James Oliver Robertson intended no sacrilege when he called the Declaration of Independence a sacred text, an essential component of what has become American “holy writ.” It is now venerated as a founding document of the national civil religion.Footnote ¹ The Declaration, Robertson emphasized, reflects an expectation that the new United States would become the nation among all nations. As celebrated now, independence then provided the political means to achieve a social end, that social end being a better life for Americans, their new nation acting as an exemplar for the larger world. Or, as Stephen E. Lucas put it, the Declaration of Independence went through an “apotheosis,” through which, over the years, Americans have come to “see its original purpose in universal terms almost wholly divorced from the events of 1776.”Footnote ²

This is not to say that the Declaration has not had its critics. It has, from the moment it was made public. Most of those first generation critics are long forgotten, lost in a past left behind by the future American rise to world leadership. In the short list of the Declaration's contemporaneous detractors, John Lind stands out as the most prominent and the most dismissive of what that founding text proclaimed. A London barrister, Lind applied his lawyerly skills in large part to counter the Declaration's charges against alleged acts of British tyranny, but also in part, Lind sought to discredit the Declaration's natural rights assertions as the basis of American liberties. In doing so Lind drew on arguments that he had made earlier in an unfinished essay that challenged the natural rights position taken by William Blackstone in his Commentaries on the Laws of England. He also borrowed from his friend and confidant, Jeremy Bentham, to make his case.

Admittedly, Lind failed to change many—if any—minds. Revolutionary Americans stood by their condemnation of crown and empire, and they held onto their natural rights beliefs. For most contemporary Americans, the particulars of the Revolutionaries' indictment of British tyranny no longer matter. Those complaints have passed into the foggy realm of “self-evident”—and therefore no longer debated—truths, but the American attachment to natural rights, symbolically strong though it may be, is, in real legal terms, almost as problematically vague. For Lind, a natural rights foundation to law could be no foundation at all. As he saw it, revolutionary Americans may have believed that they started anew in founding a nation, and yet they did so while perpetuating the old philosophical errors of Britain's most famous jurist. Time and again, Lind would blast away at the notion of natural rights as utterly ridiculous. Ironically enough, whatever inconsistencies Lind may have found in Blackstone's thinking or in that of American Revolutionaries when it came to natural rights, he could not escape the inconsistencies in his own legal logic.

For much of his life, John Lind was a gadfly who fell short of realizing his grander ambitions.Footnote ³ He followed the intriguing travels abroad of his early years with constant social and political maneuvering back home. It was not the course that his father, Charles Lind, an Oxford-educated doctor of divinity, had envisioned for him. The elder Lind, a vicar of modest means in Colchester, sent his only son off to Oxford in 1753.Footnote ⁴ Then 15 years old, John did quite well in his studies at Balliol College. He left 8 years later with both a bachelor's and master's degree in hand.Footnote ⁵ He had been made an Anglican deacon as well, no doubt to his father's pleasure, even pride, sentiments that did not last. When Charles Lind died in 1771, John had been abroad for nearly a decade. The father left his son a bequest of a mere 5 shillings; the rest of his estate—what little there was—went to John's sisters. Should John ever return to England to claim his inheritance, Charles wrote in his will, “and demands the same I pray God to bless … and to preserve Him in the Belief & practice of his Holy Religion”: a dying father's admonition to a prodigal son, more an expression of despair than hope.Footnote ⁶ Charles knew that John had abandoned his prospective career in the Anglican Church in favor of more earthly pursuits.

By then John had had a long stay in Constantinople and was in the midst of a new career in Warsaw. He made lasting connections in Poland, eventually rising to become “general and adjutant” to King Stanislaus Poniatowski. Elected king by the Polish Diet in 1764, Poniatowski styled himself Stanislaw August II when he took the throne in 1764. Tutoring him and other members of the royal household in English, Lind rose to become a councilor to the new king and head of a school for young cadets.

Lind left Poland in 1772 but kept his Polish connections, which proved useful as he made his way in London society. There were well-placed Poles in London who were hoping that the British would see that it was in their interest to defend Poland from land-hungry neighbors. Adding his voice to theirs, Lind took up Poland's cause in a pamphlet that went through two printings in less than a year.Footnote ⁷ The issue was urgent: Russia, Austria, and Prussia had sliced off large portions of Poland, taking just under a third of its territory and population, this despite Catherine the Great's many promises to respect Polish sovereignty. Lind could do little himself to change any of this, but he never lost his interest in Polish affairs.

With a pension from King Stanislaus, Lind had started a new life in London. He drew on his ever-widening circle of social contacts—including, most notably, the Earl of Mansfield, Chief Justice on the court of King's Bench—to gain entry to Lincoln's Inn in June 1773.Footnote ⁸ In the three years he was enrolled there he spent most of his time observing barristers in court, learning how to enter pleas and argue cases before judges and juries. There was very little formal training beyond that; certainly almost nothing in legal philosophy.Footnote ⁹ Because Lind had not concentrated on the law at Oxford, most of what he learned, beyond courtroom essentials, he picked up on his own, which was typical of even the best barristers of this age.

He did become successful enough to support himself in a legal practice, with lodgings a few blocks north of Lincoln's Inn. Eventually he rented a second residence south of the Thames to escape the hustle and bustle of the city.Footnote ¹⁰ Lind entered the polemical lists as a defender of Britain's new harder-line American policies even before he completed his terms at Lincoln's Inn. In doing so he anticipated what he would eventually argue in his critique of the Declaration of Independence. It was all of a piece, each individual essay a variation on a larger theme.

