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"Dependence,"--or "Just Connection"?, by Alpheus H. Snow

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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

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                      "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.

       *       *       *       *       *






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