The United States of America: a study in international organization
Scott, James Brown, 1866-1943
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They carried the common law of England along with them, and jurisprudence is the department of human knowledge to which, as pointed out by Burke, they have chiefly devoted themselves, and in which they have chiefly excelled. (Lord Campbell in Regina v. Millis, 10 Clark & Finnelly, 777, decided in 1844.) Sitting, as it were, as an international, as well as a domestic tribunal, we apply Fed- eral law, state law, and international law, as the exigencies of the particular case may demand. {Chief Justice Fuller in Kansas v. Colorado, 185 United States, 125, I46-'I47, de- cided in 1902.) Confederations have existed in other countries than America; republics have been seen elsewhere than upon the shores of the New World; the representative system of government has been adopted in several states of Europe; but I am not aware that any nation of the globe has hitherto constituted a judicial power in the same manner as the Americans. {Alexis de Tocqueville, De la Democratie en Amerique, 2 Vols., 1835, Vol. I, p. 138.) The Supreme Court of the United States, which is the American Federal institution next claiming our attention, is not only a most interesting but a virtually unique creation of the founders of the Constitution. . . . The success of this experiment has blinded men to its novelty. There is no exact precedent for it, either in the ancient or in the modern world. (Sir Henry Sumner Maine, Popular Government, 1886, pp. 217-218.) American experience has made it an axiom in political science that no written constitution of government can hope to stand without a paramount and independent tribunal to deter- mine its construction and to enforce its precepts in the last resort. This is the great and foremost duty cast by the Constitution, for the sake of the Constitution, upon the Supreme Court of the United States. {Edward John Phelps, The United States Supreme Court and the Sovereignty of the People, 1890, Orations and Essays, 1901, pp. 58-59.) The extraordinary scope of judicial power in this country has accustomed us to see the operations of government and questions arising between sovereign states submitted to judges who apply the test of conformity to established principles and rules of conduct embodied in our constitutions. It seems natural and proper to us that the conduct of government affecting substantial rights, and not depending upon questions of policy, should be passed upon by the courts when occasion arises. It is easy, therefore, for Americans to grasp the idea that the same method of settlement should be applied to questions growing out of the conduct of nations and not involving questions of policy. (Elihu Root, Judicial Settlement of International Dis- putes, 1908, Addresses on International Subjects, 1916, pp. 15^-2.) THE UNITED STATES OF AMERICA A STUDY IN INTERNATIONAL ORGANIZATION JAMES BROWN SCOTT, A.M., J.U.D., LL.D. Technical Delegate of the United States to the Second Hague Peace Conference, 1907; Technical Delegate of the United States to the Peace Conference at Paris, 1919. "I send you enclos'd the propos'd new Federal Constitution for these States. I was engag'd 4 Months of the last Summer in the Convention that form'd it. It is now sent by Congress to the several States for their Confirmation. If it succeeds, I do not see why you might not in Europe carry the Project of good Henry the 4th into Execution, by forming a Federal Union and One Grand Republick of all its different States & Kingdoms ; by means of a like Convention ; for we had many Interests to reconcile." Benjamin Franklin to Mr. Grand. October 22. 1787. — Docu- mentary History of the Constitution of the United States of America, Vol. IV, 1905, pp. 341-2. NEW YORK OXFORD UNIVERSITY PRESS AMERICAN BRANCH: 35 WEST 32nd STREET London, Toronto, Melbourne and Bombay 1920 •h^ '"i^ COPYRIGHT 1920 BY THB CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACH Washington, R. C tQStltutloir NOV 2'.. 1020 TO ROBERT BACON IN AFFECTIONATE ADMIRATION PREFACE The United States of America constitute a union of States, " a more perfect Union," to use the language of the preamble to the Constitution, than that under the Articles of Confederation which the Constitution was devised to supplant. On July 4, 1776, the thirteen British colonies lying between the Gulf of Mexico and Canada, to the east of the Mississippi, abjured allegiance to the British Crown and solemnly published and declared themselves to be " Free and Independent States " possessing, as the Declaration of Independ- ence stated, " full power to levy War, conclude Peace, contract Alliances, es- tablish Commerce, and to do all other Acts and Things- which Independent States may of right do." Availing themselves of their right to contract alli- ances, they entered into " a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to. or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever." " Stiling " this confederation " The United States of America," and declaring in explicit terms that " each State retains its sovereignty, freedom and independence, and every power, jurisdic- tion and right, which is not by this confederation expressly delegated to the United States, in Congress assembled," the Articles of Confederation creating this union of the States were approved by their delegates in Congress Novem- ber 15, 1777, and ratified by the last of the thirteen States on March 1, 1781. The firm league of friendship failing of the purposes for which it was cre- ated by the delegates of the States in Congress assembled and ratified by the States themselves, the