Thus, in early 1775 Lind offered Remarks in response to Arthur Lee's anonymously authored Appeal. Lee, a transplanted Virginian trying to strengthen his connections with Londoners sympathetic to American grievances, wrote this pamphlet under the guise of “an old member of Parliament.” American colonists, he insisted, could lay claim to the same basic rights as Englishmen. Warning against any attempt to coerce American obedience to imperial policy, he asked, rhetorically, if Britain had the right or the need to tax the colonies. He answered his own question with an emphatic no. He insisted that “taxation and representation are constitutionally inseparable” and yet Americans neither were nor could they be represented in Parliament. Citing authorities from Henry de Bracton to Sir Edward Coke to John Locke, he claimed that “it is an eternal law of Nature” that property could not be secured without recognition of that right.Footnote ¹¹

Turning to the past, Lee contended that the colonial charters under which so many transplanted Englishmen were or had once been governed recognized such rights. They did not, however, create them. Those rights were an “unalienable” element of the human condition. Lee warned members of Parliament who wanted to coerce protesting colonists into submission that, even “if we succeed, we are ruined” because the French would not stand idly by.Footnote ¹² Therefore, Whitehall and Westminster must agree to repeal the controversial legislation passed since 1763 and recall the troops sent across the Atlantic in more recent months to compel compliance.

Lind disagreed with Lee on both political and philosophical grounds, although he took an oblique approach to countering him. Maintaining the fiction common to political essayists of the age, Lind professed to be evenhanded. “Wherever I think parliament has acted as the faithful guardian of our rights and liberties I shall freely applaud;” where it failed, “I shall as freely censure.”Footnote ¹³ True enough, he did not simply whitewash imperial policy, but as befitted a lawyer trained in an adversarial system, he argued in the manner used by both sides in the revolutionary debate described by historian John Phillip Reid: that is, he relied on “forensic” evidence.Footnote ¹⁴ He pled his case as vigorously as possible, leaving it to his opponents to point out whatever weaknesses or inconsistences they might see in his argument. Simply put, it was not his job to make their case for them. Although he was not necessarily disingenuous in claiming to be “evenhanded,” it must be remembered that his notion of “evenhanded” did not mean that he wrote as a mere spectator; objective, disinterested, observing from above the fray.

That Lind sided with crown and Parliament was evident in his view of basic authority in the empire. He conceded that Parliament's American policies may not have always been wise, but that they were always constitutional, because Parliament, and Parliament alone, determined constitutionality. Parliament could “change the constitution,” even going so far as to constrain monarchical authority because the monarch was “a constituent part” of Parliament. Lords and Commons would together decide what represented the limit to legitimate royal prerogative. Colonial charters before the Glorious Revolution had been granted by the crown through its older, “procuratorial capacity,” which no longer existed. Although George III did not have that sort of independent authority, until Parliament decided otherwise, he “is invested with a full discretionary power, to be used as he thinks best, and most conducive to the benefit of the whole.”Footnote ¹⁵ Colonial charter rights, coming from revocable crown grants, could not be considered an expression of fundamental law.

Lind dismissed as nonsense any claim that the colonists had rights based on the “immutable laws of nature.” What were called “natural rights” had no place in law on either side of the Atlantic. Ostensibly the quintessential legal positivist, Lind countered that all rights—in person as in property—only became enforceable after having been formally enacted. Legal claims could only be made good if given approval by governmental action, as pronounced in a royal decree or as specified in a statute passed by Parliament or as found by judges in a court of law. The English common law tradition and ideas of justice based on customary practice were one thing; a vague notion of natural rights derived from imagined “laws” of nature was quite another. The former was proper; the latter was not. Besides, philosophical abstractions had no place in deciding disputes in real political life. Therefore relying, as Lee had, on the rights arguments made by Bracton or Coke or Locke was intellectually sloppy, even counterproductively absurd.Footnote ¹⁶

Lind avowed that what colonists considered to be their rights were more often than not actually privileges, existing at the sufferance of the crown and Parliament. British sovereignty was inextricably tied to parliamentary supremacy. “Subjection to the jurisdiction of the British legislature is the very circumstance which constitutes a British subject,”Footnote ¹⁷ Lind emphasized. Parliament had the authority as well as the need to regulate commerce and raise revenue in the empire. Taxes were not the “gift of the people,” as Arthur Lee, following John Locke, called them; they were, instead, fees owed for services rendered. Protesting colonists—and those misguided Britons who supported them—did not understand the hierarchical structure of the empire or what constituted political representation within it. Without using the phrase “virtual representation,” Lind made the argument that is associated with it: namely, that American colonists, like Britons, had their interests and rights secured by Parliament even if they had no seats at Westminster and no one represented them directly. Besides, however much colonists resented the so-called Coercive Acts of 1774, they had precipitated them by their “audacious usurpation of the powers of government.”Footnote ¹⁸

Lind conceded that there was no sense in trying to impose imperial authority if there was no longer a sense of imperial community, which prompted him to offer a “Plan of Reconciliation.” Under it, Parliament would pass a “bill of American rights” to replace the problematical Declaratory Act. That 1766 statute avoided use of the word “tax,” but also claimed that Parliament had the authority to legislate for the American colonies “in all cases whatsoever.” As it turned out, using such deliberately obscure language had only served to further alienate Britons from Americans. Lind urged, as an alternative, a variation on the approach that Lord North had taken recently in Parliament: to wit, in February 1775, North called for a requisition system in which Parliament would allow the individual American colonies to tax themselves, raising revenue to meet quotas set by Whitehall and Westminster.Footnote ¹⁹

