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diff --git a/16873.txt b/16873.txt new file mode 100644 index 0000000..6ebee87 --- /dev/null +++ b/16873.txt @@ -0,0 +1,2977 @@ +The Project Gutenberg EBook of "Colony,"--or "Free State"? +"Dependence,"--or "Just Connection"?, by Alpheus H. Snow + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: "Colony,"--or "Free State"? "Dependence,"--or "Just Connection"? + An Essay Based on the Political Philosophy of the American + Revolution, as Summarized in the Declaration of + Independence, towards the Ascertainment of the Nature of + the Political Relationship Between the American Union and + Its Annexed Insular Regions; and, The Question of + Terminology: An Address Containing the Substance of the + Foregoing Essay, with some Additions, Delivered before the + Section for the Study of the Government of Dependencies, + of the American Political Science Association, at the + Meeting held at Providence, December 29, 1906 + +Author: Alpheus H. Snow + +Release Date: October 14, 2005 [EBook #16873] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK "COLONY,"--OR "FREE STATE"? *** + + + + +Produced by Digital & Multimedia Center, Michigan State +University Libraries, Marilynda Fraser-Cunliffe, Sankar +Viswanathan, and the Online Distributed Proofreading Team +at https://www.pgdp.net + + + + + + + + "COLONY,"--OR "FREE STATE"? + + "DEPENDENCE,"--OR "JUST CONNECTION"? + + "EMPIRE,"--OR "UNION"? + + + + + An Essay + + Based on the Political Philosophy of the American Revolution, as + Summarized in the Declaration of Independence, towards the + Ascertainment of the Nature of the Political Relationship Between the + American Union and Its Annexed Insular Regions. + + + AND + + + THE QUESTION OF TERMINOLOGY + + An Address + + Containing the Substance of the Foregoing Essay, with some Additions, + Delivered before the Section for the Study of the Government of + Dependencies, of the American Political Science Association, at the + Meeting held at Providence, December 29, 1906 + + + + + + By ALPHEUS H. SNOW + + + + WASHINGTON + 1907 + + + + +"COLONY,"--OR "FREE STATE"? + +"DEPENDENCE,"--OR "JUST CONNECTION"? + +"EMPIRE,"--OR "UNION"? + + +From the time of the acquisition of Porto Rico and the Philippines, in +1898, under a Treaty with Spain which left indefinite the relations +between the American Union and those regions, the question of the +nature of this relationship has been discussed. + +The Republican party, which has been in power ever since the war, has +justified its acts on the ground of political necessity. Its policy +has been that of giving the people of the Islands good administration, +just treatment, and all practicable self-government. The Democratic +party has declared such a policy to be only imperialism and +colonialism under another name. It has asserted that "no nation can +endure half Republic and half Empire" and has "warned the American +people that imperialism abroad will lead quickly and inevitably to +despotism at home." It has characterized the Republican government in +the Insular regions as an "indefinite, irresponsible, discretionary +and vague absolutism," and Republican policy as a policy of "colonial +exploitation." That the American people have believed the Republican +administration to have been good and beneficent, is shown by their +retaining that party in power. But it is perhaps not too much to say +that nearly all thoughtful persons realize that some part of the +Democratic complaint is just, and that there is at the present time a +lack of policy toward the Insular regions, due to the inability of +either of the political parties, or the Government, or the students +and doctors of political science, to propound a theory of a just +political relationship between us and our Insular brethren which will +meet with general approbation. + +We are, however, not peculiar in this respect. Great Britain, France +and Germany are in the same position. In none of these countries is +there any fixed theory of the relationship between the State and its +annexed insular, transmarine and transterranean regions. The British +Empire, so called, containing as it does several strong and civilized +States in permanent relationship with Great Britain, gives many signs, +to the student, of the direction in which political thought is +traveling in its progress toward a correct and final theory; but at +the present time there seems to be no prospect of the emergence of a +final theory in that country. Here in America, political thinking, +following the line of least resistance, has, as a general rule, +concentrated itself upon the Constitution of the United States, as if +in that instrument an answer was to be found for every political +problem with which the Union may be confronted. To some of us, +however, it has appeared inconsistent with the principles of the +American Revolution that the Constitution of the United States should +be the Constitution of any communities except the thirteen States +forming the original Union and those which they have admitted into +their Union; and, while yielding to none in our belief in the +supremacy of the Constitution throughout the Union, we have sought to +base the relationship between the Union itself and its Territories and +annexed insular, transmarine and transterranean regions, upon such +principles as would enable the American Union to justify itself in the +eyes of all civilized nations, and as would be consistent with the +ideas for which it stood at the Revolution. Those of us who thus limit +the effect of the Constitution to the Union are charged with +advocating an absolute power of the Union over its annexed regions. It +is assumed that there is no intermediate theory between that which +assumes the Constitution of the American Union to extend to these +regions in some more or less partial and metaphorical way,--for it is +evident upon inspection that it cannot extend in any literal way,--and +that which assumes that the Union is the Government of all these +regions with absolute power. + +It is a somewhat curious illustration of the truth that history +repeats itself that for ten years before the Continental Congress met +in 1774, the British and Americans alike, with some few exceptions, +discussed the question of the relationship between Great Britain and +the American Colonies as one arising from the extension of the +Constitution of the State of Great Britain over America, just as for +the past eight years Americans, Porto Ricans and Filipinos alike, +have, with few exceptions, discussed the question of the relationship +between us and our Insular brethren as one arising from the extension +of the Constitution of the United States over these regions. It was +not until the Continental Congress had discussed the matter for two +years that this theory was definitely abandoned and the rights of the +Americans based upon the principles which our Revolutionary Fathers +considered to be just. We have not yet attained to this broader view. +At the present time the doctrine of the Supreme Court, and therefore +of the Government, is that all acts of the American Government in the +annexed insular, transmarine and transterranean regions, are acts of +absolute power, when directed toward communities, though tempered by +"fundamental principles formulated in the Constitution" or by "the +applicable provisions of the Constitution," when directed toward +individuals. + +I shall ask the reader to follow me in trying to find out exactly what +this broader view of the Revolutionary Fathers was and to adjudge, on +the considerations presented, whether they did not discover the _via +media_ between the theory of the right of a State to govern absolutely +its annexed insular, transmarine and transterranean regions and the +right of a State to extend its Constitution over these regions,--regions +which, it is to be remembered, can never, from their local and other +circumstances, participate on equal terms in the institution or +operation of the Government of the State. + +In trying to rediscover this _via media_ of the Fathers I shall accept +the Declaration of Independence as the final and complete exposition +of their theories, and in interpreting that great document I shall +conform to the established rules of law governing the interpretation +of written instruments. + +Let me first, however, call attention to the well known, but very +interesting fact that the American people throughout this period of +eight years since the Spanish war during which the question has been +discussed by experts almost exclusively as one which relates to the +application of the Constitution outside the Union, have always had an +idea that it was the Declaration of Independence, rather than the +Constitution, to which we were to look for the solution of our Insular +problems. In 1900, the Democrats, in their platform, "reaffirmed their +faith in the Declaration of Independence--that immortal proclamation +of the inalienable rights of man and described it as "the spirit of +our Government, of which the Constitution is the form and letter." The +Republicans in their platform declared it to be "the high duty of +Government ... to confer the blessings of liberty and civilization +upon all rescued peoples," and announced their intention to secure to +these peoples "the largest measure of self government consistent with +their welfare and our duties." The Populists in their platform in the +same year, insisted that "the Declaration of Independence, the +Constitution and the American flag are one and inseparable." The +Silver Republicans declared that they "recognized that the principles +set forth in the Declaration of Independence are fundamental and +everlastingly true in their application to government among men." The +Anti-Imperialists declared that the truths of the Declaration, not +less self-evident to-day than when first announced by the Fathers, are +of universal application, and cannot be abandoned while government by +the people endures." In 1904, the Democratic party, while professing +adherence to fundamental principles declared in favor of casting into +the outer darkness of the fictitious "independence" every people +"incapable of being governed under American laws, and in consonance +with the American Constitution," but the Populists still held to the +principles of the Declaration, while the Republicans held to their +declarations of 1900. + +It is an ancient and well established rule of law for the +interpretation of written instruments that when the meaning of the +words used is not so clear as to leave no room for doubt and when +there thus exists what is called in law an ambiguity, it is proper to +consider the circumstances surrounding the execution of the +instruments, so that, by placing ourselves as nearly as possible in +the same situation in which the persons who executed the instrument +were at the time of its execution, we may have a basis for forming a +reasonable opinion as to which of two or more possible constructions +is correct. That such an ambiguity exists in the Declaration is +undeniable. Opinions concerning the meaning of its philosophic +statements, and indeed of nearly all its statements, differ between +extremes at one of which are arrayed those who, with Rufus Choate and +John James Ingalls, regard its philosophic declarations as "glittering +generalities," and at the other of which stand that great body of men +and women, living and dead, who, with Abraham Lincoln, believe, and +have believed, that these declarations are the foundation of the only +true and final science of politics. Following this ancient rule of +interpretation, therefore, let us consider the circumstances +surrounding the Declaration of Independence. + +From the earliest times, the political philosophy of the people of +America was directly connected with the religious and political +philosophy of the Reformation. The essence of that philosophy was that +man was essentially a spiritual being; that each man was the direct +and immediate creature of a personal God, who was the First Cause; +that each man as such a spiritual creature was in direct and immediate +relationship with God, as his Creator; that between men, as spiritual +creatures, there was no possibility of comparison by the human mind, +the divine spark which is the soul being an essence incapable of +measurement and containing possibilities of growth, and perhaps of +deterioration, known only to God; that therefore all men, as +essentially spiritual beings, were equal in the sight of all other +men. Luther and Calvin narrowed this philosophy by assuming that this +spiritual nature and this equality were properties only of professing +Christians, but Fox, followed by Perm, enlarged and universalized it +by treating the Christian doctrine as declaratory of a universal +truth. Penn's doctrine of the universal "inner light," which was in +every man from the beginning of the world and will be to the end, and +which is Christ,--according to which doctrine every human being who +has ever been, who is, or who is to be, is inevitably by virtue of his +humanity, a spiritual being, the creature of God, and, as directly +and immediately related spiritually to Him, the equal of every other +man,--marked the completion of the Reformation. + +According to this theory, the life of animals, who, being created +unequal, are from birth to death engaged in a struggle for existence +in which the fittest survives, is eternally and universally +differentiated by a wide and deep chasm from the life of men, who, +being created equal, are engaged in a struggle against the +deteriorating forces of the universe in which each helps each and all +and in which each and all labor that each and all may not only live, +but may live more and more abundantly. + +According to this theory, also, the glaring inequalities of physical +strength, of intellectual power and cunning, and of material wealth, +which are, on a superficial view, the determining facts of all social +and political life, are merely unequal distributions of the common +wealth, and each person is considered to hold and use his strength, +his talents and his property for the development of each and all as +beings essentially equal. + +According to this theory, also, there is for mankind no "state of +nature" in which men are equally independent and equally disregardful +of others, which by agreement or consent becomes a "state of society" +in which men are equally free and equally regardful of others, but the +"state of nature" and the "state of society" are one and the same +thing. Every man is regarded as created in a state of society and +brotherhood with all other men, and the "state of nature,"--man's +natural estate and condition,--is the "state of society." + +Were anyone asked to sum up in the most concise form possible the +ultimate doctrine of the Reformation, he could, perhaps, epitomize it +no more correctly than by the single proposition, "All men are created +equal." This doctrine of human equality arising from common creation, +growing out of Lutheranism and Calvinism through the intellectual +influence of Penn, and the broadening effect of life in this new and +fruitful land, underlay all American life and institutions. + +One of the results of this final theory of the Reformation was the +conception, by certain devout men and great scholars, of a "law of +nature and of nations," based on revelation and reason, which was +universally prevalent, and which governed the relations of men, of +communities of states and of nations. Out of this there had then +emerged the conception which has now become common under the name of +International Law, which treats of the temporary relations between +independent states. But the conception of the 'law of nature and of +nations' was, as has been said, vastly wider than this. It was a +universal law governing all possible forms of human relationship, and +hence all possible relations between communities and states, and +therefore determining the rights of communities and states which were +in permanent relationship with one another. Based on the theory of the +equality of all men by reason of their common creation, it recognized +just public sentiment as the ultimate force in the world for +effectuating this equality, and considered free statehood as the prime +and universal requisite for securing that free development and +operation of public sentiment which was necessary in order that public +sentiment might be just. + +While this philosophy of the Reformation was thus extending itself in +America, both among the Governments and the people, and in Europe +among the people, the Governments of Europe, though not recognizing +the existence of any 'law of nature and of nations' whatever, were +nevertheless acting on the basis that such a law did exist and was +based on the proposition that all men are created unequal, or that +some are created equal and some unequal. The alleged superior was +sometimes a private citizen, sometimes a noble, sometimes a monarch, +sometimes a government, sometimes a state, sometimes a nation. The +inferior was said to be "dependent" upon the superior--that is, +related to him directly and without any connecting justiciary medium, +so that the will of the superior controlled the will and action of the +inferior. It was this alleged law of nature and of nations, based on +an alleged divine or self-evident right of inequality--an inequality +arising from creation--which was the basis of the British Declaratory +Act of 1766, which may perhaps be called "The Declaration of +Dependence." In that Act, the State of Great Britain declared, (basing +itself evidently upon the law of nature and of nations, since there +was no treaty,) that the American Colonies "have been, are, and of +right ought to be, subordinate unto and dependent upon the Imperial +Crown and Parliament of Great Britain," and that the Parliament of +Great Britain "had, hath, and of right ought to have, full power and +authority to make laws and statutes of sufficient force and validity +to bind the Colonies and people of America subjects of the Crown of +Great Britain, in all cases whatsoever." The expression "of right +ought to have" clearly meant "has by the law of nature and of +nations." Great Britain was thus declared to be the superior of +America, with power according to the law of nature and of nations, to +control, by its will, the will and action of America as a "dependent" +country, and of each and all of its inhabitants as "dependent" +individuals. + +We discover, then, from an examination of the circumstances +surrounding the Declaration of Independence, a most interesting +situation. A young nation, separated by a wide ocean from Europe, +settled by men who were full of the spirit of the Reformation, deeply +convinced, after a national life of one hundred and fifty years, that +these principles were of universal