But it is not necessary, it would seem, to resort to externa

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"COLONY,"--OR "FREE STATE"?

"DEPENDENCE,"--OR "JUST CONNECTION"?

"EMPIRE,"--OR "UNION"?

An Essay

Based on the Political Philosophy of the American Revolution, as

Summarized in the Declaration of Independence, towards the

Ascertainment of the Nature of the Political Relationship Between the

American Union and Its Annexed Insular Regions.

AND

THE QUESTION OF TERMINOLOGY

An Address

Containing the Substance of the Foregoing Essay, with some Additions,

Delivered before the Section for the Study of the Government of

Dependencies, of the American Political Science Association, at the

Meeting held at Providence, December 29, 1906

By ALPHEUS H. SNOW

WASHINGTON

1907

"COLONY,"--OR "FREE STATE"?

"DEPENDENCE,"--OR "JUST CONNECTION"?

"EMPIRE,"--OR "UNION"?

From the time of the acquisition of Porto Rico and the Philippines, in

1898, under a Treaty with Spain which left indefinite the relations

between the American Union and those regions, the question of the

nature of this relationship has been discussed.

The Republican party, which has been in power ever since the war, has

justified its acts on the ground of political necessity. Its policy

has been that of giving the people of the Islands good administration,

just treatment, and all practicable self-government. The Democratic

party has declared such a policy to be only imperialism and

colonialism under another name. It has asserted that "no nation can

endure half Republic and half Empire" and has "warned the American

people that imperialism abroad will lead quickly and inevitably to

despotism at home." It has characterized the Republican government in

the Insular regions as an "indefinite, irresponsible, discretionary

and vague absolutism," and Republican policy as a policy of "colonial

exploitation." That the American people have believed the Republican

administration to have been good and beneficent, is shown by their

retaining that party in power. But it is perhaps not too much to say

that nearly all thoughtful persons realize that some part of the

Democratic complaint is just, and that there is at the present time a

lack of policy toward the Insular regions, due to the inability of

either of the political parties, or the Government, or the students

and doctors of political science, to propound a theory of a just

political relationship between us and our Insular brethren which will

meet with general approbation.

We are, however, not peculiar in this respect. Great Britain, France

and Germany are in the same position. In none of these countries is

there any fixed theory of the relationship between the State and its

annexed insular, transmarine and transterranean regions. The British

Empire, so called, containing as it does several strong and civilized

States in permanent relationship with Great Britain, gives many signs,

to the student, of the direction in which political thought is

traveling in its progress toward a correct and final theory; but at

the present time there seems to be no prospect of the emergence of a

final theory in that country. Here in America, political thinking,

following the line of least resistance, has, as a general rule,

concentrated itself upon the Constitution of the United States, as if

in that instrument an answer was to be found for every political

problem with which the Union may be confronted. To some of us,

however, it has appeared inconsistent with the principles of the

American Revolution that the Constitution of the United States should

be the Constitution of any communities except the thirteen States

forming the original Union and those which they have admitted into

their Union; and, while yielding to none in our belief in the

supremacy of the Constitution throughout the Union, we have sought to

base the relationship between the Union itself and its Territories and

annexed insular, transmarine and transterranean regions, upon such

principles as would enable the American Union to justify itself in the

eyes of all civilized nations, and as would be consistent with the

ideas for which it stood at the Revolution. Those of us who thus limit

the effect of the Constitution to the Union are charged with

advocating an absolute power of the Union over its annexed regions. It

is assumed that there is no intermediate theory between that which

assumes the Constitution of the American Union to extend to these

regions in some more or less partial and metaphorical way,--for it is

evident upon inspection that it cannot extend in any literal way,--and

that which assumes that the Union is the Government of all these

regions with absolute power.

It is a somewhat curious illustration of the truth that history

repeats itself that for ten years before the Continental Congress met

in 1774, the British and Americans alike, with some few exceptions,

discussed the question of the relationship between Great Britain and

the American Colonies as one arising from the extension of the

Constitution of the State of Great Britain over America, just as for

the past eight years Americans, Porto Ricans and Filipinos alike,

have, with few exceptions, discussed the question of the relationship

between us and our Insular brethren as one arising from the extension

of the Constitution of the United States over these regions. It was

not until the Continental Congress had discussed the matter for two

years that this theory was definitely abandoned and the rights of the

Americans based upon the principles which our Revolutionary Fathers

considered to be just. We have not yet attained to this broader view.