Congress on February 21, 1787, resolved it to be expe- dient that " on the second Monday in May next, a Convention of Delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and re- porting to Congress and the several Legislatures, such alterations and provi- sions therein, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constittition adequate to the exigencies of Government, and the preservation of the Union." In pursuance of this resolution the delegates of twelve of the States met in convention in the month of May and adjourned on September 17, 1787, having drafted a constitution for a more perfect Union of the United States which, ratified by the thirteen original States in the course of the ensuing three years, today controls the conduct of forty-eight States and which in practice as well as in theory has proved adequate to the " exigencies of government and the preservation of the Union." In the belief that the experience of the American States proclaimed to be free and independent in their Declaration of Independence, each retaining " its sovereignty, freedom and independence " under the Articles of Confederation, would be of value in any attempt to strengthen that larger union of States which we call the Society of Nations, the undersigned has ventured to treat within the compass of a volume some of the international problems met and solved by the framers of a more perfect Union under the caption of " The United States of America: A Study in International Organization." James Brown Scott. Washington, D. C, November ii, ipi8. PosTSCRiPTUM, May ii, 1920. — Absence from the country and difficulties in printing have delayed the appearance of the present volume. The text, however, speaks from Armistice Day, 19 18. Two additions of a later date have been made in the extracts prefixed to chapters: the first is the text of the settlement of the controversy between Virginia and West Virginia (Chapter XIII) ; the second is Mr. Root's defini- tion of a justiciable question (Chapter XX). The text of the Eighteenth Amendment to the Constitution of the United States as printed in the Appendix has also been added. I have left untouched the dedication to my beloved friend, Robert Bacon, whose noble Hfe ended on May 29, 1919.— J. B. S. TABLE OF CONTENTS CHAPTER I Rise of the Idea of Union PAGE The Mayflower Compact 3 Early plans of union 6 New England Confederation 6 William Penn's " Scheam " 9 Benjamin Franklin's plan 11 The two views — imperial and colonial 15 Foresight IS Dr. Franklin's second plan 16 CHAPTER II Independence Declared The fundamental right 22 Colonial view 22 Imperial view 22 A Continental Congress 23 Declaration and resolves 24 An association 26 Another declaration and a petition 27 The notion of independence 29 The final step 29 The Declaration signed and proclaimed 30 Its political philosophy 31 Monroe's conception of the results 33 A new body politic 34 Our first and only ally 34 Origin of the doctrines 35 CHAPTER III A Confederation of Sovereign States Mr. Dickinson's plan 40 A United States Congress 40 Large and small States 41 The two forms of the Articles 41 Nature of the Union 42 Powers renounced 42 Powers of Congress 43 Peace and war 43 Congress with appellate jurisdiction 44 Suggestion of a judiciary 45 Defects 45 xii TABLE OF CONTENTS PAGE Excellences - 46 International significance 47 James Madison's summary of the weakness 47 Personal interests 52 Sovereignty 52 Mr. Madison's view of public ofi&cers 53 Dissatisfaction 53 Four proposals that failed 53 Economic troubles. 54 Coercion of States 55 Private initiative 55 Convention at Annapolis 56 Another convention proposed 56 Congressional approval 57 Union of sovereign States 58 CHAPTER IV Early Backgrounds of the American Constitution: The Trading Companies Colonial charters 64 Genesis of authority of Supreme Court in questions of constitutionality 65 Two kinds of charters 66 Corporations 66 By-laws 67 Development of trading companies 68 Spread to America 70 A second charter 71 A third charter 72 Court and assembly 72 Great and general courts 73 A representative assembly 74 A forecast of American liberty 74 Ratification required 75 Two houses 76 Distinction between North and South 11 The Plymouth Company 78 Growth of representative institutions 82 Virginia and Massachusetts Colonies compared 83 New instruments of government reverted to charters 84 CHAPTER V Further Colonial Precedents "Once an Englishman always an Englishman" 90 Relation of English law to Colonies 90 Rights of conquest v. rights of discovery 91 Blackstone's interpretation 91 Rights of discovery the true basis 92 Blankard v. Galdy 92 Common law of England followed colonists 93 Colonial statutes 97 TABLE OF CONTENTS XIU PAGE Conflict of interests : 99 Prerogatives of the Crown 99 Lords Commissioners of Trade and Plantations 99 Committee for Hearing Appeals 100 Three kinds of appeals from Colonial courts 100 Precedent for the power of the Supreme Court over Legislatures 101 Suit of a citizen v. a State 102 Holden and Green petition 102 Further judicial precedents 108 Boundary dispute between New York and New Jersey 109 From negotiation to judicial procedure 109 Debt to litigious Rhode Island 118 Justice to the small State 118 Legal controversies over Colonial laws 119 Another precedent for granting power of Supreme Court to declare legislative acts un- constitutional 121 Penn v. Lord Baltimore 123 A political dispute may become justiciable 125 CHAPTER VI Establishment of State Constitutions Impending revolution 129 Desire to prevent anarchy 129 Recommendation of Congress 130 American political background in 1787 131 Influence of charters 131 The three branches of government 132 Sovereignty vested