application, was suddenly met by a +denial of these principles from the European State with which they +were most intimately related. This denial was accompanied by acts of +that State which amounted to a prohibition of the application of these +principles in American political life. This European State was indeed +the mother-country of America, and the Americans were bound to their +English brethren by every tie of interest and affection. The Americans +were only radical Englishmen, who gloried in the fact that England of +all the countries of Europe had gone farthest in accepting the +principles of the Reformation, and who had emigrated reluctantly from +England, because they were out of harmony with the tendency of English +political life to compromise between the principles of Mediaevalism and +the principles of the Reformation. The Declaratory Act of 1766 brought +clearly into comparison the political system of America, as opposed to +the political system of Europe. It was inevitable from that moment +that the American System, based on the principles of the Reformation +in their broadest sense and their most universal application and +briefly summed up in the proposition that "all men are created equal," +must conquer, or be conquered by, the European System, based either on +the principles of Mediaevalism, summed up in the proposition that "all +men are created unequal," or on a compromise between the principles of +Mediaevalism and the Reformation, summed up in the proposition that +"some men are created equal, and some unequal." + +In the light of this situation, let us examine the words of the +Declaration. The philosophical statements in which we are interested, +read: + + "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:-- + + "We hold these truths to be self-evident: That all men are + created equal; that they are endowed by their Creator with + certain unalienable rights, that among these are life, + liberty and the pursuit of happiness; that to secure these + rights, governments are instituted among men, deriving their + just powers from the consent of the governed; that whenever + any form of government becomes destructive of these ends, it + is the right of the people to alter or to abolish it, and to + institute new government, laying its foundation on such + principles and organizing its powers in such form, as to + them shall seem most likely to effect their safety and + happiness." + + * * * * * + + "Finally we do assert and declare ... that these United + Colonies are, and of right ought to be, free and independent + states,... and that all political connection between them + and the State of Great Britain is, and ought to be, totally + dissolved." + +The most reasonable interpretation, as it seems to me, of the +statement that "all men are created equal" is, as I have said, that it +is, and was intended to be, an epitome of the doctrine of the +Reformation. There will be those who will scoff at the suggestion +that a political body like the Continental Congress should have based +the whole political life of the nation upon a religious doctrine. But +it is to be remembered that the Continental Congress was not an +ordinary political body. It was the most philosophic and at the same +time the most religious and the most intellectually untrammeled body +of men who ever gathered to discuss political theories and measures. +Meeting under circumstances where weakness of resources compelled the +most absolute justness in their reasons for taking up arms, they must +have discussed their position from the standpoint of morality and +religion. John Adams tells us that one of the main points discussed at +the opening of the Continental Congress, when they were framing the +ultimatum which finally took the form of the Fourth Resolution was, +whether the Congress should "recur to the law of nature" as +determining the rights of America. He says that he was "very strenuous +for retaining and insisting on it," and the Resolutions show that he +succeeded, for they based the American position on the principles of +"free government" and "good government," recognized that the "consent" +of the American Colonies to Acts of the British Parliament justly +regulating the matters of common interest was a "consent from the +necessity of the case and a regard to the mutual interests of both +countries," and claimed the rights of "life, liberty and property" +without reference to the British Constitution or the American +Charters. Jefferson tells us that throughout the period of nearly two +years which intervened between the assembling of the Congress and the +promulgation of the Declaration the principles of the law of nature +and of nations set forth in the preamble were discussed, and that when +he wrote the preamble he looked at no book, but simply stated the +conclusions at which the Congress, with apparently practical +unanimity, had arrived. + +But it is not necessary, it would seem, to resort to external evidence +to prove that the Declaration is based on the doctrine of the +Reformation. In several places it seems to expressly declare that the +rights claimed by America are claimed under the law of nature and of +nations based on divine revelation and on human reason. In the first +sentence, it declares that "the law of Nature and of Nature's God" +entitles the Americans,--it having "become necessary" for them "to +dissolve the political bands which have connected them with" the +people of Great Britain,--to "assume a separate and equal station +among the powers of the earth." In the next it declares not only "that +all men are created equal," but that they have "unalienable rights of +life, liberty and the pursuit of happiness," not by virtue of any +social contract or other form of consent, but by "endowment,"--that +is, by voluntary gift and grant--of "their Creator." This doctrine of +"endowment" of men with "unalienable rights," by "their Creator," is +of course the Christian doctrine. In the concluding part of the +Declaration, it is declared not only that the United Colonies, as "the +United States of America," are "free and independent states," but that +they "of right ought to be" such, and in that paragraph the +"connection between them and the State of Great Britain" is not merely +declared to be "totally dissolved" but it is also declared that it +"ought to be" so dissolved. There was certainly no "right" of the +United Colonies, as the United States of America, to be free and +independent states and to declare the connection between them and the +State of Great Britain to be dissolved except upon principles of some +implied common law which was supreme over the Constitution of the +State of Great Britain and the Charters and Constitutions of the +Colonies, for none of these Constitutions or Charters made provision +for the dissolution of the connection on any contingency. + +There is necessarily implied in the statement that "all men are +created equal" and that "they are endowed by their Creator with +certain unalienable rights, among which are life, liberty and the +pursuit of happiness," the conception of the right of human equality +as a divine right. But is there any other basis than divine right on +which to rest a doctrine of human equality? A doctrine of human +equality by human right, is a doctrine of equality by consent. But if +a man can consent regarding his equality with another man or with +other men, he can, as has been often pointed out, consent himself into +a state of permanent inequality, inferiority and slavery, even +supposing that a basis can be found for the assumption of an original +state of equality arising from consent. + +Assuming then, for the sake of argument at least, that the proposition +that all men are created equal is and was intended to be a statement +of the Reformation doctrine in its broadest and most universal form, a +clue is given for the interpretation of the propositions which follow. +If politics, as well as religion, assumes as its basis the proposition +that all men are spiritual beings in direct and permanent relationship +with God, and hence equal as regards one another, then the purpose of +both politics and religion is to preserve this equality,--politics by +compulsion and religion by persuasion. Because all men are spiritual +beings in direct relationship with a common Creator who has +established laws under which He is the final judge, which men can +ascertain and apply through revelation and reason, men are declared to +have rights. Man is thus distinguished from animals, who have no +rights because they have no capacity to know the law--a knowledge +which must inevitably precede a knowledge of the right. Politics looks +at the universal needs of all men,--those needs which each man has in +common with all humanity--and from the universal needs assumes a +universal unalienable right of each against each other and against +all, and a universal duty of each toward each other and toward all, to +supply these needs. Religion regards the supplying of these universal +needs as a duty toward God. Hence politics adopts as its second +self-evident truth, the proposition that all men "are endowed by their +Creator with certain unalienable rights, among which are life, liberty +and the pursuit of happiness." The primary and universal needs of all +mankind, regarded as equal creatures of a common Creator, are the need +of life, the need of liberty and the need of pursuing happiness. These +needs are unalienable. No man can rid himself of them without +destroying himself as an equal creature of a common Creator. +Consequently the rights and duties corresponding to these unalienable +needs are themselves unalienable. There is no denial here of alienable +rights and duties. But it is clearly laid down as a fundamental +principle of the all-pervasive common law, that rights given by the +Creator are unalienable, and that no human being, however +emphatically he may declare, or will, or agree to the contrary, may by +any possible act of any other human being or of any set of human +beings, whether calling themselves a government or not, or by any +possible means, deprive himself, or be deprived of the right of life, +liberty and the pursuit of happiness--these being necessarily +incidental to the original right of equality. + +To apply this interpretation to the relationship between ourselves and +our brethren of the Insular regions: They are, according to the +universal and common law of nature and of nations, as we and all other +human beings are, equally creatures of a common Creator and equal with +us. Under that all-pervasive law, they, with us, and all other human +beings, are created with the unalienable need of life, liberty and the +pursuit of happiness, and therefore with corresponding unalienable +rights. Under that law we cannot deprive them of these unalienable +rights, nor allow them to deprive themselves of their unalienable +rights, nor allow a part of them to deprive the others of their +unalienable rights. According to the philosophy of the Revolution, +every man, every community, every state and every nation is bound to +enforce, and cause to be enforced, this law of nature and of nations, +which prevents the voluntary or involuntary alienation by any man, any +community, any state or any nation of his or its rights of life, +liberty and the pursuit of happiness. + +The Declaration, having thus described the ends of all government, +proceeds to describe the methods by which these ends are accomplished. +It declares that "to secure these rights governments are instituted +among men, deriving their just powers from the consent of the +governed." Governments, it is declared, are instituted solely to +secure to each and every being his and their unalienable rights, as +equal creatures of a common Creator, to life, liberty and the pursuit +of happiness. Here is a plain denial that government is universally +the expression of the will of the majority, for it is matter of common +knowledge that in only a few of the most highly civilized countries of +the world does the will of the majority, as it is expressed, secure to +each and every person his and their unalienable rights of life, +liberty and the pursuit of happiness. + +There is also an implied denial of the proposition that government is +the will of the majority, in the proposition that "governments are +instituted among men." If the Fathers had meant that government was +the will of the majority they would have said, "Men have the right to +institute governments for themselves, according to the will of the +majority." What they did was simply to state as a fact that +"governments are instituted among men," which fact is wholly +inconsistent with the hypothesis of a universal right of each and all +communities to institute government for themselves. + +There is, however, it would seem, clearly implied in the statement +that "to secure these rights governments are instituted among men," +the statement that governments are universal, that they begin with and +continue through human existence,--that government is, as Calvin said, +of "not less use among men than bread and water, light and air, and of +much more excellent dignity," and therefore the prime necessity of +human life,--and that there is a universal right of all men, all +communities, all states and all nations, to such government as will +secure these rights; for the rights which are to be secured being +universal, government, which is the instrumentality for securing them, +must also be universal. + +Having thus declared governments of a kind suitable to secure the +unalienable rights of the individual to be a universal right, and +having by implication declared that it is not essential in all cases +that governments should be instituted by the people governed, and that +therefore there may be cases in which governments may justly be +instituted by an external power, the Declaration proceeds to lay down +as a universal proposition that all governments,--existing, as they +do, solely for the purpose of securing to each and every individual +his and their unalienable rights,--do, universally, whether instituted +by the consent of the governed or not, "derive their just powers from +the consent of the governed." The expression "deriving their just +powers from" is generally read as if it were "by," and the expression +"the consent of the governed" as if it were "the will of the +majority." Both of these readings are so plainly inconsistent with +both the text and the context as to be clearly inadmissible. If the +words are taken in their usual and proper meaning and read in the +light of the context and the surrounding circumstances, it seems at +least reasonable to conclude that the expression "deriving their just +powers from the consent of the governed," is and was intended to be an +epitome of the two fundamental principles of the law of agency, +brought over into the English law from the Roman. These principles +are: "_Obligatio mandati consensu contrahentium consistit,"_ a +translation of which is, "The powers of an agent are derived from the +consent of the contracting parties," and "_Rei turpis nullum mandatum +est_," a translation of which is "No agent can have unjust powers." If +this interpretation be correct, the expression "that to secure these +rights governments are instituted among men, deriving their just +powers from the consent of the governed" means that there is no +universal absolute right of communities, states, or nations, to +institute their own governments, but that every government, however +instituted, is universally the agent of the governed, to secure to +every individual, every community, every state, and every nation +governed, his and their unalienable rights of life, liberty and the +pursuit of happiness and to effectuate the equality of all men as the +creatures of a common Creator. + +On this interpretation a rule is laid down to determine under what +circumstances a community, state, or nation has the right to institute +its own government. Its rights are to be determined by the principles +of agency. Agencies among individuals are of several kinds, express +and implied, voluntary and involuntary. There may be co-agencies, in +which the performance of one general agency is distributed among +several agents. A person of full capacity has the right, according to +the common law of persons, to appoint his own agent, unless he is in +such just relationship with others that the common interests require +that he should adopt as his agent an agent appointed by the others. So +communities, states and nations which are of full capacity, have the +right, assuming the existence of this common law of nature and of +nations, to appoint their own governments, subject to the necessary +limitations growing out of their just relationships to other +communities, states and nations. Infants, and persons _non compos_ or +spendthrift, are subject, by the principles of the common law of +persons, to have an involuntary agency created for them by the +Chancellor until the disability is removed, if the disability is +temporary, or permanently, if the disability is permanent. The same is +true by the law of nature and of nations, if the interpretation I have +suggested be correct, regarding communities, states and nations, which +are in a condition of infancy or anarchy, or are spendthrift. The +Chancellor or Justiciar, whether a person, a state, or a nation, must +possess the qualities and attributes of a Chancellor and Justiciar, +and proceed as a Chancellor and Justiciar. Otherwise the attempt to +create an involuntary agency for the suitor is nugatory. The fact that +a person who is an infant, or _non compos_, or spendthrift, has an +involuntary agency created for him by the Chancellor, does not +destroy, or in any way affect, the juridical personality of such +person, or his political equality with other persons; and, by parity +of reasoning, the fact that a community which would otherwise be +recognized as having free statehood and political personality and +equality with other free states, has an involuntary government +appointed for it by a Justiciar State, on account of its being in a +weak or infantile condition, or on account of its being anarchic or +spendthrift, can not destroy or in any way affect its free +statehood,--or, what is the same thing, its political personality,--or +its equality with other free states. + +A further meaning apparently is that the first object of all +government is to do justice, and the second object to do the will of +the governed. A government which recognizes itself as deriving its +just powers from the consent of the governed, is bound to do justice +in such manner as will conform to the just public sentiment of the +governed. It is in no case bound to execute the will of the governed, +much less the will of the majority, unless that will conforms to +justice in the particular case. Nor can it