Portions of mankind who are not fitted or not disposed to live under
the same internal government may often, with advantage, be federally
united as to their relations with foreigners, both to prevent wars
among themselves, and for the sake of more effectual protection
against the aggression of powerful states.
To render a federation advisable several conditions are necessary. The
first is that there should be a sufficient amount of mutual sympathy
among the populations. The federation binds them always to fight on
the same side; and if they have such feelings toward one another, or
such diversity of feeling toward their neighbors that they would
generally prefer to fight on opposite sides, the federal tie is
neither likely to be of long duration, nor to be well observed while
it subsists. The sympathies available for the purpose are those of
race, language, religion, and, above all, of political institutions,
as conducing most to a feeling of identity of political interest. When
a few free states, separately insufficient for their own defense, are
hemmed in on all sides by military or feudal monarchs, who hate and
despise freedom even in a neighbor, those states have no chance for
preserving liberty and its blessings but by a federal union. The
common interest arising from this cause has in Switzerland, for
several centuries, been found adequate to maintain efficiently the
federal bond, in spite not only of difference of religion when
religion was the grand source of irreconcilable political enmity
throughout Europe, but also in spite of great weakness in the
constitution of the federation itself. In America, where all the
conditions for the maintenance of union existed at the highest point,
with the sole drawback of difference of institutions in the single but
most important article of slavery, this one difference goes so far in
alienating from each other's sympathies the two divisions of the Union
as to be now actually effecting the disruption of a tie of so much
value to them both.
A second condition of the stability of a federal government is that
the separate states be not so powerful as to be able to rely for
protection against foreign encroachment on their individual strength.
If they are, they will be apt to think that they do not gain, by union
with others, the equivalent of what they sacrifice in their own
liberty of action; and consequently, whenever the policy of the
confederation, in things reserved to its cognizance, is different from
that which any one of its members would separately pursue, the
internal and sectional breach will, through absence of sufficient
anxiety to preserve the Union, be in danger of going so far as to
dissolve it.
A third condition, not less important than the two others, is that
there be not a very marked inequality of strength among the several
contracting states. They can not, indeed, be exactly equal in
resources; in all federations there will be a gradation of power among
the members; some will be more populous, rich, and civilized than
others. There is a wide difference in wealth and population between
New York and Rhode Island; between Berne, and Zug or Glaris. The
essential is, that there should not be any one state so much more
powerful than the rest as to be capable of vying in strength with many
of them combined. If there be such a one, and only one, it will insist
on being master of the joint deliberations; if there be two, they will
be irresistible when they agree; and whenever they differ, every thing
will be decided by a struggle for ascendancy between the rivals. This
cause is alone enough to reduce the German Bund to almost a nullity,
independently of its wretched internal constitution. It effects none
of the real purposes of a confederation. It has never bestowed on
Germany a uniform system of customs, nor so much as a uniform coinage,
and has served only to give Austria and Prussia a legal right of
pouring in their troops to assist the local sovereigns in keeping
their subjects obedient to despotism, while, in regard to external
concerns, the Bund would make all Germany a dependency of Prussia if
there were no Austria, and of Austria if there were no Prussia; and,
in the mean time, each petty prince has little choice but to be a
partisan of one or the other, or to intrigue with foreign governments
against both.