Lind modified North's proposal by dividing trade between Britain and the American colonies into four categories. Two would fall entirely within Parliament's purview (British exports to the colonies, and colonial exports to Britain) and two would be shared by Parliament and the individual colonies. Revenue generated in those latter two categories (goods produced in the colonies and traded between them, and goods exchanged between the colonists and trade partners outside the empire) would be gathered by crown-appointed “treasurers” who were “accountable to the provincial legislatures.” Those legislatures would determine how the funds raised through trade duties should be spent within their own borders, setting aside a portion to guarantee the salaries of governors, judges and other officials necessary to imperial administration. “Americans should contribute their proportion, as we should contribute ours,” Lind advised. “That we must either give up the colonies, or strike out some method of reconciling British superiority with American ‘liberty’ seems to be allowed on all hands,” he warned.Footnote ²⁰

In offering that warning, Lind knowingly echoed Josiah Tucker.Footnote ²¹ Unlike Tucker, who had given up on salvaging the empire even before the shooting started, Lind continued to advocate a solution to the problem short of American independencealthough, like Tucker, he believed that Americans would suffer more than Britons should the break occur. And unlike others who called for an imperial restructuring, such as creating a new imperial parliament or giving Americans seats in the existing Parliament at Westminster or allowing the colonists to have an intercolonial legislature, or, in yet another alternative, recognizing their legislative autonomy with the only tie to Britain through the crown, Lind pressed for a changed attitude rather than institutional reform.

Lind's Remarks had appeared in May 1775. Lee's Appeal, first printed the previous November, was already out in a second edition by then. A third printing appeared before the year was over. Lee's pamphlet would be reprinted in the colonies; Lind's tract was not.Footnote ²² By then, the most powerful elements of the colonial press had aligned with the proprotest group and there was nothing in Lind's argument that those self-proclaimed patriots would find appealing. The loyalists who might have agreed with Lind had fewer sympathetic press outlets.Footnote ²³

Lind's second foray into political propagandizing on the American crisis came in response to Richard Price's Observations, a tract that enjoyed even more success than Lee's Appeal. Price's basic contentions were reminiscent of Lee's. Price, too, concentrated on the reality of natural rights and Britain's violation of colonial liberties by taxing Americans without allowing them representation in Parliament. Price was dismayed that the author of Remarks—whom he knew to be Lind—had been so wrongheaded as to argue that “a people have no property or rights, except such as their Civil Governors are pleased not to take from them.”Footnote ²⁴ Lind fired back in Three Letters that Price's assertion that “in every free state every man is his own Legislator” reflected an unfortunate naiveté, an inability to understand things as they really were.Footnote ²⁵ If ever there was an instance of two authors talking past each other, this was it.

What is most noteworthy about Lind's retort—which, like Lind's counterblast to Lee's Appeal, found nowhere near the success in sales enjoyed by Price—is one particular element of the larger argument. Lind attacked Price's definition of both civil liberty and political rights. “What then is Liberty,” asked Lind. “Clearly nothing more than the ABSENCE of COERCION.” All laws, he insisted, “are coercive; the effect of them is to either restrain or constrain; they either compel us to do or to forbear certain acts.” Were Price to flee to the rebellious colonies in pursuit of greater freedom, Lind scoffed, he would find the new governments being formed there every bit as restrictive as what he lived under in Britain. Price's idea of a “free state” implied “a flat contradiction” because “it supposes a relative without its correlative; a superior without an inferior; a sovereign without a subject.”Footnote ²⁶

Price countered Lind in Additional Observations.Footnote ²⁷ Price's new essay, too, garnered favorable notice on both sides of the Atlantic, again among those sympathetic to the American cause and critical of Britain's policy toward the colonies. But Lind had by then moved on. He was more concerned about another reader's reaction to his Three Letters than he was to anything written by Price. A footnote in Lind's pamphlet had given a “very worthy and ingenious friend” credit for the notion that “liberty is nothing positive, that it means only the absence of restraint.” That friend, “whose name I am not now permitted to mention,” was an as yet virtually unknown Jeremy Bentham. “Liberty,” Lind explained, “I thought meant the absence of constraint, as well as of restraint.” Bentham preferred absence of “coercion” to either of those words, which is what Lind consequently settled on for his pamphlet. “This notion of liberty will make a leading principle in a work which” (the unnamed) Bentham would soon, Lind hoped, “give to the world.”Footnote ²⁸

Lind and Bentham had been discussing the problem of defining the nature of liberty and rights well before Lind turned his attention to American affairs or wrote either of his tracts. It was that deeper concern that would eventually bring Bentham his most lasting fame. It is also the context in which Lind's critique of the Declaration of Independence needs to be studied.

Most of the little that we know about John Lind comes from the not always reliable reminiscences of Jeremy Bentham nearly a half century later. Lind and Bentham may have first met at Oxford. Bentham, younger than Lind by more than a decade, arrived at Queen's College a year or thereabouts before Lind left Balliol. There had been a family connection already, with Bentham's father Jeremiah, a prominent London attorney, helping Lind's father manage his troubled personal finances. Obviously more than just a passing acquaintance, Lind assured Bentham's father that his diminutive son, at 13 years of age already considered a prodigy, impressed people at Oxford “that he has multum in parvo.”Footnote ²⁹

Bentham enrolled at Lincoln's Inn while yet an undergraduate, and still kept chambers there when Lind moved to London from Warsaw, despite his spending little time practicing law. The two soon became quite close. Bentham traveled with Lind to visit his sisters in Colchester and he stood as a witness when Lind was married.Footnote ³⁰ He even lived with Lind for a time, with the older, more worldly Lind playing the role of man about town, pursuing the “grande monde” and spending more lavishly than he could really afford.Footnote ³¹ Mixing disdain with envy, Bentham pulled back somewhat from the friendship, although he did not want to give up the personal connections he had made through the gregarious Lind. “There was a time when I doubted whether, so long as you were alive, I could live without you,” Bentham confessed in a note to Lind near the end of 1775. “It became necessary for me to try; I have tried and I have succeeded,” he boasted, even as, perhaps, he tried to convince himself it was true.Footnote ³²

