37 



FEDERATION. 



FEDERATION. 







pendent states is vested-in some individual in those several states. 

 These sovereign persons may agree respectively with each other and 

 with all not to exercise certain functions of sovereignty in their several 

 states, and to transfer these functions to be jointly exercised; by the 

 contracting sovereign persons. The consequence of such a compact 

 will be that the contracting sovereign persons in their joint capacity 

 will become sovereign in each state and in all the states. The several 

 sovereign persons having for the time surrendered to the joint body 

 certain powers incident to their several sovereignties are no longer 

 severally sovereign in their several states. The powers surrendered to 

 the joint body may be determined by written contract, the inter- 

 pretation of which belongs to the joint body, yet in such a manner 

 that there can be no valid interpretation unless the sovereign persons 

 are unanimous ; for if any number or majority could bind the rest, 

 they might, by interpretation, deprive the several contracting persons 

 of all the powers reserved to them by the contract. It follows also 

 from the terms of the union, that any one party can withdraw from it 

 at pleasure, and, as far as he is concerned, dissolve the union ; for the 

 essence of this union is the continuing consent of all. 



This is the simplest possible form of a supreme federal government ; 

 one in which the contracting sovereign powers are individuals, and in 

 which the sovereign persons in their aggregate capacity exercise the 

 function* of sovereignty. Such a federation may never have existed, 

 but any federation that does exist or can exist, however complicated it 

 may seem, is reducible to these simple elements. 



If the sovereign powers, instead of being in individuals, are in all the 

 people of the respective states, the only difference will be that the 

 functions of sovereignty, which in the first case we supposed to be 

 exercised by the individual sovereigns in their joint capacity, must, in 

 this case, be delegated to individual members of the sovereign body. 

 The citizens of the several sovereign states must in the first instance 

 of necessity delegate to some of their own body the proper authority 

 for making the federal contract or constitution ; and they must after- 

 wards appoint persons out of their own body, in the mode prescribed 

 by the federal contract, for executing the powers intrusted by the 

 federal contract to persons so appointed. Thus the individuals who 

 form the federal contract act therein severally as the agents of the 

 sovereign states from which they receive their commission ; and the 

 individuals appointed to carry into effect the terms of the federal 

 contract are the ministers and agents of that sovereign power which is 

 composed of the several sovereign states, which again are composed of 

 all the citizens. By whatever name of President, Senate, House o 

 i-ntatives, or other name, the agents of the sovereign power are 

 inated, they are only the agents of those in whom the sovereign 

 power resides. 



When the sovereign power is so distributed, the question as to the 

 interpretation of the federal contract may in practice be more difficult, 

 principle it is the same. No one state can be bound by the 

 interpretation of the rest, for if this were once allowed there would be 

 no assignable limit to the encroachments of the states exercising sove- 

 reign power in their aggregate capacity. It is a clear consequence of 

 the nature of the compact, whether the several sovereign powers are 

 nations or individuals, that each contracting power must exercise its 

 judgment on the interpretation of the instrument to which it is a 

 party, and that no interpretation from which any power dissents can, 

 consistently with the nature of the compact, bind that power. 



In the case of complete dissent or disagreement by any one power, 

 the contract is, by the very nature of its terms, at an end ; for the 

 contrict being among sovereign powers, they cannot severally as such 

 yield obedienre to another sovereignty, which results from the aggrega- 

 tion of their several sovereign powers ^their acts in their joint capacity 

 ; >e acts of complete consent. 



If the sovereign power in such a federal union has delegated the 

 power of interpreting the written instrument of union to certain 

 judiciary authorities, appointed under the federal compact for the 

 purpose of carrying its provisions into effect, the several sovereign 

 powers must still exerciie, either by their legislatures or their judiciary 

 authorities, their right to judge of the correctness of the interpretation, 

 just as much as if the several sovereign persons, in the case first 

 supposed, themselves exercised the functions of sovereignty in the 

 no federal government. 



nly called the general government of the United 

 States of North America is an example of a federation or federal 

 government, or a supreme federal government. The contracting 

 parties were sovereign states (the sovereignty in each state being in the 

 ), which in their aggregate capacity formed a supreme federal 

 uuent. The ministers for carrying into effect the federal govern- 

 ment are the president and congress, and the judiciary of the United 

 States. By the preamble to the constitution it is in fact declared that 

 the ' people of the United States" are the contracting particn. 



