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The Declaration's Domestic International Effects
Daniel J. Hulsebosch
| IN his insightful study of what he calls "a declaration of interdependence" (30), David Armitage suggests that the effective date of U.S. independence might be 1778, when France signed a treaty recognizing and agreeing to aid the revolutionaries, or even 1783, when Britain "conceded" (85) independence in the Treaty of Paris. The date matters. In raising this issue, Armitage reminds us that the American Revolution was a drama with many acts that could have turned out differently. He also argues that the natural law premise beneath the Declaration's proclamation that "all Men are created equal" (165) must be balanced against the positivist realism of its request for international recognition, which Armitage relates to a shift from natural to positive law conceptions of the law of nations. It was "more than just a coincidence," he notes, that Jeremy Bentham coined the terms "international" and "international law" (11) just a few years after panning the Declaration in a Crown-sponsored reply to Congress. Bentham's new terms described a law between or among states rather than within them and soon supplanted the more protean jus gentium (law of nations). The Declaration not only combined national political philosophy with a plea for international recognition; it was also a methodological mélange: naturalist, positivist, and full of customary constitutional claims. |
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One question is whether Armitage goes a bit far in deemphasizing the Declaration's local effects and audience. Local means not only within the thirteen states but also within the Anglophone Atlantic world that the Revolution split in two.1 The document purported to shatter a common subjecthood and draw new baselines for political allegiance and legal rights within the United States and Great Britain. |
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The Declaration therefore had, in addition to discrete domestic and international consequences, domestic international effects. It signaled within the thirteen provinces that the revolutionary governments claimed the prerogatives of statehood and represented "one People" (165) separate from another people, the British, even though many who considered themselves the latter lived within jurisdictions now claimed by the former. In this light Congress wrote for a domestic audience composed of many neutral colonists and loyalists who were moved toward personal declarations that would make them citizens or subjects in one place and aliens or traitors in the other. |
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Some loyalists responded with counterdeclarations that denied independence. In October 1776 one thousand New York loyalists pledged allegiance to the king and asked for the restoration of his "Protection and Peace." Armitage discusses Thomas Hutchinson's Strictures upon the Declaration (1776), a refutation of the Declaration written by an exiled colonist. Similarly, a "Counter-Declaration" published in New York in 1781 printed the Declaration on one side of the page and "a long train of the most licentious and despotic abuses" committed by Congress on the other.2 To loyalists, the Declaration divided the empire on the ground but not as a matter of constitutional reality. |
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Political allegiance was the central issue from 1776 to 1783; litigation about legal rights that turned on allegiance lasted much longer. For at least two generations after the Revolution, the effective date of independence determined all sorts of property and contract claims in British and U.S. courts. These transnational claims raised issues that existing sources could not answer, but most British and American courts started at the same place, with Calvin's Case (1608). That cornerstone of the imperial constitution laid out the reciprocal rights of English and Scottish subjects after the Union of Crowns and articulated the principle of birthright subjecthood: people born into one of the king's realms were entitled to the rights of subjects in all his dominions obtained before they were born. The case also suggested that, if the English and Scottish crowns descended to separate kings in the future, subjects born before the division would continue to enjoy a kind of dual subjecthood. |
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