Declaration to be the right of the Colonies is by the Declaration
based on the philosophical declarations of the preamble. The
particular proposition which bears upon the right of free statehood is
evidently the one which declares that, "to secure these [unalienable]
rights [of individuals], governments are instituted among men,
deriving their just powers from the consent of the governed." The
intermediate propositions, as the result of which the universal right
of free statehood follows from this proposition, are, it would seem,
these: 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,
although a rudimentary knowledge of what is just is implanted in every
human being, a full knowledge of what is just comes only after a
course of spiritual and intellectual education. Hence it follows that
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 be best 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 divided into voting districts, each
district being under the control of the Central Government, which is
to it an external control. 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, government according to just
public sentiment, and free statehood, are inevitably and forever
linked together as reciprocal cause and effect.
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 common
law of nature and of nations there is a universal right of free
statehood which pertains to all communities on the face of the earth
within territorial limits of suitable size for the development and
operation of a just public sentiment.
So complete and universal are the principles of government by just
public sentiment and of free statehood that, according to the
Declaration, even when all the people of a free state are meeting
together to alter or abolish a form of government which has become
destructive of the ends of its institution, as it is declared they may
rightfully do, their right to form a new government is not absolute so
that they can rightfully do whatever the majority wills, but is
limited by this universal common law, so that they can rightfully
institute only a new form of government whose foundation principles
and mode of organization are such "as to them shall seem most likely
to effect their safety and happiness"--that is, to secure the
unalienable rights of individuals to life, liberty and the pursuit of
happiness.
The declaration of the universal right of free statehood is
accompanied, in the Declaration, by the claim that the Colonies, as
free states, had always been in political "connection" with the State
of Great Britain. The concluding part of the Declaration 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 this it was necessarily 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.
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 limited legislation for the common purposes and 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?'"
According to the opinion of the Revolutionary statesmen, as it would
seem, a universal right of free statehood does not imply a universal
right of self-government. Statehood and self-government are two
different and distinct conceptions. The Americans claimed the right of
free statehood as a part of the universal rights of man, but they
claimed the right of self-government because they were Englishmen
trained by generations of experience in the art of self-government and
so capable of exercising the art. A state is not less or more a free
state because it has self-government. It is a free state when its just
public sentiment is to any extent ascertained and executed by its
government,--however that government may be instituted,--free from the
control of any external power. It does not prevent a region from being
a free state that its government is wholly or partly appointed by an
external power, if that government is free from external control in
ascertaining and executing the just local sentiment to any extent. Nor
does it interfere with the right of free statehood when an external
power stands by merely to see that the local government ascertains
and executes the just local sentiment to a proper extent. The external
power in that case is upholding the free statehood of the region. It
stands as surety for the continuance of free statehood.
The right of self-government, according to this view, is a conditional
universal right of free states. When a community, inhabiting a region of
such territorial extent that it is not too large to make it possible for
a just public sentiment concerning its affairs to be developed and
executed, and not so small as to make it inconvenient that it should be
in any respect free from external control, is of such moral and
intellectual capacity that it can form and execute a just public
sentiment concerning its internal affairs and its relations with other
communities, states and nations, it has not only the right of free
statehood,--that is, of political personality,--which is of universal
right, but also the right of self-government. The right of such a free
state to self-government is complete if there be no just political
connection or union between it and other free states, or partial, if
such a just connection or union exists, being limited, in this latter
case, to the extent necessary for the preservation, in due order, of the
connection or union.
Independence was regarded apparently also, by the Declaration, when it
declared the Colonies to be "free and independent states," to be a
right superadded to the right of free statehood in some cases, and
therefore to be a conditional universal right of free states--that is,
a right universally existing where the conditions necessary to
independence--great physical strength, and great moral and
intellectual ability--exist.
