Copyhype

It might seem strange to think about paper on the 250th anniversary of the signing of the Declaration of Independence. It’s easy to take it for granted, especially in the digital age, but the fact is, without paper there would be no Declaration. Indeed, we Americans celebrate the day the Declaration was printed and published (July 4) rather than the date the Continental Congress approved the Lee Resolution (July 2) declaring independence from Great Britain.¹Scott Bomboy, When is the real Independence Day: July 2 or July 4, National Constitution Center (July 2, 2024). A closer look at the material object in which the Declaration is embodied shines a light on relevant background conditions that may get overlooked and serves as a jumping off point to consider the role of the new government in encouraging printed works.

During the last big anniversary of the Declaration, the Bicentennial in 1976, the Library of Congress brought together existing copies of the first printing of the Declaration of Independence, twenty-one in all, for a detailed physical and scientific examination.²Frederick R. Goff, The John Dunlap Broadside: The First Printing of the Declaration of Independence (Library of Congress 1976). Five additional copies of that first printing have been found since the Goff study. Press Association, Rare copy of the US Declaration of Independence found, Guardian (July 2, 2009). The researcher, Frederick R. Goff, identified at least three different watermarks among the copies. This suggests the printer, John Dunlap, used whatever paper he had on hand for the printing and did not have enough paper from any single batch for the entire printing.³Goff notes that the total number of copies produced during this initial print run “is undetermined but cannot have been large.”

Such a fact would not be surprising, given that there was a critical shortage of paper in the British American colonies at that time resulting from the Stamp Act of 1765, one of the precipitating events leading to the American Revolutionary War. The Act was a direct tax passed by the British Parliament on various forms of paper, documents, and playing cards in the colonies.⁴The Stamp Act, 1765, Gilder Lehrman Institute of American History. It is from here that the rallying cry of “no taxation without representation” has its origins,⁵NCC Staff, On this day: “No taxation without representation!”, National Constitution Center (Oct. 7, 2022). though protests also drew a connection between “the materiality of paper documents and the ability to conduct the business of the state.”⁶Jonathan Senchyne, The Intimacy of Paper in Early and Nineteenth-Century American Literature, pg. 42 (University of Massachusetts Press, 2020). The Act triggered a critical shortage of paper in the decade to follow.⁷Eugenie Andruss Leonard, Paper as a Critical Commodity during the American Revolution, 74 Pennsylvania Magazine of History and Biography 488 (1950).

And so, as the 28-year-old Irish immigrant Dunlap, working hastily and through the evening of July 4, used whatever paper he had on hand for the broadside, the material served as a reminder of the events leading to that moment.

The Background Conditions of the Declaration

Of course, the text of the Declaration is important. Authorship is often attributed solely to Thomas Jefferson, since he wrote the first draft. But it was just as much a product of the Second Continental Congress and its process, which culminated in a committee of five to finalize the document. Besides Jefferson, the committee consisted of Benjamin Franklin, John Adams, Robert Livingston, and Roger Sherman.

The ideological origins of the Revolution are multifaceted, but the text of the Declaration opens with “an emphatic assertion of the vitality of the law of nature” that “war was necessary to achieve for the colonists ‘the separate and equal station to which the Laws of Nature and of Nature’s God entitle[d] them.’”⁸R.M. Helmholz, Natural Law in Court: A History of Legal Theory in Practice, pg. 128 (Harvard University Press 2015). For more on natural law and the Revolutionary era, see A.P. D’Entreves, Natural Law An Historical Survey, pg. 13 (Harper Torchbooks 1965) (“But for natural law, there would probably have been no American and no French revolution, nor would the great ideals of freedom and equality have found their way into the law-books after having found it into the hearts of men.”); Helmholz at 129-130 (“Many among the founders of the American republic and their immediate successors expressed a common regard for the law of nature… It appeared in some of the early state constitutions they created, and it was mentioned with approbation by most of the leading lights among them”); Knud Haakonssen, Early Modern Natural Law Theories, pg. 94, in Cambridge Companion to Natural Law Jurisprudence (Cambridge University Press 2017)(“The combination of moral philosophy and natural law, or the use of natural law as moral philosophy, became a common feature of the Enlightenment in Scotland as it did in many parts of Germany. It was used as a broad civic education with, in modern parlance, inter-disciplinary dimensions, the best known of which is political economy. At the same time, this form of natural law conveyed a collection of concepts that could acquire practical potency under new political circumstances. Thus in America the Protestant natural law jurisprudence was one of the tributaries to a new revolutionary politics and soon fed into the emerging constitutionalism.”); Andrew J. Reck, Natural Law in American Revolutionary Thought, 30 Review of Metaphysics 686 (1977). For the history of natural law generally, see, e.g., Frederick Pollock, The History of the Law of Nature: A Preliminary Study, 2 Journal of the Society of Comparative Legislation 418 (1900); Heinrich Rommen, Natural Law: A study in legal and social history and philosophy (B. Herder Book Co. 1947). In Jefferson’s own words, the Declaration proclaimed no “new principles, or new arguments” but rather the “harmonizing sentiments of the day” to justify the resort to arms against the British.⁹Letter from Thomas Jefferson to Henry Lee, May 8, 1825. There’s no shortage of scholarship regarding the sources that influenced these sentiments. I want to highlight two of those sources that receive less attention than others.

