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The Founding and the Law of Nations

By: Patrick J. Garrity
November 19, 2012

When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.


Thus, the first paragraph of the Declaration of Independence. In the culminating paragraph, the Representatives of the United States of America, in General Congress Assembled, proclaim "that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do."

What are we to make of these appeals to the opinions of mankind and to the equality and rights of independent states? Some scholars have suggested that they are merely throat-clearing preambles to the high-flown pledge of the founders' lives, fortunes, and sacred honor. The real meat of the Declaration is in the second paragraph's more familiar invocation of individual equality and natural rights. Others have reversed the order of importance: they say that the Declaration is purely a document of international propaganda, designed to persuade the English opponents of King George and the European opponents of England to support American independence. High-flown language, not a gross appeal to interest, is appropriate to the task at hand. Any talk of natural rights and the social compact is mere window-dressing, not intended to be true foundational arguments.

University of New Hampshire historian Eliga H. Gould, in his new book Among the Powers of the Earth: The American Revolution and the Making of a New World Empire, argues that the Continental Congress used the Declaration, and other documents from the Revolutionary period, as a means to appeal for diplomatic recognition not only as an independent nation but as the rightful successor to all of Britain's North American empire. This meant promising to fulfill the duties inherently required of a civilized nation under the European-derived law of nations. The founders did not seek some sort of complete freedom from all external obligations. They were conscious of the need to conform to what other regimes and peoples, including those characterized as despotisms, deemed legal and proper—to obtain their consent, as it were.


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Gould's argument runs counter to the standard isolationist, or unilateralist, account of early American foreign policy, which has long been qualified by Felix Gilbert, among others. Gould's assessment, along with those particularly of Nicholas and Peter Onuf and J.C.A Stagg, takes the extant law of nations seriously as a foundational element in the American conception of national security and confederal government. They point out that the legal status of the colonial world at this time was rather ambiguous from the standpoint of the major European powers—was it covered by the law of nations or not? The Americans ran the risk that their Revolution, although successful in defeating Britain militarily, might be viewed as beyond the pale by the European powers, in which case the new nation would effectively become an outlaw—treated perhaps like the pirate states of the Barbary Coast, or, at best, as a tribe of Indians. The United States would have no boundaries that a European power need recognize. Its commerce could be seized with impunity. Its slaves could be treated as free. It would be in a de facto state of war with Europe.

Revolutionary America's diplomacy was thus intended not only to obtain material support for the war for independence, according to Gould, but also to gain acceptance of its sovereignty and legitimacy—something that European monarchs were reluctant to grant to a regime claiming to be republican. American diplomats were constantly aware of the need to offer reassurances that the United States accepted the public law of Europe, which was to become a Euro-Atlantic public law. This included the "common law of nations," drawn from centuries of experience, and a recognition of the authority of those writers who had sought to bring the law of nature to bear on the practicalities of diplomacy (Grotius, Pufendorf, and Vattel, among others). John Adams's occasional forays into militia diplomacy aside, Congress accepted international norms and diplomatic customs.

The Americans, to be sure, insisted that they would seek only "commercial" ties with Europe, eschewing "political" alliances. But there was nothing contrary to the law of nations in following a foreign policy of that sort; and when necessity pressed during the Revolution the United States accepted a conventional political-military treaty with France. During the ensuing years, American diplomats continued to insist that they were following the law of nations (which was subject, of course, to different interpretations) in pursuit of U.S. national objectives. They also insisted that the Europeans reciprocate—for instance, by not interfering with the American institution of slavery, and not stirring up trouble with Indian tribes within the boundaries of the United States.


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Gould concludes that in order to conform to and enforce the public law of Europe, Americans ironically often found themselves going against the liberal and republican grain of the Revolution as originally conceived. They crafted a centralized Union, imposed much higher taxes than those once sought on the colonies by London, and became increasingly entangled with the European empires.

I would state the matter somewhat differently, and somewhat more positively, than Professor Gould, while recognizing the value of the information and analysis that he provides (the details of which we must pass over). To sum up: Americans entered the European-centered community of nations not only as a matter of self-preservation and self-interest but also as a means to bring the broader mission of the Revolution to all of mankind. There was a vital, integral linkage in the mind of the founders between natural rights and national rights, rightly understood. They hoped that American entrance into the Euro-Atlantic state system would bring about a new configuration of international power, underwritten by norms of behavior following an increasingly liberal law of nations. This process of re-balancing power, as it were, would be conducive not only to American security and the moderation of international conflict, but also to domestic political reform throughout Europe and to the cause of liberty and republicanism more generally.