in the people 133 A social and a political compact 134 Compact a fundamental law 135 Revenue bills 136 Governor's signature 136 Legislative powers 137 Executive powers 138 Judicial powers 138 Source of law 139 CHAPTER VII The Federal Convention : An In'teknational Conference Demands of commerce and navigation 145 Way, 1787 147 Large and small States 148 Organization of the Federal Convention 148 An international conference 149 Instructions to delegates 150 Committee on rules and orders 153 International aspects of the Convention 155 Opening of the Convention 156 Mr. Randolph's fifteen resolutions 158 The four groups 159 Xiv TABLE OF CONTENTS 1 PAGE Change of purpose 160 A union of free States 161 The word " national " 162 Other "plans" 163 National v. federal government 164 Coercion of States 165 Enumeration of general powers 165 International law in the Constitution 167 Government of laws and not of men 168 Seat of government 168 Government of limited powers 168 CHAPTER VIII Creation of the Federal Legislature The spirit of compromise 172 The two branches of the legislature 172 Questions of representation 173 Large and small States. 174 Equality of States 175 The New Jersey plan 177 The Connecticut proposal ... 179 Diversity of views 181 Victory of the smaller States 185 The first great compromise 187 The second compromise 187 Grant of legislative power 190 CHAPTER IX Creation of the Executive A single executive 195 Term of office 195 Electoral system 196 President's oath of office 197 His great powers 197 Treaties 197 A check upon the legislature 200 Executive and judicial vetoes 202 Laws operate on individuals 202 The use of force against a State 203 CHAPTER X The First Permanent Tribunal of the States Voluntary self-denials, including disarmament 210 Diplomatic and military settlements 210 Another kind of settlement 211 Courts of the Confederated States 211 International questions 212 International imphcations of the Confederate judiciary 212 TABLE OF CONTENTS XV PAGE Lessons of the State courts 213 Trial of piracies and felonies 214 The first federal tribunal 215 First case of appeal 218 Congressional Committee on Appeals 218 The case of The Active 220 Congressional resolutions — the relation of States 221 CHAPTER XI Temporary Judicial Commissions Nature of the commissions 229 Influence of Privy Council 230 Pennsylvania v. Connecticut 231 Two other cases 234 Significance of the temporary tribunals 238 Other appeals to Congress 238 Dispute involving the existence of a State 238 Pennsylvania v. Virginia 241 Congress refuses to appoint a court 242 CHAPTER XII Creation of the Supreme Court Necessity for a common judiciary 247 Problem of sovereignty 248 Differences of opinion 249 The two plans 249 The Virginian plan 250 The New Jersey plan 256 Question of appointment of judges 257 Committee of Detail 260 Draft proposals 261 CHAPTER XIII Prototype of a Court of International Justice Questions arising under treaties 268 How political questions become judicial 270 Arbitration considered 270 Original and appellate jurisdiction 272 Impeachment 272 Powers of the Court 274 The supreme law of the land 276 The question of sanction 279 Coercion of law v. coercion of force 279 CHAPTER XIV The Admission of New States The Northwest Ordinance 286 Compact between people of States and Northwestern Territory 288 Attitude of large States 291 Xvi TABLE OF CONTENTS PAGE Virginia relinquishes claim 293 New States on equality with old 294 Government of the territories 295 CHAPTER XV Amendments and Ratification Provisions for amendment 299 Representation of small States not subject to amendment 300 Methods of amendment 300 A system of double constitutions 302 The power to amend 304 Ratification 305 Discussion of the mode of ratification 305 Sovereign people 308 The spirit of the ratifications 309 Difficulties of ratification 312 Contest in New York 314 The Federalist 315 CHAPTER XVI Government Set Up: Amendments Per interim 321 The new Government begun 322 Amendments moved 323 Demand for a Bill of Rights 324 Relation of States to the Union 325 Amendments before the Senate 326 Powers not delegated are reserved to the States 328 Value of the amendments 330 State con%-entions 331 The first ten amendments 331 Difficulties overcome 332 The sovereignty of the States. 333 The division of sovereign powers 334 CHAPTER XVII The Nature of Judicial Power The influence of Montesquieu 341 Limitation of powers 342 Congress defines extent but not nature of the Court's power 342 Judicial power defined by Court itself 343 Influence of English common law 343 English cases on the judicial power 344 An American case 349 Court can pass on constitutionality of a legislative act 349 Extra-judicial duties 350 Powers of Court strictly judicial 353 TABLE OF CONTENTS XVU PAGE Further distinction between judicial and other powers 354 Appellate jurisdiction 357 Original jurisdiction 358 The Court may compel individuals but not States to appear 359 Sovereignty of States protected 359 Separation of powers 360 Finality of the Court's decree 360 Court's relation to the Government and to the States 369 CHAPTER XVIII Powers of the Supreme Court Determination of constitutionality 374 Powers purely judicial 375 Political contrasted with judicial powers 376 Judicial power as to treaties 378 President's rights under international law 382 CHAPTER XIX Extent and Exercise of Judicial Power The question of extent 398 Court defined 400 The word " supreme " 400 Finality 400 Jurisdiction 400 Determination of jurisdiction 401 "Judiciary Act" 402 " Nature and extent " determined 405 The liability of States 410 How cases may arise in law and equity 412 Is judicial power concurrent or exclusive? 