At the present time the doctrine of the Supreme Court, and therefore

of the Government, is that all acts of the American Government in the

annexed insular, transmarine and transterranean regions, are acts of

absolute power, when directed toward communities, though tempered by

"fundamental principles formulated in the Constitution" or by "the

applicable provisions of the Constitution," when directed toward

individuals.

I shall ask the reader to follow me in trying to find out exactly what

this broader view of the Revolutionary Fathers was and to adjudge, on

the considerations presented, whether they did not discover the _via

media_ between the theory of the right of a State to govern absolutely

its annexed insular, transmarine and transterranean regions and the

right of a State to extend its Constitution over these regions,--regions

which, it is to be remembered, can never, from their local and other

circumstances, participate on equal terms in the institution or

operation of the Government of the State.

In trying to rediscover this _via media_ of the Fathers I shall accept

the Declaration of Independence as the final and complete exposition

of their theories, and in interpreting that great document I shall

conform to the established rules of law governing the interpretation

of written instruments.

Let me first, however, call attention to the well known, but very

interesting fact that the American people throughout this period of

eight years since the Spanish war during which the question has been

discussed by experts almost exclusively as one which relates to the

application of the Constitution outside the Union, have always had an

idea that it was the Declaration of Independence, rather than the

Constitution, to which we were to look for the solution of our Insular

problems. In 1900, the Democrats, in their platform, "reaffirmed their

faith in the Declaration of Independence--that immortal proclamation

of the inalienable rights of man and described it as "the spirit of

our Government, of which the Constitution is the form and letter." The

Republicans in their platform declared it to be "the high duty of

Government ... to confer the blessings of liberty and civilization

upon all rescued peoples," and announced their intention to secure to

these peoples "the largest measure of self government consistent with

their welfare and our duties." The Populists in their platform in the

same year, insisted that "the Declaration of Independence, the

Constitution and the American flag are one and inseparable." The

Silver Republicans declared that they "recognized that the principles

set forth in the Declaration of Independence are fundamental and

everlastingly true in their application to government among men." The

Anti-Imperialists declared that the truths of the Declaration, not

less self-evident to-day than when first announced by the Fathers, are

of universal application, and cannot be abandoned while government by

the people endures." In 1904, the Democratic party, while professing

adherence to fundamental principles declared in favor of casting into

the outer darkness of the fictitious "independence" every people

"incapable of being governed under American laws, and in consonance

with the American Constitution," but the Populists still held to the

principles of the Declaration, while the Republicans held to their

declarations of 1900.

It is an ancient and well established rule of law for the

interpretation of written instruments that when the meaning of the

words used is not so clear as to leave no room for doubt and when

there thus exists what is called in law an ambiguity, it is proper to

consider the circumstances surrounding the execution of the

instruments, so that, by placing ourselves as nearly as possible in

the same situation in which the persons who executed the instrument

were at the time of its execution, we may have a basis for forming a

reasonable opinion as to which of two or more possible constructions

is correct. That such an ambiguity exists in the Declaration is

undeniable. Opinions concerning the meaning of its philosophic

statements, and indeed of nearly all its statements, differ between

extremes at one of which are arrayed those who, with Rufus Choate and

John James Ingalls, regard its philosophic declarations as "glittering

generalities," and at the other of which stand that great body of men

and women, living and dead, who, with Abraham Lincoln, believe, and

have believed, that these declarations are the foundation of the only

true and final science of politics. Following this ancient rule of

interpretation, therefore, let us consider the circumstances

surrounding the Declaration of Independence.

From the earliest times, the political philosophy of the people of

America was directly connected with the religious and political

philosophy of the Reformation. The essence of that philosophy was that

man was essentially a spiritual being; that each man was the direct

and immediate creature of a personal God, who was the First Cause;

that each man as such a spiritual creature was in direct and immediate

relationship with God, as his Creator; that between men, as spiritual

creatures, there was no possibility of comparison by the human mind,

the divine spark which is the soul being an essence incapable of

measurement and containing possibilities of growth, and perhaps of

deterioration, known only to God; that therefore all men, as

essentially spiritual beings, were equal in the sight of all other

men. Luther and Calvin narrowed this philosophy by assuming that this

spiritual nature and this equality were properties only of professing

Christians, but Fox, followed by Perm, enlarged and universalized it

by treating the Christian doctrine as declaratory of a universal

truth. Penn's doctrine of the universal "inner light," which was in

every man from the beginning of the world and will be to the end, and

which is Christ,--according to which doctrine every human being who

has ever been, who is, or who is to be, is inevitably by virtue of his

humanity, a spiritual being, the creature of God, and, as directly

and immediately related spiritually to Him, the equal of every other

man,--marked the completion of the Reformation.