do an unjust act and plead +in justification the consent of the governed, for the consent of the +governed to an unjust act is void by the law of nature and of nations. +This principle was often appealed to by the Americans, notably in the +final manifesto of 1778, as an answer to the British claim that the +Americans were bound by the restrictive Acts of Parliament on account +of their acquiescence in them. They said that an attempted consent to +an unjust act of government was a nugatory act, an unjust act of +government being itself nugatory, and deserving obedience only from +motives of policy. + +This doctrine that government is the doing of justice according to +public sentiment is, of course, utterly opposed to the doctrine that +government is the will of the majority. If government is the doing of +justice according to public sentiment, government is the expression +and application of a spiritually and intellectually educated public +sentiment, since the knowledge of what is just comes only after a +course of spiritual and intellectual education, and the forms and +methods of government should be such as are adapted to such spiritual +and intellectual education. Education takes place by direct personal +contact, and can best be accomplished only through the establishment +of permanent groups of individuals who are all under the same +conditions. The formation and expression of a just public sentiment, +therefore, requires the establishment of permanent groups of persons, +more or less free from any external control which interferes with +their rightful action, under a leadership which makes for their +spiritual and intellectual education in justice. Such permanent groups +within territorial limits of suitable size for developing and +expressing a just public sentiment, are free states. Territorial +divisions of persons set apart for the purpose of convenience in +determining the local public sentiment, regardless of its justness or +unjustness, are not states, but are mere voting districts. Just public +sentiment, for its expression and application, requires the existence +of many small free states, disconnected to the extent necessary to +enable each to be free from all improper external control in educating +itself in the ways of justice; mere public sentiment, for its +expression and application, requires only the existence of a few great +states, unitary in their form and divided into voting districts. Just +public sentiment, as the basis of government, is a basis which makes +government a mighty instrument for spirituality and growth; mere +public sentiment, regardless of its justness or unjustness, as the +basis of government, is a basis which makes government a mighty +instrument for brutality and deterioration. Human equality, +unalienable rights, just public sentiment, and free statehood, are +inevitably and forever linked together, as reciprocal cause and +effect. + +All the American public men were agreed that the American Colonies, so +called, were and always had been free states, and that the State of +Great Britain, acting through or symbolized by its Chief Executive or +its Chief Legislature, or both of them was a governmental agency, and +a connecting medium, of all the free states which were connected with +it, and which with it formed what they called "The British Empire." +Some based this right of free statehood and political connection on +the Colonial Charters; some on the doctrine of the extension to the +Colonies of the Constitution of the State of Great Britain in a +partial and metaphorical manner; some thought that the Colonies had +always been not only free states, but also free and independent +states, and that the political connection between them and the State +of Great Britain was, and always had been, by consent, that is, by +implied treaty. Upon careful examination, all these theories were +found to be untenable. The Colonial Charters clearly did not intend to +recognize the Colonies as free states, much less as free and +independent states; the doctrine of the extension to them of the +British Constitution was inconsistent with their statehood in any +sense; and there was not a vestige of anything which could be regarded +as a treaty between the Colonies and Great Britain. Finally, +therefore, all were apparently brought to see that there was nothing +on which to base the American claim that the Colonies were and always +had been states, free or free and independent, except "the law of +nature and of nations," and not even the law of nature and of nations +as it was understood by the Governments of Europe, but a law of nature +and of nations which was based on the broadest principles of the +Reformation. Free statehood for the American Colonies was apparently +asserted as a universal right of all communities, states and nations, +because free statehood was considered by the framers of the +Declaration to be the universal and only means of forming and +expressing a just public sentiment, and therefore to be the universal +and only means of securing the universal and unalienable rights of +individuals. The ultimate meaning of the expression "that to secure +these rights Governments are instituted among men, deriving their just +powers from the consent of the governed," seems therefore to be that +by the law of nature and of nations there is a universal right of free +statehood of all communities on the face of the earth within +territorial limits of suitable size for the development and operation +of a just public sentiment. + +The Declaration denies even to all the people of a free state the +right to change their government when and how they will, and according +to mere public sentiment, regardless of its justness. Their right "to +alter or abolish" a "form of government" is declared to exist, +according to the law of nature and of nations, only when that form of +government "becomes destructive of these ends," that is, when a +government, instead of securing the unalienable rights of the +individuals governed, attempts to destroy these rights. Moreover, it +is declared that when the people alter or abolish one form of +government, their right of establishing a new government is not +absolute, but is limited, according to the law of nature and of +nations, so that in establishing a new form of government they are +obliged to "lay its foundation on such principles and organize its +powers in such form, as to them shall seem most likely to effect their +safety and happiness,"--that is, to secure the unalienable rights of +the individual to life, liberty and the pursuit of happiness. This +limitation upon the powers of even the whole people of a state +necessarily results from the fact that the law of nature and of +nations is universal and governs so completely every human act and +relationship that no act can be done and no relationship formed which +violates the unalienable rights of any individual. How the law of +nature and of nations is to be enforced, the Declaration does not say. +Apparently the obligation to enforce it rests upon every individual, +every community, every body corporate, every state and every nation, +and the ultimate force which compels its application is the just +public sentiment of the world, or, as Rivier called it, "the common +juridical conscience." + +The declaration of the universal right of free statehood is not only +made in the statement that "to secure these rights, governments are +instituted among men, deriving their just powers from the consent of +the governed." It is asserted with much more clearness in the +concluding part of the Declaration, which reads: + + "We, therefore,... declare that these United Colonies are, + and of right ought to be, free and independent states,... + and that all political connection between them and the State + of Great Britain is, and ought to be, totally dissolved." + +In the first draft of the concluding part of the Declaration, +Jefferson wrote: + + "We, therefore,... utterly dissolve and break off all + political connection which may have heretofore subsisted + between us and the people or Parliament of Great Britain, + and finally we do assert and declare these Colonies to be + free and independent states." + +The resolution of the Virginia Convention of May 15, 1776, which was +the basis of the Declaration, read: + + "That the delegates ... be instructed to propose to [the + Continental Congress] to declare the United Colonies free + and independent states, absolved from all ... dependence + upon the Crown or Parliament of Great Britain." + +A comparison of the words used by the Congress with those used by the +Virginia Convention and those used by Jefferson in the first draft, +shows how much the judgment of the Congress was clarified by the great +debate which occurred between May 15 and June 10, 1776, when the +wording above quoted was agreed upon. + +The wording of the Virginia resolution, if it had been adopted, would +have implied that the Colonies had theretofore been "dependent upon +the Crown and Parliament of Great Britain," and that their statehood, +their free statehood, and their independent statehood came into +existence by virtue of their declaring themselves free and independent +states. + +The wording of Jefferson's first draft, if it had been adopted, would +have implied that a "political connection" might or might not have +theretofore existed between the American people and "the people or +Parliament of Great Britain," and that if such a political connection +had existed, the American people had the right to secede from it, +whenever they considered that the terms of the connection were not +observed by the people or Parliament of Great Britain, and that by +such act of secession, and by their Declaration, their rights of +statehood, of free statehood and of independent statehood came into +existence. + +The wording of the Declaration which was actually adopted implied that +the Colonies had always been free states or free and independent +states, and that, by the Declaration, at most their right of +independent statehood came into existence, that they had theretofore +at all times been in political connection, either as free states under +the law of nature and of nations, or as free and independent states by +implied treaty, with the free and independent state of Great Britain, +that the dissolution of the connection had not come about by an act of +secession on their part, but was due to the violation, by the State of +Great Britain, either of the law of nature and of nations, or of the +implied treaty on which the political connection was based. + +The term "connection" was an apt term to express a relationship of +equality and dignity. "Connection" implies two things, considered as +units distinct from one another, which are bound together by a +connecting medium. Just connection implies free statehood in all the +communities connected. Union is a form of connection in which the +connected free states are consolidated into a unity for the common +purposes, though separate for local purposes. Merger is the fusion of +two or more free states into a single unitary state. Connection +between free states may be through a legislative medium, or through a +justiciary medium, or through an executive medium. The connecting +medium may be a person, a body corporate, or a state. States connected +through a legislative medium, whether a person, a body corporate or a +state, and whether wholly external to the states connected or to some +extent internal to them, whose legislative powers are unlimited or +which determines the limits of its own legislative powers, are +"dependent" upon or "subject" to the will of the legislative medium. +Such states are "dependencies," "dominions," "subject states," or more +accurately "slave-states,"--or more accurately still, not states at +all, but mere aggregations of slave individuals. States connected +through a legislative medium, whether a person, a body corporate or a +state, and whether wholly external to the states connected or in part +internal to them, whose legislative powers are granted by the states +and which has only such legislative powers as are granted are in a +condition of limited dependence, dominion, and subjection, but their +relationship is by their voluntary act and they may, and by the terms +of the grant always do to some extent control the legislative will to +which they are subject and on which they are dependent. Where states +are connected or united through a justiciary medium, whether that +justiciary medium is a person, a body corporate, or a state, all the +states are free states, their relationships being governed by law. +Where states are connected through an executive medium, whether that +executive medium is a person, a body corporate, or a state, all the +states are free and independent states, and each acts according to its +will. All connections in which the legislative medium--whether a +person, a body corporate or a state, and whether wholly external to +the states connected, or to some extent internal to the states +connected,--has unlimited legislative powers or determines the limits +of its own legislative powers, are fictitious connections, the +relationship being really one which implies "empire" or "dominion" on +one side, and "subjection" or "dependence" on the other. Such +connections are properly called "empires" or "dominions." So also all +connections in which the only connecting medium is a common executive, +whether a person, a body corporate or a state, are fictitious +connections, the relationship being one of "permanent alliance" or +"confederation" between independent states. Such connections are +properly called "alliances" or "confederations." The only true +connections are those in which there is a legislative medium, whether +a person, a body corporate or a state, whose legislative powers are +limited, by agreement of the connected states, to the common purposes, +and those in which there is a justiciary medium, whether a person, a +body corporate, or a state, which recognizes its powers as limited to +the common purposes by the law of nature and of nations, and which +ascertains and applies this law, incidentally adjudicating, according +to this law, the limits of its own jurisdiction. Just connections tend +to become unions, it being found in practice necessary, for the +preservation of the connection in due order, that the power of +adjudicating and applying the law for the common purposes should +extend not only to the states, but to all individuals throughout the +states. + +Thus "dependence," as a fictitious and vicious form of connection, is, +it would appear, forever opposed to "connection" of a just and proper +kind. If it were attempted to sum up the issue of the American +Revolution in an epigram, would not that epigram be: "Colony,"--or +"Free State"? "Dependence,"--or "Just Connection"? "Empire,"--or +"Union"? + +Summarizing, then, the result of this examination of the philosophy of +the Declaration, so far as it relates to communities rather than +persons, it appears that the central conception of this philosophy is +that of a universal right of free statehood. This conception, more +specifically, is, it seems, that all communities on the earth's +surface, within limits of territorial extent of such reasonable +dimensions that within the area of each the just common sentiment +about local concerns and external relations can be conveniently +ascertained and executed, have an unalienable right to be free states +and as such to have their respective just local sentiments about local +matters ascertained and executed by their respective governments, this +being, according to Revolutionary philosophy, essential to make +effective the right of each and every person to life, liberty, and the +pursuit of happiness. But a universal right of free statehood does not +imply a universal right of self-government. Statehood and +self-government are two different and distinct conceptions. The +Americans claimed the right of free statehood as a part of the +universal rights of man, but they claimed the right of self-government +because they were Englishmen trained by generations of experience in +the art of self-government and so capable of exercising the art. A +free state is not less or more a free state because it has +self-government. It is a free state when its just public sentiment is +to any extent ascertained and executed by its government, free from +the control of any external power. It does not prevent a region from +being a free state that its government is wholly or partly appointed +by an external power, if that government is free from external control +in ascertaining and executing the just local sentiment to any extent. +Nor does it interfere with the right of free statehood when an +external power stands by merely to see that the local government +ascertains and executes the just local sentiment to a proper extent. +The external power in that case is upholding the free statehood of the +region. It stands as surety for the continuance of free statehood. + +The right of self-government, according to this view, is a conditional +universal right. When a community, inhabiting a region of such +territorial extent that it is not too large to make it possible for a +just public sentiment concerning its own affairs to be developed and +executed, and not so small as to make it inconvenient that it should +be in any respect free from external control, is of such moral and +intellectual capacity that it can form and execute a just public +sentiment concerning its internal affairs and its relations with other +communities, states and nations, it has not only the right of free +statehood,--that is, of political personality,--which is of universal +right, but also the right of self-government. The right of such a free +state to self-government is complete if there be no just political +connection or union between it and other free states, or partial, if +such a just connection or union exists, being limited, in this latter +case, to the extent necessary for the preservation, in due order, of +the connection or union. + +The Declaration, by declaring the Colonies to be free and independent +States and following this statement by the statement that the +political connection between them and the State of Great Britain was +dissolved, leaves it doubtful whether the American claim was that the +Colonies had always been free and independent States in treaty +connection with Great Britain or merely free states in connection with +Great Britain under the law of nature and of nations. The arrangement +of the sentences was probably necessary to satisfy the extreme states +rights party, but the study of great documents discloses that nearly +all contain such compromises, and that the judgment of posterity +usually approves the judgment of the less extreme party. When we +consider, however, that even Jefferson, the most extreme