By then Bentham had found his passion, even his lifelong obsession: developing a new code of laws for England that would have a new legal philosophy at its core. It was this project that Lind hinted at in his response to Price. Bentham began modestly, in a quest to displace William Blackstone's highly regarded Commentaries on the laws of England. The Commentaries grew out of a lecture series that Blackstone offered at All Soul's College, beginning in 1758 and carrying through the next 8 years. The first Vinerian Chair of Common Law at Oxford, Blackstone was determined to provide a grounding in that subject that had been lacking before. Although canon law had been banned as a field of study at Oxford since the Reformation, the civil law, as derived from Roman law, was still the preferred course of study there, in spite of the fact that the common law, including related notions of equity, had long been the basis for legal practice in England.Footnote ³³ The Commentaries carried on what Blackstone had started with his lectures, in line with reading materials he developed for them that emphasized “natural law is the rule of human action, as prescribed by the creator, and discoverable by the light of reason.”Footnote ³⁴

Lind had not attended Blackstone's lectures when he was at Oxford. Bentham did, but only after he had also begun his terms at Lincoln's Inn. Bentham thought that Blackstone erred in grounding English law in natural rights. As H. L. A. Hart put it, with Blackstone, Bentham saw “an unexplained and indefensible inconsistency.” Blackstone asserted that “men have inalienable rights to enjoy life and liberty” while, at the same time, they also accept “the necessity of government.” That acceptance included government exercising powers involving “the taking of life” and “the limitation of liberty.”Footnote ³⁵

Bentham informed readers of his 1776 Fragment that he needed to “expose the errors and insufficiencies” of Blackstone's Commentaries before he could propose an alternative to them. Consequently his first task was “to overthrow” rather than to “set up.” Blackstone had acted as an “expositor” of the law;” Bentham would act instead as a “creator,” to explain what the law ought to be, not simply to review what it had become. Bentham insisted that Britons lived in a new age, an exciting time “in which knowledge is rapidly advancing towards perfection.” In the “moral reformation” to come there was a “fundamental axiom” that should govern law as it guided life, a realization that “it is the greatest happiness of the greatest number that is the measure of right and wrong.”Footnote ³⁶ This now famous phrase captured the essence of Bentham's “utilitarianism.” Any notion of natural rights derived from a law of nature could have no place in this more moral and yet more empirical age, to which Bentham believed his “fundamental axiom” was perfectly attuned.Footnote ³⁷

Bentham shared his thinking with Lind, and Lind shared his with Bentham, as both men sorted through their ideas about rights under law. Bentham claimed, many years later, that Lind needed editorial help producing his political pamphlets. Bentham provided it. Lind, according to Bentham, wrote “loosely and sloppily,” with an “epicurean nonchalance” that Bentham tried to correct.Footnote ³⁸ Lind, long dead, could say nothing in his own defense. Lind's prose could be ponderous, but then so was Bentham's. Bentham tended to be more long-winded, more florid, than Lind. Both men wanted to write with a certain panache; Lind did so with a sharper edge.

That sharper edge first appears in Lind's unfinished critique of Blackstone, apparently begun sometime in the summer or fall of 1774, many months before Bentham embarked on his Fragment. This essay would inform Lind's counterarguments to both Arthur Lee and Richard Price the next year, and likewise his critique of the Declaration of Independence the year after that. It is possible that Lind turned to Blackstone on his own, as the result of personal study at Lincoln's Inn, or perhaps Blackstone's name came up in conversations between Lind and Bentham, with Bentham recalling what he had heard from as well as what he had read in Blackstone;Footnote ³⁹ but any more than that it is difficult to say. Lind shared what he had written with Bentham; Bentham offered a critique, then gave Lind a copy of what he had written on Blackstone thus far. Bentham was willing to let Lind take his work and incorporate it within Lind's own, or, instead, he would put it aside until Lind had published his tract. As yet another alternative, Bentham suggested that he continue on, with Lind offering advice while putting his own essay aside. Lind, interestingly enough, chose that latter course: he left the subject of Blackstone to Bentham.Footnote ⁴⁰

Lind focused his energy more narrowly, hence his Remarks in response to Arthur Lee and then his Three Letters to Richard Price. Both essays reflected his disregard for Blackstone's notion of natural rights, although Blackstone is nowhere mentioned by name. Lind presumably gave Bentham the benefit of his insights on Blackstone and natural rights, as Bentham completed his Fragment. Bentham most definitely advised Lind on his Lee and Price tracts, as he would advise Lind on his later critique of the Declaration of Independence.Footnote ⁴¹

Lind carried into that third tract on American affairs the same position on natural rights that he took in his unfinished Blackstone critique, and he defended it with the same acerbic language. To give just one example from that 1774 essay: Blackstone had said in his Commentaries that the law of nature reflected the will of God. How were fallible, often irrational men supposed to discern the divine, asked Lind? They could not; therefore, this “law” of nature, the supposed foundation of all other laws, “proves at last to be no more than the deductions of any man's reason or the dreams of any man's fancy.” Sadly, Lind concluded, Blackstone had contrived an “unintelligible cant of false metaphysicks and falser Theology.” Because there was no “such thing as a Law of Nature” there could not be natural rights.Footnote ⁴² So stated John Lind about the philosophical foundation of English law, before he turned his attention to the American rebellion and, thereafter, to the claims made in the Declaration of Independence.

London newspapers began reprinting the Declaration of Independence in mid-August 1776, as soon as copies made the trans-Atlantic crossing.Footnote ⁴³ Its appearance did not mark any significant increase in British press coverage of American affairs. The colonial crisis had been a center of attention since before the shooting started, with essays in some newspapers expressing much sympathy for the rebels, others less. The fact that the American rebels eventually chose independence shocked very few Britons. American leaders had denied that that was their goal for many months after the fighting erupted at Lexington and Concord in April 1775. Thoughtful Britons understood that the longer the fighting lasted, the less likely reconciliation became.

