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A. The Character of Political Unions.

PERMANENT political unions are commonly classified as Confederation, Incorporation (or Consolidation), and Federation. The nature of Confederation as a type of political union is simple, though the name is not unfrequently applied to organizations, which, in fact, belong to one of the other classes, as when we speak of the Confederation of Canada or the Confederacy of the Swiss Republic. It is an alliance of States, in which the central power “represents only the governments of the several members of the union; its powers consist simply in issuing requisitions to the state governments, which, when within the limits of the federal authority, it is the duty of those governments to carry out.” The purposes for which requisitions may be made are those, which the parties have submitted to the “federal power”; they may be few or many, and might conceivably extend to everything upon which sovereign power can operate. But so slight a tie will not bear the pressure of many or indefinite requisitions. Defence against external aggression, probably the conduct of foreign affairs, and the determination of disputes between the States, which, by disturbing internal tranquillity, expose the Confederacy to the danger of attack from without—these are the objects to which a system of Confederate States is likely to be confined. But “confederate” elements may be found in the closer unions. In the Empire of Germany, which, perhaps, from its monarchic government and the mode of its establishment, as much as from the scope of the central authority, is often regarded as a consolidation rather than a federation, the Bundesrath —an upper chamber which overshadows the lower—is distinctly confederate. Its constitution might easily mislead us as to its character. The States are unequally represented; their membership roughly corresponds with their population and importance; it therefore suggests a national democratic organization. But its true nature


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is thus accurately described by Mr. Laurence Lowell: “It is not an international conference, because it is part of a constitutional system and has power to enact laws. On the other hand, it is not a deliberative assembly, because the delegates vote according to instructions from home. It is unlike any other legislative chamber, inasmuch as the members do not enjoy a fixed tenure of office, and are not free to vote according to their personal convictions. Its essential characteristics are, that it represents the governments of the States and not their people, and that each State is entitled to a certain number of votes, which it may authorize one or more persons to cast in its name, those persons being its agents, whom it may appoint, recall, or instruct at any time. The true conception of the Bundesrath, therefore, is that of an assembly of the sovereigns of the States, who are not indeed actually present, but appear in the persons of their representatives.”note

Incorporation differs from Confederation in that it substitutes a new state for several states, in every case at any rate where the incorporation does not consist merely in the absorption by one state of part of another state. The state possesses a government, which may or may not be sovereign, but which, in one form or another, pervades the whole territory of the state, and is capable of affecting all its subjects. If there be governments of parts of the state—what are called local governments—they will commonly derive their existence and authority from the central government, and, in any case, they will be subject to its regulation, and will rely upon its organs for their support. Complete unification would seem to imply such a homogeneity of the institutions of the state, as would remove all the marks of the former separateness of the component parts, which would become mere geographical areas. But such an unification would hardly contribute to the stability and durability of the state, and the new state will act wisely to seek and retain the ancient landmarks. In practice, consolidation does not in fact obliterate the original lines of division; and the retention of these lines furnishes what are called the federal elements of an incorporated union. From one point of view, the United Kingdom of Great Britain and Ireland is a perfect incorporation or consolidation; it is one state whose government—the Imperial Parliament—unlimited in scope, supreme in authority, and unitary in action, is rightly regarded as a type of sovereignty in its simplest and most direct form. But the constitution of both Houses of Parliament, and the separate administrative and jural systems, are the legal recognition of the three kingdoms as separate units, and are the federal elements in the union. To say that these “federal elements” exist by virtue of the law, and therefore by the sufferance of the state, is to say no more than may be said of every part of every federation. The popular description “legislative union” expresses


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the condition of the United Kingdom better than any other term which can be applied to it.

Federal union differs from Confederation in this, that it creates a new political organism, a state possessing all the attributes of sovereignty. It is universal in scope, exclusive of every other power, and of necessity supreme over, and acting upon, all persons and things within its territory. To distinguish the “federal state” from the “unitary state” is a much more difficult task. The distinction lies, not in the nature of the state itself, but in the organization of government. In every “federal state” the government consists of central and local parts, neither owing its existence to the other, nor capable of destruction by the other. The central government in matters within its sphere extends over the whole territory and population of the state; the local government is restricted in area. But, while this may be said of every state called federal, the same may be said of states regarded as unitary, where local institutions are directly established by the constitution. Seeleynote denies altogether that there is any fundamental difference between the unitary and the federal state, and adopts these terms merely as “marking conveniently the great difference which may exist between states in respect of the importance of local government.” Even the preponderance of the local government, which Seeley regards as the mark of the federal state, can hardly be regarded as essential. In Canada, the residuary power of government lies in the central and not in the provincial power, and the control which the Dominion Government may exercise over the provincial in every department warns us, that the doctrine of the independence of the governments in their respective spheres must not be pushed too far. Neither in the United States nor in Germany can we truly speak of the preponderance of local government. On the whole, we must be content with some vague description as that the independence of the local government surpasses anything which can fairly come under the head of municipal freedom,note or we may adopt Lewis'snote description of a subordinate government as one which possesses powers and institutions applicable to every purpose of government, and which would thus be capable of governing the district subject to it, if the supreme government were altogether withdrawn.

