§§ 5-7]

Associated States.

Nature of Federations.

17

non-federal unions glide imperceptibly into each other, it is even more difficult to define federal government, and clearly to separate it from looser forms of union. Some of the characteristics which were laid down by writers a few years ago as indispensable, prove lacking in new governments, which are yet undoubtedly federal. Thus it has been held that in a true federation there could be no preponderant state; but Germany is a true federation, and Prussia is preponderant. It has been held that a federation must be built up from previously independent states; but Mexico and Brazil are formerly centralized states, now sub-divided. Certain characteristics are, however, always to be found in a federal government. The aim of a federation is to gain the advantages of the concentrated power of great states, while retaining the advantages of local interest found in small states. Accordingly, there is always created some central, permanent authority, having powers applying throughout the federation. That authority must, in part, be representative. On the other hand, the separate states are continued, not as administrative districts, but as units of government, protected by the constitution from federal interference in local matters. In order to make possible the dual government, there must be an elaborate division of functions between the general government and the states, either expressed or sanctioned by custom; and each must be secure in the exercise of their functions. Furthermore, the union must be established as a permanent government, not terminable at the will of any state or group of states, except by the forms of constitutional amendment.

§ 7. The treaty theory. Since most federations have been formed by the voluntary union of previously separate communities, and since the line between federations and alliances is difficult to draw, it has been asserted by many writers that federations are based upon treaty, and are in fact only perfected alliances. The importance of the theory lies in its apparent recognition of the right of a member to withdraw from a union as it could withdraw from a treaty, which, in its opinion, has not been observed by the other party. This is the basis of the celebrated "Compact" theory of the Constitution of the United States, enounced in the Virginia and Kentucky Resolutions of 1798, and in the Report of the Hartford Convention of 1814; and elaborated first by Hayne and afterwards by Calhoun, in their debates with Webster, 1830-33. It is this doctrine, also, which gives whatever there may be of legal

ground for the theory of secession, put forward, in Switzerland in 1847, in the United States in 1860–61.

While it is true that many federations have been formed by diplomatic negotiation and agreements between the powers concerned,

as was the case in the German Confederation of 1815 and the German Empire of 1870-it is equally true that the unions thus formed have been very different from alliances. In the first place, the agreement creates a new organism, different from that of any of the states. In the second place, there is usually some tribunal framed for settling controversies between states, and between the union and individual states. In the third place, either expressly or by custom, power is given the union to restrain states from withdrawal or from a breach of constitutional obligation. Finally, whether logically or illogically, the union and the states both exercise sovereign power over individuals. If federations are founded on treaty, it is a treaty of a peculiar and indissoluble character, by which the contracting parties bind themselves not to exercise the usual rights of treaty-making powers.

§ 8. The constitution theory.-Opposed to the treaty theory of federal government is the theory that is based, like simple governments, on the acceptance of a fundamental constitution. When once a federal constitution is framed, there is no visible distinction between its force and that of the constitution of one of the states. Each has its organs, its system of enforcement, and its method of amendment. Federal constitutions are entirely within the domain of public law, and have little trace of international law in their operations. The legislatures of many federations have been congresses of ambassadors, acting under instructions; but when a resolution has been taken, within the legal forms and in exercise of the legal powers of that confederation, it has legally bound all the members. This obligation was recognized even in so feeble a federation as the German Confederation of 1815. Perhaps the most striking support of the constitution theory is the power of amendment without unanimous consent which resides in most modern federal governments. Under the national constitution exist all state constitutions; whether it is so expressed or not, they include the national constitution in their provisions, and nothing in them can be valid if not in accordance with the national constitution. The authority for both the state and the national constitutions is in the body, or combination of bodies, having the

§§ 7-10]

Classification.

19

power to alter the fundamental instrument or conventions of government, and thus through legal forms to impose its will to any

extent.

Both treaty and constitution theory may be so applied, as to avoid the logical difficulty of the conception of double sovereignty; under an extreme statement of the treaty theory, sovereignty continues to reside in the states, its exercise being committed for certain purposes to the union; under the constitution theory it may be said that the sovereignty resides in the body having power to amend the federal constitution and with it any state constitution; but that the sovereign chooses to divide the exercise of its powers between two sets of instruments, neither of which can legally perform the functions of the other.

- To the classification

§ 9. Classification of federal governments.1 of federal governments publicists have given great attention with unsatisfactory results. History shows a great variety of forms, ranging from the lowest possible organization, like that of the Amphictyonic Council to the highly centralized and powerful German Empire. Many writers deny that any fixed boundaries can be described. The usual classification is, however, into three divisions, the Staatenstaat, or state founded on states; the Staatenbund, or union of states to which the term Confederacy nearly corresponds; and the Bundesstaat, or united state, which answers substantially to the term federation as usually employed.