Nor did it take Thomas Paine's Common Sense to intensify the rhetoric. King George III had been the target of personal, vituperative attacks in the London press even before the fighting erupted.Footnote ⁴⁴ Nevertheless, whatever sympathy some Britons may have felt for their rebellious cousins, hardly any wanted to follow them into a new republican age, even if they could understand that, for revolutionary Americans, at least, choosing to form an independent nation made more sense than remaining in the empire.

For Thomas Hutchinson, the onetime Massachusetts governor now exiled in London, the Declaration of Independence provided an excuse to make public the opinions he had long held privately. His pamphlet and John Lind's were the only ones to appear in London as immediate responses to the revolutionary American pronouncement.Footnote ⁴⁵ They were both published in early November 1776.Footnote ⁴⁶ Hutchinson and Lind did not know each other; therefore, the timing was coincidental, but where Hutchinson worked on his own, Lind wrote at the behest of the North ministry. Five hundred copies of Lind's tract were pulled from the print run and sent straight to the colonies, in the vain hope that a defense of the empire and critique of revolutionary American justifications would have a direct political impact.Footnote ⁴⁷ Hutchinson's essay went through just one printing; Lind's was reprinted in London a half dozen times within a year.Footnote ⁴⁸

Generally speaking, Hutchinson and Lind took the same approach in attempting to contest the claims made in the Declaration. Both rejected the philosophical grounds claimed for American rights as well as what the Declaration offered as evidence of British tyranny. Hutchinson railed at the Declaration's “absurd notions of government” and the “false hypothesis” that Americans were a distinct people.Footnote ⁴⁹ Like Lind, he contended that Britain was sovereign, Parliament supreme, and the navigation system reciprocal, all familiar arguments made by defenders of the empire. Hutchinson took the allegations leveled at King George III in the Declaration personally, because so many alluded to issues raised when he was Massachusetts's governor. He countercharged those now advocating independence with having wanted it all along. In his view, they were rank opportunists who disingenuously hid behind the facade of violated natural rights, shifting their arguments to suit their selfish political purposes.

Lind chose the same general line of disputation, with one notable exception. After impugning the Revolutionaries' motives, Hutchinson's Strictures followed the Declaration's organization, from first paragraph to last. Lind's Answer also opened by questioning the Revolutionaries' integrity, but then, by contrast, went straight to the specific allegations, saving the Declaration's beginning for the end.Footnote ⁵⁰ Lind argued as he might have in the courts of Common Pleas or King's Bench: he picked at the particulars as a way of dismantling the whole. Lind the barrister wanted to simultaneously build his case, the specific leading to the general, one example stacked on another, the result being an obvious, even incontestable verdict, in theory, at least. In reality it would not be that simple. On the contrary; what Lind presented as evidence that he hoped would stand as proof could too easily be turned against him. In this microcosm of the larger imperial dispute, there were no irrefutable truths to reveal; rather, there were different perspectives that could not be reconciled.

Lind took the grievances included in the Declaration and enumerated them, one through twenty-eight.Footnote ⁵¹ In each case he repeated the passage in full before attacking it for faulty logic, muddled law, or distorted history, or as all three combined. In doing so, Lind most likely hardened positions rather than changed minds. Lind's attempt to simplify ran the risk of reductionism, because his purportedly reasoned argument did double duty as partisan polemic. Those already inclined to discredit revolutionary American claims could have felt more rather than less confident in their position. Those inclined to give American claims more credence could have become equally insistent about the correctness of their view.

Reviewing all of the “Articles,” as Lind labeled them, is not necessary here. Lind himself derisively offered each of the twenty-eight as variations on the same theme. “Of the whole list of charges, so confidently urged against his Majesty, each seems to be distinguished by its own peculiar absurdity,” he sniped.Footnote ⁵² For our purposes, one example will suffice. “Article IV” of the Declaration alleged that the King “has called together legislative bodies at places unusual, uncomfortable, and distant from the depositary of their public records, for the sole purpose of fatiguing them into a compliance with his measures.” This allegation, Lind reminded readers, was based on Governor Francis Bernard's 1769 decision to have the Massachusetts General Court meet in Cambridge rather than Boston. What Bernard did on his own initiative, King George III later endorsed. The king also instructed Bernard to stand by his ruling until order had been restored to the town.

Lind emphasized that the king had authorized the dispatch of troops to Boston just the year before because of the growing unrest in the Bay Colony. He and Bernard intended nothing more sinister than restoring the peace and protecting the innocent. Lind therefore huffed that the charge leveled at him in the Declaration was “truly ridiculous.” The Declaration presented no evidence that the king or his servants acted unjustly or without provocation. Certainly no right-thinking person could consider it grounds for a “national revolt” leading to a war for independence. “Sickly and feeble” must be the “patriotism”Footnote ⁵³ that attached any importance to it, he chided. But here, as with the other twenty-seven allegations, Lind showed that he did not grasp—or that he unrealistically denied—the broad psychological elements to what he wanted to confine within narrow legal limits. What is more, establishing what was clearly legal—or not—was no simple task.