According to this theory, the life of animals, who, being created

unequal, are from birth to death engaged in a struggle for existence

in which the fittest survives, is eternally and universally

differentiated by a wide and deep chasm from the life of men, who,

being created equal, are engaged in a struggle against the

deteriorating forces of the universe in which each helps each and all

and in which each and all labor that each and all may not only live,

but may live more and more abundantly.

According to this theory, also, the glaring inequalities of physical

strength, of intellectual power and cunning, and of material wealth,

which are, on a superficial view, the determining facts of all social

and political life, are merely unequal distributions of the common

wealth, and each person is considered to hold and use his strength,

his talents and his property for the development of each and all as

beings essentially equal.

According to this theory, also, there is for mankind no "state of

nature" in which men are equally independent and equally disregardful

of others, which by agreement or consent becomes a "state of society"

in which men are equally free and equally regardful of others, but the

"state of nature" and the "state of society" are one and the same

thing. Every man is regarded as created in a state of society and

brotherhood with all other men, and the "state of nature,"--man's

natural estate and condition,--is the "state of society."

Were anyone asked to sum up in the most concise form possible the

ultimate doctrine of the Reformation, he could, perhaps, epitomize it

no more correctly than by the single proposition, "All men are created

equal." This doctrine of human equality arising from common creation,

growing out of Lutheranism and Calvinism through the intellectual

influence of Penn, and the broadening effect of life in this new and

fruitful land, underlay all American life and institutions.

One of the results of this final theory of the Reformation was the

conception, by certain devout men and great scholars, of a "law of

nature and of nations," based on revelation and reason, which was

universally prevalent, and which governed the relations of men, of

communities of states and of nations. Out of this there had then

emerged the conception which has now become common under the name of

International Law, which treats of the temporary relations between

independent states. But the conception of the 'law of nature and of

nations' was, as has been said, vastly wider than this. It was a

universal law governing all possible forms of human relationship, and

hence all possible relations between communities and states, and

therefore determining the rights of communities and states which were

in permanent relationship with one another. Based on the theory of the

equality of all men by reason of their common creation, it recognized

just public sentiment as the ultimate force in the world for

effectuating this equality, and considered free statehood as the prime

and universal requisite for securing that free development and

operation of public sentiment which was necessary in order that public

sentiment might be just.

While this philosophy of the Reformation was thus extending itself in

America, both among the Governments and the people, and in Europe

among the people, the Governments of Europe, though not recognizing

the existence of any 'law of nature and of nations' whatever, were

nevertheless acting on the basis that such a law did exist and was

based on the proposition that all men are created unequal, or that

some are created equal and some unequal. The alleged superior was

sometimes a private citizen, sometimes a noble, sometimes a monarch,

sometimes a government, sometimes a state, sometimes a nation. The

inferior was said to be "dependent" upon the superior--that is,

related to him directly and without any connecting justiciary medium,

so that the will of the superior controlled the will and action of the

inferior. It was this alleged law of nature and of nations, based on

an alleged divine or self-evident right of inequality--an inequality

arising from creation--which was the basis of the British Declaratory

Act of 1766, which may perhaps be called "The Declaration of

Dependence." In that Act, the State of Great Britain declared, (basing

itself evidently upon the law of nature and of nations, since there

was no treaty,) that the American Colonies "have been, are, and of

right ought to be, subordinate unto and dependent upon the Imperial

Crown and Parliament of Great Britain," and that the Parliament of

Great Britain "had, hath, and of right ought to have, full power and

authority to make laws and statutes of sufficient force and validity

to bind the Colonies and people of America subjects of the Crown of

Great Britain, in all cases whatsoever." The expression "of right

ought to have" clearly meant "has by the law of nature and of

nations." Great Britain was thus declared to be the superior of

America, with power according to the law of nature and of nations, to

control, by its will, the will and action of America as a "dependent"

country, and of each and all of its inhabitants as "dependent"

individuals.

