Delphi Complete Works of Stephen Leacock, page 442
It is impossible to overestimate the important part that has been played by federation in the history of political growth. Speaking broadly, one of the chief features in the evolution of civilized government has been the extension of the area covered by a single political unit or state. This extension has not of course proceeded always in a continuous chronological course. Modern Switzerland is but a diminutive state when compared with the Roman Empire. Yet it is true in the main that one of the most notable and most essential factors of political progress has been the increasing size of the territory brought into a single state. To accomplish this, two great historical forces have been at work. Of these one is the principle of conquest, absorption, and expansion. The growth of the French monarchy and the spread of British dominion illustrate this. The other has been the principle of deliberate federal union, whereby a basis of compromise is afforded permitting the political junction of previous states which are too closely connected by situation, language, and customs to remain apart, but which are too unlike in area, local customs, etc., to permit of complete amalgamation. Of these two methods the one is the path of peace, the other is the path of war. No lasting union of the great states of the world can now be expected from the process of conquest. If united at all it must be only by means of a union which will destroy neither national pride nor national autonomy.
In its broadest sense the term federation indicates any form of union entered into by two or more independent states. Numerous historical examples at once suggest themselves. At the very beginning of political history we have the famous Achæan league. This was originally a defensive alliance of twelve cities of the Peloponnesus, but in its later shape as revised in the third and second centuries (B. C. 281-146), this “aftergrowth of Hellenic freedom” assumed a more elaborate character. It included Corinth, Megara, and many other important city states of southern Greece. Each city retained the control of its own internal regulation, but surrendered into the hands of the league the control of foreign relations and war. “There was,” says Professor Freeman, “an Achæan nation with a national assembly . . . no single city could of its own authority make peace or war.” Had it not been for the rise of the world power of the Roman Empire, such a league might have supplied a means of converting the Greek city state into a territorial national state. In later history the short-lived combinations of Italian cities in the thirteenth and fourteenth centuries may perhaps be spoken of as federations. A more conspicuous example is seen in the growth of modern Switzerland. Here the forest districts of Uri, Schwyz, and Unterwalden, still nominally subject to the emperor, banded themselves together for protection in 1291. The league thus formed grew in extent and power. Other districts and the free cities of Bern and Zürich were joined to it. The defeat of Austria in the end of the fourteenth century gave it a practical independence, which was finally confirmed by the treaty of Westphalia (1648). In the confederation thus formed each member retained its separate independence, mutual protection being the only purpose of the union. Though for a time amalgamated by the interference of the French Revolutionists into a republic, “one and indivisible,” it was not until the changes effected by the constitutions of the nineteenth century (1848 and 1874) that Switzerland lost the appearance of a defensive league of separate states.
A similar league was that existing between the independent states of North America under the Articles of Confederation (1781-1789). Here each state was a separate body politic. The only form of common control was exercised through the Congress, a body of delegates which had no power to compel the states to its will, and no power to command or to tax the individual citizens of the thirteen states. The federal Constitution, made in 1787 and put in force in 1789, established in the place of this a single federal state, in which the central government was brought directly in contact with the citizens. The course of the nineteenth century has witnessed several federations of historical importance. Of these, the Swiss constitutions of 1848 and 1874, the federation of the provinces of Canada into the Dominion (1867), the creation of the North German Confederation (1867) and the German Empire (1871), together with the recent federation of the commonwealth of Australia (1900), are the most salient examples. Other countries, too, such as Mexico and Brazil, have adopted the federal system of government, not as a means of increasing their area, but as a method of harmonizing local and national interests.
2. The Different Kinds of Federations. When we consider the various forms of union by which separate states may be joined together, it is clear that they present a graded series of increasing closeness. At one end of the scale is the offensive and defensive alliance entered into by sovereign states. Of this nature was the famous Family Compact of the eighteenth century, between the Bourbon monarchies of France and Spain. Such a union is extremely illusory in its nature, as, in the absence of any joint organ of government, it has no “sanction” or compelling force behind it. More advanced than this are confederate types such as the Achæan League, the German Confederation of 1815, or the Southern Confederacy. In this each participant state retains, in name at any rate, its sovereign character. It may happen that in such a union of states the formal act of union declares itself perpetual and at the same time declares that each state retains its sovereignty. This is quite inconsistent, for it implies that each state is free to leave the union, and at the same time bound to remain in it. Such, however, is the case with the American Articles of Confederation (in force from 1781 till 1789) and the constitution of the Southern Confederacy. Beyond this type of union lies the federation par excellence, — the federal state, a new unit composed out of previously sovereign states, now united to form a new sovereignty, but each retaining its own political sphere independent of the legal power of the central government. Such is the nature of the present federal union of the United States. Beyond this again might be distinguished what could be called an amalgamation, or complete fusion by agreement. It differs from the expansion of a single state by conquest of territory, in that the participant members enter into the amalgamation or amalgamated state of their own free will. The best examples are found in the composition of the United Kingdom by the act of union of England and Scotland in 1707, and of Great Britain with Ireland in 1800. These unions were effected by similar statutes passed by the separate parliaments of the countries concerned. The unions declared themselves to be made on certain stated terms and conditions. But the process differed from federation in that in each case the parliaments which made the unions then went out of existence in favor of a new parliament which was legally sovereign, and not bound by the conditions of union. That this is more than a theoretical view of the case is seen in the fact that the British Parliament in 1869 abolished the established (Episcopal) church in Ireland, whose maintenance was one of the terms of the union of 1800. A similar case of amalgamation is seen in the “fusion” of the separate Italian states into the kingdom of Italy (1859-60). The product of such a process is a unitary and not a federal state.
