July 4, 2010

One Of Many Revisions

It’s easy to lose sight of the fact that the Founding Fathers were not perfect people, that they made mistakes and even changed their minds about things over the course of their lives. But of course even a moment’s thought reveals that it could not have been otherwise. These were smart men, educated men, men of high ideals and tremendous daring. But they were also politicians, lawyers, and businessmen, and therefore they were used to making deals and compromises. Their own correspondence to one another and the records of their deliberations and activities reveals that they could not agree on a large number of critical issues and, most notably with the issue of slavery, were capable of that most craven of political maneuvers – the punt.

Even realizing these things, it is still possible and indeed easy to keep them in perspective as a group but still to idealize particularly favored individuals. Of them all, George Washington and Thomas Jefferson are most susceptible to this sort of misplaced apotheosis. The application of modern technology to one of the original first drafts of the Declaration of Independence, however, should disabuse Readers of any such tendency. And doing so underlines both the importance and worthiness of the finished product but also the humanity of its original author. It leaves me liking him more, identifying with him more.

The technique used is called hyperspectral imaging and was originally developed for use in astronomy. When used on one of Jefferson’s first drafts of the Declaration, however, something remarkable happened:
Fenella France, a scientist in [the Library of Congress’ Preservation Research and Testing Division], conducted the hyperspectral imaging in the fall of 2009 and discovered a blurred word under “citizens,” France said, “It had been a spine-tingling moment when I was processing data late at night and realized there was a word underneath citizens. Then I began the tough process of extracting the differences between spectrally similar materials to elucidate the lost text.”
In fact, the word Jefferson had originally used was “subjects,” in a section of the Declaration which enumerated the numerous instances by which His Majesty’s government had disregarded the rights of the colonists as Englishmen, specifically the impressments of merchant sailors into the Royal Navy:
He has constrained our fellow subjects taken captive on the high seas to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.
The scholars who found this concluded that the word “subjects” had been stricken and converted to “citizens” almost immediately after it had been written. To be sure, after the Declaration, American colonists (other than in Canada and the Caribbean) were no longer “subjects” of King George, but rather free citizens of a new and independent nation – or perhaps a collection of nations; this was left somewhat unclear, likely deliberately.

But it’s also easy for me to see how Jefferson could have done this. He had been writing legal, scholarly, and historical documents for all his life as a “subject” of His Majesty the King, and had participated in the drafting of many of the petitions sent to London requesting that colonists be afforded the same rights enjoyed by Englishmen in the Mother Country, referring to these people as “subjects.” It was simply habit to refer to ordinary people as subjects of the King.

This only underlines, in my mind, the real mental and ideological leap that the Declaration of Independence really represented. No less an advocate of individual freedom and liberty than Thomas Jefferson had difficulty disconnecting the automatic and reflexive supplication to monarchy from the very act of committing treason. The switch to republicanism was a sea change in the way people thought – a switch which required training to take, even in the mind of individual liberty’s most prominent advocate amongst a group of such advocates.

Personally, this revelation adds to my sympathy for Jefferson – he was writing a legal document in his capacity as a lawyer. Horrifyingly for a lawyer, there were no direct precedents for what he was writing. A few analogies in the forms of pleading and practice left over from the Courts of Chancery, perhaps, but those were all appeals to the equity and fairness of the judge sitting in Chancery and ultimately to the judgment of the King himself. But obviously a Declaration of Independence could not take the form of an appeal, requesting or praying for a grant of independence – by way of this document, the Founders were taking it for themselves.

So grounded in his legal training, Jefferson did what came naturally and wrote a pleading. The difference between me and Jefferson is not that Jefferson was so fantastic a lawyer that he came up with the perfect word every time, the first time. As we now know, Jefferson came up with a word out of habit and custom which, almost immediately after writing it, he realized was exactly the wrong word. I’ve done that often; so has every other lawyer out there. Jefferson was as fallible as am I, as fallible as any lawyer working today or at any other time lawyers have written important documents.

No, the difference is that where I have a word processor, Jefferson had quill and parchment. He couldn’t just do a quick “control-shift-left arrow” and “backspace” and get rid of his mental slip back into his habits as an English lawyer appealing to a judge who would typically be called “My Lord” and ultimately to a monarch before whom he was required to kneel and bow. He had to smudge out the offending word and use clever penmanship to make his document achieve its political purpose.

For at the end of the day, the Declaration of Independence was not a legal document, it was (and is) a political one. Declaring independence was a political act of the leaders of the former colonies; a political act grounded on a legal tradition and justified by an appeal to legal rights. The Declaration on its face addressed itself to the entire world but in practice aimed itself squarely at King and Parliament in London, citing as it does a long list of grievances based on the violations of the legal rights of the colonial citizens as English citizens. But there was not and could not be a legal claim to independence; to claim independence from the King was treason and no court, no Chancellor, no King could or would grant a request for independence. The choice left to the Founders was to either continue to put up with the government of England doing as it had been, or to take their political independence by force.

Thus, they collectively gulped, figuratively held hands, and actually pledged their lives and honor to one another and took the great, uncertain leap of challenging the world’s greatest military power. We can easily forgive one of them for a momentary mental slip in the process of doing this, of course, but a reflection upon that momentary mental slip puts that act in perspective – and leaves me, and I hope all of you – with a greater, deeper, and more profound respect for what was actually happening.

Non-U.S. Readers are welcome to have a drink and share a meal with us (even Brits; we’re well past all that unpleasantness 234 years after the fact). And of course, happy Independence Day to all my U.S. Readers. Please take a moment to read the whole Declaration today and reflect on what it really means instead of just saying, "America, fuck yeah!"; the Declaration profoundly benefits from, and is not at all diminished by, being placed in historical, legal, and human context -- when it is, it stands as one of the most singularly brave and principled acts in human history.


子帆子帆 said...
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Arnie said...

I wonder whether any current politicians have read the Declaration lately. They may in fact be struck by the parallels of tyranny we have imposed on us today that ourt forefathers were rebelling against.

Transplanted Lawyer said...

I'm curious about what you think those parallels might be.