Chapter 4

Thus, if our interpretation of the Declaration is correct, there was 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.