Bernard had reconvened the legislative session in Cambridge after it began in Boston on the grounds that political unrest in the capital proved too unsettling for any public business to be done there. Leaders of the General Court in both the House of Representatives and Governor's Council demanded that he order the British troops who had been in Boston since October 1768 out of the town; likewise British warships in the harbor. Bernard refused, saying that he had no authority to issue those orders.Footnote ⁵⁴ Tired of hearing these repeated demands, fearing mob action and wanting a different, one would hope, more neutral, venue, he decided that Harvard College in Cambridge would be a better meeting place than the town house in Boston. He knew that he took a calculated risk, as did any imperial official in the colonies who went against the preferences of the political opposition. Bernard confessed to the Earl of Hillsborough, Secretary of State for American Affairs, that if he had it to do over again, he would have moved the General Court to Cambridge before the legislative session even opened. He was confident he could have done so “by law,” meaning, within his purview as governor. He also knew that doing so would produce a political uproar, and yet, as he saw it, he needed to take the risk, because, in this imperial Catch-22, if he allowed “the Seeds of Discord” being planted by members of the General Court to take root, matters would only get worse.Footnote ⁵⁵

Aggrieved members of the General Court seized this moment in 1769 to compile a list of what they deemed to be Bernard's threats to the people's liberties. Their petition to the crown anticipated the form that the Declaration of Independence would take in 1776. Accusing Bernard of violating the “first Principles of the British Constitution” and their “charter rights,” they ticked off “he has” this and “he has” that allegations eighteen times, then “humbly” entreated the King to remove him.Footnote ⁵⁶ There was one key difference between this protest and what eventually followed: in 1769, these Bay colonists appealed to the king as they condemned the actions of his governor; in 1776, the American Revolutionaries appealed to the opinions of an amorphous “mankind” as they protested against their king, or, more correctly, against the man they had once called their king.

The 1769 dispute had frayed political nerves as it exposed legal gray areas. It lasted nearly 3 years and ended without any clear victor or clarification of colonial autonomy versus imperial authority.Footnote ⁵⁷ Each side attempted to prove that it had the law on its side. Neither could clearly prevail and neither would concede defeat. Lind's brief recapitulation of this episode in his critique of the Declaration only underscored the impossibility of reconciling rival views.

American Revolutionaries issuing their 1776 Declaration, and Massachusetts legislators drafting their 1769 petition continued an old English parliamentary tradition, seen with the 1628 petition to Charles I and the 1689 declaration of right presented to William and Mary. In composing such texts they all—Englishmen as well as colonists—had acted as insistent supplicants, pairing healing language uneasily with veiled threat. Parliament had objected when the Massachusetts House asserted its rights in February 1768, passing resolutions that it then sent in a circular letter to the assemblies of other colonies. The Lords and the Commons concurred that those resolutions were “illegal, unconstitutional, and derogatory of the Rights of the Crown and Parliament.”Footnote ⁵⁸ They did not, however, challenge the supposed grounds for those rights. Unlike John Lind in coming years, not all members of Parliament objected to natural rights claims. Their thinking mirrored that of William Blackstone, who was then himself a member of the Commons. Even so, Blackstone did not agree with the Bay colonists' claims that their natural rights had been violated even if he might have conceded that, theoretically, they existed. Nor did he think that they had a basis for complaint under positive law.

Members of the Massachusetts House had contended that any government actions subverting “the principles of equity” and their “natural and constitutional rights” were indefensibly unjust and invalid.Footnote ⁵⁹ When pressured by Whitehall to repeal its February 1768 resolutions, the Massachusetts House passed them a second time by an even larger margin. It again reaffirmed those rights the next year in a set of resolutions countering Parliament's resolutions at essentially the same moment that it petitioned King George III to remove Bernard.Footnote ⁶⁰

Equally as significant—although less often noticed by historians—was the Massachusetts House's later assertion of primacy in determining what was legal and what was not. This came when Lieutenant Governor Thomas Hutchinson, acting in place of the departed Governor Bernard, continued Bernard's policy of having the General Court meet in Cambridge. Hutchinson submitted to the General Court a ruling made in London by the attorney general and solicitor general that he and the king were constitutionally and legally right; that he, like Bernard before him, could choose where legislative sessions would meet. The House was unmoved; it stood by its insistence that it meet in Boston, not Cambridge. “The opinion of the Attorney General and Solicitor General has very little weight with this House in any case,” it informed the lieutenant governor, because “this province has suffered so much by unjust, groundless, and illegal opinions of those officers of the Crown, that our veneration, or reverence for their opinions, is much abated;” so too for any ruling that might come out of the king-in-council. The House would determine for itself what was right and lawful, regardless of what the king's men thought. Alluding to John Locke, the House warned that, if need be, the people of Massachusetts could reclaim the power that they had delegated to government, and make their appeal to Heaven. In other words, they had the right to rebel.Footnote ⁶¹

To John Lind, this sort of attitude was anathema: using a supposed higher law to threaten anarchy. But by the late 1760s, the opposition-minded held most of the real political power in Boston, and by the early 1770s, in most of the rest of the Bay Colony. Naturally, those critics of empire would claim to hold the legitimate authority behind their power. Unable to countermand that local power, imperial officials found it increasingly difficult to establish their own authority in its place.Footnote ⁶²

In his Answer to the Declaration, Lind had set for himself the impossible task of discrediting the type of protest that he felt had begun in Boston and then spread elsewhere, eventually leading to rebellion. He wanted to persuade readers that it was wrong of American Revolutionaries to try to hide behind the law, because the law—real law, not the ethereal ideas of political philosophers—backed crown and Parliament. He arrayed examples of what he took to be inconsistent arguments and inappropriate behavior by the colonists over the previous decade to prove his point. He argued that, before the shooting started, protesting Americans had professed that they owed a “due subordination” to Parliament and that they accepted the king's “just prerogative,” and yet at every turn their actions belied that claim of allegiance. They repeatedly resisted crown and Parliament, as if every exercise of imperial authority could be rejected as unjust and unconstitutional. For all intents and purposes, subordination to Parliament was never “due” nor was any exercise of the royal prerogative ever “just.”