of the states +rights party in the Continental Congress, has recorded his belief that +the whole issue of the Revolution could have been settled if Great +Britain had adopted the principle of Lord Chatham's bill, and if that +bill on the one side and the Fourth Resolution on the other had been +taken as the basis of settlement, it is at least not unreasonable to +conclude that the extreme states rights theory was put forward more in +order that the Americans might have something to concede in a bargain +with Great Britain than from any belief in the justness of it, and +that the real belief of the Americans was that the Colonies had always +been free states, but not independent until they so declared +themselves, and that their political connection with the State of +Great Britain was under the law of nature and of nations, and not by +implied treaty with the State of Great Britain. + +Independence was regarded, if this interpretation be correct, as a +conditional universal right of free states. Those free states which +conform to the conditions necessary to independence--great physical +strength, great moral and intellectual ability, and great qualities of +leadership--were regarded as entitled to the right of independence. +But independence of a free state, as regarded other free states, +meant, to the Fathers, only leadership and judgeship. The law of +nature and of nations, being universal, they considered as abolishing +sovereignty in the European sense, so that the highest function of an +independent State was to be the Justiciar of other States. In the +literature of the Revolution we find the rights of free and +independent states described as rights of "jurisdiction"--not of +"sovereignty." + +Connection between free States on free principles was regarded by the +Fathers as the proper and perhaps the normal condition. They +recognized that connection, while based on the assumption of the +original independence of the units, necessarily implied a surrender of +the right of final decision concerning all or a part of the common +purposes to a Justiciar State, or of the right of legislation for the +common purposes, expressly defined by written agreement, to a Central +Government. Political connection with European States was dissolved in +the Revolution, and thereafter refrained from, because the European +States stood for a law of nature and of nations which did not permit +of free states being connected on free principles. + +Taking the whole Declaration together, and reading it in the light of +the political literature which was put forth on both sides of the +water between the years 1764 and 1776, which is too voluminous to be +referred to here specifically, it seems to be necessary to conclude +that the views of the American statesmen of the period concerning the +nature of the connection between Great Britain and the Colonies, in +its details, were these. + +They considered, as I interpret their language, that the connection +between the American Colonies, as free states, and the free and +independent State of Great Britain had existed and of right ought to +have existed under the law of nature and of nations, interpreted in so +broad a sense that it may perhaps be called the American system of the +law of nature and of nations. They accordingly claimed, as I +understand them, that Great Britain, as a free and independent state, +had power, as Justiciar over the American free states for the common +purposes of the whole connection, to finally decide, in a judicial +manner, according to the principles of the law of nature and of +nations, upon all questions arising out of the connection between +them; and that each of the American free states had power, through its +legislature, to legislate according to the just public sentiment in +each, concerning its purely local matters, and had the right to have +its local legislation executed by its executive, and interpreted and +applied in private cases by its courts. + +Some of the Americans, and those the most patriotic and conservative, +thought that Great Britain had jurisdiction to ascertain and execute +the law of nations for the common purposes, and in the exercise of +that jurisdiction to control, by its decrees and regulations, the +action of individuals in the Colonies. This was to regard Great +Britain and America as consolidated for the common purposes so as to +form what may be called a Justiciary Union. They were content, so long +as Great Britain acted on the theory that she was the Justiciar of the +British-American Union for the common purposes, and maintained a +competent tribunal for determining what were common and what local +purposes according to the principles of the law of nature and of +nations, that she should finally determine the limits of her own +jurisdiction as the Justiciar State of the Union. While I do not mean +to say that Great Britain ever recognized that the American Colonies +were free states and that she was only a Justiciar State with power of +final decision according to the law of nature and of nations over the +whole British-American Union for common purposes, yet I think it may +not be wholly incorrect to say that from 1700 to 1763, the King and +the Parliament of Great Britain, advised by the Committee of the Privy +Council for Plantation Affairs assisted by the Board of Commissioners +for Trade and Plantations, really acted as the Supreme Administrative +Tribunal for applying the principles of the law of nature and of +nations in the decision of the questions common to all the free states +of a _de facto_ British-American Union and as a necessary incident +thereto, decided the limits of the jurisdiction of Great Britain as +the Justiciar State of this _de facto_ British-American Union. + +In this view, the actions of the Americans show the evolution of a +continuous theory and policy, and the application of a single system +of principles,--a system which was based upon free statehood, just +connection and union. The British-American Union of 1763 was a Union +of States under the State of Great Britain as Justiciar, that state +having power to dispose of and make all rules and regulations +respecting the connected and united free states, needful to protect +and preserve the connection and union, according to the principles of +the law of nature and of nations. The dissolution of this Union, +caused by the violation by the State of Great Britain of its duties as +Justiciar State, gave a great impetus to the extreme states' rights +party, and the next connection formed,--that of 1778 under the +Articles of Confederation,--was not a Union, the Common Government +(the Congress) being merely a Chief Executive. Such a connection +proving to be so slight as to be little more than a fiction, they +formed, under the Constitution of 1787, the only other kind of a union +which appears to be practicable, namely, a union under a common +government which was a Chief Legislature for all the connected and +united states by their voluntary grant, and whose powers were +expressly limited, by limitation in the grant, to the common purposes +of the whole connection and union of free states. + +The power exercised by a Justiciar State in a Justiciary Union, the +Fathers recognized as being neither strictly legislative, nor strictly +executive, nor strictly judicial, but a power compounded of all these +three powers. They considered that it was to be exercised after +investigation by judicial methods, both of the facts and principles +and of the public sentiment; that the just public sentiment of the +free states connected and united with the Justiciar State was to be +executed in local matters and was to be considered in the +determination of the common affairs; and that the action of the +Justiciar State was to result, after proper hearing of the free states +concerned, in regulations which were to have the force of supreme law +in each of the connected and united free states respectively. This +kind of power, which the Fathers called "the superintending power" or +"the disposing power" under the law of nature and of nations, and +which may be called, using an expression now coming into use, "the +power of final decision," being neither legislative nor executive, but +more nearly executive than legislative, the more conservative among +them considered might be exercised, consistently with the principles +of the law of nature and of nations, either by the Legislative +Assembly of the Justiciar State or by its Chief Executive. This right +of both the Legislative Assembly and of the Chief Executive to +exercise the powers of the Justiciar State under the law of nature and +of nations is, I believe, also recognized by our Constitution, as I +have elsewhere attempted to show. + +The Fathers further considered, if my understanding of their belief is +correct, that, inasmuch as both the Legislative Assembly and the Chief +Executive of the Justiciar State, in exercising its power over the free +states connected and united with it, and throughout the Justiciary +Union, have as their function the ascertainment of facts and the +application of the principles of the law of nature and of nations to +those facts, they ought to exercise this function by the advice of a +permanent Administrative Tribunal, properly constituted so as to advise +them intelligently and wisely. As I have said above, the Revolutionary +statesmen considered, as it would seem, that the Committee of the Privy +Council for Plantation Affairs, assisted by the Board of Commissioners +for Trade and Plantations, had, up to 1763, constituted such an +Administrative Tribunal. They considered also, it would seem, that +neither the Chief Executive nor the Legislative Assembly was bound by +the action of this Administrative Tribunal, its action being wholly +advisory, but that the Chief Executive was bound to take its advice +before making his dispositions; and that the Chief Executive, when +acting as an Administrative Tribunal for disposing and regulating the +common affairs of the free states of the Justiciary Union, after taking +the advice of this permanent Administrative Tribunal, was a tribunal of +first instance. They further considered, as it would seem, that the +Legislative Assembly, when acting as an Administrative Tribunal for +adjudicating and regulating the common affairs of the Justiciary Union, +was a tribunal of final instance, whose dispositions and regulations +superseded those of the Chief Executive in so far as they conflicted +with them. It was, as I understand it, because the situation of affairs +in the British-American Union from 1700 to 1763 conformed to the +theoretical ideas of the Americans as to the true nature of the +relationship between the American Free States and the State of Great +Britain, that they were ready to return to that situation at all times +between 1763 and 1778. In the latter year, the spirit of American +nationality manifested itself so strongly that all thought of political +connection with Great Britain was abandoned. + +The practical result of this theory is, that the Chief Executive of a +Justiciar State may exercise the power of the Justiciary State, after +investigation and adjudication and after taking the advice of a +properly constituted permanent Administrative Tribunal given after +investigation and upon adjudication, and that such action may take the +form of regulations concerning the common affairs of the free states +of the Justiciary Union (and even concerning the local affairs of the +respective free states, when regulations concerning local affairs are +reasonably and justly necessary, as incidental to the regulation of +the common affairs, in order to make the regulation of the common +affairs effective), and that such regulations may extend to the +regulation of the conduct of individuals, and that the Legislative +Assembly of the Justiciar State may exercise the same power, to the +same extent and that its dispositions and regulations supersede the +dispositions and regulations of the Chief Executive in so far as they +conflict with them. This conclusion seems correct, if we accept as +correct the premise of a universal and common law of nature and of +nations, based on human equality arising from creation, of a universal +and unalienable human right of life, liberty and the pursuit of +happiness, of a universal right of agency-government of a kind +necessary to secure these rights, of a universal right of free +statehood of all communities within reasonable territorial limits +suitable for the formation and application of just local public +sentiment, as the necessary means to secure the right to +agency-government, of a universal right of free states to be connected +or united with other free states on just principles of the law of +nature and of nations, of a universal conditional right of free states +to be self governing free states if capable of self government of a +universal conditional right of self governing free states to be +independent free states, if capable of independence, and of a +universal conditional right of independent free states to be justiciar +states of justiciary unions of free states if capable of judgeship and +able to make their dispositions and regulations effective. + +Of course there must be conditions of transition where the relations +between free states which would normally be in union, or between +detached portions of what would normally be a unitary state, +temporarily assume a form which is partly one of union or merger, and +partly of dependency. The justification of all such forms of +relationship must, it would seem, be found in the fundamental right +which every independent state, whether a justiciar state or not, has +to the preservation of its existence and its leadership or +judgeship--that is, in the right of self-preservation, which, when +necessary to be invoked, overrules all other rights. On this theory +must, it would seem, be explained the relations between the American +Union and its Territories between Germany and Alsace-Lorraine, and +between England and Ireland. On this theory of self-preservation, +also, must, it would seem, be explained the permanent relationship of +dependency which exists between the District of Columbia and the +American Union--such dependency being necessary to the preservation of +the life of the Union. + +Thus, if our interpretation of the Declaration is correct, there was +evolved in it, out of the original proposition that "all men are +created equal," a complete system of the philosophy of government, +directly the opposite of the system of Europe which was based on the +proposition that 'all men are created unequal,' or that "some are +created equal and some unequal," and the Declaration of Independence +was a declaration of an American System, as opposed to the European +System. If this interpretation be correct, it was to preserve this +American System that President Washington advised against 'political +connection' with Europe, and that President Jefferson warned America +against "entangling alliances," it was this American System which +President Monroe and President Adams declared to have extended itself +throughout this hemisphere; it was this American System to preserve +which the Civil War was fought and to the maintenance of which +President Lincoln rededicated the American people on the field of +Gettysburg, it is this American System which President Roosevelt has +upheld against the forces in our midst, which on the one side have, by +the wrongful use of accumulations of wealth, sought to establish a +doctrine of inequality based on the possession of property, and on the +other side, by denying the rightfulness of all accumulations of +wealth, have sought to establish a doctrine that the inequalities of +physical wealth and intellectual ability are to be destroyed, instead +of being employed, by those endowed with great wealth or great +ability, as the common wealth, in helping each and all to secure their +unalienable rights of life, liberty and the pursuit of happiness and +thus to realize the divine right of equality, it is this American +System which the American Congress under the leadership of President +McKinley and President Roosevelt, has actually applied in the +determination of our relations with the Insular regions, so that they +are to-day free states _de facto_ connected and united with the +American Union as the Justiciar State, and so that it needs only our +recognition to convert them into free states _de jure_ and to bring +into legal existence a Greater American Union of Free States of which +our present Union will be the Supreme Justiciary Head, determining the +questions arising out of the relationship not by edict founded on will +and force, but by decision carefully made in each case after +ascertaining the facts and the principles of the law of nature and of +nations which are properly applicable. + +If the principles and the corresponding terms adopted by the +Revolutionary Fathers were adopted by them as of universal +significance, and if they were right, must we not apply these +principles and these terms to-day, when the position of America is +reversed and she stands as a great and independent State in +relationship with distant communities which are so circumstanced that +they can never participate on equal terms in the institution and +operation of her government? Must not this law of nature and of +nations according to the American System, which for us underlies all +other law and which is the Spirit of the Constitution itself, +determine for us whether or not we shall continue to use the terms +'colony,' or "dependence," or "empire"? + +If we must admit as Americans a universal right of free statehood, is +it proper to call Hawaii, Porto Rico, the Philippines or Guam +'colonies'? They are inhabited and we do not propose to colonize them. +If they are free states in union with the American Union as the +Justiciar State and form with it a Greater American Union, is it +proper to call them "dependencies," which may imply a direct +legislative power over them? And if the American Union is only the +Justiciar State of the whole Greater American Union of Free States, +composed of the American Union and its Territories and Insular +regions, with power of final decision for the common purposes +according to the law of nature and of nations why speak of this as +"Empire," which may imply absolute power and a denial that there +exists a universal law of nature and of nations protecting alike the +rights of persons communities states and nations? + +But it will be said the conception I have outlined is impracticable. +Judging from the characteristics of human nature, a state which +declares itself the Justiciar of a Union of free states in permanent +political connection with it, for the purpose of discovering and +applying the principles of the law of nations in the just conduct of +the common affairs of the Union, is