We discover, then, from an examination of the circumstances

surrounding the Declaration of Independence, a most interesting

situation. A young nation, separated by a wide ocean from Europe,

settled by men who were full of the spirit of the Reformation, deeply

convinced, after a national life of one hundred and fifty years, that

these principles were of universal application, was suddenly met by a

denial of these principles from the European State with which they

were most intimately related. This denial was accompanied by acts of

that State which amounted to a prohibition of the application of these

principles in American political life. This European State was indeed

the mother-country of America, and the Americans were bound to their

English brethren by every tie of interest and affection. The Americans

were only radical Englishmen, who gloried in the fact that England of

all the countries of Europe had gone farthest in accepting the

principles of the Reformation, and who had emigrated reluctantly from

England, because they were out of harmony with the tendency of English

political life to compromise between the principles of Mediaevalism and

the principles of the Reformation. The Declaratory Act of 1766 brought

clearly into comparison the political system of America, as opposed to

the political system of Europe. It was inevitable from that moment

that the American System, based on the principles of the Reformation

in their broadest sense and their most universal application and

briefly summed up in the proposition that "all men are created equal,"

must conquer, or be conquered by, the European System, based either on

the principles of Mediaevalism, summed up in the proposition that "all

men are created unequal," or on a compromise between the principles of

Mediaevalism and the Reformation, summed up in the proposition that

"some men are created equal, and some unequal."

In the light of this situation, let us examine the words of the

Declaration. The philosophical statements in which we are interested,

read:

"When in the course of human events, it becomes necessary

for one people to dissolve the political bands which have

connected them with another, and to assume, among the powers

of the earth, the separate and equal station to which the

laws of Nature and of Nature's God entitle them, a decent

respect to the opinions of mankind requires that they should

declare the causes which impel them to the separation:--

"We hold these truths to be self-evident: That all men are

created equal; that they are endowed by their Creator with

certain unalienable rights, that among these are life,

liberty and the pursuit of happiness; that to secure these

rights, governments are instituted among men, deriving their

just powers from the consent of the governed; that whenever

any form of government becomes destructive of these ends, it

is the right of the people to alter or to abolish it, and to

institute new government, laying its foundation on such

principles and organizing its powers in such form, as to

them shall seem most likely to effect their safety and

happiness."

* * * * *

"Finally we do assert and declare ... that these United

Colonies are, and of right ought to be, free and independent

states,... and that all political connection between them

and the State of Great Britain is, and ought to be, totally

dissolved."

The most reasonable interpretation, as it seems to me, of the

statement that "all men are created equal" is, as I have said, that it

is, and was intended to be, an epitome of the doctrine of the

Reformation. There will be those who will scoff at the suggestion

that a political body like the Continental Congress should have based

the whole political life of the nation upon a religious doctrine. But

it is to be remembered that the Continental Congress was not an

ordinary political body. It was the most philosophic and at the same

time the most religious and the most intellectually untrammeled body

of men who ever gathered to discuss political theories and measures.

Meeting under circumstances where weakness of resources compelled the

most absolute justness in their reasons for taking up arms, they must

have discussed their position from the standpoint of morality and

religion. John Adams tells us that one of the main points discussed at

the opening of the Continental Congress, when they were framing the

ultimatum which finally took the form of the Fourth Resolution was,

whether the Congress should "recur to the law of nature" as

determining the rights of America. He says that he was "very strenuous

for retaining and insisting on it," and the Resolutions show that he

succeeded, for they based the American position on the principles of

"free government" and "good government," recognized that the "consent"

of the American Colonies to Acts of the British Parliament justly

regulating the matters of common interest was a "consent from the

necessity of the case and a regard to the mutual interests of both

countries," and claimed the rights of "life, liberty and property"

without reference to the British Constitution or the American

Charters. Jefferson tells us that throughout the period of nearly two

years which intervened between the assembling of the Congress and the

promulgation of the Declaration the principles of the law of nature

and of nations set forth in the preamble were discussed, and that when

he wrote the preamble he looked at no book, but simply stated the

conclusions at which the Congress, with apparently practical

unanimity, had arrived.