413 Confusion over political v. judicial questions 418 How political questions become judicial 420 Application to Society of Nations 424 CHAPTER XX Case — Controversy — Suit Supreme Court functions in cases only 427 "Case" defined 427 "Suit" defined 428 Cases and controversies 429 International "case" 431 CHAPTER XXI Judicial Powers and Their Relation to Law and Equity, to Admiralty, Maritime AND International Law Definition of " law " and " equity " 438 Influence of English terminology 438 XVlll TABLE OF CONTENTS PAGE Blackstone and Vattel 439 International law the common law of nations 439 Law and equity 440 Common law limited to civil cases 441 Common law applicable in cases covered by special legislative act 442 Interpretation of terms 442 Admiralty and maritime jurisdiction included 447 An International Court of Prize 447 CHAPTER XXII Immunity of States and Nations itrom Suit Suits against States 453 Coercion of States 453 Judicial power over States 453 Consent to be sued 454 Sovereignty not always an exemption 456 Suit without consent inconsistent with sovereignty 457 Waiving of sovereignty 457 A plaintiff sovereign relinquishes a degree of sovereignty 462 The sovereign becomes subordinate to law 464 Further renunciation of immunity from suit by a sovereign power 464 A State may sue a State 465 CHAPTER XXIII A More Perfect Society of Nations The great problem 467 A possible solution 468 APPENDIX A. Plans of Union for the Colonies and the States of North America I. The New England Confederation of 1643 471 II. William Penn's plan for a union of the Colonies, February 8, 1698 476 III. Benjamin Franklin's plan for a union of the several Colonies adopted at Albany, July 10, 1754 477 IV. Benjamin Franklin's Sketch of Articles of Confederation read before Congress, June 21, 1775 488 V. The Declaration of Independence, July 4, 1776 492 VI. Articles of Confederation adopted by Congress, November 15, 1777, ratified by the last of the thirteen States, March 1, 1781 494 VII. The Constitution of the United States adopted September 17, 1787, in effect from and after March 4, 1789 502 B. An Ordinance for the Government of the Territory of the United States Northwest of the River Ohio 514 C. Documents from Which the Constitution was Evolved I. Text of Mr. Randolph's Resolutions, presented to the Convention May 29, 1787. 520 II. Outline of the Pinckney Plan presented to the Convention May 29, 1787. .522 TABLE OF CONTENTS XIX PAGE III. Report of the Committee of the Whole on Mr. Randolph's propositions, June 13, 1787 524 IV. Text of the New Jersey Plan, moved by Mr. Patterson June 15, 1787. .525 V. Alexander Hamilton's sketch of a Government for the United States, presented June 18, 1787 527 VI. Mr. Randolph's Resolutions as revised and enlarged by the Convention and re- ferred July 26, 1787, to the Committee of Detail 529 VII. Report of the Committee of Detail, August 6, 1787 532 VIII. Proceedings of Convention referred to the Committee of Style and Arrange- ment 541 IX. The Constitution as reported by the Committee on Style, September 12, 1787, and as signed, September 17, 1787 552 X. Letter transmitting the Constitution to Congress, September 17, 1787 .... 570 XL Resolution of the Convention, September 17, 1787, that Congress transmit the Constitution to the States for ratification 571 D. Amendments to the Constitution I. The first ten amendments to the Constitution in lieu of a Bill of Rights. 572 II. Subsequent amendments to the Constitution 573 Index 577 THE UNITED STATES OF AMERICA: A STUDY IN INTERNATIONAL ORGANIZATION I. RISE OF THE IDEA OF UNION A prima descendit origine mundi Causarum series. (Lucan, Pharsalia, Book VI.) The appreciation of a great and vital want will account for the origin of the idea of a common union. A study of its embodiment reveals the feature of growth. It is so original and peculiar, that it may be termed American. (Richard Frothingham, The Rise of The Republic of the United States, 1872, p. 28.) Often, too, an institution may appear to be the result of direct imitation, when in fact it may be the product of a common race instinct, as in the case of the representative system reproducing itself in all the branches of the Teutonic race. The law of historical continuity, or political inheritance, is not inconsistent with the law of historical variation, or political originality. In fact, the greater the accumulations of past experiences, the greater will be the capacity to solve by original methods the problems presented by new experiences. {William C. Morey, The First State Constitutions, 1893, Annals of the American Academy of Political and Social Science, Vol. IV. part I, p. 203.) Mr. John Stuart Mill said, in his essay on De Tocqueville's " Democracy in America," that "the whole edifice was constructed, within the memory of man, upon abstract principles." If we are to understand these expressions as meaning that the Constitution sprang into being, like Athene from the brain of Zeus, or that it was the work of doctrinaires en- deavoring to found an ideal republic, it would be easy to show their falsity. The Con- stitution " has its roots deep in the soil of the past." No one generation, whatever its experience, could have invented such a system. It is a development, under a new environ- ment, of old forms of government. Everything in it that was new was a " conservative innovation." {W. T. Brantly, Of the Influence of European Speculation in the Formation of the Federal Constitution, 18S0, in Southern Law Review, New Series, Vol. VI, p. 351.) Yet it is a characteristic of the race both in England and America that it has never really broken with the past. Whatever of novelty may appear from time to time, there is ever