Lind groused that revolutionary Americans in their Declaration continued the bad-faith tendency shown repeatedly in Massachusetts as they attempted to make a virtue of their habitual disobedience. They complained about the vice-admiralty courts and royally appointed judges that had competed with their own common-law courts for jurisdiction. Lind's retort was that their incessant smuggling made those courts necessary because Americans had perversely turned lawbreaking into some sort of public virtue, with juries not convicting the accused, evidence of guilt regardless.Footnote ⁶³

Americans had objected to troops in their midst, standing armies among civilians in peacetime being a violation of their fundamental rights as Englishmen. Lind retorted that whatever guarantees Englishmen had enjoyed since 1689 with regard to soldiers not being stationed among civilians in peacetime, the colonists—because they were colonists—did not enjoy the same protections, and American lawlessness had made the dispatch of troops to Boston—in 1768 and again in 1774—unavoidable. He contended that even William Pitt supported the right of the king to send troops where needed (a point better left unstated, because Pitt had also made it clear that he did not think that they should have been sent among the colonists).Footnote ⁶⁴ Lind was insistent: the navigation laws needed to be enforced and, without the troops there to protect them, imperial officials could not do their jobs. Had Americans forgotten that those very same troops had driven the French out of New France, better securing their safety and making their future growth possible? An “ungrateful people” led by “selfish Demagogues,” American revolutionaries had spent the previous decade finding ways to avoid shouldering their fair share of the imperial burden.Footnote ⁶⁵

After ticking off this litany of deliberate obfuscations, Lind finally turned to the Declaration's opening. Bentham actually framed the argument for this “Short Review of the Declaration.” Whatever the strains in their personal relationship, he and Lind still formed a literary partnership of sorts. As Bentham remembered it many years later, Lind “wrote as he thought, which was what I thought.”Footnote ⁶⁶ Lind borrowed from Bentham to build on the foundation he had laid in 1774 when critiquing Blackstone's Commentaries. He had, he confessed to readers of An Answer, given the Declaration's opening little notice because “the truth is, little or none does it deserve.” Oozing sarcasm, he equated the revolutionaries' ideas on government found there with those “of their good ancestors on witchcraft.” The revolutionaries had tried “to establish a theory of Government; a theory as absurd and visionary as the system of conduct in defence of which it is established, is nefarious.” The notion of a “self-evident truth” was on its face ludicrous. It became dangerous when joined with their mistaken notion that they could comprehend the laws of nature and the intentions of “Nature's God.” Their ideas were not only “repugnant to the British Constitution,” they were “subversive of every actual or imaginable kind of Government.” All governments were based on the recognition that some rights must be surrendered for society to function. None could literally be “unalienable,” including those associated with “life, liberty and the pursuit of happiness.”

The revolutionaries had admitted that government should not be overthrown for “light” or “transient” reasons. They claimed that “a long train of abuses” had caused them to rise in rebellion, a Lockean phrase that Lind wanted to throw back at them. Because what, in their list of twenty-eight grievances, rose to that level, he asked? None, he answered, not a single one. The king was no tyrant. He had not violated their fundamental rights. To contend that he had driven Americans, as reluctant revolutionaries, to independence because they had had no choice except to declare it was nothing more than “hypocrisy.” If only they knew where their true interests lay, if only they could put their outrageous rhetoric aside, then they might understand that the good lives they once enjoyed came because of—not despite—their place in the British Empire.Footnote ⁶⁷

Thus, resoundingly, did John Lind conclude his tirade against the Declaration of Independence. The North ministry was apparently pleased enough with it to pay Lind a pension, which he passed on to his sisters, although the pamphlet's impact appears to have been negligible then and it is all but forgotten now.Footnote ⁶⁸ Lind continued to practice law. He also continued in his pamphleteering, writing one tract to defend the Earl of Mansfield against an attack made on him by the Earl of Abingdon in the House of Lords, and another to defend the actions of the late Lord Pigot while he was governor of Madras.Footnote ⁶⁹ The Abingdon piece in particular took a bitingly sarcastic tone, Lind writing only in mock admiration. As always, it is hard to know the extent of Lind's impact on anyone's thinking.

Lind died of “dropsy” at his London home in early January 1781; he was 43 years old.Footnote ⁷⁰ Whatever signs he may have shown that he was jeopardizing his health by living extravagantly, his death was sudden and took his friends by surprise. “Poor Lind,” lamented Jeremy Bentham's younger brother Samuel upon hearing the news; “he was altogether a very extraordinary character.”Footnote ⁷¹ Longtime friend and putative Earl of Banbury, Thomas Knollys, also lamented Lind's dying “in the prime of life” and added that “he has not left his equal.”Footnote ⁷² Cash poor because of his overspending, Lind nevertheless left behind a substantial amount of personal property: phaeton and horses, plus the books and fine furniture at his two rented homes and chambers at Lincoln's Inn. It was all sold at public auction to provide for his widowed wife Mary.Footnote ⁷³ Herbert Croft, a colleague at Lincoln's Inn, took care of the funeral arrangements and Lind's burial in the Anglican parish churchyard in Long Ditton, Surrey.Footnote ⁷⁴ Croft later had a marble scroll placed there. The scroll has long since been lost. Its disappearance—and the disappearance of the churchyard as well as the church that stood there—captures, inadvertently, the scroll's message. In it, Croft had wanted to say something about the evanescence of life, with John Lind serving as his example. It read: “If Ambition or Genius should ever contemplate this marble, let them reflect how suddenly their brightest prospects may be darkened by the hand of Death. Let all who read it, remember they may die in a year, in a month, in a week, to-morrow, or even to-day.”Footnote ⁷⁵