Tli fifth article of the constitution provides that " The congress, 

 .I.T two-thirds of both houses shall deem it necessary, shall 

 uts to this constitution, or on the application of the 

 'if two-thirds of the several states, shall call a convention 

 i- amendments, which, in either case, shall be valid to all 

 intents and pur|>o9C8, as part of this constitution, when ratified by the 

 legislatures of three-fourths of the several states, or by conventions 

 in three-fourths thereof, as the one or the other mode of ratification 



may be proposed by the congress ; provided, &c., and that no state, 

 without its consent, shall be deprived of its equal suffrage iu the 

 senate." From this article it is clear that the framers of the con- 

 stitution did not fully comprehend the nature of the supreme federal 

 government ; for it is assumed by this article that the several states 

 may be bound without their unanimous consent, which is contrary to 

 conditions essentially implied by the nature of the union. This article 

 involves also the inconsistency that the sovereign iu any state may 

 bind his successors : if the case of a federation of individual sovereign 

 persons had been that to be provided for, the impossibility of the pro- 

 vision would have been apparent ; but the impossibility equally exists 

 when the contracting sovereign powers are respectively composed of 

 many individuals, for the abiding consent is still the essence of the 

 union that has been formed. 



This is not the proper place to discuss the advantages and dis- 

 advantages of a supreme federal government, nor to examine into its 

 stability. That it is necessarily deficient in one element of stability, 

 namely, in there being a necessity for all the consenting parties to 

 continue their consent, is evident : in this respect it is like a partner- 

 ship for an indefinite period, which may at any time be dissolved by 

 any one of the partners. Such a power, which is incident to the 

 nature of the partnership, so far from being an objection to it, is a 

 great advantage. So long as all the parties agree, they have the benefit 

 of the union : when they cannot agree, they take instead of it the 

 benefit of the separation. 



It is also foreign from our purpose to consider what is the tendency, 

 in a union like that of the United States, resulting from the powers 

 placed in the hands of the president and congress by the states acting 

 in their aggregate capacity. If such power were placed in such hands 

 by sovereign persons originally severally sovereign in their respective 

 states, as in the case first supposed, the vigilance of these persons in 

 their aggregate capacity, though somewhat less than the vigilance of a 

 single sovereign person, would probably prevent any undue assumptions 

 of power on the part of those to whom they had delegated certain 

 fixed powers. But the farther the several sovereigns, who in their 

 aggregate capacity form this federation, are removed from those to 

 whom they delegate certain powers, and the more numerous are the 

 individuals in whom this aggregate sovereignty resides, the greater are 

 the facilities and means offered to, and conseqxiently the greater is the 

 tendency in, their ministers and agents practically to increase those 

 powers with which they may have been intrusted. In their capacity of 

 ministers and agents, having patronage at their command and the 

 administration of the revenue, such agents may gradually acquire the 

 power of influencing the election of their successors, when their own 

 term of office is expired, and may thus imperceptibly, while in name 

 servants, become in fact masters. That .there is such a tendency to 

 degenerate from its primitive form hi all social organisation, as there is 

 hi all organised bodies to be resolved into their elements, seems no 

 sufficient reason for not forming such union and deriving from it all 

 the advantages which under given conditions it may for an indefinite 

 tune bestow on all the members of such federation. 



Federations of a kind existed in ancient times, such as that of the 

 Ionian States of Asia, which assembled at the Panionium at certain 

 tunes (Herodotus, i. 142) ; the Achfcan confederation ; the ^Etolian con- 

 federation ; and the Lycian confederation, which is described by Strabo 

 (p. 664). The Roman system of fooderate states (eiritata fa;derat<e) is 

 another instance of a kind of confederation ; but it was of a peculiar 

 kind, for Rome was neither absolutely sovereign over these states nor 

 yet associated with them in a federation, as now understood. The 

 relationship between Rome and the federate states rather resembled 

 the relation of sovereign and subject than any other, though it was 

 not precisely that. 



A supreme federal government, or a composite state, is distinguished 

 by Austin (' Province of Jurisprudence Determined ') from a system of 

 confederated states : in the latter, " each of the several societies is an 

 independent political society, and each of their several governments is 

 properly sovereign or supreme." It is easy to conceive a number of 

 sovereign powers, such as the German states, assembling and passing 

 resolutions which concern all the members of the confederacy, and yet 

 leaving these resolutions to be enforced in each state by its own sove- 

 reign power. Such a union, therefore, differs essentially from a supreme 

 federal government, which enforces its commands in each and all the 

 states. As to the existence of a written constitution, as it is called, in 

 the one case, and a mere compact in the other, that makes no essential 

 difference ; for the federal constitution, as we have shown, is merely 

 articles of agreement, which only derive their efficacy from the con- 

 tinued assent of all the members ttat contribute in their aggregate 

 capacity to form the sovereign power in such federation. 



As to a system of confederated states, Austin adds, ' I believe that 

 the German Confederation, which has succeeded to the ancient empire, 

 is merely a system of confederated states. I believe that the present 

 diet is merely an assembly of ambassadors from several confederated 

 but severally independent governments ; that the resolutions of the 

 diet are merely articles of agreement which each of the confederated 

 governments spontaneously adopts; and that they owe their legal effect, 

 in each of the compacted communities, to laws and commands which 

 are fashioned upon them by its own immediate chief. I. also believe 

 that the Swiss Confederation was and is of the same nature. If, in 