But it is not necessary, it would seem, to resort to external evidence

to prove that the Declaration is based on the doctrine of the

Reformation. In several places it seems to expressly declare that the

rights claimed by America are claimed under the law of nature and of

nations based on divine revelation and on human reason. In the first

sentence, it declares that "the law of Nature and of Nature's God"

entitles the Americans,--it having "become necessary" for them "to

dissolve the political bands which have connected them with" the

people of Great Britain,--to "assume a separate and equal station

among the powers of the earth." In the next it declares not only "that

all men are created equal," but that they have "unalienable rights of

life, liberty and the pursuit of happiness," not by virtue of any

social contract or other form of consent, but by "endowment,"--that

is, by voluntary gift and grant--of "their Creator." This doctrine of

"endowment" of men with "unalienable rights," by "their Creator," is

of course the Christian doctrine. In the concluding part of the

Declaration, it is declared not only that the United Colonies, as "the

United States of America," are "free and independent states," but that

they "of right ought to be" such, and in that paragraph the

"connection between them and the State of Great Britain" is not merely

declared to be "totally dissolved" but it is also declared that it

"ought to be" so dissolved. There was certainly no "right" of the

United Colonies, as the United States of America, to be free and

independent states and to declare the connection between them and the

State of Great Britain to be dissolved except upon principles of some

implied common law which was supreme over the Constitution of the

State of Great Britain and the Charters and Constitutions of the

Colonies, for none of these Constitutions or Charters made provision

for the dissolution of the connection on any contingency.

There is necessarily implied in the statement that "all men are

created equal" and that "they are endowed by their Creator with

certain unalienable rights, among which are life, liberty and the

pursuit of happiness," the conception of the right of human equality

as a divine right. But is there any other basis than divine right on

which to rest a doctrine of human equality? A doctrine of human

equality by human right, is a doctrine of equality by consent. But if

a man can consent regarding his equality with another man or with

other men, he can, as has been often pointed out, consent himself into

a state of permanent inequality, inferiority and slavery, even

supposing that a basis can be found for the assumption of an original

state of equality arising from consent.

Assuming then, for the sake of argument at least, that the proposition

that all men are created equal is and was intended to be a statement

of the Reformation doctrine in its broadest and most universal form, a

clue is given for the interpretation of the propositions which follow.

If politics, as well as religion, assumes as its basis the proposition

that all men are spiritual beings in direct and permanent relationship

with God, and hence equal as regards one another, then the purpose of

both politics and religion is to preserve this equality,--politics by

compulsion and religion by persuasion. Because all men are spiritual

beings in direct relationship with a common Creator who has

established laws under which He is the final judge, which men can

ascertain and apply through revelation and reason, men are declared to

have rights. Man is thus distinguished from animals, who have no

rights because they have no capacity to know the law--a knowledge

which must inevitably precede a knowledge of the right. Politics looks

at the universal needs of all men,--those needs which each man has in

common with all humanity--and from the universal needs assumes a

universal unalienable right of each against each other and against

all, and a universal duty of each toward each other and toward all, to

supply these needs. Religion regards the supplying of these universal

needs as a duty toward God. Hence politics adopts as its second

self-evident truth, the proposition that all men "are endowed by their

Creator with certain unalienable rights, among which are life, liberty

and the pursuit of happiness." The primary and universal needs of all

mankind, regarded as equal creatures of a common Creator, are the need

of life, the need of liberty and the need of pursuing happiness. These

needs are unalienable. No man can rid himself of them without

destroying himself as an equal creature of a common Creator.

Consequently the rights and duties corresponding to these unalienable

needs are themselves unalienable. There is no denial here of alienable

rights and duties. But it is clearly laid down as a fundamental

principle of the all-pervasive common law, that rights given by the

Creator are unalienable, and that no human being, however

emphatically he may declare, or will, or agree to the contrary, may by

any possible act of any other human being or of any set of human

beings, whether calling themselves a government or not, or by any

possible means, deprive himself, or be deprived of the right of life,

liberty and the pursuit of happiness--these being necessarily

incidental to the original right of equality.

To apply this interpretation to the relationship between ourselves and

our brethren of the Insular regions: They are, according to the

universal and common law of nature and of nations, as we and all other

human beings are, equally creatures of a common Creator and equal with

us. Under that all-pervasive law, they, with us, and all other human

beings, are created with the unalienable need of life, liberty and the

pursuit of happiness, and therefore with corresponding unalienable

rights. Under that law we cannot deprive them of these unalienable

rights, nor allow them to deprive themselves of their unalienable

rights, nor allow a part of them to deprive the others of their

unalienable rights. According to the philosophy of the Revolution,

every man, every community, every state and every nation is bound to

enforce, and cause to be enforced, this law of nature and of nations,

which prevents the voluntary or involuntary alienation by any man, any

community, any state or any nation of his or its rights of life,

liberty and the pursuit of happiness.