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The Declaration of Independence, as noted above, was famously addressed "to a candid world," by which the American revolutionaries meant especially the Enlightened (or those who thought themselves enlightened). It sought to demonstrate that the American cause was much more than mere rebellion; and that this particular revolution, and revolution rightly understood, was a legitimate means of affecting regime change, one that could be accommodated under the law of nations. The Declaration invoked the rights of mankind and the sovereignty of the people as the ultimate standards of political justice and pushed the boundaries of legitimate regime change beyond that established by the Glorious Revolution, until then the standard of enlightened reform. At the same time, the Declaration was carefully qualified by terms, explicit or implicit, that did not threaten established rulers everywhere. The right that a sovereign people had to alter or abolish their government was not the same as a categorical imperative to do so.

The Declaration—unlike Thomas Paine's Common Sense—did not condemn monarchy in general but rather the actions of a particular monarch. Indeed, the Declaration demonstrated an inherent respect for the decision of other peoples about their form of government, including their willingness to live under despotism. The American revolutionaries did not call for world revolution or demand the independence of all colonies from their mother countries. The Declaration set the American Revolution and the claim of national independence in the context of the existing international system. As historian David Armitage writes of the Declaration: "Its primary intention was to turn a civil war among Britons, and within the British Empire, into a legitimate war between states under the law of nations." One can dispute whether this was the primary intention, but even Paine, in the first edition of Common Sense, argued that the "custom of nations" demanded a declaration of American independence. Without a declaration, Paine concluded, "[t]he custom of all courts is against us, and will be so, until, by an independence, we take rank with other nations."

The Declaration put the United States forward as a sovereign and equal member of the existing international system. The Americans followed the authority of Vattel that all nations, like all men, were created equal and had equal rights; and that among these (with some important and well-defined exceptions) was the right of non-interference in their domestic affairs. Of course, nations, like men, varied in their size, character, wealth, and circumstances; and great powers, like great men, naturally claimed their prerogatives. But the law of nations, interpreted in an enlightened fashion, would check excessive claims by the great powers, including their right to interfere in the domestic affairs of others, and would support the rights of peoples to choose their own form of government.


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The American revolutionaries proposed to join the community of nations on their own terms, however, not on those set by the great European powers. They believed that by behaving different than the typical great power they could fundamentally reconfigure and reform the international system. They would open an avenue for enlightened domestic reform and, if a sovereign people so chose, for regime change. As Peter Onuf writes:

Visionary republican revolutionaries wanted to change the world: by extending the boundaries of the European system, by enhancing the system's capacity for progressive improvement through the practice of enlightened diplomacy, [and] by perfecting a legal regime among their own state-republics that would eliminate the causes and pretexts of war.

 

There was an argument whether the balance of power was one of the major causes and pretexts for war, but most respected authorities of the law of nations conceived of Europe as a political system in which equilibrium was crucial to liberty as well as order. In either case the balance of power still existed as a motive force in relations among the European powers and the United States could not ignore it in its prudential calculations. "[I]t never could be our Interest to unite with France, in the destruction of England, or in any measures to break her Spirit or reduce her to a situation in which she could not support her Independence," John Adams concluded. "On the other hand it could never be our Duty to unite with Britain in too great a humiliation of France." The trick was to ensure that the balance of power operated in a progressive rather than regressive manner.

Adams and the other founders concluded that an independent and non-aligned United States—one that remained unentangled in the political-military affairs of Europe—best promoted such a progressive balance. They believed that American commerce was the Archimedean lever that would allow the United States to move the Euro-Atlantic world in a liberal direction. The American revolutionary leaders hoped that the lure of that commerce, once liberated from the Navigation Laws and other restrictions of the British Empire, was so powerful that it would overcome the reluctance of others to aid the cause of independence and to recognize the new regime. Once independence had been achieved, the European states would vie for access to that commerce and would accommodate and eventually support America's special, non-aligned status. The Americans assumed that the commercial imperative would convince all but the most regressive European regimes that that they could not afford to be left out of the economic bonanza. Their cause would appeal to those among the Enlightened of Europe who advocated greater commercial and political freedom but who did not necessarily identify the cause of freedom with that of republican government. The United States would offer its commerce on the open market, ideally in a free-trade system, but practically on a reciprocal (most-favored nation) basis.


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The continental congress approved what became known at the Plan of 1776 (or the Model Treaty) which codified the preferred American approach to foreign policy and international relations. The American approach did not formally discriminate among regime types or promote domestic regime change, but the geo-economic revolution caused by American independence and by general access to American trade would, over time, effectively preference certain types of political rule. For the founders and those of a liberal persuasion in Europe, "[c]ommerce did more than contribute to the strength of the nation: it also ensured its liberties," historian Darren Staloff observes.

