The term "connection" was an apt term to express a relationship of

equality and dignity. "Connection" implies two things, considered as

units distinct from one another, which are bound together by a

connecting medium. Just connection implies free statehood in all the

communities connected. Union is a form of connection in which the

connected free states are consolidated into a unity for the common

purposes, though separate for local purposes. Merger is the fusion of

two or more free states into a single unitary state. Connection

between free states may be through a legislative medium, or through a

justiciary medium, or through an executive medium. The connecting

medium may be a person, a body corporate, or a state. States connected

through a legislative medium, whether a person, a body corporate or a

state, and whether wholly external to the states connected or to some

extent internal to them, whose legislative powers are unlimited or

which determines the limits of its own legislative powers, are

"dependent" upon or "subject" to the will of the legislative medium.

Such states are "dependencies," "dominions," "subject states," or more

accurately "slave-states,"--or more accurately still, not states at

all, but mere aggregations of slave individuals. States connected

through a legislative medium, whether a person, a body corporate or a

state, and whether wholly external to the states connected or in part

internal to them, whose legislative powers are granted by the states

and which has only such legislative powers as are granted are in a

condition of limited dependence, dominion, and subjection, but their

relationship is by their voluntary act and they may, and by the terms

of the grant always do to some extent control the legislative will to

which they are subject and on which they are dependent. Where states

are connected or united through a justiciary medium, whether that

justiciary medium is a person, a body corporate, or a state, all the

states are free states, their relationships being governed by law.

Where states are connected through an executive medium, whether that

executive medium is a person, a body corporate, or a state, all the

states are free and independent states, and each acts according to its

will. All connections in which the legislative medium--whether a

person, a body corporate or a state, and whether wholly external to

the states connected, or to some extent internal to the states

connected,--has unlimited legislative powers or determines the limits

of its own legislative powers, are fictitious connections, the

relationship being really one which implies "empire" or "dominion" on

one side, and "subjection" or "dependence" on the other. Such

connections are properly called "empires" or "dominions." So also all

connections in which the only connecting medium is a common executive,

whether a person, a body corporate or a state, are fictitious

connections, the relationship being one of "permanent alliance" or

"confederation" between independent states. Such connections are

properly called "alliances" or "confederations." The only true

connections are those in which there is a legislative medium, whether

a person, a body corporate or a state, whose legislative powers are

limited, by agreement of the connected states, to the common purposes,

and those in which there is a justiciary medium, whether a person, a

body corporate, or a state, which recognizes its powers as limited to

the common purposes by the law of nature and of nations, and which

ascertains and applies this law, incidentally adjudicating, according

to this law, the limits of its own jurisdiction. Just connections tend

to become unions, it being found in practice necessary, for the

preservation of the connection in due order, that the power of

adjudicating and applying the law for the common purposes should

extend not only to the states, but to all individuals throughout the

states.

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.

"Colony,"--or "Free State"? "Dependence,"--or "Just Connection"? "Empire,"--or "Union"? · 第 2 / 6 段