The Declaration, having thus described the ends of all government,

proceeds to describe the methods by which these ends are accomplished.

It declares that "to secure these rights governments are instituted

among men, deriving their just powers from the consent of the

governed." Governments, it is declared, are instituted solely to

secure to each and every being his and their unalienable rights, as

equal creatures of a common Creator, to life, liberty and the pursuit

of happiness. Here is a plain denial that government is universally

the expression of the will of the majority, for it is matter of common

knowledge that in only a few of the most highly civilized countries of

the world does the will of the majority, as it is expressed, secure to

each and every person his and their unalienable rights of life,

liberty and the pursuit of happiness.

There is also an implied denial of the proposition that government is

the will of the majority, in the proposition that "governments are

instituted among men." If the Fathers had meant that government was

the will of the majority they would have said, "Men have the right to

institute governments for themselves, according to the will of the

majority." What they did was simply to state as a fact that

"governments are instituted among men," which fact is wholly

inconsistent with the hypothesis of a universal right of each and all

communities to institute government for themselves.

There is, however, it would seem, clearly implied in the statement

that "to secure these rights governments are instituted among men,"

the statement that governments are universal, that they begin with and

continue through human existence,--that government is, as Calvin said,

of "not less use among men than bread and water, light and air, and of

much more excellent dignity," and therefore the prime necessity of

human life,--and that there is a universal right of all men, all

communities, all states and all nations, to such government as will

secure these rights; for the rights which are to be secured being

universal, government, which is the instrumentality for securing them,

must also be universal.

Having thus declared governments of a kind suitable to secure the

unalienable rights of the individual to be a universal right, and

having by implication declared that it is not essential in all cases

that governments should be instituted by the people governed, and that

therefore there may be cases in which governments may justly be

instituted by an external power, the Declaration proceeds to lay down

as a universal proposition that all governments,--existing, as they

do, solely for the purpose of securing to each and every individual

his and their unalienable rights,--do, universally, whether instituted

by the consent of the governed or not, "derive their just powers from

the consent of the governed." The expression "deriving their just

powers from" is generally read as if it were "by," and the expression

"the consent of the governed" as if it were "the will of the

majority." Both of these readings are so plainly inconsistent with

both the text and the context as to be clearly inadmissible. If the

words are taken in their usual and proper meaning and read in the

light of the context and the surrounding circumstances, it seems at

least reasonable to conclude that the expression "deriving their just

powers from the consent of the governed," is and was intended to be an

epitome of the two fundamental principles of the law of agency,

brought over into the English law from the Roman. These principles

are: "_Obligatio mandati consensu contrahentium consistit,"_ a

translation of which is, "The powers of an agent are derived from the

consent of the contracting parties," and "_Rei turpis nullum mandatum

est_," a translation of which is "No agent can have unjust powers." If

this interpretation be correct, the expression "that to secure these

rights governments are instituted among men, deriving their just

powers from the consent of the governed" means that there is no

universal absolute right of communities, states, or nations, to

institute their own governments, but that every government, however

instituted, is universally the agent of the governed, to secure to

every individual, every community, every state, and every nation

governed, his and their unalienable rights of life, liberty and the

pursuit of happiness and to effectuate the equality of all men as the

creatures of a common Creator.

