Chapter 3

The wording of the Declaration which was actually adopted implied that the Colonies had always been free states or free and independent states, and that, by the Declaration, at most their right of independent statehood came into existence, that they had theretofore at all times been in political connection, either as free states under the law of nature and of nations, or as free and independent states by implied treaty, with the free and independent state of Great Britain, that the dissolution of the connection had not come about by an act of secession on their part, but was due to the violation, by the State of Great Britain, either of the law of nature and of nations, or of the implied treaty on which the political connection was based.

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.