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

A >> 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?'"

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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