Chapter XVII--Of Federal Representative Governments.

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.

Considerations on Representative Government · 第 16 / 17 章