under all the great and steady force of historic continuity. (C. Ellis Stevens, Sources of the Constitution of the United States, 1894, 2nd edition, p. xvii.) In fact, the distribution of political powers between co-ordinate governments — a system which sprang up in Plymouth, Massachusetts Bay, Connecticut and Rhode Island — had no existing counterpart in the countries of the civilized world. It can be historically ex- plained only as the instinctive reproduction of primitive institutions under the influence of a primitive environment. {I'Villiam C. Morey, The Sources of American Federalism, 1893, The American Academy of Political and Social Science, Vol. VI, p. 211.) The new political system was a modification neither of the Confederation of 1781, nor of the Albany Union of 1754, nor of the New England Confederacy of 1643. These super- ficial alliances served, it is true, to bring the colonies and States into more amicable relations, by which they could aid each other against their common foes. But none of them contained the essential and distinctive features of that composite state-system which was established by the Constitution of 1787. It is not, properly speaking, the original composition of one body of men, nor the outcome of one definite epoch, — it is more and better than that. It does not stand in historical isola- tion, free of antecedents. It rests upon very old principles, — principles laboriously worked out by long ages of constitutional struggle. It looks back to the annals of the colonies and of the mother-land for its sources and its explanation. And it was rendered possible, and made what it is, by the political development of many generations of men. {C. Ellis Stevens, Sources of the Constitution of the United States, 1894, 2nd edition, pp. viii-ix.) The best reason for American pride in the Constitution lies, not in the creative genius of its framers, nor in the beauty and symmetry of their work, but in the fact that it was and is a perfect expression of the institutional methods of its people. It is for that reason that it meets their needs as well to-day as in 1787-89. So long as they shall continue in the ways of their fathers ; so long as they shall regard with pronounced disfavor the political quacks who constantly beg them to hazard a trial of never-tested remedies : so long may they continue to take a just pride in their Constitution, under all its possible coming changes, as one which has been " adequately discussed," and the results of the discussion of which have been fully "tested by experiment." {Alexander Johnston, The First Century of the Constitution, The New Princeton Review, Vol. IV, No. 2, 1887, p. 190.) . CHAPTER I RISE OF THE IDEA OF UNION On the 11th day of November, according to the old, but on the 21st day of November, 1620, according to the new order of things, some forty-one pas- sengers of the Mayflower, whom a grateful posterity calls the Pilgrims, bring- ing to the New World a new type of men and a new spirit which we may with just pride call the American spirit, entered into a compact for their government when they should leave the little vessel which had carried them across a stormy ocean out of their course to the Hudson, for which region they had a patent, to the inhospitable shores of New England, for which they had no patent. The passage across the Atlantic had been stormy in more ways than one. for, in the absence of a patent from the New England Company, the Pilgrims were without title to the soil upon which they were soon to set foot. In the absence of a charter from the Crown, they were without authority to govern themselves as a body politic. Because of these things and also because of the frailties to which even some of their number were subject, the better part of them, believing that government as instituted among men derives its just powers from the consent of the governed and that this consent was in itself a compact on their part, entered into that agreement which we today call the Mayflower Compact, which they thus happily expressed : In y° name of God, Amen. We whose names are underwriten, the loyall cSmJalt^""*' subjects of our dread soveraigne Lord, King James, by y" grace of God, of Great Britaine, Franc, & Ireland king, defender of y^ faith, &c., haveing undertaken, for y" glorie of God, and advancemente of y® Christian faith, and honour of our king & countrie, a voyage to plant y" first colonic in y® Northerne parts of Virginia, doe by these presents solemnly & mutualy in y* presence of God, and one of another, covenant & combine our selves togeather into a civill body politick, for our better ordering & preservation & further- ance of y" ends aforesaid ; and by verlue hearof to enacte, constitute, and frame such just & eqiiall lawes, ordinances, acts, constitutions, & offices, from time to time, as shall be thought most meete & convenient for y^ generall good of y® Colonic, unto which we promise all due submission and obedience.^ Just as the separatists, whom we call the Pilgrim fathers, traversed a waste of waters from the Old World to the New, so separatists in the political sense 1 William Bradford, History of Plymouth Plantation, Collections of the Massachusetts Historical Society, 1856, 4th Series, Vol. iii, pp. 89-90. 