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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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.
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