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.
This theory is not inconsistent with the present doctrine of the
Supreme Court of the United States. It is an application and extension
of that doctrine. To say, as does the Supreme Court, that the American
Union has power over its annexed Insular regions restricted by "the
fundamental principles formulated in the Constitution," or by "the
applicable provisions of the Constitution," is to say that the power
of the Union over these regions is exercised under a supreme law which
is not the Constitution of the United States; for "principles
formulated in the Constitution" are not the Constitution, and to say
that "the applicable provisions" of the Constitution are the
Constitution is to say that a part is the whole. Such a supreme law
can only be a supreme common law, and a common law can be supreme over
a group of scattered states only because it is universal. The only
difference between this doctrine and that of the Supreme Court is that
the Court's doctrine protects only civil rights, while this protects
both civil and political rights.
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 nature and of nations 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 nature and of nations
according to the American System. If the Revolutionary theory as I
have interpreted it is correct, this law of nature and of nations is
everywhere pervasive throughout the American System of Free States. It
is greater than the Constitution of the United States. The
Constitution lives in so far as it truly declares the law of nature
and of nations according to the American System. If the Constitution
is interpreted contrary to this law, as authorizing the Union to treat
its annexed regions as subjects or as creating a hiatus or a conflict
between the powers of the Central and the Local Governments, this
overruling law will compel a new interpretation. On this theory the
"Territory Clause" of the Constitution recognizes the law of nature
and of nations 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 in
accordance with the principles of the law of nature and of nations as
declared in the Declaration of Independence.
How can such a theory endanger the Republic? It will require some new
institutions, no doubt, but they will be institutions in line with
republican ideas and ideals, for they will all be institutions for
discovering and applying the principles of the common law. We shall
only have to enlarge our conception of the common law, by adding to
the definition of Coke, and saying that it is "the perfection of
reason and revelation."
Out of this theory of a universal common law of nations have emerged
the science of the Law of the State, which deals with the internal
relations of states, and the science of International Law, which deals
with the temporary relations between independent States. Why out of
the same theory should there not emerge a science of the Law of
Connections and Unions of States, based on the proposition that free
statehood is the normal form of all community life and the right of
all communities within proper limits on the surface of the earth, and
which will deal with the permanent relations between free states,
whether independent or not,--a science which will occupy the wide
field of human relationships which lies between that now occupied by
the science of the Law of the State and that now occupied by the
science of International Law?
To those who regard all law as an aggregate of eternal and universal
principles inhering in the nature of things, which are discoverable by
man through revelation and reason, and who therefore regard all
governmental action as the ascertainment and application of these
principles, the conception of a common and universal Law of
Connections and Unions of Free States and that of a common and
universal International Law, are equally without difficulty. To those
who regard all law as an act of human will supported by force, the
conception of a common and universal Law of Connections and Unions of
Free States and that of a common and universal International Law, are
equally impossible; and indeed these persons are logically obliged to
deny the existence of any common law of any kind. To those who occupy
the middle ground and regard all law as in one aspect the
ascertainment and application of eternal principles, and in another
aspect an act of human will supported by force, the conception of a
common and universal Law of Connections and Unions of Free States is
less difficult than that of a common and universal International Law,
for the former implies a Justiciar State which is capable of enforcing
its decisions and dispositions, while the latter implies the
non-existence of any political power capable of enforcing the action
agreed or decided upon.
Fortunately, there is every evidence that at the present time this
narrow political sect who believe that law is only a human edict
supported by physical force,--this sect which had its origin in the
dark decades of the nineteenth century when the materialistic
philosophy prevailed--is dying out, under the influence of a general
renaissance. There are, it is to be believed, many who will be ready
and willing to accept as true the statement, which every student of
political history must admit to be true, that the philosophy of the
American Revolution was a religious philosophy. It is indeed perhaps
not too much to say that the period of the American Revolution was the
period in which both political and religious thinking reached the
highest point, and that there is no question of government which has
since arisen which was not either solved by the Revolutionary
statesmen or put in the process of solution.