3 4 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION of the word traversed a waste of wilderness and left three of the then eight towns of Massachusetts Bay in 1635, pushing to the west — with the permis- sion, be it said, of that commonwealth, or rather, acting under a commission of its General Court for a twelvemonth. Establishing three towns on the western bank of the Connecticut River, they laid the foundation of the State of that name; furnishing in its constitution of 1639, known as the Funda- mental Orders of Connecticut, what has been called the first written constitu- tion in the modern sense of the term as a permanent lirnitation on governmental powers known in history, and suggesting, it has been claimed, by the confed- eration of its towns, which, however, retained the power not delegated to the State, the idea of that more perfect Union composed of the American States. The spirit which pervaded these newer Pilgrims, and which today pervades the western world, was stated by Thomas Hooker, one of the chief settlers, from his pulpit in Hartford some seven months before the Fundamental Or- ders were drafted and went into effect. He chose for his text the 13th verse of the first chapter of Deuteronomy : " ' Take you wise men, and under- standing, and known among your tribes, and I will make them rulers over you.' Captains over thousands, and captains over hundreds — over fifties — over tens, &c." In the course of his sermon he is reported to have said, under the caption of Doctrine, in the brief extract of it made by one of the congrega- tion: I. That the choice of public magistrates belongs unto the people, by God's own allowance. II. The privilege of election, which belongs to the people, therefore, must not be exercised according to their humours, but according to the blessed will and law of God. III. They who have power to appoint officers and magistrates, it is in their power, also, to set the bounds and limitations of the power and place unto which they call them. And the American Hooker is reported as giving for his American polity the following Reasons: 1. Because the foundation of authority is laid, firstly, in the free con- sent of the people. 2. Because, by a free choice, the hearts of the people will be more in- clined to the love of the persons [chosen] and more ready to yield [obedi- ence]. 3. Because, of that duty and engagement of the people.^ In the preamble to the Fundamental Orders, the American theory of gov- ernment is thus stated, omitting provisions concerning churches, in which mem- bership, however, was not essential to the exercise of civil rights: 1 Abstracts of Two Sermons by Rev. Thomas Hooker, from the short-hand notes of Mr. Henry Wolcott, Collections of the Connecticut Historical Society, 1860, Vol. i, p. 20. RISE OF THE IDEA OF UNION P Forasmuch as it hath pleased the Allmighty God by the wise disposition of his diuyne p''uidence so to Order and dispose of things that we the In- habitants and Residents of Windsor, Harteford and Wethersfield are now cohabiting and dwelHng in and vppon the River of Conectecotte and the Lands thereunto adioyneing; And well knowing where a people are gath- ered togather the word of God requires that to mayntayne the peace and vnion of such a people there should be an orderly and decent Gouernment estab- lished according to God, to order and dispose of the affayres of the people at all seasons as occation shall require ; doe therefore assotiate and conioyne our selues to be as one Publike State or Corhonwelth ; and doe, for our selues and our Successors and such as shall be adioyned to vs att any tyme here- after, enter into Combination and Confederation togather, to mayntayne and p''searue the liberty and purity of the gospell of our Lord Jesus w'^'^ we now p''fesse ... ; As also in o"" Ciuell Affaires to be guided and gouerned according to such Lawes, Rules, Orders and decrees as shall be made, ordered & decreed. } As in the case of Plymouth, so in the settlements in the Connecticut valley, there was apparently no grant of title to land and there was no charter from the Crown. In the Mayflower Compact, the signers profess loyalty and obedience to their " dread soveraigne Lord," but find in themselves authority " to enacte, constitute, and frame such just & equall laws, ordinances, acts, constitutions, & offices, from time to time," which they themselves shall con- sider to be in the general interest and good of the colony. 1 F. N. Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States of America, 1909, Vol. I, p. 519; B. P. Poore, The Fed- eral and State Constitutions, Colonial Charters, and Other Organic Laws of the United States. 1877, p. 249. -Thorpe, ibid., p. 520; Poore, ibid., p. 250. b THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION The possibility of union was present to the minds of the American colonists even in the 17th century, shown by the New England Confederation, organized in 1643 and surviving the restoration of the Stuarts in 1660. William Penn, a great and a good man, held in grateful remembrance not only by the Com- monwealth which bears his name but by the American people, and indeed the world at large, proposed a union of the colonists as far back as 1697. A plan proposed by Dr. Franklin in 1754 was, as its author aptly said, rejected in America because it had too much of the prerogative, and in England because it was too democratic, and was therefore not in accord with the plans of the home government. These plans are of interest as showing how propinquity leads to union, and in our case to a union recognizing the greater interest of the whole without degrading the colonies or the states into provinces. The aim or purpose of the New England Confederation, as it is generally called, is admirably and quaintly set forth in what may be called the preamble, or inducement to it, and the first article runs as follows : Whereas we all came into these parts of America with one and the same end and ayme, namely, to advance the Kingdome of our Lord Jesus Christ, and to enjoy the liberties of the Gospel, in purity with peace ; and whereas in our settling (by a wise