"Colony,"--or "Free State"? "Dependence,"--or "Just Connection"? "Empire,"--or "Union"?

by Alpheus Henry Snow

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 mediævalism, 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.