Alhough John Lind's unfinished 1774 critique of Blackstone laid a philosophical foundation for the 1776 pamphlet belittling the Declaration of Independence, Lind knew that revolutionary Americans had not borrowed their natural rights arguments from Blackstone. They had been making them long before the Commentaries appeared in print. There was nothing novel in the natural rights arguments made by protesting Bay colonists in 1768 or 1769 that Lind attempted to discredit in 1776. In 1762, in anticipation of unpopular imperial policies to come after the French and Indian War, the Massachusetts General Court had stated that “the natural rights of the Colonies we humbly conceive to be the same with those of all other British Subjects, and indeed of all Mankind.”Footnote ⁷⁶ In response to those anticipated policies becoming real a few years later, the General Court asserted that all legitimate government “has an everlasting foundation in the unchangeable will of God, the author of nature, whose laws never vary.”Footnote ⁷⁷

Even as the imperial crisis deepened, there were still members of Parliament who sided with protesting Americans, both in accepting the reality of natural rights and the contention that those of the colonists had been violated.Footnote ⁷⁸ Others who may have disagreed that Americans had been tyrannized nevertheless agreed that fundamental rights came from God and through nature, that all legitimate government depended on the consent of the governed, and that even though the king-in-Parliament reigned supreme, no one stood above the law and no power short of God's could be unlimited. Natural rights arguments made in Parliament, it is important to remember, had a much older pedigree than those made in colonial American assemblies. Blackstone in his Commentaries turned to the fifteenth century English jurist Sir John Fortescue to validate his characterization of England's legal past. Fortescue had contended that “the Law of Nature is the same, and has the same force all the world over.” Consequently “the laws of England, as far as they agree with, and are deduced from the Law of Nature, are neither better or worse in their decision than the law of all other nations or kingdoms in similar cases.”Footnote ⁷⁹ Fortescue's source for this assertion was Aristotle.

This is not to say that protesting colonists or their sympathizers in Parliament always turned to natural rights to make their case. Their protests were intended first and foremost to change imperial policy. Before July 1776, they argued accordingly, saying only as much as they felt they needed to in order to carry a political point.Footnote ⁸⁰ Sometimes they argued on the basis of constitutional rights, sometimes on the basis of charter rights, sometimes on the basis of natural rights, and sometimes they combined all three, often with God as the ultimate source of everything just. The Declaration of Independence did not introduce natural rights into the mix; rather, it used natural rights to legitimize the decision of revolutionary Americans to leave the empire and found their own nation. Only thus, they contended, could they secure their liberties.

Superficially, transforming revolt into revolution had made the English constitution and colonial charters irrelevant; not so the appeal to natural rights. At first blush, then, revolutionary Americans appear to have rejected Blackstone's constitutional and legal world to create their own. Blackstone had attempted to separate constitutional law from the law of nature and any talk of natural rights. There might be a right of revolution within natural law, he conceded, but not within constitutional law. His professed Lockean sympathies—holding that all legitimate power was derived from the people and that they had “absolute rights which were invested in them by the immutable laws of nature”Footnote ⁸¹ —notwithstanding, Blackstone added this qualification.

And yet, before writing that passage Blackstone had contended “Acts of Parliament that are impossible to be performed are of no validity.” If they contradicted “common reason” they were “void”—although, “if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it.”Footnote ⁸³ It was this sort of circuitous thinking that John Lind challenged as being utterly illogical. From Lind's perspective, Blackstone had played into the hands of revolutionary Americans who claimed to be defending rights under law when they were actually subverting them.Footnote ⁸⁴

Nonetheless, eliminating natural rights arguments would not by itself have brought with it the legal positivism that Lind advocated. Even if natural rights had not become part of the imperial debate, the tendency of rights talk to obscure rather than clarify, to divide rather than unite, would have remained.Footnote ⁸⁵ There were nebulous constitutionalist ideas circulating in the Atlantic world that existed apart from a belief in natural rights.Footnote ⁸⁶ The notion of an ancient constitution going back to an idealized Saxon or earlier Gothic past still had its appeal in Britain, including to William Blackstone, which he carried into his Commentaries. Footnote ⁸⁷ Historian John Phillip Reid examined this ancient constitution's “evolving permanence”: an acceptance that social circumstances change, coupled with an insistence that political principles remain the same.Footnote ⁸⁸ Blackstone treated the Glorious Revolution as a return to that ancient constitution, a restoration rather than an innovation. The “transcendant and absolute” jurisdiction of the crown-in-Parliament, as Blackstone defined it, had been “entrusted” to it “by the constitution of these kingdoms.”Footnote ⁸⁹ What, precisely, was that constitution and whence the source of its authority? Blackstone did not say, because he was astute enough to know that he could not. He downplayed the revolutionary implications of the Convention of 1689, its declaration of right, and the contract theory that produced them even as he celebrated the Glorious Revolution.Footnote ⁹⁰ He subsumed the theory of popular sovereignty within the reality of parliamentary supremacy. In his constitutional world, the people could not legitimately act independently of Parliament.

John Lind, too, fell under the sway of the ancient constitution, his positivist preferences notwithstanding. He did not allude to an ancient or Gothic constitutional past in his pamphlets opposing American assertions of natural rights, but he did characterize the Glorious Revolution as a resurrection of Britain's “happy” constitution.Footnote ⁹¹ Recall, too, his warning to rebellious Americans that they risked losing “the blessings of the British constitution,”Footnote ⁹² essentially unwritten though it may have been. “It is upon custom that a greater part of our political as well as our civil government depends,” he had contended in his 1775 Remarks.Footnote ⁹³ Even though Lind denounced the a priori assumptions behind natural rights arguments made in the Declaration of Independence, he could not escape his own set of beliefs, his own underlying assumptions about what constituted the just society. His legal arguments reflected the same moral and ethical assumptions as those of William Blackstone; indeed, the same as those of revolutionary Americans. It is not an irony that Lind would have appreciated being pointed out to him, but it can be added to other ironies that mark the debate over rights in the Revolutionary Era.