Chapter 1

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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.