[A] steady stream of revenues from taxes on trade [meant] government had no need to plunder the property of its citizens, and the security of private property was an essential buttress of personal independence and freedom. Indeed, one of the central themes of Scottish social theory from Adam Smith and Adam Ferguson to David Hume and William Robertson had been the role of commerce in producing modern liberty. It was the rise of commerce that had destroyed the baronial despotism of the feudal epoch, redistributing property from the landed aristocracy to the urban tradesman and the people at large."

 

Hume and Adam Smith argued in turn that the enhanced prosperity of one nation did not necessarily mean the ruin of another. Smith spoke of a great mercantile republic uniting all the merchants of all nations. Even if the merchant class did not constitute "men of no nation," they would represent a powerful constituency within non-republican regimes to which the American cause would appeal.


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The American revolutionaries believed that by promoting law-governed international commerce, particularly the rights of neutral commerce during wartime, they would promote moderate relations among nations and strengthen the forces and interests of liberalism within regimes of all types. The old warlike international system, by contrast, retarded progress because it strengthened those interests and elements most inimical to liberty and reform. War led to the accumulation of power by the government at the expense of the people. Liberalized regimes, based on a fundamental respect for the rights of their citizens, were more likely to be respectful of the rights of others, and hence less likely to threaten each other. American independence would not lead to a full and instant reformation of the international system but it would initiate this virtuous circle and create space for enlightened leaders to foster further improvement in their domestic regimes. "The progress of the law of nations, under the influence of science and humanity, is mitigating the evils of war, and diminishing the motives to it, by favoring the rights of those remaining at peace, rather than of those who enter into war," James Madison would later argue. "Not only are the laws of war tempered between the parties at war, but much also in relation to those at peace."

The American leaders, then, did not rely upon a global war of peoples against kings, or revolutionary changes of regime elsewhere, to help bring about national independence. They instead relied on appeals to the geopolitical and economic interests of existing European governments, and the common goals of the enlightened classes. This approach brought them the necessary assistance in their war for independence and allowed for the nation's security and growth afterwards. But they also hoped that the American Revolution would become the catalyst for the emergence of a more moderate international system in which states, republican and non-republican, respected each other's sovereignty. The law of nations included the principles of the equality of nations and non-interference in domestic affairs, making no distinction among types of regimes, only in their external behavior.


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Which is not to say that Americans were indifferent to regime types, or that the Declaration provided no guidance as to a properly constituted government. Enlightened leaders abroad were expected to apply the improved science of politics, as well as natural science, to strengthen their respective nations, but the pursuit of national interest would take place within an international structure where the rules of the road—the law of nature and nations—would increasingly be liberalized over time. The reformist spirit promoted by the American Revolution aimed to moderate the intensity of state-to-state conflict and thereby support the conditions for domestic reform. The cumulative effect, by strengthening liberal interests within nations and by removing the repressive pressures created by threats to national security, would improve the conditions of mankind and create openings for domestic political reform—and, if particular sovereign peoples so desired, for regime change.

As things turned out, events outran the ability and power of the United States to influence the evolution of a liberal international order conducive to political reform and (relatively) peaceful regime change. American statesmen, most prominently Alexander Hamilton and Thomas Jefferson, could not agree upon the proper policies to this end, especially after the outbreak of the French Revolution in 1789 and the ensuing zero-sum European struggle for national survival and ideological dominance. America's pursuit of commerce did not change the nature of international relations but rather threatened constantly to suck the United States into the maelstrom of European conflicts. It proved impossible to separate neatly the defense and promotion of American economic interests from more traditional considerations of national security. The concept of the law of nations itself eventually underwent a major shift, to that of "international law" (as conceived by Jeremy Bentham and others), which in its modern form rejects nature, and national sovereignty, as the foundation for determining legitimate behavior in interstate relations.

American statesmen adapted in various ways to the realities of a world dominated by war and despotism rather than enlightened reform. Hard-heads like George Washington, John Jay, and Adams quickly appreciated that an independent and non-aligned U.S. foreign policy, one that pursued "our interest, guided by justice," still made perfect sense. Jefferson and Madison had less success in their approach, which tried to bring American commercial leverage to bear in defense of national security and a liberalized law of nations. Their program, culminating in the Embargo Act of 1807, failed rather miserably; and the ensuing War of 1812, fought on a shoestring, was a damn near-run thing. But Madison and Jefferson too believed in the merits of strategic independence, especially as the European reaction set in after the defeat of Napoleon. The idea of using American power to create an international system favorable to peace, prosperity, and liberal politics was not forgotten, only deferred.