There are two different modes of organizing a federal union. The
federal authorities may represent the governments solely, and their
acts may be obligatory only on the governments as such, or they may
have the power of enacting laws and issuing orders which are binding
directly on individual citizens. The former is the plan of the German
so-called Confederation, and of the Swiss Constitution previous to
1847. It was tried in America for a few years immediately following
the War of Independence. The other principle is that of the existing
Constitution of the United States, and has been adopted within the
last dozen years by the Swiss Confederacy. The Federal Congress of the
American Union is a substantive part of the government of every
individual state. Within the limits of its attributions, it makes laws
which are obeyed by every citizen individually, executes them through
its own officers, and enforces them by its own tribunals. This is the
only principle which has been found, or which is ever likely to
produce an effective federal government. A union between the
governments only is a mere alliance, and subject to all the
contingencies which render alliances precarious. If the acts of the
President and of Congress were binding solely on the governments of
New York, Virginia, or Pennsylvania, and could only be carried into
effect through orders issued by those governments to officers
appointed by them, under responsibility to their own courts of
justice, no mandates of the federal government which were disagreeable
to a local majority would ever be executed. Requisitions issued to a
government have no other sanction or means of enforcement than war,
and a federal army would have to be always in readiness to enforce the
decrees of the federation against any recalcitrant state, subject to
the probability that other states, sympathizing with the recusant, and
perhaps sharing its sentiments on the particular point in dispute,
would withhold their contingents, if not send them to fight in the
ranks of the disobedient State. Such a federation is more likely to be
a cause than a preventive of internal wars; and if such was not its
effect in Switzerland until the events of the years immediately
preceding 1847, it was only because the federal government felt its
weakness so strongly that it hardly ever attempted to exercise any
real authority. In America, the experiment of a federation on this
principle broke down in the first few years of its existence, happily
while the men of enlarged knowledge and acquired ascendancy who
founded the independence of the Republic were still alive to guide it
through the difficult transition. The "Federalist," a collection of
papers by three of these eminent men, written in explanation and
defense of the new federal Constitution while still awaiting the
national acceptance, is even now the most instructive treatise we
possess on federal government. In Germany, the more imperfect kind of
federation, as all know, has not even answered the purpose of
maintaining an alliance. It has never, in any European war, prevented
single members of the confederation from allying themselves with
foreign powers against the rest. Yet this is the only federation which
seems possible among monarchical states. A king, who holds his power
by inheritance, not by delegation, and who can not be deprived of it,
nor made responsible to any one for its use, is not likely to renounce
having a separate army, or to brook the exercise of sovereign
authority over his own subjects, not through him, but directly by
another power. To enable two or more countries under kingly government
to be joined together in an effectual confederation, it seems
necessary that they should all be under the same king. England and
Scotland were a federation of this description during the interval of
about a century between the union of the crowns and that of the
Parliaments. Even this was effective, not through federal
institutions, for none existed, but because the regal power in both
Constitutions was so nearly absolute as to enable the foreign policy
of both to be shaped according to a single will.
Under the more perfect mode of federation, where every citizen of each
particular state owes obedience to two governments, that of his own
state and that of the federation, it is evidently necessary not only
that the constitutional limits of the authority of each should be
precisely and clearly defined, but that the power to decide between
them in any case of dispute should not reside in either of the
governments, or in any functionary subject to it, but in an umpire
independent of both. There must be a Supreme Court of Justice, and a
system of subordinate courts in every state of the Union, before whom
such questions shall be carried, and whose judgment on them, in the
last stage of appeal, shall be final. Every state of the Union, and
the federal government itself, as well as every functionary of each,
must be liable to be sued in those courts for exceeding their powers,
or for non-performance of their federal duties, and must in general be
obliged to employ those courts as the instrument for enforcing their
federal rights. This involves the remarkable consequence, actually
realized in the United States, that a court of justice, the highest
federal tribunal, is supreme over the various governments, both state
and federal, having the right to declare that any law made, or act
done by them, exceeds the powers assigned to them by the federal
Constitution, and, in consequence, has no legal validity. It was
natural to feel strong doubts, before trial had been made, how such a
provision would work; whether the tribunal would have the courage to
exercise its constitutional power; if it did, whether it would
exercise it wisely, and whether the governments would consent to
submit peaceably to its decision. The discussions on the American
Constitution, before its final adoption, give evidence that these
natural apprehensions were strongly felt; but they are now entirely
quieted, since, during the two generations and more which have
subsequently elapsed, nothing has occurred to verify them, though
there have at times been disputes of considerable acrimony, and which
became the badges of parties, respecting the limits of the authority
of the federal and state governments. The eminently beneficial working
of so singular a provision is probably, as M. de Tocqueville remarks,
in a great measure attributable to the peculiarity inherent in a court
of justice acting as such--namely, that it does not declare the law
_eo nomine_ and in the abstract, but waits until a case between man
and man is brought before it judicially, involving the point in
dispute; from which arises the happy effect that its declarations are
not made in a very early stage of the controversy; that much popular
discussion usually precedes them; that the Court decides after hearing
the point fully argued on both sides by lawyers of reputation; decides
only as much of the question at a time as is required by the case
before it, and its decision, instead of being volunteered for
political purposes, is drawn from it by the duty which it can not
refuse to fulfil, of dispensing justice impartially between adverse
litigants. Even these grounds of confidence would not have sufficed to
produce the respectful submission with which all authorities have
yielded to the decisions of the Supreme Court on the interpretation of
the Constitution, were it not that complete reliance has been felt,
not only on the intellectual pre-eminence of the judges composing that
exalted tribunal, but on their entire superiority over either private
or sectional partialities. This reliance has been in the main
justified; but there is nothing which more vitally imports the
American people than to guard with the most watchful solicitude
against every thing which has the remotest tendency to produce
deterioration in the quality of this great national institution. The
confidence on which depends the stability of federal institutions has
been for the first time impaired by the judgment declaring slavery to
be of common right, and consequently lawful in the Territories while
not yet constituted as states, even against the will of a majority of
their inhabitants. The main pillar of the American Constitution is
scarcely strong enough to bear many more such shocks.