likely, if it acts as a true +Justiciar to accomplish much more by the persuasive effect of justice +exercised in accordance with an overruling law of nature and of +nations, than is an Emperor-State by the issuing of edicts based on a +claim of right to be the supreme legislative power over +non-represented regions. + +Widely scattered free states which are in political connection or +union must necessarily have some charge of their own defence both +physically and commercially, and the right to protect and support +themselves by tariff taxation must necessarily include the right to +lay a tariff against the Central State as well as against the other +connected states and against foreign states. All these conflicting +rights must be harmonized by the Central State, and it must at the +same time provide from the common resources for the common defence and +welfare. The questions growing out of such relations are the most +complicated known to politics. It seems that a Justiciar State acting +upon the advice of properly constituted administrative tribunals, +which habitually act judicially and whose function is to decide all +questions according to law and justice is much more likely to solve +such problems by investigation hearing and adjudication than is a +Legislator State to settle them by edict, or than is an Executive +State to procure a settlement of them by persuading the parties to +confer and compromise. + +Is not this theory the true _via media_? The theory of the automatic +extension of the constitution of a state over its annexed insular, +transmarine and transterranean regions which from their local or other +circumstances can never equally participate in the institution and +operation of its government, in some cases protects individual rights, +but it takes no account of the right of free statehood, which is the +prime instrumentality for securing these rights. The theory of a power +over these regions not regulated by a supreme and universal law, is a +theory of absolute power over both individuals and communities in +these regions. The theory of a power over these regions based on the +principles of the law of nature and of nations, granting that this law +is itself based on the divine right of human equality, protects the +rights of persons, of communities, of states and of nations. + +This theory is not inconsistent with the present doctrine of the +Supreme Court of the United States. It is an application and extension +of that doctrine. To say, as does the Supreme Court, that the American +Union has power over its annexed Insular regions restricted by "the +fundamental principles formulated in the Constitution," or by "the +applicable provisions of the Constitution," is to say that the power +of the Union over these regions is exercised under a supreme law which +is not the Constitution of the United States; for "principles +formulated in the Constitution" are not the Constitution, and to say +that "the applicable provisions" of the Constitution are the +Constitution is to say that a part is the whole. Such a supreme law +can only be a supreme common law, and a common law can be supreme over +a group of scattered states only because it is universal. The only +difference between this doctrine and that of the Supreme Court is that +the Court's doctrine protects only civil rights, while this protects +both civil and political rights. + +By adopting this theory of the Reformation and the American +Revolution, may not the American System extend indefinitely without +danger to America herself? There would be no domination, no +subjection. The same law of nature and of nations would extend over +and govern throughout the whole Greater American Union. This Greater +American Justiciary Union would be but a logical application of the +principles underlying the American Legislative, Executive and Judicial +Union formed by the Constitution of the United States. It would not be +the Constitution which would follow the flag into the regions which +America has annexed to herself, but the law of nature and of nations +according to the American System. If the Revolutionary theory as I +have interpreted it is correct, this law of nature and of nations is +everywhere pervasive throughout the American System of Free States. It +is greater than the Constitution of the United States. The +Constitution lives in so far as it truly declares the law of nature +and of nations according to the American System. If the Constitution +is interpreted contrary to this law, as authorizing the Union to treat +its annexed regions as subjects or as creating a hiatus or a conflict +between the powers of the Central and the Local Governments, this +overruling law will compel a new interpretation. On this theory the +"Territory Clause" of the Constitution recognizes the law of nature +and of nations as determining the relationship between the American +Union and the Insular regions--"needful" rules and regulations being +those which are adapted to accomplish the end desired and which are in +accordance with the principles of the law of nature and of nations as +declared in the Declaration of Independence. + +How can such a theory endanger the Republic? It will require some new +institutions, no doubt, but they will be institutions in line with +republican ideas and ideals, for they will all be institutions for +discovering and applying the principles of the common law. We shall +only have to enlarge our conception of the common law, by adding to +the definition of Coke, and saying that it is "the perfection of +reason and revelation." + +Out of this theory of a universal common law of nations have emerged +the science of the Law of the State, which deals with the internal +relations of states, and the science of International Law, which deals +with the temporary relations between independent States. Why out of +the same theory should there not emerge a science of the Law of +Connections and Unions of States, based on the proposition that free +statehood is the normal form of all community life and the right of +all communities within proper limits on the surface of the earth, and +which will deal with the permanent relations between free states, +whether independent or not,--a science which will occupy the wide +field of human relationships which lies between that now occupied by +the science of the Law of the State and that now occupied by the +science of International Law? + +To those who regard all law as an aggregate of eternal and universal +principles inhering in the nature of things, which are discoverable by +man through revelation and reason, and who therefore regard all +governmental action as the ascertainment and application of these +principles, the conception of a common and universal Law of +Connections and Unions of Free States and that of a common and +universal International Law, are equally without difficulty. To those +who regard all law as an act of human will supported by force, the +conception of a common and universal Law of Connections and Unions of +Free States and that of a common and universal International Law, are +equally impossible; and indeed these persons are logically obliged to +deny the existence of any common law of any kind. To those who occupy +the middle ground and regard all law as in one aspect the +ascertainment and application of eternal principles, and in another +aspect an act of human will supported by force, the conception of a +common and universal Law of Connections and Unions of Free States is +less difficult than that of a common and universal International Law, +for the former implies a Justiciar State which is capable of enforcing +its decisions and dispositions, while the latter implies the +non-existence of any political power capable of enforcing the action +agreed or decided upon. + +Fortunately, there is every evidence that at the present time this +narrow political sect who believe that law is only a human edict +supported by physical force,--this sect which had its origin in the +dark decades of the nineteenth century when the materialistic +philosophy prevailed--is dying out, under the influence of a general +renaissance. There are, it is to be believed, many who will be ready +and willing to accept as true the statement, which every student of +political history must admit to be true, that the philosophy of the +American Revolution was a religious philosophy. It is indeed perhaps +not too much to say that the period of the American Revolution was the +period in which both political and religious thinking reached the +highest point, and that there is no question of government which has +since arisen which was not either solved by the Revolutionary +statesmen or put in the process of solution. + +The political philosophy of the American Revolution has long been +confused with that of the French Revolution. As matter of fact, they +stand at opposite poles. Our philosophy was religious, the French +non-religious. America had been peacefully assimilating, for a century +and a half, the doctrines of the Reformation. France had been held for +two centuries and a half in a condition of mediaevalism, and the +principles of the Reformation had little hold among the people. When +the Americans spoke, it was with the calm wisdom of free-men; when the +French spoke, it was with the folly and excess of intellectual and +spiritual slaves who had suddenly emancipated themselves. To the +Americans, to whom government was the expression of the just public +sentiment, government, equally with religion, was a necessary good; to +the French, to whom government was the expression of the will of the +majority, whether just or unjust, government was a necessary evil and +religion an unnecessary evil. The French Revolution made itself felt, +even in America, for a century. Till within recent years, its +principles have obscured, though they have never wholly eclipsed, the +principles of the American Revolution. But now there seems reason to +believe that the French Revolution has spent its force, and that the +influence of the American Revolution is growing daily stronger. Signs +of this are the councils and conferences which are steadily increasing +in number and in power, on the subject of arbitration as the peaceful +means of settling questions growing out of the relations of +communities, of states and of nations. Arbitration, whether between +persons or between communities, states and nations, implies a +universal and common law. Peace conferences can, it would seem, have +no reasonable purpose and can hope to accomplish no permanent result, +except as they attempt to substitute a universal and common law, +supported by the public sentiment of the civilized world, for human +edicts founded on human will and supported by physical force. The +American System is but the establishment of interstate and +international arbitration as the common and usual course of +governmental action instead of as a voluntary or spasmodic +manifestation of governmental will. + +Only on the assumption of the existence of this universal common law +can the relations between us and our Insular brethren be relations +under law, for a written constitution between us and them is +impossible. We realize, as Americans, that somehow these relations +must be under law if they are to be according to the American System, +for we know that there is no liberty except under law, and that the +American System has, for its sole object, human liberty. + +If we are right, the American people, in rejecting, as they have, the +European terms "colony," "dependence" and "empire," and the theory +which these terms symbolize, have been true to the American System. In +substituting for these terms the American terms, "free state," "just +connection" and "union" and the American theory which these terms +symbolize, it is not necessary for us to alter in the least our +established views concerning the Constitution as the supreme law of +the Union. It is only necessary for us to realize that the +Constitution is itself but one application of the great principles of +the American System which, as the Supreme Court says, are "formulated" +in it, and to proceed, by a new formulation or by adjudication, to +apply these principles outside the present Union wherever American +jurisdiction extends, in the confident belief that they can be applied +universally, and that, wherever applied, they will bring the blessings +of true liberty. + + + + +APPENDIX + +THE AMERICAN SYSTEM + +THE ANNUNCIATION OF THE AMERICAN SYSTEM + + + "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--" + + "We hold these truths to be self-evident: That all men are + created equal, that they are endowed by their Creator with + certain unalienable rights, that among these are life, + liberty, and the pursuit of happiness; that to secure these + rights, governments are instituted among men, deriving their + just powers from the consent of the governed; that whenever + any form of government becomes destructive of these ends, it + is the right of the people to alter or to abolish it, and to + institute new government, laying its foundation on such + principles and organizing its powers in such form, as to them + shall seem most likely to effect their safety and happiness." + + * * * * * + + "We, therefore the representatives of the United States of + America, in General Congress assembled, appealing to the + Supreme Judge of the World for the rectitude of our + intentions do, in the name, and by the authority of the good + people of these Colonies, solemnly publish and declare, That + these United Colonies are, and of right ought to be, Free and + Independent States; that they are absolved from all + allegiance to the British Crown, and that all political + connection between them and the State of Great Britain is, + and ought to be, totally dissolved; and 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. And, for the support of this Declaration, with a + firm reliance on the protection of Divine Providence, we + mutually pledge to each other our lives, our fortunes and our + sacred honor." + + The Continental Congress. Declaration of Independence of + July 4, 1776. + + THE ADOPTION OF THE AMERICAN SYSTEM BY THE AMERICAN + UNION IN ITS CONSTITUTION, AS APPLYING TO ITS EXTERNAL + JUSTICIARY RELATIONS + + "We, the people of the United States, in order to form a + more perfect Union, establish justice, insure domestic + tranquillity, provide for the common defence, promote the + general welfare, and secure the blessings of liberty to + ourselves and our posterity, do ordain and establish this + Constitution for the United States of America.... + + "The Executive power shall be vested in a President of the + United States of America.... + + "The Congress shall have power to dispose of and make all + needful rules and regulations respecting the territory or + other property belonging to the United States.... + + "The Judicial power of the United States shall be vested in + one Supreme Court, and in such inferior Courts as the + Congress may from time to time ordain and establish.... The + Judicial power shall extend to all cases in law and equity, + arising under this Constitution, the laws of the United + States, and treaties made, or which shall be made, under + their authority." + + The Constitutional Convention. The Constitution of the + United States, of September 17, 1787. + + THE AMERICAN SYSTEM DIFFERENTIATED FROM THE EUROPEAN BY + PRESIDENT WASHINGTON + + "Of all the dispositions and habits which lead to political + prosperity, religion and morality are indispensable + supports. In vain would that man claim the tribute of + patriotism who should labor to subvert these great pillars + of human happiness--these firmest props of the duties of men + and citizens. The mere politician, equally with the pious + man, ought to respect and cherish them. A volume could not + trace all their connections with private and public + felicity.... + + "Observe good faith and justice toward all nations. + Cultivate peace and harmony with all. Religion and morality + enjoin this conduct. And can it be that good policy does not + equally enjoin it?... + + "The great rule of conduct for us in regard to foreign + nations is, in extending our commercial relations, to have + with them as little political connection as possible.... + + "Europe has a set of primary interests which to us have none + or a very remote relation. Hence she must be engaged in + frequent controversies, the causes of which are essentially + foreign to our concerns. Hence, therefore, it must be unwise + in us to implicate ourselves by artificial ties in the + ordinary vicissitudes of her politics or the ordinary + combinations and collisions of her friendships or enmities. + + "Our detached and distant situation invites and enables us + to pursue a different course. If we remain one people, under + an efficient government, the period is not far off when we + may defy material injury from external annoyance; when we + may take such an attitude as will cause the neutrality we + may at anytime resolve upon to be scrupulously respected; + when belligerent nations, under the impossibility of making + acquisitions upon us, will not lightly hazard the giving us + provocation when we may choose peace or war, as our + interest, guided by justice, shall counsel. + + "Why forego the advantages of so peculiar a situation? Why + quit our own to stand upon foreign ground? Why by + interweaving our destiny with that of any part of Europe + entangle our peace and prosperity in the toils of European + ambition, rivalship, interest, humor, or caprice? + + It is our true policy to steer clear of permanent alliances + with any portion of the foreign world." + + President Washington. Farewell Address, September 17, 1796. + + THE AMERICAN SYSTEM AS DEFINED BY PRESIDENT + JEFFERSON + + "I deem the essential principles of our government [to be] + Equal and exact justice to all men, of whatever state or + persuasion, peace, commerce, and honest friendship with all + nations, entangling alliances with none, the support of the + State Governments in all their rights, as the most competent + administrations for our domestic concerns and the surest + bulwarks against anti-republican tendencies, the + preservation of the General Government in its whole + constitutional vigor, as the sheet-anchor of our peace at + home and safety abroad." + + President Jefferson. First Inaugural Address, March 4, 1801. + + THE EXTENSION OF THE EUROPEAN SYSTEM TO THE WESTERN + HEMISPHERE DECLARED INCOMPATIBLE WITH THE AMERICAN SYSTEM, + BY PRESIDENT MONROE. + + "The political system of the Allied Powers is essentially + different ... from that of America. This difference proceeds + from that which exists in their respective Governments, and + to the defence of our own, which has been achieved by the + loss of so much blood and treasure, and matured by the + wisdom of their most enlightened