Alpheus H. Snow - Colony,or Free State? Dependence, or Just Connection?

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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.

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