To say no more than this, is to describe very imperfectly any federal union that now exists or has ever existed. But the organisms, which go by the name of Federations, present so great a diversity that, beyond the characteristics named, there is hardly anything that may be deemed essential save agreement. In general, the new state has


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been formed by the coalescence of several states, which preserve their existence as units, and maintain a large part of their previous organization and functions as the “local part” of the government of the new state, and, as units, are the basis of the organization of the central government. This, with the fact that the functions that they discharge are not enumerated, while those of the central government are, gives them the appearance of an independent existence, which leads to such statements as, that there is a “residuary sovereignty in the state” (meaning the component state), that a federation is a “union of sovereign states,” and that a federal state differs from other states by the fact that it is one state and several states.

In a complex political organism, where law and politics are necessarily entwined, the importance of a clear appreciation of these matters cannot be over-rated. “It requires patient and successful discrimination to attain a point of view from which it is clearly seen that there can be no such thing as residuary sovereignty; that sovereignty is entire or not at all; and that what is left by the state to the local organizations, in this manner of distribution, is only the residuary power of government.”note

But the coalition of separate states is not the only way in which a federal state may be established. The experience of the Dominion of Canada has disproved the doctrine of Freeman, that “a federal union, to be of any value, must arise by the establishment of a closer tie between elements which were before distinct, not by the division of members which have been hitherto more closely united.”note Without going so far as Mr. Goldwin Smith, who speaks of that union as the creature of deadlock,note we must recognize that the immediate occasion of the accession of Upper and Lower Canada to the Confederation, proposed by the Maritime Provinces, was the perception of the leading men of both parties, that Confederation offered an escape from the embarrassment of a legislative union, which had proved too close a tie. The very general interest in federation at the present day is due to the belief, that it offers an escape from the dangers of over-centralization in large states.

The complete and separate equipment of the central and local governments for the discharge of the three governmental functions— legislative, executive, and judicial—might well be considered essential to the federal form. But a rigid adherence to this test would raise the question of the federal character of the German Empire, where executive power practically rests on the arm of Prussia, and where, as to judicial power, the organization of the Courts of the States is controlled by Imperial legislation. In Canada, the judges of the


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provincial courts are appointed, paid, and, should the occasion arise, removed, by the Dominion Government.

The division of powers in a Federal State between central and local organs, implies some machinery for confining each to its sphere. But no one method for enforcing those limitations can be deemed essential. The power of the Courts, as an incident of ordinary judicial duties, to interpret the Constitution and prevent the other organs from exceeding their powers, belongs fundamentally neither to a written constitution nor to federalism, for both may and do exist without it. It is in some respects, even, the contradictory of federalism and its separation of powers. Its origin is in the unity and universality of the English Common Law and the jealousy of the Common-Law Courts. For the source of what has been to so many Englishmen the mythical power of the Supreme Court of the United States, we must look rather to the conflicts of Coke and Bacon than to the letter of the constitution of the United States.

If there be no essential difference in the scope even of a Confederation and an Incorporation, if the former may embrace every subject over which governmental power can be exercised, we are not likely to find the true test of federalism in the purposes of union. So great an authority as Freeman, however, has said, “The true and perfect Federal Commonwealth is any collection of States in which it is equally unlawful for the Central Power to interfere with the purely internal legislation of the several members, and for the several members to enter into any diplomatic relation with other powers.”note This may describe, with some approach to accuracy, the principle of the United States Constitution; but, in neither of these elements, does it truly describe the Constitution of the German Empire, and it is wholly inapplicable to such unions of dependent communities as constitute the Dominion of Canada and the Commonwealth of Australia. “All must be subject to a common power in matters which concern the whole body of members collectively,”note still leaves one question: What are such common matters? The answer can only be, those which the parties have declared to be common.

Comparing the existing political unions with the three types, we find that no actual union does more than approximate to a type, and that it must be placed in one class or another, according to the preponderance of one or the other elements in it. The Confederacy of the United States did not operate wholly upon governments; the government of the present union contains elements national, federal, and confederate. As has been pointed out, the German Empire is sometimes regarded as a unitary State, sometimes as federal, but it contains at anyrate one mark of confederation. The incorporate


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union of Great Britain and Ireland has federal features in its government, and the “confederation” of Canada produced an organism without confederacy, and, with a government, which, in many of the matters commonly associated with the federal form, exhibits the marks of unitary rather than of federal government. In the formation of every political organism the only rule can be political expediency.

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