citizens, and under which + we have enjoyed unexampled felicity, this whole nation is + devoted. We owe it, therefore, to candor and to the amicable + relations existing between the United States and those + Powers, to declare that we should consider any attempt on + their part to extend their system to any portion of this + hemisphere as dangerous to our peace and safety.... + + "It is impossible that the Allied Powers should extend their + political system to any portion of either continent without + endangering our peace and happiness." + + President Monroe Annual Message of December 2, 1823 + + THE AMERICAN SYSTEM DECLARED TO HAVE EXTENDED ITSELF TO + THE WHOLE WESTERN HEMISPHERE, BY PRESIDENT JOHN QUINCY + ADAMS + + "Among the inquiries which were thought entitled to + consideration before the determination was taken to accept + the invitation [to the proposed Congress of the American + Republics at Panama], was that whether the measure might not + have a tendency to change the policy, hitherto invariably + pursued by the United States, of avoiding all entangling + alliances and all unnecessary political connections. + + "Mindful of the advice given by the Father of our Country in + his Farewell Address, that the great rule of conduct for us + in regard to foreign nations is in extending our commercial + relations, to have with them as little political connection + as possible, and faithfully adhering to the spirit of that + admonition, I can not overlook the reflection that the + counsel of Washington in that instance, like all counsels of + wisdom, was founded upon the circumstances in which our + country and the world around us were situated at the time + when it was given that the reasons assigned by him for his + advice were that Europe had a set of primary interests which + to us had none or a very remote relation, that hence she + must be engaged in frequent controversies, the causes of + which were essentially foreign to our concerns, that our + detached and distant situation invited and enabled us to + pursue a different course, that by our union and rapid + growth, with an efficient Government, the period was not far + distant when we might defy material injury from external + annoyance, when we might take such an attitude as would + cause our neutrality to be respected, and, with reference to + belligerent nations, might choose peace or war, as our + interests, guided by justice, should counsel." + + Compare our situation and the circumstances of that time + with those of the present day and what, from the very words + of Washington then, would be his counsels to his countrymen + now? Europe has still her set of primary interests, with + which we have little or a remote relation. Our distant and + detached situation with reference to Europe remains the + same. But we were then the only independent nation of this + hemisphere, and we were surrounded by European colonies, + with the greater part of which we had no more intercourse + than with the inhabitants of another planet. These colonies + have now been transformed into eight independent nations, + extending to our very borders, seven of them Republics like + ourselves, with whom we have an immensely growing commercial + and must have, and have already, important political + connections, with reference to whom our situation is neither + distant nor detached, whose political principles and systems + of government, congenial with our own, must and will have an + action and counteraction upon us and ours to which we cannot + be indifferent if we would. + + The rapidity of our growth, and the consequent increase of + our strength, has more than realized the anticipations of + this admirable political legacy. Thirty years have nearly + elapsed since it was written, and in the interval our + population, our wealth, our territorial extension, our + power--physical and moral--have nearly trebled. Reasoning + upon this state of things from the sound and judicious + principles of Washington, must we not say that the period + which he predicted, as then not far off, has arrived, that + America has a set of primary interests which have none or a + remote relation to Europe, that the interference of Europe, + therefore, in those concerns should be spontaneously + withheld by her upon the same principles that we have never + interfered with hers, and that if she should interfere, as + she may, by measures which may have a great and dangerous + recoil upon ourselves, we might be called, in defence of our + altars and firesides, to take an attitude which would cause + our neutrality to be respected, and choose peace or war as + our interest guided by justice, should counsel? + + "The acceptance of this invitation, therefore, far from + conflicting with the counsel or the policy of Washington, is + directly deducible from and conformable to it. Nor is it + less conformable to the views of my immediate predecessor, + as declared in his Annual Message to Congress of the 2d + December, 1823." + + President John Quincy Adams. Communication to the House of + Representatives, in answer to their Resolution of Inquiry, + regarding the proposed Panama Congress, March 15, 1826. + + THE AMERICAN PEOPLE REDEDICATED TO THE PRESERVATION OF + THE AMERICAN SYSTEM, BY PRESIDENT LINCOLN, AT + GETTYSBURG. + + "Four score and seven years ago our fathers brought forth on + this continent, a new nation, conceived in Liberty, and + dedicated to the proposition that all men are created equal. + + "Now we are engaged in a great civil war, testing whether + that nation, or any nation so conceived and so dedicated, + can long endure. We are met on a great battlefield of that + war. We have come to dedicate a portion of that field, as a + final resting place for those who here gave their lives that + the nation might live. It is altogether fitting and proper + that we should do this. + + "But, in a larger sense, we can not dedicate--we can not + consecrate--we can not hallow--this ground. The brave men, + living and dead, who struggled here, have consecrated it, + far above our poor power to add or detract. The world will + little note, nor long remember, what we say here, but it can + never forget what they did here. It is for us the living, + rather, to be dedicated here to the unfinished work which + they who fought here have thus far so nobly advanced. It is + rather for us to be here dedicated to the great task + remaining before us--that from these honored dead we take + increased devotion to that cause for which they gave the + last full measure of devotion--that we here highly resolve + that these dead shall not have died in vain, that this + nation, under God, shall have a new birth of freedom, and + that government of the people, by the people, for the + people, shall not perish from the earth." + + President Lincoln. Address at the Dedication of the National + Cemetery at Gettysburg, November 19, 1863. + + THE AMERICAN SYSTEM APPLIED IN THE EXTERNAL JUSTICIARY + RELATIONS OF THE AMERICAN UNION, BY PRESIDENT MCKINLEY. + + "In order to facilitate the most humane, specific, and + effective extension of authority throughout [the Philippine + Islands], and to secure with the least possible delay the + benefits of a wise and generous protection of life and + property, I have named Jacob G. Schurman, Rear-Admiral + George Dewey, Major-General Elwell S. Otis, Charles Denby, + and Dean C. Worcester to constitute a Commission to aid in + the accomplishment of these results.... + + "The Commissioners will endeavor,... to ascertain what + amelioration in the condition of the inhabitants and what + improvements in public order may be practicable, and for + this purpose they will study attentively the existing social + and political state of the various populations particularly + as regards the forms of local government, the administration + of justice, the collection of customs and other taxes, the + means of transportation and the need of public improvements. + + "They will report to the State Department according to the + forms customary or hereafter prescribed for transmitting and + preserving such communications, the results of their + observations and reflections, and will recommend such + Executive action as may from time to time seem to them wise + and useful.... + + "It is my desire that in all their relations with the + inhabitants of the Islands the Commissioners exercise due + respect for all the ideals, customs, and institutions of the + tribes and races which compose the population, emphasizing + upon all occasions the just and beneficent intentions of the + Government of the United States.' + + "It is also my wish and expectation that the Commissioners + may be received in a manner due to the honored and + authorized representatives of the American Republic, duly + commissioned, on account of their knowledge, skill and + integrity, as bearers of the good will the protection, and + the richest blessings of a liberating rather than a + conquering nation." + + President McKinley--Instructions to the Secretary of State + regarding the First Philippine Commission, January 20, 1899. + + THE DEFINITION OF THE AMERICAN SYSTEM AS APPLIED BOTH TO + THE INTERNAL AND EXTERNAL RELATIONS OF THE AMERICAN + UNION--BY PRESIDENT ROOSEVELT. + + "When all is said and done, the rule of brotherhood remains + as the indispensable prerequisite to success in the kind of + national life for which we strive. Each man must work for + himself, and unless he so works no outside help can avail + him, but each man must remember also that he is indeed his + brother's keeper, and that while no man who refuses to walk + can be carried with advantage to himself or any one else yet + that each at times stumbles or halts, that each at times + needs to have the helping hand outstretched to him. To be + permanently effective, aid must always take the form of + helping a man to help himself, and we can all best help + ourselves by joining together in the work that is of common + interest to all.... + + "It is no light task for a nation to achieve the + temperamental qualities without which the institutions of + free government are but an empty mockery. Our people are + now successfully governing themselves, because for more than + a thousand years they have been slowly fitting themselves, + sometimes consciously, sometimes unconsciously, toward this + end. What has taken us thirty generations to achieve, we + cannot expect to see another race accomplish out of hand, + especially when large portions of that race start very far + behind the point which our ancestors had reached even thirty + generations ago. In dealing with the Philippine people we + must show both patience and strength, forbearance and + steadfast resolution. Our aim is high. We do not desire to + do for the islanders merely what has elsewhere been done for + tropic peoples by even the best foreign governments. We hope + to do for them what has never before been done for any + people of the tropics--to make them fit for self-government + after the fashion of the really free nations." + + President Roosevelt. First Message, December 3, 1901. + + + + +THE QUESTION OF TERMINOLOGY + + _Mr. President, Members of the Association and Section, Ladies and +Gentlemen_: + +You have heard ably discussed certain questions which arise out of the +relationship between the American Union and the annexed Insular +regions, viewed in its sociological and economic aspect. I now ask +your attention to a question of immediate interest and importance +growing out of this relationship viewed in its political, that is to +say, its legal aspect. This question, which the Committee on +Arrangements has called "The Question of Terminology," is: What are +the correct terms to use in describing the political and legal +relationship between the American Union and its distant annexed +regions, assuming that this relationship is to be permanent and is to +be on terms which are just to all parties? + +More specifically, the question which I shall discuss will be, whether +we, as Americans, ought, according to American principles, to use, in +our political and legal language, the terms "colony," "dependence," +and "empire," or whether we ought, according to those principles, to +substitute for the term "colony," the term "free state," for +"dependence," "just connection," and for "empire," "union." + +It is needless to say that I shall accept the decisions of the Supreme +Court of the United States as final in regard to all the matters +adjudicated in them. But the Supreme Court has jurisdiction only for +the purpose of determining the rights of individuals. The political +relations between the Union and the Insular regions, it determines +only so far as may be necessary to ascertain individual rights. Its +present doctrine--that the American Union has power over the Insular +regions subject to "fundamental principles formulated in the +Constitution," or subject to "the applicable provisions of the +Constitution," protects the civil rights of individuals, but under it +the power of the Union for political purposes remains absolute. The +proposition which I shall offer for your judgment, will, I believe, +not only not be in conflict with the propositions laid down by the +Supreme Court, but will give a reason why they are right. It will, +too, I believe, give a reasonable basis for our holding that the power +of the American Union over the Insular regions, while ample for the +maintenance of a just and proper permanent relationship with them +under our control, is not absolute even as respects their political +rights. + +I have said that I shall discuss this question upon American +principles. I shall not base myself on the Constitution of the United +States, though I shall try to show the relation of that document to +the question, as I understand it. I shall assume it to be settled by +the decisions of the Supreme Court,--as it seems clearly to be,--that +with the exception of the "Territory" clause of that instrument, it +is, and of right ought to be, the Constitution of the thirteen +original States of the American Union and of the other States which +they have admitted into their Union, and of no other States or +communities; and that therefore it does not extend of its own force +outside the American Union in any constitutional or legal sense, but +only in a metaphorical sense--this being as I understand it, the +meaning of the Court when they hold, as they do, that, though the +"Territory clause" is of present and universal significance as +respects all the regions annexed to the Union, yet, with this +exception, only "the applicable provisions of the Constitution" or +"the fundamental principles formulated in the Constitution" are in +force in the annexed regions. "Extensions," so-called, of the +Constitution by Act of Congress, are of course mere Acts of Congress, +and whether such metaphorical "extensions" are permanent will depend +upon the terms and conditions of the "extension." + +But though I shall not base myself on the Constitution of the United +States, I shall nevertheless base myself on a great American Document, +which preceded the Constitution as a statement of American principles, +and which is so far from being inconsistent with it that the +Democratic party, in its platform of 1900, called it "the Spirit of +the Constitution"--I refer to the Declaration of Independence. It is +the American principles set forth in that document which I shall try +to discover. If I shall be adjudged to have rightly interpreted that +instrument, it will follow that we ought to substitute, in our +political and legal language, for the term "colony," the term "free +state," for "dependence," "just connection," and for "empire," +"union." In making such substitution, however, it will be necessary to +give to the terms "free state" and "union," a scientific meaning which +will differ from that which they now have in the popular mind, but +which will, I believe, be the same as was given to these terms by the +Revolutionary statesmen. + +I shall not allow myself to be embarrassed by the fact that in my +first published writing I used the terms "colony," "dependence" and +"empire;" for at the same time that I used these terms, I based myself +on principles which were those of free statehood, just connection and +union, to which I adhere to this day. + +Taking the Declaration of Independence, therefore, as the exposition +of the fundamental principles on which all American political theory +is based, and to which all American policy must conform, let me state +briefly the general meaning and purpose of this instrument, as I +understand it. + +As a result of the discussion for twelve years preceding the +Declaration, the doctrine of the extension of the British Constitution +to the American Colonies, which from their situation, could never be +represented on equal terms in Parliament, was found to be useless for +the protection of American rights, political or civil; and the +doctrine that their rights were dependent on the Colonial Charters was +found to be inadequate, for these Charters, while protecting the civil +rights of the Americans to some extent, proceeded on the theory that +they held all their political rights at the will or whim of Great +Britain. The Americans felt and knew that they were entitled to +political, as well as civil rights, and they all firmly believed that +each so-called "colony" was a free state and subject to no external +control beyond what was necessary to preserve their relationship with +Great Britain on just terms to all the parties. The only question +which the Americans discussed, as soon as they comprehended the whole +situation, was, Why was each so-called "colony" a free state and why +had it always been such? The Declaration of Independence, as I +understand it, gave to the world their solution of this problem. Their +answer, as I understand it, was, that the American Colonies were and +always had been free states, because their relations with the State of +Great Britain were not under the British Constitution and were not +wholly under the Colonial Charters, but were under a supreme and +universal common law, which governs the relations between men, +communities, bodies corporate, states and nations, and which they +called in the Declaration "the Law of Nature and of Nature's God," +according to which every community on the earth's surface, within +reasonable limits for the formation and execution of a just public +sentiment, is entitled to be a free state,--that is, to be free from +external control, in executing its just public sentiment, except so +far as may be necessary to enable it to conform to the terms of its +just connections with other free states. This doctrine of free +statehood as a universal right is, as I understand it, the central +idea of the Declaration. + +Assuming this to be the central idea, let us see how this idea is +reached; and for that purpose, let us