of national good faith, to treat every community external to and connected with the Union, as a State in a relationship of federal subjection.

The statement of the reasons upon which the Colonies declared themselves independent contained in the Observations on the American Revolution, and approved by Congress, may be called the Declaration of Independence of 1778. As a later document, it interprets and governs the Declaration of 1776, where that document is ambiguous, as it is in the much-discussed passage of the preamble which states, as a self-evident truth, that, in order to secure to the individual the natural rights of life, liberty, and the pursuit of happiness, "Governments are instituted among men, deriving their just powers from the consent of the governed."

This statement is capable of being interpreted as meaning that Governments derive their just powers from the mere will of the governed, or that they derive their just powers from an agreement, compact, or contract (consensus) between the Government and the governed. The Declaration of 1778 settled this ambiguity, by declaring that the theory of America was that all Governments derive their just powers from an agreement, compact, or contract between the Government and the governed. The Declaration of 1776 stated the axiom of the original freedom and equality of all human beings, and advanced from that to the corollary that Governments derive their just powers from the consent of the governed. The Declaration of 1778 supplied the intermediate corollaries between the axiom and that corollary. Because all men

were originally free and equal, it followed as a corollary (since the proposition that a free and equal human being could ever be subject to the mere will of another free and equal human being is a self-evident contradiction and absurdity), that all human relationships resulted from a meeting of wills, that is, from a compact or contract

between the persons in relationship. As Governments were human beings and the governed also human beings, it necessarily followed that all relations between Governments and the governed were founded on agreement, compact, or contract (consensus) between the Government and the governed.

The Declaration of 1778 also declared that the contract which was the basis of the relationship between the Government and the governed might (like every other contract creating a human relationship) be express or implied —and, in the nature of things, any contract may be written or unwritten.

An agreement between the Government and the governed is a "Constitution" of government. Though written Constitutions usually are given the unilateral form, so that they appear as powers of attorney from the governed to the Government, they would more properly be given the bilateral form. They are, in fact, given this bilateral form when they provide for the formal acceptance, by the Government, of the Constitution, by requiring the persons who form the Government to take an oath to fulfil the Constitution.

The Declaration of 1778 admitted, by necessary impli cation, that, if the Constitution was reduced to writing, the terms of the writing governed as in other cases of contracts. If not, the contract was to be proved by the words and acts of the parties or was to be implied out of the circumstances, and in case of disagreement between the parties concerning the interpretation of the contract, or concerning what was just and reasonable, when the parties left the terms indefinite, it was to be interpreted and adjudicated by an impartial expert tribunal.

As applied to the American Empire, the statement in the Declaration of Independence that, in order to secure to the individual his natural rights, "Governments are instituted among men, deriving their just powers from the

consent of the governed," required that the State of America (whether called by the name of "the American Union," "the United States assembled," or "the United States of America," or by any other name), when occupying the position of the Government for other States, as its dependencies, should regard itself as being in a relationship of constitutional connection with them, so that all together would constitute a Federal Empire, in which the American Union would be the Imperial State and would act under an unwritten Constitution of the Empire, supreme, for Imperial purposes, over its own Constitution and the Constitutions of the Member-States, which it was obligated to interpret, adjudicate, and execute, for the benefit of all parties concerned.

Neither the Declaration of Independence of 1776 nor that of 1778 had anything to say concerning the manner in which the Government should be distinguished from the governed. They did not say that Governments derived their original existence from the will and act of the governed, but only that they derived their "just" powers from the "consent" of the governed. In both these instruments, the relationship of Government and governed was taken for granted, and they were merely concerned with declaring the duties of Governments. They therefore had nothing to say concerning whether, in a given case, the American Union should or should not act as the Government for other States. They declared, however, that if Great Britain had been willing to admit that its powers over the American Colonies were exercised under an unwritten Constitution securing to the Colonies their rights as States, and to the inhabitants of the Colonies their rights as individuals, and had in fact so exercised them, its exercise of power over the Colonies would have been just. As Great Britain had elected itself the Imperial State of the British Empire, the Declaration of Independence necessarily implied that the American

Union might justly elect itself the Imperial State of the American Empire if it saw fit, provided the American Empire were recognized as a Federal Empire.

From the moment of the issuance of the Declarations of Independence of 1776 and 1778, the obligations of the American Union could not be fulfilled by merely granting to its dependencies, of its mere will and favor, local self-government as municipal corporations, but could only be fulfilled by recognizing them as States having, by the nature of things, the fullest and most complete rights of statehood consistent with the welfare of the whole American Federal Empire, composed of the American Union, as the Imperial State, and its dependencies. How complete the rights of statehood of the federally-subject Statesthe Member-States of the American Federal Empire,— should be, it was for the American Union, as the Imperial State, to adjudicate, and by its dispositions, made by its impartial and expert tribunal, fairly and after opportunity of the federally-subject States to be heard, they were bound, in equity and good conscience.

CHAPTER XXI

THE DISPOSITIVE POWER, 1779-1783

HE Congress of the American Union came into ex

THE

istence as a body of delegates from the Colonies, assembled to devise means for making an effectual protest against the claims of Great Britain, as the Imperial State. After the Declaration of Independence, it was continued by common consent, and without any express definition of its powers. What its powers were could only be ascertained from a consideration of what the powers of such an assembly, under such circumstances, ought, in the nature of things, to be. There seems, however, to have been little doubt felt, in the Congress itself, concerning the nature of its powers. It seems to have been the unanimous sentiment that the Congress was the successor of the King of Great Britain in his official capacity. It is beyond the limits of the study here undertaken to show how this conception of the power of Congress was applied as between the Congress and the States of the Union, though that it was applied admits of no doubt, the powers given to Congress by the Articles of Confederation being almost exactly those which the King in Council exercised or had exercised in the State of Great Britain. Bancroft, in his History of the United States, has referred to this fact, in his chapter on the Articles of Confederation. Prefacing his examination of the Articles, he says:

According to the American theory, the unity of the Colonies had, before the Declaration of Independence, resided in the