§ 10. The Staatenstaat.2 — The Staatenstaat is defined to be a state in which the units are not individuals, but states, and which, therefore, has no operation directly on individuals, but deals with and legislates for its corporate members; they preserve undisturbed their powers of government over their own subjects. The usual example of a Staatenstaat is the Holy Roman Empire.

This conception has been ably supported as the theory of the government of the United States in the book called "Republic of Republics." It is, however, illogical in theory, and never has been

1 Classification of federal governments. See post § 465; Calvo, §§ 50, 54, and references; Wheaton, Part I, c. ii, §§ 20-22; Jellinek, v-viii, 58-60, 277-278; Phillimore, §§ 102-103; Bernard, Lectures on the American War, 68-72; Twiss, §§ 37, 54; Heffter, § 20; Schulze, Lehrbuch, §§ 23-25; Woolsey, Political Science, II, 147–148, 166– 170; Wharton, Commentaries, § 137.

2 Staatenstaat. General references, post § 466; Jellinek, 137-157, 277-278; Schulze, Lehrbuch, § 65.

carried out in practice. The analogy fails between individuals as members of a state and states as members of a union; for individuals in a society cannot exercise exclusive powers, and it is in the nature of states to perform acts of sovereignty. Nor is it possible for any government to abstract itself from relations with individuals. A Staatenstaat must have an organization of some kind, and that organization must be committed to individuals, who must be held liable for the performance of their duties. While the states preserve their independence, the union is nothing but an alliance: the moment they surrender any part of the sovereignty, they cease to be perfect states. Nor, in the so-called Staatenstaat could there be any peaceful method of securing obedience: individuals yield to judicial process because it is backed by overwhelming force; states, in the last resort, yield only to war. There may

be states within a federation, but no states within a state. Historically, also, the distinction is untenable. The Holy Roman Empire had courts, taxes, and even subjects not connected with the states. In theory it had superior claims upon all the individuals within the Empire; in practice it abandoned control over the

states.

§ II. The Staatenbund.1- The second category is better established. Jellinek says: "When states form a permanent political alliance, of which common defence is at the very least the purpose, with permanent federal organs, there arises a Staatenbund." This form of government is distinguished from an alliance by the fact that it has permanent federal organs; from a commercial league by its political purpose; from a Bundesstaat by its limited purpose. In other words, under Staatenbund are included the weaker forms of true federal government, in which there is independence from other powers, and, within the purposes of the union, independence from the constituent states. A Staatenbund possesses a definite and permanent organism, though a limited range of power, and often very imperfect organs.

It is not essential to a Staatenbund that it be in terms perpetual; or that it require amendment by less than unanimous consent. If the treaty theory of federal government have any application, it

1 Staatenbund. General references, post § 466; Fellinek, 172-197; Wheaton, Part I, c. ii, § 21; Geffcken's Heffter, 55, 56; Austin's Jurisprudence, 217, 264; Cal· houn's Works, I, 163; Federalist, Nos. 9, 21, 39; von Brie, 47, 48.

§§ 10-12]

Staatenstaat, Staatenbund, Bundesstaat.

21

is to the Staatenbund, for the instrument of government is usually framed by a diplomatic congress; and the members of the legislature may be bound by instructions of their state governments.

The Staatenbund form includes most of the federal governments which have existed. The Greek confederations (except perhaps the Lycian and Achæan) and all the medieval leagues were of this type: even the strong modern unions of the United States, Germany, and Switzerland, have gone through the Staatenbund stage in their earlier history.

§ 12. The Bundesstaat.1

- Between the Staatenbund and the more highly developed form, the Bundesstaat, no writer has described an accurate boundary. There are certain governments, notably those of Canada, Germany, Switzerland, and the United States, in which are found an elaborate and powerful central organism, including federal courts; to this organism is assigned all or nearly all the common concerns of the nation; within its exclusive control are war, foreign affairs, commerce, colonies, and national finances; and there is an efficient power of enforcement against states. Such governments undoubtedly are Bundesstaaten. Founded as they are on careful written constitutions, with a minute division of powers between the states and the union, they possess all the attributes of vigorous and independent nations, and cannot be likened to alliances. From the Staatenbund they differ in purpose, form, and powers; but the difference is only one of degree. The framers of such governments have in mind the development of a nation, rather than mere defence; they have set up a complicated machinery, with large resources and a great staff of officials, rather than the simple meeting of delegates usual in a Staatenbund; they have provided for the exercise of powers in a large way, rather than to confine the federal functions to defence; in cases of conflict with states, it is expected that the nation will carry out its will, rather than that the states will assert their independent powers. The difference is not one of kind; it is a difference of point of view, of expectation, of means to carry out the national will. Toward this stronger form of union there has been a decided tendency in the last half-century. Under the successful example

1 Bundesstaat. General references, post § 466; Jellinek, 253-314; Wheaton, Part I, c. ii, § 22; Geffcken's Heffter, 53-55; Phillimore, § 112; Freeman, Federal Government, 3-5, 9-11; Dicey, Law of the Constitution, 131–152.