The political philosophy of the American Revolution has long been
confused with that of the French Revolution. As matter of fact, they
stand at opposite poles. Our philosophy was religious, the French
non-religious. America had been peacefully assimilating, for a century
and a half, the doctrines of the Reformation. France had been held for
two centuries and a half in a condition of mediaevalism, and the
principles of the Reformation had little hold among the people. When
the Americans spoke, it was with the calm wisdom of free-men; when the
French spoke, it was with the folly and excess of intellectual and
spiritual slaves who had suddenly emancipated themselves. To the
Americans, to whom government was the expression of the just public
sentiment, government, equally with religion, was a necessary good; to
the French, to whom government was the expression of the will of the
majority, whether just or unjust, government was a necessary evil and
religion an unnecessary evil. The French Revolution made itself felt,
even in America, for a century. Till within recent years, its
principles have obscured, though they have never wholly eclipsed, the
principles of the American Revolution. But now there seems reason to
believe that the French Revolution has spent its force, and that the
influence of the American Revolution is growing daily stronger. Signs
of this are the councils and conferences which are steadily increasing
in number and in power, on the subject of arbitration as the peaceful
means of settling questions growing out of the relations of
communities, of states and of nations. Arbitration, whether between
persons or between communities, states and nations, implies a
universal and common law. Peace conferences can, it would seem, have
no reasonable purpose and can hope to accomplish no permanent result,
except as they attempt to substitute a universal and common law,
supported by the public sentiment of the civilized world, for human
edicts founded on human will and supported by physical force. The
American System is but the establishment of interstate and
international arbitration as the common and usual course of
governmental action instead of as a voluntary or spasmodic
manifestation of governmental will.
Only on the assumption of the existence of this universal common law
can the relations between us and our Insular brethren be relations
under law, for a written constitution between us and them is
impossible. We realize, as Americans, that somehow these relations
must be under law if they are to be according to the American System,
for we know that there is no liberty except under law, and that the
American System has, for its sole object, human liberty.
If we are right, the American people, in rejecting, as they have, the
European terms "colony," "dependence" and "empire," and the theory
which these terms symbolize, have been true to the American System. In
substituting for these terms the American terms, "free state," "just
connection" and "union" and the American theory which these terms
symbolize, it is not necessary for us to alter in the least our
established views concerning the Constitution as the supreme law of
the Union. It is only necessary for us to realize that the
Constitution is itself but one application of the great principles of
the American System which, as the Supreme Court says, are "formulated"
in it, and to proceed, by a new formulation or by adjudication, to
apply these principles outside the present Union wherever American
jurisdiction extends, in the confident belief that they can be applied
universally, and that, wherever applied, they will bring the blessings
of true liberty.
APPENDIX
THE AMERICAN SYSTEM
THE ANNUNCIATION OF THE AMERICAN SYSTEM
"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."
* * * * *
"We, therefore the representatives of the United States of
America, in General Congress assembled, appealing to the
Supreme Judge of the World for the rectitude of our
intentions do, in the name, and by the authority of the good
people of these Colonies, solemnly publish and declare, That
these United Colonies are, and of right ought to be, Free and
Independent States; that they are absolved from all
allegiance to the British Crown, and that all political
connection between them and the State of Great Britain is,
and ought to be, totally dissolved; and that, as Free and
Independent States, they have full power to levy war,
conclude peace, contract alliances, establish commerce, and
to do all other acts and things which Independent States may
of right do. And, for the support of this Declaration, with a
firm reliance on the protection of Divine Providence, we
mutually pledge to each other our lives, our fortunes and our
sacred honor."
The Continental Congress. Declaration of Independence of
July 4, 1776.
THE ADOPTION OF THE AMERICAN SYSTEM BY THE AMERICAN
UNION IN ITS CONSTITUTION, AS APPLYING TO ITS EXTERNAL
JUSTICIARY RELATIONS
"We, the people of the United States, in order to form a
more perfect Union, establish justice, insure domestic
tranquillity, provide for the common defence, promote the
general welfare, and secure the blessings of liberty to
ourselves and our posterity, do ordain and establish this
Constitution for the United States of America....
"The Executive power shall be vested in a President of the
United States of America....
"The Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or
other property belonging to the United States....
"The Judicial power of the United States shall be vested in
one Supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish.... The
Judicial power shall extend to all cases in law and equity,
arising under this Constitution, the laws of the United
States, and treaties made, or which shall be made, under
their authority."
The Constitutional Convention. The Constitution of the
United States, of September 17, 1787.
THE AMERICAN SYSTEM DIFFERENTIATED FROM THE EUROPEAN BY
PRESIDENT WASHINGTON
"Of all the dispositions and habits which lead to political
prosperity, religion and morality are indispensable
supports. In vain would that man claim the tribute of
patriotism who should labor to subvert these great pillars
of human happiness--these firmest props of the duties of men
and citizens. The mere politician, equally with the pious
man, ought to respect and cherish them. A volume could not
trace all their connections with private and public
felicity....
