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.