The Colonies regarded themselves as free states in such a just and
rightful connection with the free and independent State of Great
Britain as to form with it a union. From this it followed, inasmuch as
this connection and union was conceived of as existing under a
universal common law, that the State of Great Britain, through its
Government, was the justiciary medium which connected the free states
of that which they conceived of as the British-American Union, and as
such applied the principles of this universal common law for
preserving and maintaining in due order the connection and union.
There, therefore, resulted the conception of Great Britain as what may
perhaps be called "the Justiciar State" of this British-American
Union. If we were to use the exact language of the Revolution, it
would probably be more proper to speak of Great Britain as "the
Superintending State" of the British-American Union, as the power of
Great Britain over the Colonies was generally spoken of by the
Americans as "the superintending power." Lord Chatham used this
expression in his famous bill introduced in the House of Lords. The
expression "Justiciar State," however, seems to be more scientifically
correct. A Justiciar was an official who exercised the power of
government in a judicial manner. His power was neither strictly
legislative, nor strictly executive, nor strictly judicial, but was
complex, being compounded of all three powers, so that his executive
action, taken after judicially ascertaining the facts in each case and
applying to them just principles of law, resulted in action having the
force of legislation.
The Revolutionary statesmen have left a very considerable literature
showing their views concerning the nature of the right of a state to
be the Justiciar State of a Union of States, and concerning the powers
which a Justiciar State may rightfully exercise.
Arguing on the same basis as that adopted by them regarding the right
of self-government and independence, it appears that they considered
the right of a state to act as Justiciar for other states to be a
right superadded to the right of self-government and independence in
some cases--that is, that justiciarship is a conditional universal
right of self-governing and independent states, the conditions
necessary to its existence being great physical strength, a judicial
character and a capacity for leadership.
The power exercised by a Justiciar State in a Justiciary Union, they
recognized as being neither strictly legislative, nor strictly
executive, nor strictly judicial, but a power compounded of all these
three powers. They considered that it was to be exercised for the
common purposes after investigation by judicial methods; that the
just public sentiment of the free states connected and united with the
Justiciar State was to be considered by it in the determination of the
common affairs; and that the action of the Justiciar State was to
result, after proper hearing of the free states and all parties
concerned, in dispositions and regulations made according to just
principles of law, which were to have the force of supreme law in each
of the connected and united free states respectively. This kind of
power, which the Fathers called "the superintending power" or "the
disposing power" under the law of nature and of nations, and which may
be called, using an expression now coming into use, "the power of
final decision," or more briefly "the justiciary power," being neither
legislative, executive nor judicial, but more nearly executive than
legislative, the more conservative among them considered might be
exercised, consistently with the principles of the law of nature and
of nations, either by the Legislative Assembly of the Justiciar State
or by its Chief Executive, advised by properly constituted
Administrative Tribunals or Councils; the action of the Legislative
Assembly superseding that of the Chief Executive in so far as they
might be inconsistent with each other. This right of both the
Legislative Assembly and of the Chief Executive, properly advised, to
exercise the powers of the Justiciar State--the former having supreme,
and the latter superior justiciary power,--under the law of nature and
of nations, is, I believe, also recognized by our Constitution, as I
have elsewhere attempted to show.
Of course there must be conditions of transition where the relations
between free states which would normally be in union, or between
detached portions of what would normally be a unitary state,
temporarily assume a form which is partly one of union or merger, and
partly of dependency. The justification of all such forms of
relationship must, it would seem, be found in the fundamental right
which every independent state, whether a Justiciar state or not, has
to the preservation of its existence and its leadership or
judgeship--that is, in the right of self-preservation, which, when
necessary to be invoked, overrules all other rights. On this theory
must, it would seem, be explained the relations between the American
Union and its Territories, between Germany and Alsace-Lorraine, and
between England and Ireland. On this theory of self-preservation,
also, must, it would seem, be explained the permanent relationship of
dependency which exists between the District of Columbia and the
American Union--such dependency being necessary to the preservation of
the life of the Union.