providence of God) we are further dispersed upon the Sea-Coasts and Rivers, then was at first intended, so that we cannot (ac- cording to our desire) with convenience communicate in one Government and Jurisdiction ; and whereas we live encompassed with people of severall Na- tions, and strange languages which hereafter may prove injurious to us and our posterity: And forasmuch as the Natives have formerly committed sundry insolencies and outrages upon severall Plantations of the EngHsh, and have of late combined themselves against us. And seeing by reason of the sad Distractions in England, which they have heard of, and by which they know we are hindered both from that humble way of seeking advice or reaping those comfortable fruits of protection which, at other times, we jnight well expect; we therefore doe conceive it our bounden duty, without delay, to enter into a present Consotiation amongst our selves, for mutuall help and strength in all our future concernments, that, as in Nation, and Religion, so, in other respects, we be, and continue, One, according to the tenour and true meaning of the ensuing Articles. ^- I. Wherefore it is fully Agreed and Concluded by and between the parties, or Jurisdictions above named, and they doe joyntly and severally by these presents agree and conclude, That they all be, and henceforth be tailed by the name of The United Colonies of New-England} The second article states that the United Colonies entered into this " firm and perpetuall league of friendship and amity, for offence and defence, mutuall advice and succour . . . and for their own mutuall safety, and wellfare." The third article limits the Union to the colonies of Massachusetts, Ply- 1 Records of the Colonv or Jurisdiction of New Haven from May, 1653, to the Union, Charles J. Hoadly, ed., 1858, p. 562. RISE OF THE IDEA OF UNION / mouth, Connecticut and New Haven, leaving out Rhode Island unless it would acknowledge the jurisdiction either of Massachusetts or of Plymouth. This the Rhode Island settlement refused to do and its application for admission was rejected. This little community has had a mind of its own. It was not a member of the first Union; it failed to send delegates to the Constitutional Convention of 1787, and it left itself out of that greater Union which we call the United States until it, the smallest, decided to throw in its lot with the other and larger States. The fourth article provided that the expenses of warfare, — wars were to be just, — offensive or defensive, " both in men, provisions, and all other disburse- ments," should be borne according to the males within each of the colonies " from sixteen yeares old, to threescore, being inhabitants there," and the spoils of war, if any there should be, were to be " proportionably divided among the said Confederates." The fifth article declared that Massachusetts, as the larger colony, should furnish against the enemy one hundred armed men, and that each of the others should furnish forty-five, and in this proportion if more or less were needed. This was, however, only to apply to jCist wars. A method was needed and provided for determining whether the wars were just, for if they were not the " Confederates " were not to be saddled with the expense of the member caus- ing an unjust war. The commissioners of the Confederation were to deter- mine this, " and if it appear, that the fault lay in the party so invaded, that then, that Jurisdiction, or Plantation, make just satisfaction, both to the invad- ers, whom they have injuried, and bear all the charges of the war themselves, without requiring any allowance from the rest of the Confederates toward the same." ^ After having stated the general aims and purposes of the Confederation to be for mutual protection, and the part which each should play in case of war, which the Union evidently contemplated as a defensive measure, the articles pass to a question no less important and more germane to the present purpose. In the sixth article the Confederation is looked upon as having interests of its own, superior to and different from the interests of the contracting parties, and a careful line of demarcation is drawn between the league on the one hand and the members thereof on the other. Equality, however, was the life and breath of the agreement. Each of the four jurisdictions was to appoint two commissioners, fully empowered by each of the colonies " to hear, examine, weigh, and determine all affaires of war, or peace, leagues, ayds, charges, and numbers of men for war, division of spoyles, or whatsoever is gotten by con- quest, receiveing of more Confederates, or Plantations into Combination with any of these Confederates," but " not intermedling with the Government of 1 Ibid., p. 564. 8 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION any of the Jurisdictions which by the third Article is to be " preserued intirely to themselves." Six of the eight commissioners were empowered " to settle, and determine the businesse in question," but if this number should fail to agree then the matter was to be referred to the colonies, and if " the businesse so referred, be concluded, then to be prosecuted by the Confederates, and all their Members." A meeting was to be held the first Thursday in each Sep- tember of the year and in regular rotation at each capital of the contracting colonies. By the seventh article, a president of the commissioners was to be elected by them, or any six of them, but he was to be a presiding officer, not an execu- tive. The eighth article has some prophetic provisions. Thus, the commissioners were to " endeavoure to frame and establish Agreements and Orders in gen- erall cases of a civil nature, wherein