notice the exact language of the +Declaration. The first paragraph reads: + + "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." + +The "causes of separation" are prefaced by a number of propositions +determining the nature of the "political bands" by which one people +may be "connected with" another. These propositions are all rules of +human conduct, and are therefore principles of law, though they are +called "self-evident truths." This part of the Declaration reads: + + "We hold these truths to be self-evident: That all men are + created equal; that they are endowed by their Creator with + certain unalienable rights, that among these are life, + liberty and the pursuit of happiness; that to secure these + rights, governments are instituted among men, deriving their + just powers from the consent of the governed; that whenever + any form of government becomes destructive of these ends, it + is the right of the people to alter or to abolish it, and to + institute new government, laying its foundation on such + principles and organizing its powers in such form as to them + shall seem most likely to effect their safety and + happiness." + +The conception of the universal right of free statehood is reached, in +the Declaration, through a series of three propositions, each stated +to be self-evident, and yet all forming a sequence. The basal +proposition is, that "all men are created equal." Rufus Choate and +John James Ingalls have declared this proposition and the succeeding +one that "all men are endowed by their Creator with certain +unalienable rights, that among these are life, liberty and the pursuit +of happiness," to be "glittering generalities." Abraham Lincoln, on +the other hand, in his speech at Gettysburg, at the most solemn and +stirring moment in the country's history, declared that the +proposition that all men are created equal was the foundation-idea of +the nation, to which it was dedicated by the Fathers. + +The doctrine of equality arising from the common creation of all men +as the spiritual offspring of a common Creator, was the doctrine of +the Reformation in its broadest form, as declared by Penn. Taking into +consideration the religious character of the Americans, as well as the +learning and acumen of that most remarkable body of men who +constituted the Continental Congress, it seems not only not +improbable, but probable, and indeed necessary to conclude, that the +proposition that "all men are created equal" was intended to be the +epitome of the doctrine of the Reformation, as that doctrine was +broadened by the influence of Penn and his followers. As the +Governments of Europe were at that time acting on the political +philosophy of feudalism and mediaevalism, which in its last analysis +was based on the proposition that all men are created unequal, or that +some are created equal and some unequal, the Declaration, if it be +true that it based the American political philosophy upon the broadest +doctrine of the Reformation, announced an American System as opposed +to the European System. + +From the doctrine of equality arising from the common creation of all +men by a personal Creator to whom all were equally related, it is +declared by the Declaration to follow as a 'self-evident' truth that +there are certain rights, which are attached to all men by endowment +of the Creator as being the correlative of the unalienable needs of +all men, and which inasmuch as they arise from the universal +limitations which the Creator has imposed, are as unalienable as the +needs themselves. These unalienable rights are declared to be the +rights of life, liberty and the pursuit of happiness. + +The doctrine of unalienable rights, necessarily supposes a universal +law, for the conception of law must precede the conception of right. +This law, as conceived of by the Declaration is a common and universal +law. In the first part of the preamble this universal common law is +spoken of as "the law of Nature and of Nature's God." Inasmuch as the +rights claimed are those which depend for their existence upon +revelation as well as reason, it is evident that this common and +universal law to which the Declaration appeals, is the "law of nature +and of nations," of the scholars of the Reformation, which was +conceived of as based on revelation and reason, and as governing every +relationship of men, of bodies corporate, of communities, of states +and of nations. Out of this conception there had already grown that +great division of the law which deals with the temporary relations +between independent states, which we now call International Law. + +Having thus established the doctrine of unalienable rights, based on a +universal common law of nature and of nations, which all men, all +bodies corporate, all communities, all governments, all states and all +nations were bound to enforce, the Declaration proceeds to a +consideration of the forms, methods and instrumentalities by which +these unalienable rights are to be secured. + +It declares that the primary instrumentality by which these rights are +secured, are governments "deriving their just powers from the consent +of the governed." Contrary to the usual interpretation, the +Declaration does not state that government is the expression of the +will of the majority. Governments, it is declared, are instituted to +"secure" the "unalienable rights" of individuals. The will of the +majority, of course, is quite as likely to destroy as to secure the +unalienable rights of individuals. Moreover, the Declaration says +merely that "governments are instituted among men"--not that men +universally institute their own governments. The whole statement that +the governments which are instituted among men to secure the +unalienable rights of individuals, universally "derive their just +powers from the consent of the governed," is inconsistent with the +proposition that governments are the expression of the mere will of +the majority, for it is only their "just powers" that governments +"derive" from "the consent of the governed," and the will of the +majority may be just or unjust. The expression "deriving their just +powers from the consent of the governed," seems to me most probably to +be an epitome and summary of the two fundamental propositions of the +law of agency--_Obligatio mandati consensu contrahentium consistit_, a +free translation of which is "The powers of an agent are derived from +the consent of the contracting parties," and _Rei turpis nullum +mandatum est_, a free translation of which is "No agent can have +unjust powers." On this interpretation the meaning of the whole +sentence "that to secure these rights, governments are instituted +among men, deriving their just powers from the consent of the +governed," is, it would seem, that there is a universal right of all +communities to have a government of a kind best adapted for the +securing of the unalienable rights of individuals, instituted either +by their own selection or by the appointment of an external power, and +that all governments, however instituted, are universally the agents +of the governed to secure these rights. Government is thus declared +not to be the expression of the will of the majority, but the +application of the just public sentiment justly ascertained through +forms best adapted for this purpose. + +The free statehood which is claimed in the concluding part of the +Declaration to be the right of the Colonies is by the Declaration +based on the philosophical declarations of the preamble. The +particular proposition which bears upon the right of free statehood is +evidently the one which declares that, "to secure these [unalienable] +rights [of individuals], governments are instituted among men, +deriving their just powers from the consent of the governed." The +intermediate propositions, as the result of which the universal right +of free statehood follows from this proposition, are, it would seem, +these: If government is the doing of justice according to public +sentiment, government is the expression and application of a +spiritually and intellectually educated public sentiment, since, +although a rudimentary knowledge of what is just is implanted in every +human being, a full knowledge of what is just comes only after a +course of spiritual and intellectual education. Hence it follows that +the forms and methods of government should be such as are adapted to +such spiritual and intellectual education. Education takes place by +direct personal contact, and can be best accomplished only through the +establishment of permanent groups of individuals who are all under the +same conditions. The formation and expression of a just public +sentiment, therefore, requires the establishment of permanent groups +of persons, more or less free from any external control which +interferes with their rightful action, under a leadership which makes +for their spiritual and intellectual education in justice. Such +permanent groups within territorial limits of suitable size for +developing and expressing a just public sentiment, are free states. +Territorial divisions of persons set apart for the purpose of +convenience in determining the local public sentiment, regardless of +its justness or unjustness, are not states, but are mere voting +districts. Just public sentiment, for its expression and application, +requires the existence of many small free states, disconnected to the +extent necessary to enable each to be free from all improper external +control in educating itself in the ways of justice; mere public +sentiment, for its expression and application, requires only the +existence of a few great states divided into voting districts, each +district being under the control of the Central Government, which is +to it an external control. Just public sentiment, as the basis of +government, is a basis which makes government a mighty instrument for +spirituality and growth; mere public sentiment, regardless of its +justness or unjustness, as the basis of government, is a basis which +makes government a mighty instrument for brutality and deterioration. +Human equality, unalienable rights, government according to just +public sentiment, and free statehood, are inevitably and forever +linked together as reciprocal cause and effect. + +The ultimate meaning of the expression "that to secure these rights +governments are instituted among men, deriving their just powers from +the consent of the governed," seems therefore to be that by the common +law of nature and of nations there is a universal right of free +statehood which pertains to all communities on the face of the earth +within territorial limits of suitable size for the development and +operation of a just public sentiment. + +So complete and universal are the principles of government by just +public sentiment and of free statehood that, according to the +Declaration, even when all the people of a free state are meeting +together to alter or abolish a form of government which has become +destructive of the ends of its institution, as it is declared they may +rightfully do, their right to form a new government is not absolute so +that they can rightfully do whatever the majority wills, but is +limited by this universal common law, so that they can rightfully +institute only a new form of government whose foundation principles +and mode of organization are such "as to them shall seem most likely +to effect their safety and happiness"--that is, to secure the +unalienable rights of individuals to life, liberty and the pursuit of +happiness. + +The declaration of the universal right of free statehood is +accompanied, in the Declaration, by the claim that the Colonies, as +free states, had always been in political "connection" with the State +of Great Britain. The concluding part of the Declaration reads: + + "We, therefore,... declare that these United Colonies are, + and of right ought to be, free and independent states,... + and that all political connection between them and the State + of Great Britain is, and ought to be, totally dissolved." + +In this it was necessarily implied that the Colonies had always been +free states or free and independent states, and that, by the +Declaration, at most their right of independent statehood came into +existence; that they had theretofore at all times been in political +connection, either as free states under the law of nature and of +nations, or as free and independent states by implied treaty, with the +free and independent State of Great Britain; that the dissolution of +the connection had not come about by an act of secession on their +part, but was due to the violation, by the State of Great Britain, +either of the law of nature and of nations, or of the implied treaty +on which the political connection was based. + +The term "connection" was an apt term to express a relationship of +equality and dignity. "Connection" implies two things, considered as +units distinct from one another, which are bound together by a +connecting medium. Just connection implies free statehood in all the +communities connected. Union is a form of connection in which the +connected free states are consolidated into a unity for the common +purposes, though separate for local purposes. Merger is the fusion of +two or more free states into a single unitary state. Connection +between free states may be through a legislative medium, or through a +justiciary medium, or through an executive medium. The connecting +medium may be a person, a body corporate, or a state. States connected +through a legislative medium, whether a person, a body corporate or a +state, and whether wholly external to the states connected or to some +extent internal to them, whose legislative powers are unlimited or +which determines the limits of its own legislative powers, are +"dependent" upon or "subject" to the will of the legislative medium. +Such states are "dependencies," "dominions," "subject-states," or more +accurately "slave-states,"--or more accurately still, not states at +all, but mere aggregations of slave-individuals. States connected +through a legislative medium, whether a person, a body corporate or a +state, and whether wholly external to the states connected or in part +internal to them, whose legislative powers are granted by the states +and which has only such legislative powers as are granted, are in a +condition of limited dependence, dominion, and subjection; but their +relationship is by their voluntary act and they may, and by the terms +of the grant always do to some extent control the legislative will to +which they are subject and on which they are dependent. Where states +are connected or united through a justiciary medium, whether that +justiciary medium is a person, a body corporate, or a state, all the +states are free states, their relationships being governed by law. +Where states are connected through an executive medium, whether that +executive medium is a person, a body corporate, or a state, all the +states are free and independent states, and each acts according to its +will. All connections in which the legislative medium,--whether a +person, a body corporate or a state, and whether wholly external to +the states connected, or to some extent internal to the states +connected,--has unlimited legislative powers or determines the limits +of its own legislative powers, are fictitious connections, the +relationship being really one which implies "empire" or "dominion" on +one side, and "subjection" or "dependence" on the other. Such +connections are properly called "empires" or "dominions." So also all +connections in which the only connecting medium is a common executive, +whether a person, a body corporate or a state, are fictitious +connections, the relationship being one of "permanent alliance" or +"confederation" between independent states. Such connections are +properly called "alliances" or "confederations." The only true +connections are those in which there is a legislative medium, whether +a person, a body corporate or a state, whose legislative powers are +limited, by agreement of the connected states, to the common +purposes, and those in which there is a justiciary medium, whether a +person, a body corporate, or a state, which recognizes its powers as +limited to the common purposes by the law of nature and of nations, +and which ascertains and applies this law, incidentally adjudicating, +according to this law, the limits of its own jurisdiction. Just +connections tend to become unions, it being found in practice +necessary, for the preservation of the connection in due order, that +the power of limited legislation for the common purposes and the power +of adjudicating and applying the law for the common purposes should +extend not only to the states, but to all individuals throughout the +states. + +Thus "dependence," as a fictitious and vicious form of connection, is, +it would appear, forever opposed to "connection" of a just and proper +kind. If it were attempted to sum up the issue of the American +Revolution in an epigram, would not that epigram be: "'Colony,' or +'Free State?' 'Dependence,' or 'Just Connection?' 