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