On this interpretation a rule is laid down to determine under what

circumstances a community, state, or nation has the right to institute

its own government. Its rights are to be determined by the principles

of agency. Agencies among individuals are of several kinds, express

and implied, voluntary and involuntary. There may be co-agencies, in

which the performance of one general agency is distributed among

several agents. A person of full capacity has the right, according to

the common law of persons, to appoint his own agent, unless he is in

such just relationship with others that the common interests require

that he should adopt as his agent an agent appointed by the others. So

communities, states and nations which are of full capacity, have the

right, assuming the existence of this common law of nature and of

nations, to appoint their own governments, subject to the necessary

limitations growing out of their just relationships to other

communities, states and nations. Infants, and persons _non compos_ or

spendthrift, are subject, by the principles of the common law of

persons, to have an involuntary agency created for them by the

Chancellor until the disability is removed, if the disability is

temporary, or permanently, if the disability is permanent. The same is

true by the law of nature and of nations, if the interpretation I have

suggested be correct, regarding communities, states and nations, which

are in a condition of infancy or anarchy, or are spendthrift. The

Chancellor or Justiciar, whether a person, a state, or a nation, must

possess the qualities and attributes of a Chancellor and Justiciar,

and proceed as a Chancellor and Justiciar. Otherwise the attempt to

create an involuntary agency for the suitor is nugatory. The fact that

a person who is an infant, or _non compos_, or spendthrift, has an

involuntary agency created for him by the Chancellor, does not

destroy, or in any way affect, the juridical personality of such

person, or his political equality with other persons; and, by parity

of reasoning, the fact that a community which would otherwise be

recognized as having free statehood and political personality and

equality with other free states, has an involuntary government

appointed for it by a Justiciar State, on account of its being in a

weak or infantile condition, or on account of its being anarchic or

spendthrift, can not destroy or in any way affect its free

statehood,--or, what is the same thing, its political personality,--or

its equality with other free states.

A further meaning apparently is that the first object of all

government is to do justice, and the second object to do the will of

the governed. A government which recognizes itself as deriving its

just powers from the consent of the governed, is bound to do justice

in such manner as will conform to the just public sentiment of the

governed. It is in no case bound to execute the will of the governed,

much less the will of the majority, unless that will conforms to

justice in the particular case. Nor can it do an unjust act and plead

in justification the consent of the governed, for the consent of the

governed to an unjust act is void by the law of nature and of nations.

This principle was often appealed to by the Americans, notably in the

final manifesto of 1778, as an answer to the British claim that the

Americans were bound by the restrictive Acts of Parliament on account

of their acquiescence in them. They said that an attempted consent to

an unjust act of government was a nugatory act, an unjust act of

government being itself nugatory, and deserving obedience only from

motives of policy.

This doctrine that government is the doing of justice according to

public sentiment is, of course, utterly opposed to the doctrine that

government is the will of the majority. If government is the doing of

justice according to public sentiment, government is the expression

and application of a spiritually and intellectually educated public

sentiment, since the knowledge of what is just comes only after a

course of spiritual and intellectual education, and the forms and

methods of government should be such as are adapted to such spiritual

and intellectual education. Education takes place by direct personal

contact, and can best be accomplished only through the establishment

of permanent groups of individuals who are all under the same

conditions. The formation and expression of a just public sentiment,

therefore, requires the establishment of permanent groups of persons,

more or less free from any external control which interferes with

their rightful action, under a leadership which makes for their

spiritual and intellectual education in justice. Such permanent groups

within territorial limits of suitable size for developing and

expressing a just public sentiment, are free states. Territorial

divisions of persons set apart for the purpose of convenience in

determining the local public sentiment, regardless of its justness or

unjustness, are not states, but are mere voting districts. Just public

sentiment, for its expression and application, requires the existence

of many small free states, disconnected to the extent necessary to

enable each to be free from all improper external control in educating

itself in the ways of justice; mere public sentiment, for its

expression and application, requires only the existence of a few great

states, unitary in their form and divided into voting districts. Just

public sentiment, as the basis of government, is a basis which makes

government a mighty instrument for spirituality and growth; mere

public sentiment, regardless of its justness or unjustness, as the

basis of government, is a basis which makes government a mighty

instrument for brutality and deterioration. Human equality,

unalienable rights, just public sentiment, and free statehood, are

inevitably and forever linked together, as reciprocal cause and

effect.

All the American public men were agreed that the American Colonies, so

called, were and always had been free states, and that the State of

Great Britain, acting through or symbolized by its Chief Executive or

its Chief Legislature, or both of them was a governmental agency, and

a connecting medium, of all the free states which were connected with

it, and which with it formed what they called "The British Empire."

Some based this right of free statehood and political connection on

the Colonial Charters; some on the doctrine of the extension to the

Colonies of the Constitution of the State of Great Britain in a

partial and metaphorical manner; some thought that the Colonies had

always been not only free states, but also free and independent

states, and that the political connection between them and the State

of Great Britain was, and always had been, by consent, that is, by

implied treaty. Upon careful examination, all these theories were

found to be untenable. The Colonial Charters clearly did not intend to

recognize the Colonies as free states, much less as free and

independent states; the doctrine of the extension to them of the

British Constitution was inconsistent with their statehood in any

sense; and there was not a vestige of anything which could be regarded

as a treaty between the Colonies and Great Britain. Finally,

therefore, all were apparently brought to see that there was nothing

on which to base the American claim that the Colonies were and always

had been states, free or free and independent, except "the law of

nature and of nations," and not even the law of nature and of nations

as it was understood by the Governments of Europe, but a law of nature

and of nations which was based on the broadest principles of the

Reformation. Free statehood for the American Colonies was apparently

asserted as a universal right of all communities, states and nations,

because free statehood was considered by the framers of the

Declaration to be the universal and only means of forming and

expressing a just public sentiment, and therefore to be the universal

and only means of securing the universal and unalienable rights of

individuals. The ultimate meaning of the expression "that to secure

these rights Governments are instituted among men, deriving their just

powers from the consent of the governed," seems therefore to be that

by the law of nature and of nations there is a universal right of free

statehood of all communities on the face of the earth within

territorial limits of suitable size for the development and operation

of a just public sentiment.