Out of the conception of a universal common law of nature and of
nations which governs all human acts and relationships,--and therefore
all the acts and relationships of states and nations as well as of
men, bodies corporate and communities,--there has arisen and at the
present time exists, a science of the universal and common law of the
state, called the Science of the Law of the State, which concerns
itself with the internal relations of a state to its people, its
bodies corporate and its communities, and a science of the universal
and common law of independent states, called the Science of
International Law, which concerns itself with the occasional and
temporary relations of independent states. The great field of law
which concerns the permanent relations of free states is not yet
covered by a recognized science. Must there not therefore emerge from
this conception of a universal and common law of nature and of
nations, a third science of law, covering this field, which will take
as its basal proposition the doctrine that free statehood is the
normal and rightful condition of all communities on the earth's
surface within suitable limits for the formation of a just public
sentiment, and which will concern itself with the permanent relations
between free states? As such permanent relations must always be by
just connection, either in its simple form or in the form of union,
may not such a science of law, standing between the science of the Law
of the State and the science of International Law, be called the
science of the Law of Connections and Unions of Free States?
Taking the whole Declaration together, and reading it in the light of
the political literature which was put forth on both sides of the
water between the years 1764 and 1776, it seems to be necessary to
conclude that the views of the most conservative of the American
statesmen of the period concerning the connection between Great
Britain and the Colonies were these:
They considered, as I interpret their language, that the connection
between free and independent State of Great Britain, and the American
Colonies, as free states, had existed and of right ought to have
existed, according to the principles of the law of nature and of
nations--that law being based on principles opposed to the principles
applied by the governments of Europe, and being thus what may be
called a law of nature and of nations according to the American
System. Had they used a more definite and scientific phraseology, it
seems that their view would best be expressed by saying that they
considered that the relationship between Great Britain and the
Colonies had always existed according to the principles of the Law of
Connections and Unions of Free States. They accordingly admitted, as I
understand them, that Great Britain, as a free and independent state,
had power, as Justiciar, over the American Free States, for the common
purposes of the whole Union, to finally decide, by dispositions,
ordinances and regulations having the force of supreme law, made
through its Government after a judicial hearing in each case for the
investigation of facts and the application to them of the principles
of the Law of Connections and Unions of Free States, upon all
questions of common interest arising out of the connection and union;
and that each of the American Free States had power, through its
Legislature, to legislate according to the just public sentiment in
each, and the right to have its local laws executed by its Executive
and interpreted and applied by its Courts, free from all control by
the State of Great Britain, except what was necessary to protect and
preserve the Union.
In this view, the actions of the Americans show the evolution of a
continuous theory and policy, and the application of a single American
system of principles,--a system which was based upon free statehood,
just connection and union. The British-American Union of 1763 was a
Union of States under the State of Great Britain as Justiciar, that
State having power to dispose of and make all rules and regulations
respecting the connected and united free states, needful to protect
and preserve the connection and union, according to the principles of
the Law of Connections and Unions. The dissolution of this Union,
caused by the violation by the State of Great Britain of its duties as
Justiciar State, gave a great impetus to the extreme states-rights
party, and the next connection formed,--that of 1778 under the
Articles of Confederation,--was not a Union, the Common Government
(the Congress) being merely a Chief Executive. Such a connection
proving to be so slight as to be little more than a fiction, they
formed, under the Constitution of 1787, the only other kind of a union
which appears to be practicable, namely, a union under a common
government which was a Chief Legislature for all the connected and
United States by their express grant, and whose powers were expressly
limited, by limitation in the grant, to the common purposes of the
whole connection and union of free states.
If the Constitution, in defining what are the common purposes of the
Union and what the local purposes of the States of the Union, is
declaratory of the principles of the Law of Connections and Unions of
Free States, as it seems not unreasonable to hold, the Limited
Legislative Union formed under the Constitution may perhaps be
considered, in view of the supremacy of the Judiciary, as Guardians of
the Constitution, over the Limited Legislature, as a species of
Justiciary Union.