The first is Emer de Vattel (1714-1767), a philosopher and diplomat born in what is now Switzerland.¹⁰T. Buhler, “Vattel, Emer de,” in The Oxford International Encyclopedia of Legal History (Oxford University Press 2009); Mark Somos, Vattel’s Reception in British America, 1761-1775, in Concepts and Contexts of Vattel’s Political and Legal Thought (Cambridge University Press 2021); William Ossipow and Dominik Gerber, The Reception of Vattel’s Law of Nations in the American Colonies: From James Otis and John Adams to the Declaration of Independence, 57 American Journal of Legal History 521 (2017). Vattel rose to acclaim following the 1758 publication of his treatise, Law of Nations, or Principles of Natural Law Applied to the Conduct and Affairs of Nations and Sovereigns, which quickly found its way to British America. When a group of colonial lawyers, including John Adams, wrote objections to the 1765 Stamp Act, they relied on Vattel among their authorities. According to one scholar, “The founding generation used his authority to effectively declare their independence and to portray Britain as a rogue state against which confederations should be formed.¹¹Somos at 219.

The second is Jean-Jacques Burlamaqui (1694-1748), a legal and political theorist and professor from Geneva. Like Vattel, he concentrated on natural law and ethics, and an English translation of his seminal work, The Principles of Natural and Politic Law, reached the American colonies in the 1750s.¹²Nathan Dorn, Burlamaqui, Leibniz and The Pursuit of Happiness, Library of Congress (July 5, 2013). Burlamaqui emphasized happiness as the end of man, government as the means for securing that end. The similarities between Burlamaqui’s writings and the Declaration’s language regarding the role of government in securing the unalienable rights of “life, liberty, and the pursuit of happiness” are striking.¹³John C. Ford, Natural Law and the Pursuit of Happiness, 26 Notre Dame Law Review 429, 442 n.32 (1951).

Encouraging the arts and sciences

The Declaration was printed as a broadside, a document printed on a single sheet of unfolded paper. During colonial times, printers also produced tracts (a single sheet folded into pages), pamphlets (two to five sheets folded into pages), and books.¹⁴Charles Evans, American Bibliography Volume 5: 1774-1778, pp. xiv-xv (Peter Smith 1941). Pamphlets played a major role in transmitting arguments in favor of revolution, from Thomas Paine’s Common Sense, to John Dickinson’s Letters from a Farmer in Pennsylvania, and scores more.¹⁵Bernard Bailyn, The Ideological Origins of the American Revolution (Harvard University Press 2017). The founders were huge proponents of books. “Through books they sought both knowledge and self-knowledge, the means by which better to live. For them books were not irrelevancies but bulwarks against barbarism and tyranny.”¹⁶George H. Nash, Books and the Founding Fathers, 18 University of Baltimore Law Forum 28, 30 (1988). There was a shared sense among them of the importance of the press, education, science, and literature.

But the war against Britain would first press the need for paper for more functional uses. The Continental Congress needed it for currency, records, and correspondence. The colonial armies needed paper to fight: the muzzle-loaded guns that were common at the time used cartridges consisting of a tube of paper filled with powder and shot.¹⁷Leonard at 497-98. To provide just one example of the precipitous balancing act: two weeks after the Declaration was signed, the Continental Congress passed a resolution prohibiting Pennsylvania paper makers from joining the militia, to ensure sufficient labor for manufacturing paper.¹⁸Journals of the Continental Congress 1774-1789, Volume V, pg. 593 (Washington 1906).

We know how the story of the Revolution ends. The colonists would eventually prevail and turn to constituting a more enduring government, one in which paper could be deployed toward less urgent needs and more lasting contributions to art and science. Here, Vattel and Burlamaqui both made relevant arguments about the state’s role in encouraging such contributions.

Vattel wrote,

Who can doubt that the sovereign–the whole nation–ought to encourage the arts and sciences? To say nothing of the many useful inventions that strike the eye of every beholder–literature and the polite arts enlighten the mind, and soften the manners… The nation and its conductors ought then to protect men of learning and great artists, and to call for talents by honours and rewards.¹⁹Vattel at 146.

Along the same lines, Burlamaqui included “political regulations which tend to promote the arts and commerce” among “all the institutions which men form among themselves for their common good and advantage.”²⁰Burlamaqui at 230.

Eleven years after the Declaration was delivered from Dunlap’s press, a group of founders were back in Independence Hall to debate and draft the Constitution.²¹In the interim, the Thirteen Colonies had adopted the Articles of Confederation, the deficiencies of which motivated the Constitutional Convention to revise and ultimately replace the Articles. For more about copyright efforts during this period, see my previous article The Copyright Clause: American Independence in Literature. The first article of the document enumerated the legislative powers that Congress could wield. Among them, the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” — certainly not a top priority, but important enough to include.

When James Madison addressed this power in the Federalist Papers, his remark that “The utility of this power will scarcely be questioned”²²Federalist No. 43 (1788). echoed Vattel’s statement that “in the present age, the utility of literature and the polite arts is pretty generally acknowledged, as is likewise the necessity of encouraging them.”²³Vattel at 147.

Epilogue

The story of the American Revolution includes many characters. Roger Sherman, who was on the Committee with Jefferson to draft the Declaration of Independence, may not be one of the main characters, but he is arguably one of the strongest recurring characters. Among all the founders, he is the only one to sign all four of the foundational documents: the Continental Association, the Declaration of Independence, the Articles of Confederation, and the Constitution. He was self-taught, and “an inveterate reader, admired Milton and Vattel.”²⁴Julian P. Boyd, Roger Sherman: Portrait of a Cordwainer Statesman, 5 New England Quarterly 221, 227 (1932). Active in Connecticut politics, he led nonimportation efforts there following the Stamp Act. And he was a key player in the Constitutional Convention, proposing the Connecticut Compromise that removed one of the largest deadlocks facing the states.

Sherman was elected to the House of Representatives following ratification of the Constitution. In that role, he joined Representatives Elias Boudinet and Peter Silvester to draft the first copyright act.²⁵Oren Bracha, Commentary on the U.S. Copyright Act 1790, Primary Sources on Copyright. The bill was signed into law by President George Washington on May 31, 1790.