The Declaration denies even to all the people of a free state the

right to change their government when and how they will, and according

to mere public sentiment, regardless of its justness. Their right "to

alter or abolish" a "form of government" is declared to exist,

according to the law of nature and of nations, only when that form of

government "becomes destructive of these ends," that is, when a

government, instead of securing the unalienable rights of the

individuals governed, attempts to destroy these rights. Moreover, it

is declared that when the people alter or abolish one form of

government, their right of establishing a new government is not

absolute, but is limited, according to the law of nature and of

nations, so that in establishing a new form of government they are

obliged to "lay its foundation on such principles and organize its

powers in such form, as to them shall seem most likely to effect their

safety and happiness,"--that is, to secure the unalienable rights of

the individual to life, liberty and the pursuit of happiness. This

limitation upon the powers of even the whole people of a state

necessarily results from the fact that the law of nature and of

nations is universal and governs so completely every human act and

relationship that no act can be done and no relationship formed which

violates the unalienable rights of any individual. How the law of

nature and of nations is to be enforced, the Declaration does not say.

Apparently the obligation to enforce it rests upon every individual,

every community, every body corporate, every state and every nation,

and the ultimate force which compels its application is the just

public sentiment of the world, or, as Rivier called it, "the common

juridical conscience."

The declaration of the universal right of free statehood is not only

made in the statement that "to secure these rights, governments are

instituted among men, deriving their just powers from the consent of

the governed." It is asserted with much more clearness in the

concluding part of the Declaration, which reads:

"We, therefore,... declare that these United Colonies are,

and of right ought to be, free and independent states,...

and that all political connection between them and the State

of Great Britain is, and ought to be, totally dissolved."

In the first draft of the concluding part of the Declaration,

Jefferson wrote:

"We, therefore,... utterly dissolve and break off all

political connection which may have heretofore subsisted

between us and the people or Parliament of Great Britain,

and finally we do assert and declare these Colonies to be

free and independent states."

The resolution of the Virginia Convention of May 15, 1776, which was

the basis of the Declaration, read:

"That the delegates ... be instructed to propose to [the

Continental Congress] to declare the United Colonies free

and independent states, absolved from all ... dependence

upon the Crown or Parliament of Great Britain."

A comparison of the words used by the Congress with those used by the

Virginia Convention and those used by Jefferson in the first draft,

shows how much the judgment of the Congress was clarified by the great

debate which occurred between May 15 and June 10, 1776, when the

wording above quoted was agreed upon.

The wording of the Virginia resolution, if it had been adopted, would

have implied that the Colonies had theretofore been "dependent upon

the Crown and Parliament of Great Britain," and that their statehood,

their free statehood, and their independent statehood came into

existence by virtue of their declaring themselves free and independent

states.

The wording of Jefferson's first draft, if it had been adopted, would

have implied that a "political connection" might or might not have

theretofore existed between the American people and "the people or

Parliament of Great Britain," and that if such a political connection

had existed, the American people had the right to secede from it,

whenever they considered that the terms of the connection were not

observed by the people or Parliament of Great Britain, and that by

such act of secession, and by their Declaration, their rights of

statehood, of free statehood and of independent statehood came into

existence.

The wording of the Declaration which was actually adopted implied that

the Colonies had always been free states or free and independent

states, and that, by the Declaration, at most their right of

independent statehood came into existence, that they had theretofore

at all times been in political connection, either as free states under

the law of nature and of nations, or as free and independent states by

implied treaty, with the free and independent state of Great Britain,

that the dissolution of the connection had not come about by an act of

secession on their part, but was due to the violation, by the State of

Great Britain, either of the law of nature and of nations, or of the

implied treaty on which the political connection was based.

"Colony,"--or "Free State"? "Dependence,"--or "Just Connection"? "Empire,"--or "Union"? · 第 1 / 6 段