The tribunals which act as umpires between the federal and the state
governments naturally also decide all disputes between two states, or
between a citizen of one state and the government of another. The
usual remedies between nations, war and diplomacy, being precluded by
the federal union, it is necessary that a judicial remedy should
supply their place. The Supreme Court of the federation dispenses
international law, and is the first great example of what is now one
of the most prominent wants of civilized society, a real international
tribunal.
The powers of a federal government naturally extend not only to peace
and war, and all questions which arise between the country and foreign
governments, but to making any other arrangements which are, in the
opinion of the states, necessary to their enjoyment of the full
benefits of union. For example, it is a great advantage to them that
their mutual commerce should be free, without the impediment of
frontier duties and custom-houses. But this internal freedom can not
exist if each state has the power of fixing the duties on interchange
of commodities between itself and foreign countries, since every
foreign product let in by one state would be let into all the rest;
and hence all custom duties and trade regulations in the United States
are made or repealed by the federal government exclusively. Again, it
is a great convenience to the states to have but one coinage, and but
one system of weights and measures, which can only be insured if the
regulation of these matters is intrusted to the federal government.
The certainty and celerity of post-office communication is impeded,
and its expense increased, if a letter has to pass through half a
dozen sets of public offices, subject to different supreme
authorities: it is convenient, therefore, that all post-offices should
be under the federal government; but on such questions the feelings of
different communities are liable to be different. One of the American
states, under the guidance of a man who has displayed powers as a
speculative political thinker superior to any who has appeared in
American politics since the authors of the "Federalist," [10]
claimed a veto for each state on the custom laws of the federal
Congress; and that statesman, in a posthumous work of great ability,
which has been printed and widely circulated by the Legislature of
South Carolina, vindicated this pretension on the general principle of
limiting the tyranny of the majority, and protecting minorities by
admitting them to a substantial participation in political power. One
of the most disputed topics in American politics during the early part
of this century was whether the power of the federal government ought
to extend, and whether by the Constitution it did extend, to making
roads and canals at the cost of the Union. It is only in transactions
with foreign powers that the authority of the federal government is of
necessity complete. On every other subject the question depends on how
closely the people in general wish to draw the federal tie; what
portion of their local freedom of action they are willing to
surrender, in order to enjoy more fully the benefit of being one
nation.
Respecting the fitting constitution of a federal government within
itself, much need not be said. It of course consists of a legislative
branch and an executive, and the constitution of each is amenable to
the same principles as that of representative governments generally.
As regards the mode of adapting these general principles to a federal
government, the provision of the American Constitution seems
exceedingly judicious, that Congress should consist of two houses, and
that while one of them is constituted according to population, each
state being entitled to representatives in the ratio of the number of
its inhabitants, the other should represent not the citizens, but the
state governments, and every state, whether large or small, should be
represented in it by the same number of members. This provision
precludes any undue power from being exercised by the more powerful
states over the rest, and guarantees the reserved rights of the state
governments by making it impossible, as far as the mode of
representation can prevent, that any measure should pass Congress
unless approved not only by a majority of the citizens, but by a
majority of the states. I have before adverted to the further
incidental advantage obtained of raising the standard of
qualifications in one of the houses. Being nominated by select bodies,
the Legislatures of the various states, whose choice, for reasons
already indicated, is more likely to fall on eminent men than any
popular election--who have not only the power of electing such, but a
strong motive to do so, because the influence of their state in the
general deliberations must be materially affected by the personal
weight and abilities of its representatives--the Senate of the United
States, thus chosen, has always contained nearly all the political men
of established and high reputation in the Union; while the Lower House
of Congress has, in the opinion of competent observers, been generally
as remarkable for the absence of conspicuous personal merit, as the
Upper House for its presence.