all the Plantations are interested, for preserving peace amongst themselves, and preventing (as much as may be) all occasions of war, or differences with others, as about the free and speedy pas- sage of Justice in each Jurisdiction, to all the Confederates equally, as to their own, receiving those that remove from one Plantation to another, with- out due Certificates." And in the last of these prophetic provisions are the surrender upon request of " any Servant run away from his Master, into any other of these Confederated Jurisdictions," and the surrender of escaped prisoners or fugitives from justice upon request of the magistrates of the colony from which the escape was made. The ninth article is also reminiscent, as it were, of the future, stipulating that, as " the justest Wars may be of dangerous consequence, especially to the smaller Plantations in these United Colonies," it was agreed that none of them should " at any time hereafter begin, undertake or engage themselves, or this Confederation, or any part thereof in any War whatsoever (sudden ex- igents with the necessary consequences thereof excepted . . .) without the consent and agreement of the forenamed eight Commissioners, or at least six of them, as in the sixt Article is provided." The tenth article permitted, in default of the attendance of all the commis- sioners duly notified to attend, four to act, but six were nevertheless required to determine the justice of the war, and in the eleventh article it was agreed: That if any of the Confederates shall hereafter break any of these present Articles, or be any other way injurious to any one of the other Jurisdictions such breach of Agreement, or injury shalbe duly considered, and ordered by the Commissioners for the other Jurisdictions, that both peace, and this present Confederation, may be intirely preserved without violation.^ The commissioners of the contracting parties, other than Plymouth, were ^Records of the Colony of New Haven, p. 566. RISE OF THE IDEA OF UNION 9 duly authorized to sign the agreement, which they did on May 19 / 29, 1643. It was therefore allowed that the articles and agreements of " this perpetuall Confederation " should be submitted to the good people of Plymouth, and That, if Plimoth consente, then the whole treaty as it stands in these present articls is, and shall continue, firnie & stable without alteration. But if Plimoth come not in, yet y** other three confederats doe by these presents confeirnie y^ whole confederation, and y^ articles therof.^ The General Court of Plymouth authorized its commissioners to ratify and confirm the articles August 29/September 7, 1643, which they did at Boston, at which time and place the other commissioners subscribed the Articles of Union on behalf of their respective colonies. The Mayflower Compact of November 11/21, 1620, had set forth the American conception of the State as the agent of the people creating it, and here in this little confederation of four straggling colonies, there lies hidden the germ of a greater Union, in which the members should be States, not provinces, determining their internal affairs, and be represented by two com- missioners, chosen by each of them upon a footing of equality in a larger coun- cil. It is not meant, of course, that this larger union was the outgrowth of the smaller, but merely that the spirit which produced this greater union was already in evidence in the New World. ^ The idea of union dwelt in the mind of William Penn. Peace with Penn was a passion. In 1693 he published his well known essay Toward the Present and Future Peace of Europe, proposing the establishment of an Euro- pean diet, parliament or estates, moved thereto, as he says, by the project of Henry IV; and it is interesting to note, in passing, that Penn's larger project is still before the world, for it is today the basis of projects of leaders of thought on both sides of the Atlantic. It can well be imagined, therefore, that, as the proprietor and founder of the Commonwealth which bears his name, he had a special interest that it should dwell in peace, as well as a general desire that the plantations, which already had within them the possibilities of statehood, should dwell in peace and harmony. Therefore, four years after 1 William Bradford, History of Plymouth Plantation, Collections of the Massachusetts Historical Society, 1856, 4th Series, Vol. Ill, p. 422. 2 Of the Confederation, embracing four colonies, thirty-nine towns with a population of 24,000 souls, a well informed and just historian has said: "A great principle was at the bottom of the confederation; but, noble as were the aims of those who handled it, they had not yet attained to sufficient breadth of view to apply it even to the whole of New England." Richard Frothingham, The Rise of the Republic of the United States, 1872, p. 43. The importance of the Union of the struggling colonies as a precedent was however rot lost on the British chronicler, Chalmers, who said, properly enough, that it " offers the first example of collition in colonial story and showed to party leaders in after times the advan- tages of concert." George Chalmers, Political .-Innals of the Present C'.ii'cd Colonies from their Settlement to the Peace of 1763 (1780), p. 177, 10 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION his international proposal, he suggested a colonial plan of union, entitling his plan: A Briefe and Plaine Scheam how the English Colonies in the North parts of America Viz : Boston Connecticut Road Island New York New Jersey, Pensilvania, Maryland, Virginia and Carolina may be made more usefull to the Crowne, and one anothers peace and safty with an universall concurrance. 