"Observe good faith and justice toward all nations.
Cultivate peace and harmony with all. Religion and morality
enjoin this conduct. And can it be that good policy does not
equally enjoin it?...
"The great rule of conduct for us in regard to foreign
nations is, in extending our commercial relations, to have
with them as little political connection as possible....
"Europe has a set of primary interests which to us have none
or a very remote relation. Hence she must be engaged in
frequent controversies, the causes of which are essentially
foreign to our concerns. Hence, therefore, it must be unwise
in us to implicate ourselves by artificial ties in the
ordinary vicissitudes of her politics or the ordinary
combinations and collisions of her friendships or enmities.
"Our detached and distant situation invites and enables us
to pursue a different course. If we remain one people, under
an efficient government, the period is not far off when we
may defy material injury from external annoyance; when we
may take such an attitude as will cause the neutrality we
may at anytime resolve upon to be scrupulously respected;
when belligerent nations, under the impossibility of making
acquisitions upon us, will not lightly hazard the giving us
provocation when we may choose peace or war, as our
interest, guided by justice, shall counsel.
"Why forego the advantages of so peculiar a situation? Why
quit our own to stand upon foreign ground? Why by
interweaving our destiny with that of any part of Europe
entangle our peace and prosperity in the toils of European
ambition, rivalship, interest, humor, or caprice?
It is our true policy to steer clear of permanent alliances
with any portion of the foreign world."
President Washington. Farewell Address, September 17, 1796.
THE AMERICAN SYSTEM AS DEFINED BY PRESIDENT
JEFFERSON
"I deem the essential principles of our government [to be]
Equal and exact justice to all men, of whatever state or
persuasion, peace, commerce, and honest friendship with all
nations, entangling alliances with none, the support of the
State Governments in all their rights, as the most competent
administrations for our domestic concerns and the surest
bulwarks against anti-republican tendencies, the
preservation of the General Government in its whole
constitutional vigor, as the sheet-anchor of our peace at
home and safety abroad."
President Jefferson. First Inaugural Address, March 4, 1801.
THE EXTENSION OF THE EUROPEAN SYSTEM TO THE WESTERN
HEMISPHERE DECLARED INCOMPATIBLE WITH THE AMERICAN SYSTEM,
BY PRESIDENT MONROE.
"The political system of the Allied Powers is essentially
different ... from that of America. This difference proceeds
from that which exists in their respective Governments, and
to the defence of our own, which has been achieved by the
loss of so much blood and treasure, and matured by the
wisdom of their most enlightened citizens, and under which
we have enjoyed unexampled felicity, this whole nation is
devoted. We owe it, therefore, to candor and to the amicable
relations existing between the United States and those
Powers, to declare that we should consider any attempt on
their part to extend their system to any portion of this
hemisphere as dangerous to our peace and safety....
"It is impossible that the Allied Powers should extend their
political system to any portion of either continent without
endangering our peace and happiness."
President Monroe Annual Message of December 2, 1823
THE AMERICAN SYSTEM DECLARED TO HAVE EXTENDED ITSELF TO
THE WHOLE WESTERN HEMISPHERE, BY PRESIDENT JOHN QUINCY
ADAMS
"Among the inquiries which were thought entitled to
consideration before the determination was taken to accept
the invitation [to the proposed Congress of the American
Republics at Panama], was that whether the measure might not
have a tendency to change the policy, hitherto invariably
pursued by the United States, of avoiding all entangling
alliances and all unnecessary political connections.
"Mindful of the advice given by the Father of our Country in
his Farewell Address, that the great rule of conduct for us
in regard to foreign nations is in extending our commercial
relations, to have with them as little political connection
as possible, and faithfully adhering to the spirit of that
admonition, I can not overlook the reflection that the
counsel of Washington in that instance, like all counsels of
wisdom, was founded upon the circumstances in which our
country and the world around us were situated at the time
when it was given that the reasons assigned by him for his
advice were that Europe had a set of primary interests which
to us had none or a very remote relation, that hence she
must be engaged in frequent controversies, the causes of
which were essentially foreign to our concerns, that our
detached and distant situation invited and enabled us to
pursue a different course, that by our union and rapid
growth, with an efficient Government, the period was not far
distant when we might defy material injury from external
annoyance, when we might take such an attitude as would
cause our neutrality to be respected, and, with reference to
belligerent nations, might choose peace or war, as our
interests, guided by justice, should counsel."