When the conditions exist for the formation of efficient and durable
federal unions, the multiplication of them is always a benefit to the
world. It has the same salutary effect as any other extension of the
practice of co-operation, through which the weak, by uniting, can meet
on equal terms with the strong. By diminishing the number of those
petty states which are not equal to their own defense, it weakens the
temptations to an aggressive policy, whether working directly by arms,
or through the _prestige_ of superior power. It of course puts an end
to war and diplomatic quarrels, and usually also to restrictions on
commerce, between the states composing the Union; while, in reference
to neighboring nations, the increased military strength conferred by
it is of a kind to be almost exclusively available for defensive,
scarcely at all for aggressive purposes. A federal government has not
a sufficiently concentrated authority to conduct with much efficiency
any war but one of self-defense, in which it can rely on the voluntary
co-operation of every citizen; nor is there any thing very flattering
to national vanity or ambition in acquiring, by a successful war, not
subjects, nor even fellow-citizens, but only new, and perhaps
troublesome independent members of the confederation. The warlike
proceedings of the Americans in Mexico was purely exceptional, having
been carried on principally by volunteers, under the influence of the
migratory propensity which prompts individual Americans to possess
themselves of unoccupied land, and stimulated, if by any public
motive, not by that of national aggrandizement, but by the purely
sectional purpose of extending slavery. There are few signs in the
proceedings of Americans, nationally or individually, that the desire
of territorial acquisition for their country as such has any
considerable power over them. Their hankering after Cuba is, in the
same manner, merely sectional, and the Northern States, those opposed
to slavery, have never in any way favored it.
The question may present itself (as in Italy at its present uprising)
whether a country which is determined to be united should form a
complete or a merely federal union. The point is sometimes necessarily
decided by the mere territorial magnitude of the united whole. There
is a limit to the extent of country which can advantageously be
governed, or even whose government can be conveniently superintended
from a single centre. There are vast countries so governed; but they,
or at least their distant provinces, are in general deplorably ill
administered, and it is only when the inhabitants are almost savages
that they could not manage their affairs better separately. This
obstacle does not exist in the case of Italy, the size of which does
not come up to that of several very efficiently governed single states
in past and present times. The question then is, whether the different
parts of the nation require to be governed in a way so essentially
different that it is not probable the same Legislature, and the same
ministry or administrative body, will give satisfaction to them all.
Unless this be the case, which is a question of fact, it is better for
them to be completely united. That a totally different system of laws
and very different administrative institutions may exist in two
portions of a country without being any obstacle to legislative unity,
is proved by the case of England and Scotland. Perhaps, however, this
undisturbed coexistence of two legal systems under one united
Legislature, making different laws for the two sections of the country
in adaptation to the previous differences, might not be so well
preserved, or the same confidence might not be felt in its
preservation, in a country whose legislators are more possessed (as is
apt to be the case on the Continent) with the mania for uniformity. A
people having that unbounded toleration which is characteristic of
this country for every description of anomaly, so long as those whose
interests it concerns do not feel aggrieved by it, afforded an
exceptionally advantageous field for trying this difficult experiment.
In most countries, if it was an object to retain different systems of
law, it might probably be necessary to retain distinct legislatures as
guardians of them, which is perfectly compatible with a national
Parliament and king, or a national Parliament without a king, supreme
over the external relations of all the members of the body.
Whenever it is not deemed necessary to maintain permanently, in the
different provinces, different systems of jurisprudence, and
fundamental institutions grounded on different principles, it is
always practicable to reconcile minor diversities with the maintenance
of unity of government. All that is needful is to give a sufficiently
large sphere of action to the local authorities. Under one and the
same central government there may be local governors, and provincial
assemblies for local purposes. It may happen, for instance, that the
people of different provinces may have preferences in favor of
different modes of taxation. If the general Legislature could not be
depended on for being guided by the members for each province in
modifying the general system of taxation to suit that province, the
Constitution might provide that as many of the expenses of the
government as could by any possibility be made local should be
defrayed by local rates imposed by the provincial assemblies, and that
those which must of necessity be general, such as the support of an
army and navy, should, in the estimates for the year, be apportioned
among the different provinces according to some general estimate of
their resources, the amount assigned to each being levied by the local
assembly on the principles most acceptable to the locality, and paid
_en bloc_ into the national treasury. A practice approaching to this
existed even in the old French monarchy, so far as regarded the _pays
d'états_, each of which, having consented or been required to
furnish a fixed sum, was left to assess it upon the inhabitants by its
own officers, thus escaping the grinding despotism of the royal
_intendants_ and _subdélégués;_ and this privilege is always mentioned
as one of the advantages which mainly contributed to render them, as
some of them were, the most flourishing provinces of France.
Identity of central government is compatible with many different
degrees of centralisation, not only administrative, but even
legislative. A people may have the desire and the capacity for a
closer union than one merely federal, while yet their local
peculiarities and antecedents render considerable diversities
desirable in the details of their government. But if there is a real
desire on all hands to make the experiment successful, there needs
seldom be any difficulty in not only preserving these diversities, but
giving them the guaranty of a constitutional provision against any
attempt at assimilation except by the voluntary act of those who would
be affected by the change.