Mark Tooley’s second attempt to rebut my case that America’s War for Independence was unjust fares little better than his first. It is stronger on rhetoric than reason, not least because it evades central questions raised in my paper in the Journal of Catholic Social Thought and engages with ethically irrelevant questions.

He begins by questioning my passing comment that 2 out of 3 American colonists did not support the Revolution. He writes that I was probably referring to an observation by John Adams. There is nothing probable about it: the source for my comment (clearly identified in footnote 140 of my paper) is none other than David McCullough, author of the celebrated biography of Adams. Tooley, who suggests that Adams was referring to the French Revolution, cites a maximum figure of only 1 in 5 colonists remaining loyal to Britain during the American Revolution. But even if Tooley knows more about Adams’ statement than Adams’ biographer, it matters not. A figure of 1 in 5 would confirm the reality that the rebellion was not simply a war between the colonists and the British (as Hollywood history would typically have it) but was America’s first civil war. And even if all the colonists had supported the rebellion, this would hardly have made it just. Whether a rebellion is just is not to be determined by a poll of the rebels.

Tooley digs himself deeper into irrelevance when he writes about the perseverance of the rebels and the divisions in Parliament. None of this shows the rebellion was just. Many unjust wars have exhibited popular support for, and perseverance by, aggressors, and division among the victims. The fact that the American colonists’ complaints attracted the support of prominent MPs like Edmund Burke serves only to illustrate that those complaints received a full and fair hearing in Parliament. And while Tooley notes Burke’s opposition to the imposition of colonial taxes he is silent about Burke’s endorsement of Britain’s sovereign right to legislate for the colonies in all matters. (For good measure Tooley tosses in references to the rebellions against Kings Charles I and James II. He appears to assume not only their justice but also their analogy to a colonial rebellion against King and Parliament.)

Tooley asks whether the just war tradition permits governments “unlimited license upon their colonists, while allowing the colonists no resort at all, except to suffer endlessly until both law and liberty are extinguished?” Of course not. Such rhetoric echoes the groundless charge in the Declaration of Independence that the British were seeking to impose “absolute tyranny” on the colonies. No one has even begun to show that the British exercised, or intended to exercise, “unlimited license” over the colonies.

He claims stirringly that the rebels were asserting “inalienable rights rooted in British custom and law and further refined in the Declaration of Independence.” He fails, however, to articulate these alleged “rights,” let alone to locate them in the just war tradition. He fails, moreover, to answer a central question I put to him in my previous reply: why was it unjust for the mother country to tax its colonies?  What is it about British colonies that supposedly makes them tax-exempt?

The core of the matter is that Britain sought to impose modest taxation on its (hugely wealthy) American colonies. Some New England colonists, invoking a self-serving and spurious “right” to immunity from taxation, conspired to resist legitimate British sovereignty by violence. As the website of the Minute Man National Park explains: “In September of 1774, Boston Patriots brazenly stole four brass cannon right from under British guard” which were “smuggled out of Boston and added to the growing caches of Colonial arms.” It adds: “As Governor of the Massachusetts Bay Colony, which was almost in total rebellion against the British Government, General Thomas Gage sought to stem armed conflict.” The result of Gage’s attempt to neutralize the rebel arms was Lexington and Concord. If Tooley thinks that measures such as reasonable taxation and an attempt by the authorities to stem armed conflict in a situation of open rebellion amounted to “unlimited license,” he is very wide of the mark.

Turning to the question whether the rebellion was a “last resort,” Tooley asks how much longer the colonists, having sought redress of their “grievances” for 10 years, should have waited: “Should they have waited until all their legislatures were dispersed, their leaders imprisoned, their arms seized, their cities occupied, and their courts usurped by British military judges?” He has history back to front. The British did not provoke rebellion in Boston by taking such measures: such measures were provoked by rebellion in Boston. Moreover (as I pointed out in my paper and my earlier reply to Tooley), the colonists had more than once over those 10 years won the repeal of tax laws through economic pressure. Readers may recall Tooley’s apparent defense of the rebels’ abbreviation of their economic embargo in 1775, namely, that it was “disrupted” by their resort to arms at Lexington and Concord. But the fact of their premature resort to violence is hardly a justification for it.

Turning to slavery, he claims that it is not clear what role it plays in my just war analysis. As I explain in my paper, one criterion of the tradition is that the damage inflicted by war must be proportionate to the good expected. Defenders of the Revolution claim that an important good it promoted was liberty. It is relevant, therefore, to observe that it did not bring liberty for all. My paper quotes one historian of the Revolution who has commented:

“Rich supporters of independence retained their property and much of their power. Many white men made substantial gains, but many others remained poor and were still excluded from participation in politics and government; white women scarcely benefitted at all. Much discriminatory legislation remained in place, especially on religious grounds. Above all, the logic of the Revolution extended human rights to blacks only to a very limited degree. Most continued to be enslaved….”

Tooley challenges my parenthetical comment that the Declaration of Independence was drafted by a man who enslaved his own children. Whether or not Jefferson enslaved his own children (and there is reasonable evidence that he did) he enslaved others. The charge of hypocrisy levelled against slave-owners like Jefferson and Washington by commentators like Samuel Johnson and John Wesley was, and remains, obviously fair.

Tooley refers to my “stringent portrayal” of the just war tradition. It is not, however, my portrayal that is “stringent”: it is the tradition itself. The tradition permits the use of force, but only if its seven criteria are met (as, I think, they have been on occasion.) As I argue in my paper, the American War for Independence met, at most, but two. I must confess that, despite my exchanges with Mark Tooley, I am not clear whether he accepts the standard just war tradition as set out in my paper. If he does not, we have largely been talking at cross-purposes. If he does, then I fail to see how, on any objective application of its criteria, he can conclude that the American Revolution was other than unjust.

So that readers can judge the merits of my paper in the Journal of Catholic Social Thought for themselves, I am hopeful it will soon be posted on the website of the Kennedy Institute of Ethics at Georgetown University. In the meantime, I am grateful to Mark Tooley for helping to ventilate this important question of the justice of the American Revolution. Understanding the just war tradition is essential to a sound ethical assessment of wars not only past, but also present and future.