinch in their wallets.
Taxation without representation infuriated the colonies against the mother country; but it was not the primary cause that led to our break with Great Britain. What then was the straw that led to the assembling of the First Continental Congress and the laying of our legal foundations for a bloody break with England?
Enter the Intolerable Acts and the quartering of soldiers in private homes. Since 1131, English legislation had prohibited the forced billeting—the quartering of troops in English towns and boroughs. (See Tom W. Bell, The Third Amendment: Forgotten But Not Gone, 2 Wm. & Mary Bill Rts J. 117, at 119 (1993)). During King Philip’s War (1675-76), British troops were quartered in private colonial homes. Colonists in Massachusetts and Connecticut rose up against this practice. In 1683, the first piece of colonial legislation prohibiting this British practice was enacted in the “Charter of Liberties and Privileges” by the New York State Assembly. (See Samantha A. Lovin, Everyone Forgets About the Third Amendment: Exploring the Implications on Third Amendment Case Law of Extending its Prohibitions to Include Actions by State Police Officers, 23 Wm. & Mary Biil Rts J. 529, at 531 (2014)). One would think that the Charter of Liberties and Privileges would have constituted a major constitutional conflict between Parliament and the New York State Assembly. It did not. The Glorious Revolution of 1688 took center stage in Great Britain. (See J.R. Tanner, English Constitutional Conflicts of the Seventeenth Century (Cambridge University Press 1924)). Inadvertently, the Glorious Revolution and internal politics served in overshadowing colonial legislation which Crown and Parliament would find antithetical three-quarters of a century later.
A quiet fell over the colonies until the French and Indian War when King and Parliament flexed their muscle in quartering troops in the homes of private citizens. Were we not British subjects entitled to the same rights, privileges and liberties as our cousins living across the pond? When the French and Indian War ended, the practice of quartering troops in private homes did not cease. In 1774, Parliament at Westminster enacted as part of the Intolerable Acts a bill for the quartering of troops in American homes. (See Quartering Act of 1774, 14 Geo. III c. 3, Section 254 reprinted in English Historical Documents: American Colonial Documents to 1776 at 785 (Merrill Jensen & David G. Douglas eds. 1953)). This was the straw that led to the First Continental Congress and ultimately to the Declaration of Independence.
On October 14, 1774, the First Continental Congress drafted a letter to Crown and Parliament. Addressing the quartering of soldiers, the Continental Congress wrote:
[A]lso the act passed in the same session for the better providing suitable quarters for officers and soldiers in his Majesty’s service in North-America.
Also, that the keeping a standing army in several of these colonies, in time of peace, without the consent of the legislature of that colony in which such army is kept, is against law.
To these grievous acts and measures, Americans cannot submit, but in hopes that their fellow subjects in Great-Britain will, on a revision of them, restore us to that state in which both countries found happiness and prosperity, we have for the present only resolved to pursue the following peaceable measures: (See 1 Journal of the Continental Congress 72-73 (October 14, 1774) [Italics and Bold Italics added]).
Notice the language: “Americans cannot submit…” We had evolved from the days of Jamestown and Plymouth Rock into a new people that required a new nation. We were casting off the garb of Englishmen and donning a new intellectual and legal cloth, that of the American. And yet, we tried to reach an amicable agreement by addressing our plea to our cousins still residing on the isle. Whatever the British people might have thought, Crown and Parliament brushed aside this modest petition of the First Continental Congress. We were marching towards securing independence.
On April 19, 1775, the “shot heard around the world” forever closed amicable relations with Great Britain. And on July 2, 1776, Congress approved the Declaration of Independence. Within Mr. Jefferson’s magnum opus was reference to the quartering of troops in colonial homes. Our break from Crown and Parliament was a process; and so too, was the intellectual and legal thought which made its way into the Declaration of Independence and ultimately into that part of the Bill of Rights known as the Third Amendment prohibiting the quartering of troops in the homes of private citizens. (See e.g., Chad Aronson. Note – The Third Amendment Incorporated: “Soldiers” and Domestic Law Enforcement, 67 Case Western Reserve L. Rev. 537 (2016); The Declaration of Independence para. 19 (July 2, 1776) (“For Quartering large bodies of armed troops among us”)).
The march to American Independence was long. It had been clothed in the language of diplomacy, persuasion to our British cousins still residing on the isle and in legal reasoning. And Mr. Jefferson’s Declaration had its roots in the First Continental Congress, of the thoughts of 55 men. Jefferson penned the Declaration of Independence, but its ideological foundations was the work product of the Continental Congress. One Congress. One poet; and the final product The Declaration of Independence.
As I do each July Fourth, I shall sit back on my sofa amid an evening repast and re-read the Declaration of Independence, rededicating myself to the principles of liberty which the Founding Fathers held so dear. (For movie buffs, the musical 1776 will air on Turner Classic Movies, July 4, 2025, at 10:30 PM Eastern Time.)
Happy July Fourth!
Rabbi Joseph Fred Benson, a native of University City, Missouri, received an A.B. cum laude in English Legal History; American Legal History; and Political Science, American National Politics with an emphasis in Constitutional Law 1976; A.M. in American Legal History with an emphasis in Constitutional Law 1977; J.D., 1985, Saint Louis University; Semichah/Rabbinic Ordination 2007, Saint Louis Beis Din/Rabbinical Court. He served as the first Supreme Court Archivist – Legal Historian to the Supreme Court of Missouri (2000-2015). In retirement, Rabbi Benson teaches Hebrew to adults in Jefferson City and officiates at life cycle events throughout Mid-Missouri. He is also a provocateur of articles appearing in the Missouri Lawyer’s Weekly; St. Louis Jewish Light; and the Catholic Missourian. His first article in JURIST appeared on July 4, 2020, titled “The Real Independence Day: July 2, 1776.”