The different kinds of united governments thus indicated have afforded ground for elaborate classification of the various species of confederacies and federal states. This has particularly interested the modern German writers on public law, some of whom distinguish a great many subdivisions. Such classifications have been undertaken by Laband, Jellinek, and others. Jellinek distinguishes, in the first place, virtual unions, such as Canada and Australia (legally part of the unitary British state) and legal unions. The latter he subdivides into (1) protectorates, etc., (2) unions of a superior and inferior state (Staatenstaat), seen in the case of Turkey and Egypt, (3) monarchial unions, in which two independent states are joined under a common sovereign, this again being subdivided into real and personal, according to whether the union is organic and deliberate (Sweden and Norway, before 1905) or accidental (England formerly with Hanover), (4) the confederacy (Staatenbund), and (5) the federal state (Bundesstaat). Other classifications are still more minute. Of all these fluctuating subdivisions American and English writers are generally inclined to throw aside everything except the distinction between a confederacy and a federal state. This is a vital point in public law and requires some explanation. A confederacy is not a single state. It is a collection of independent sovereign bodies united on stated terms for certain purposes. Each of them is, legally, free to withdraw from the confederacy when it pleases. A confederacy cannot therefore be permanent and indissolvable, for if it were so then the sovereignty of the component states would disappear. A federal state is a single state. Its subordinate parts may have been, though not of necessity, sovereign states previous to the union; they cannot be so after the formation of the federation. Such a union becomes, legally, indissolvable so far as the action of the separate state governments, or of the central government, is concerned. It could only be dissolved by the constitutional amending process, where such exists. The interpretation put on the Constitution of the United States by the seceding states of the South would have made it a confederacy. The interpretation put upon it in the North made it a federal state.
3. Sovereignty in a Federal State. This leads at once to the much-disputed question of the sovereignty in a federal state. Around this centred the great secession issue between the Northern and Southern states, for the retention by a component state of its sovereign power carries with it of course the right to withdraw from a federation of which it is a part. Let us consider the question first of all apart from the particular case of the United States. If what has been said above is correct, it follows, by definition, that the creation of a federal state annihilates the sovereignty of the component states, — not limits it or divides it, but annihilates it. For sovereignty either is or is not. But in the new state the sovereignty does not lie in the central government; it lies in the body, wherever and whatever it may be, which has power to amend the constitution. Legally speaking, this sovereign body can entirely abolish the federation and restore each member of it to its original independence. This is not the same as secession, but it carries with it the consequence that such a union is not legally indissolvable. In a confederacy, on the other hand, each state is still a sovereign state. There is properly no confederate law. Any common regulations adopted by a central body of the confederacy, and binding on the citizens of all the states, are law to any such citizen because adopted as law by his own state. Where law exists, a state exists. Where a state exists then it has sovereign power. It follows then that confederacy and secession are one and the same term in point of public law. In actual fact secession resolves itself into a question of force. Switzerland was an acknowledged confederacy from 1815 until 1848. Yet when the seven Roman Catholic cantons undertook to secede from it (1847) they were forced back into the confederation at the point of the sword.
In the United States the controversy did not turn on the difference between a confederacy and a federal state. It turned on the question whether the United States was the one or the other. On this point, as Professor Goldwin Smith has said, the “constitution proved itself a ‘Delphic oracle.’” The language of the Constitution, especially when read in the light of the antecedent history of the confederacy of 1781-89 (which was virtually dissolved by the “secession” of eleven of its thirteen states) admitted of either interpretation. But apart from the question of secession, many American writers, while admitting the federal union to be permanent, have taken quite a different view of sovereignty from the one here indicated. This is the theory of dual or divided sovereignty. In accordance with this view the sovereign power in a federal union, such as the American republic, is not located in any single authority but is divided or distributed between the federal and the state government. Such a theory is of course totally at variance with the whole conception of sovereignty explained in an earlier chapter. It is difficult to regard it as anything else than a confusion of sovereignty, which is complete and absolute, with constitutional power, which may be of any degree of limitation. If the federal and state governments represent a “division of sovereignty,” then the three branches of the federal government represent a further subdivision, and so forth. In spite, however, of its inconsistency, the theory of dual sovereignty has found illustrious champions. President Madison devoutly believed in it. “It is difficult,” he wrote, “to argue intelligibly concerning the compound system of government in the United States without admitting the divisibility of sovereignty.” The American courts of the same period declared, “The United States are sovereign as to all the powers of government actually surrendered. Each state in the Union is sovereign as to all the powers reserved.”