'Empire,' or +'Union?'" + +According to the opinion of the Revolutionary statesmen, as it would +seem, a universal right of free statehood does not imply a universal +right of self-government. Statehood and self-government are two +different and distinct conceptions. The Americans claimed the right of +free statehood as a part of the universal rights of man, but they +claimed the right of self-government because they were Englishmen +trained by generations of experience in the art of self-government and +so capable of exercising the art. A state is not less or more a free +state because it has self-government. It is a free state when its just +public sentiment is to any extent ascertained and executed by its +government,--however that government may be instituted,--free from the +control of any external power. It does not prevent a region from being +a free state that its government is wholly or partly appointed by an +external power, if that government is free from external control in +ascertaining and executing the just local sentiment to any extent. Nor +does it interfere with the right of free statehood when an external +power stands by merely to see that the local government ascertains +and executes the just local sentiment to a proper extent. The external +power in that case is upholding the free statehood of the region. It +stands as surety for the continuance of free statehood. + +The right of self-government, according to this view, is a conditional +universal right of free states. When a community, inhabiting a region of +such territorial extent that it is not too large to make it possible for +a just public sentiment concerning its affairs to be developed and +executed, and not so small as to make it inconvenient that it should be +in any respect free from external control, is of such moral and +intellectual capacity that it can form and execute a just public +sentiment concerning its internal affairs and its relations with other +communities, states and nations, it has not only the right of free +statehood,--that is, of political personality,--which is of universal +right, but also the right of self-government. The right of such a free +state to self-government is complete if there be no just political +connection or union between it and other free states, or partial, if +such a just connection or union exists, being limited, in this latter +case, to the extent necessary for the preservation, in due order, of the +connection or union. + +Independence was regarded apparently also, by the Declaration, when it +declared the Colonies to be "free and independent states," to be a +right superadded to the right of free statehood in some cases, and +therefore to be a conditional universal right of free states--that is, +a right universally existing where the conditions necessary to +independence--great physical strength, and great moral and +intellectual ability--exist. + +The Colonies regarded themselves as free states in such a just and +rightful connection with the free and independent State of Great +Britain as to form with it a union. From this it followed, inasmuch as +this connection and union was conceived of as existing under a +universal common law, that the State of Great Britain, through its +Government, was the justiciary medium which connected the free states +of that which they conceived of as the British-American Union, and as +such applied the principles of this universal common law for +preserving and maintaining in due order the connection and union. +There, therefore, resulted the conception of Great Britain as what may +perhaps be called "the Justiciar State" of this British-American +Union. If we were to use the exact language of the Revolution, it +would probably be more proper to speak of Great Britain as "the +Superintending State" of the British-American Union, as the power of +Great Britain over the Colonies was generally spoken of by the +Americans as "the superintending power." Lord Chatham used this +expression in his famous bill introduced in the House of Lords. The +expression "Justiciar State," however, seems to be more scientifically +correct. A Justiciar was an official who exercised the power of +government in a judicial manner. His power was neither strictly +legislative, nor strictly executive, nor strictly judicial, but was +complex, being compounded of all three powers, so that his executive +action, taken after judicially ascertaining the facts in each case and +applying to them just principles of law, resulted in action having the +force of legislation. + +The Revolutionary statesmen have left a very considerable literature +showing their views concerning the nature of the right of a state to +be the Justiciar State of a Union of States, and concerning the powers +which a Justiciar State may rightfully exercise. + +Arguing on the same basis as that adopted by them regarding the right +of self-government and independence, it appears that they considered +the right of a state to act as Justiciar for other states to be a +right superadded to the right of self-government and independence in +some cases--that is, that justiciarship is a conditional universal +right of self-governing and independent states, the conditions +necessary to its existence being great physical strength, a judicial +character and a capacity for leadership. + +The power exercised by a Justiciar State in a Justiciary Union, they +recognized as being neither strictly legislative, nor strictly +executive, nor strictly judicial, but a power compounded of all these +three powers. They considered that it was to be exercised for the +common purposes after investigation by judicial methods; that the +just public sentiment of the free states connected and united with the +Justiciar State was to be considered by it in the determination of the +common affairs; and that the action of the Justiciar State was to +result, after proper hearing of the free states and all parties +concerned, in dispositions and regulations made according to just +principles of law, which were to have the force of supreme law in each +of the connected and united free states respectively. This kind of +power, which the Fathers called "the superintending power" or "the +disposing power" under the law of nature and of nations, and which may +be called, using an expression now coming into use, "the power of +final decision," or more briefly "the justiciary power," being neither +legislative, executive nor judicial, but more nearly executive than +legislative, the more conservative among them considered might be +exercised, consistently with the principles of the law of nature and +of nations, either by the Legislative Assembly of the Justiciar State +or by its Chief Executive, advised by properly constituted +Administrative Tribunals or Councils; the action of the Legislative +Assembly superseding that of the Chief Executive in so far as they +might be inconsistent with each other. This right of both the +Legislative Assembly and of the Chief Executive, properly advised, to +exercise the powers of the Justiciar State--the former having supreme, +and the latter superior justiciary power,--under the law of nature and +of nations, is, I believe, also recognized by our Constitution, as I +have elsewhere attempted to show. + +Of course there must be conditions of transition where the relations +between free states which would normally be in union, or between +detached portions of what would normally be a unitary state, +temporarily assume a form which is partly one of union or merger, and +partly of dependency. The justification of all such forms of +relationship must, it would seem, be found in the fundamental right +which every independent state, whether a Justiciar state or not, has +to the preservation of its existence and its leadership or +judgeship--that is, in the right of self-preservation, which, when +necessary to be invoked, overrules all other rights. On this theory +must, it would seem, be explained the relations between the American +Union and its Territories, between Germany and Alsace-Lorraine, and +between England and Ireland. On this theory of self-preservation, +also, must, it would seem, be explained the permanent relationship of +dependency which exists between the District of Columbia and the +American Union--such dependency being necessary to the preservation of +the life of the Union. + +Out of the conception of a universal common law of nature and of +nations which governs all human acts and relationships,--and therefore +all the acts and relationships of states and nations as well as of +men, bodies corporate and communities,--there has arisen and at the +present time exists, a science of the universal and common law of the +state, called the Science of the Law of the State, which concerns +itself with the internal relations of a state to its people, its +bodies corporate and its communities, and a science of the universal +and common law of independent states, called the Science of +International Law, which concerns itself with the occasional and +temporary relations of independent states. The great field of law +which concerns the permanent relations of free states is not yet +covered by a recognized science. Must there not therefore emerge from +this conception of a universal and common law of nature and of +nations, a third science of law, covering this field, which will take +as its basal proposition the doctrine that free statehood is the +normal and rightful condition of all communities on the earth's +surface within suitable limits for the formation of a just public +sentiment, and which will concern itself with the permanent relations +between free states? As such permanent relations must always be by +just connection, either in its simple form or in the form of union, +may not such a science of law, standing between the science of the Law +of the State and the science of International Law, be called the +science of the Law of Connections and Unions of Free States? + +Taking the whole Declaration together, and reading it in the light of +the political literature which was put forth on both sides of the +water between the years 1764 and 1776, it seems to be necessary to +conclude that the views of the most conservative of the American +statesmen of the period concerning the connection between Great +Britain and the Colonies were these: + +They considered, as I interpret their language, that the connection +between free and independent State of Great Britain, and the American +Colonies, as free states, had existed and of right ought to have +existed, according to the principles of the law of nature and of +nations--that law being based on principles opposed to the principles +applied by the governments of Europe, and being thus what may be +called a law of nature and of nations according to the American +System. Had they used a more definite and scientific phraseology, it +seems that their view would best be expressed by saying that they +considered that the relationship between Great Britain and the +Colonies had always existed according to the principles of the Law of +Connections and Unions of Free States. They accordingly admitted, as I +understand them, that Great Britain, as a free and independent state, +had power, as Justiciar, over the American Free States, for the common +purposes of the whole Union, to finally decide, by dispositions, +ordinances and regulations having the force of supreme law, made +through its Government after a judicial hearing in each case for the +investigation of facts and the application to them of the principles +of the Law of Connections and Unions of Free States, upon all +questions of common interest arising out of the connection and union; +and that each of the American Free States had power, through its +Legislature, to legislate according to the just public sentiment in +each, and the right to have its local laws executed by its Executive +and interpreted and applied by its Courts, free from all control by +the State of Great Britain, except what was necessary to protect and +preserve the Union. + +In this view, the actions of the Americans show the evolution of a +continuous theory and policy, and the application of a single American +system of principles,--a system which was based upon free statehood, +just connection and union. The British-American Union of 1763 was a +Union of States under the State of Great Britain as Justiciar, that +State having power to dispose of and make all rules and regulations +respecting the connected and united free states, needful to protect +and preserve the connection and union, according to the principles of +the Law of Connections and Unions. The dissolution of this Union, +caused by the violation by the State of Great Britain of its duties as +Justiciar State, gave a great impetus to the extreme states-rights +party, and the next connection formed,--that of 1778 under the +Articles of Confederation,--was not a Union, the Common Government +(the Congress) being merely a Chief Executive. Such a connection +proving to be so slight as to be little more than a fiction, they +formed, under the Constitution of 1787, the only other kind of a union +which appears to be practicable, namely, a union under a common +government which was a Chief Legislature for all the connected and +United States by their express grant, and whose powers were expressly +limited, by limitation in the grant, to the common purposes of the +whole connection and union of free states. + +If the Constitution, in defining what are the common purposes of the +Union and what the local purposes of the States of the Union, is +declaratory of the principles of the Law of Connections and Unions of +Free States, as it seems not unreasonable to hold, the Limited +Legislative Union formed under the Constitution may perhaps be +considered, in view of the supremacy of the Judiciary, as Guardians of +the Constitution, over the Limited Legislature, as a species of +Justiciary Union. + +Moreover, if in what has been said we are correct, the relationship at +present existing between the American Union and the Insular regions, +is that of _de facto_ Justiciary Union, and the American Congress, +under the lead of President McKinley and President Roosevelt, has +acted, with reference to these regions, according to the principles of +the American system. The American Union, through President McKinley, +has declared itself to be "a liberating, not a conquering nation," and +has recognized the people of Hawaii, Porto Rico and the Philippines as +each having a separate and local citizenship, thus recognizing each of +these regions as a _de facto_ free state connected with the American +Union. The action of the American Union extends to the regulation of +the action of individuals in these free States, so that a Greater +American Union of Free States exists _de facto_. To bring into +existence a Greater American Union _de jure_, it needs, first, the +public and express recognition by the American Union of itself as the +Justiciar State, and of each of the separate Insular regions within +proper territorial limits, as a Free State in just connection and +union with the American Union; and, secondly, the establishment by the +American Union of the necessary Advisory Council for investigating +facts and for advising the President before he, on behalf of the +American Union as Justiciar State, exercises his superior justiciary +powers, and for advising the Congress before it, in the same behalf, +exercises its supreme justiciary powers. Councils suitable for +advising the local Governors, when they, on behalf of the American +Union as Justiciar State, exercise their inferior justiciary powers, +already exist. Of such a Greater American Union, the present American +Union would be the Supreme Justiciary Head, with power to finally +determine the questions arising out of the relationship, not by edict +founded on will and force, but by decision carefully made in each case +after ascertaining the facts in each case and applying to them the +principles of the Law of Connections and Unions properly applicable to +them. + +Is not this theory the true _via media_? The theory of the automatic +extension of the constitution of a state over its annexed insular, +transmarine and transterranean regions which from their local or other +circumstances can never equally participate in the institution and +operation of its government, in some cases protects individual rights, +but it takes no account of the right of free statehood, which is the +prime instrumentality for securing these rights. The theory of a power +over these regions not regulated by a supreme law, is a theory of +absolute power over both individuals and communities in these +regions,--a theory which implies an absence of all rights. The theory +of a power over these regions based on the principles of the Law of +Connections and Unions, granting that this law is itself based on the +right of human equality, protects the rights of persons, of +communities, of states and of nations. On this theory the "Territory +Clause" of the Constitution recognizes the Law of Connections and +Unions as determining the relationship between the American Union and +the Insular regions--"needful" rules and regulations being those which +are adapted to accomplish the end desired and which are consistent +with the principles of the Law of Connections and Unions as declared +in the Declaration of Independence. On this theory, the doctrine of +the Supreme Court that the civil rights of individuals in cases +growing out of our relations with our Insular brethren are protected +by "the fundamental principles formulated in the Constitution," or by +"the applicable provisions of the Constitution," is translated into +the doctrine that these individual and civil rights are protected by +the principles of the Law of Connections and Unions of Free States, as +these principles are formulated in the Constitution and as they are +disclosed by an examination of the applicable provisions of the +Constitution, and that not only are these civil rights protected by +this law, but also the political rights of all the parties to the +relationship. On this theory, the jurisdiction of the Supreme Court +continues to be exactly the same as at present. The necessary Advisory +Councils for ascertaining the just political relations between the +American Union and the Insular regions and for determining the +political rights growing out of that relationship, would not in the +least interfere with the Supreme Court in the exercise of its +functions. They would supplement that Court, which now protects the +civil rights of all concerned through its adjudications in civil +cases, by assisting the Congress and the President to protect and +preserve the political rights of all concerned through dispositions +and needful rules and regulations in political cases. + +By adopting this theory of the Reformation and the American +Revolution, may not the American System extend indefinitely without +danger to America herself? There would be no domination, no +subjection. The same Law of Connections and Unions would extend over +and govern throughout the whole Greater American Union. This Greater +American Justiciary Union would be but a logical application of the +principles underlying the American Legislative, Executive, and +Judicial Union formed by the Constitution of the United States. + +It would not be the Constitution which would follow the flag into the +regions which America has annexed to herself, but the Law of +Connections and Unions, which is a part of the Law of Nature and of +Nations according to the American System. + +I recur, therefore, to my first proposition and submit to your +judgment whether the terms "colony," "dependence," and "empire," on +the one hand, and the terms "free state," "just connection," and +"union," on the other, are not the symbols of two great and +fundamentally opposed systems of politics--the one European, and the +other American; whether the American terms and the American System are +not capable of being applied universally and beneficently, in the way +pointed out above, throughout all places outside the present Union +which are within the limits of its justiciary power; and whether, if +they are capable of this application, it is not our duty, both +logically and ethically, to use the American terms in describing the +relations between us and our Insular brethren, applying at the same +time the principles of the American System, and thus calling into +existence a Greater American Union. + + * * * * * + + + + + + +End of the Project Gutenberg EBook of "Colony,"--or "Free State"? +"Dependence,"--or "Just Connection"?, by Alpheus H. 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