4. Utility of the Federal Principle in effecting a Compromise. Returning from the question of the location of sovereignty to the general aspect of the federal state, it may be noted that the peculiar utility of the federal principle in political construction lies in the spirit of compromise which it embodies. Every small community or state is driven by the need of protection to seek for a union with its fellows. But a form of association which annihilates its own traditions of independent self-government naturally runs counter to the sympathies of its citizens. Still more is this the case if the communities to be united are of unequal magnitude. In this case a complete amalgamation into a unitary state would practically mean the absorption of the minor states into the large ones. The position of New Jersey, Delaware, and Connecticut at the time of the making of the Constitution was of this sort. Still more unequal was the federation long contemplated among the German states, and finally accomplished by the formation of the federal empire in 1871. The principality of Schaumberg-Lippe has an area of 131 square miles, and a population of about 40,000 persons; the kingdom of Prussia has an area of nearly 135,000 square miles and a population of 35,000,000. In all such cases as this the federal system supplies the means of creating a single state, combining the whole powers of its members for international defense and for matters of general interest, without sacrificing the individual life and political susceptibilities of the component parts. Even among “states” of relative equality, as in the case of the majority of the forty-five states of the Union, the federal system has the advantage of permitting the legislation of each to accord with differences of environment caused by climate, racial elements, local custom, and antecedents. In the United States, more than anywhere else in the world, full advantage has been taken of the possibilities of the federal principle. Its history is largely a history of federations. In the earliest times of colonial history we have the formation of Connecticut by the federal union of its towns, and the establishment in 1643 of the New England federation uniting the northerly colonies for mutual protection. The quarrel with Great Britain in the eighteenth century brought the thirteen colonies into a union, which, after passing through the preliminary stages of the Continental Congress and the abortive confederacy of 1781, was finally consolidated into the present federal republic. The principle of political growth and constitution adopted in 1789 has governed the whole evolution of the United States during the nineteenth century.
5. Distribution of Power in Federal States. So much, then, for the historical and political aspect of the federal principle. Let us turn now to consider the important subject of the division of power between federal and subordinate authorities. It is not necessary in this connection to take account of any of the confederacies or federal governments previous to the formation of the Constitution of the United States. In these only the most elementary and necessary powers were allotted to the central government. But the federations of 1789 and of the nineteenth century offer an interesting series which may be studied with a view to discovering the teaching of experience in regard to the relative position of central and subordinate authorities. We may here best begin by stating the general principles of apportionment of power. The prime historical motive of federation has been the need of defense. It is therefore first of all requisite that the federal government should have control of the military and naval power. Closely connected to this is the necessity that in its dealings with outside states the federation should conduct itself as a unit. The control of foreign relations must therefore rest with the central power. Since neither foreign relations nor war can be conducted without financial support, it is further necessary that the federal government should have some power of taxation of the individual citizens. It is not enough that it should be able to requisition the component commonwealths for the money it needs: this was amply seen in the collapse of the finances of the old Confederation (1781-89). To cover urgent and temporary needs, the financial power must include the power to borrow. These three functions — the conduct of war and defense, the control of foreign affairs, and the power to raise money — are the prime essentials without which no federal state can exist.
As a second class of governmental duties may be ranked all those which are only effective in so far as uniformly and generally performed. Of this nature are the control of coinage, the regulation of patents and copyrights, and the conduct of the postal service. Third in the list will stand a variety of public affairs in which, though uniformity is not absolutely essential, it is nevertheless largely contributory to national progress. In this connection may be mentioned the control of the more extensive transportation facilities (those which constitute “interstate commerce”), — railroads, canals, telegraphs, etc., — the regulation of the banking system, and the establishment of a general tariff. The latter is a somewhat anomalous case. Federal control of a tariff is apt to find its place among the powers of the central government from financial reasons sooner than from economic. The tariff offers a convenient and somewhat surreptitious form of taxation. Though not theoretically a requisite power of the central government, it is in practice of great importance: tariff walls are a serious impediment to the consolidation of national life. To illustrate this one may refer to the tariff bickerings of the thirteen states under the Articles of Confederation, or to the case of the German states united in the confederation of 1815. In this last instance not only was each state a separate tariff area from the others, but the single states were subdivided, — Prussia was a political unit, but contained sixty-seven different tariff areas. As a fourth class may be placed the debatable category of subjects whose allotment to the federal or component government is a matter of opinion and must depend on the circumstances of the case. Here the conspicuous examples are seen in the regulation of marriage and divorce and in the control of public education. Beyond this as the fifth and final class lie those duties which certainly ought to be left to the constituent governments to perform. Here again opinion may differ, but public works of merely local scope, public charities, the regulation of the liquor question, etc., are generally included.
