Federalism as a Democratic Process: Essays [Reprint 2022 ed.] 9781978812055

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Rutgers University—PUBLICATIONS

OF T H E ONE HUNDRED

SEVENTY-FIFTH ANNIVERSARY CELEBRATION

Number Two

Federalism as a Democratic Process

ederalism as a emocratic rocess €ssays by ROSCOE POUND CHARLES H. McILWAIN • ROY F. NICHOLS

S\Qew 'Brunswick

RUTGERS UNIVERSITY PRESS 1942

COPYRIGHT 1 9 4 a BY T H E T R U S T E E S O F RUTGERS COLLEGE IN NEW JERSEY

Printed in the United States of America

Contents Law and Federal Government By

ROSCOE POUND

The Historical Background of Federal Government By

31

CHARLES H . MCILWAIN

Federalism versus Democracy By

49

R O Y F . NICHOLS

Commentaries By

3

FRANCIS W . COKER a n d EDWARD S . CORWIN

76

Federalism as a Democratic Process

Law and Federal Government ROSCOE

POUND

R

U T G E R S was founded in 1766, a decade before the Declaration of Independence, when the political and legal ideas which led to the Revolution were in full tide of development. Thus its century and three quarters of history coincide substantially with the history of our characteristically American polity as it was rooted in the polity of seventeenth-century England, was shaped by the experience of the colonial era, was given direction in its growth by the rising democratic ideas of the end of the eighteenth century, and has been affected successively by the conditions and modes of thought of a pioneer, rural, agricultural society and later by those of transition to an urban industrial society. In 1766, the era was one of absolute governments. The model was the old regime in France. England, two generations before, had rejected royal absolutism, but had set up parliamentary absolutism, contrary to the views of medieval and seventeenth-century lawyers, although, as was the doctrine of those lawyers, the agents of the Crown were held to act under the law. In the new world, the colonies had become provinces, provincial legislatures had become strong, courts and judicial systems had been set up, and the development

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of American law and American legal institutions had begun. On the basis of what they read in the English law books, which spoke from the seventeenth rather than from the eighteenth century, American lawyers were restive under the absolute rule of Parliament and even more restive under the administrative absolutism of the Privy Council, while the American who would carry on enterprises or engage in trade was quite as restive under the centralized control of such things by the government at Westminster. For down to the Revolution there was a complete centralization of political power at Westminster, ultimately in Parliament, but immediately in practice in the Privy Council. A great change was wrought by the federal constitution. In place of a centralized control by an administrative body, we had for a time a loose and ineffective government for external affairs along with thirteen practically independent states with their own legislatures, their own courts, their own laws. Then came the federal legal polity under which we have lived since 1789 - a constitutional democracy, as it became, with a parceling out of political power between nation and state, and in each political entity a distribution of power between coequal, independent departments, constrained to keep within their appointed limits by the supreme law of the land. But, I can hear some of you saying, that is an oldfashioned way of speaking about our American polity. You speak as if in the continuity of its historical development our polity was still that set up in 1789. In the nineteenth century, in the age of philosophical his-

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tory, continuity and identity were found in an idea which was taken to be unfolding or realising itself in the development of an institution. Very likely that time did insist too much on continuity and continuous identity in human institutions. On the other hand, perhaps the present, by way of reaction, insists too much on discontinuity. If the one put too much stress on the idea which it found from the whole course of development and upon the general aspects from which the idea was gathered, the other sees the story piece by piece in unrelated pieces and lays too much stress upon the details. Radio-activity has taught us that even in physical nature nothing stays exactly the same. Much less do institutions keep an exact identity of detail. Yet in their significant aspects both physical objects and institutions may preserve a long continued identity under many changes and notwithstanding much change of detail. Closely connected with the stress upon discontinuity and upon detail rather than upon general aspects putting details in the order of reason, is a rejection of ideas and conceptions and principles. Freudian psychology is taken to have undermined reason. It is but a pretense to cover up behavior proceeding from deep-seated wishes which are the real motivation. The boundless faith in reason which came in with the Renaissance, the belief in a creative reason equal to all social and political and legal problems which characterized the seventeenth and eighteenth centuries, have given way to a rejection of reason and belief in social and political and legal phenomena as no more admitting of reasoned control C53

than are the phenomena of physical nature. Neo-Kantian relativism has taught us that judgments of value are subjective opinions only. They are unscientific. Hence canons of value and attempts to conserve values by law are futile. We must accept the phenomena of government as we accept those of physical nature. In politics and jurisprudence the result is a cult of force which is manifest throughout the world. In theories of government and of law there is increasing insistence upon force. The reality which we can observe and verify is force. Subjection of that force to reason is a pious wish, a superstition. Where the Middle Ages looked at the problems of government and law in terms of authority, where the seventeenth and eighteenth centuries looked at them in terms of reason, where the nineteenth century looked at them in terms of history, today we seem to be looking at them in terms of impulse. One phase of this cult of force is an idea that if there is to be democracy it must be an absolute democracy. I t must be, if one is to follow a general fashion and coin a word with the aid of his Greek dictionary, a mizonocracy (or perhaps a mizonarithmocracy) - an absolute subjection of a politically organized society to the unlimited and unrestrained rule of the majority or even a plurality for the time being, just as an autocracy is an absolute subjection of such a society to the unlimited rule of a personal ruler. But in the present connection, at least, democracy is a form of government. There may be an absolute monarchy or there may be a constitutional monarchy. A king may rule or he may only reign.

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There is no such thing as a limited or constitutional autocracy. The autocrat of limited powers is not an autocrat. But a democracy is not necessarily autocratic. It may be an absolute democracy, or it may be a constitutional democracy. I grant that this last proposition is not universally conceded. There are logical realists who tell us that a constitutional democracy is a contradiction in terms. I submit, however, that this begs the question by assuming what is to be shown, namely, that a democracy must be an absolute democracy. Of course, if one starts by defining government as the unfettered application of the force of a politically organized society to those subject to its power, a government by the people must be absolute and unlimited. But the experience of the outstanding democratic polity in the world does not sustain the postulated nature of government, and we may, perhaps, adapt Diogenes' answer and say solvitur gubernando. If one suggests that there is too much insistence on thinking of democracy in terms of power only, ignoring the responsibility which is the correlative of power, he may be told that power is a fact, exercise of power is an observed and observable phenomenon, whereas the correlative responsibility is only a subjective ideal, a pious, wish, of no scientific validity, belonging to the realm of ought-to-be, not to the realm of what is. But it might be responded that the idea of an absolute democracy, a people as a whole, ruling benevolently over a great domain, administering an enlightened personal justice after the manner of St. Louis under the oak at Vincennes, enacting wise laws after the manner of Solon,

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and providing an efficient personal administration after the manner of Napoleon, is something of a pious wish itself. Even the simplest and purest democracy must act through agents. Demos himself may, in a democratic polity, have ultimate unlimited power. But it is no contradiction of this proposition to add that he may put limits to the exercise of his powers by his agents whom he chooses to carry out his purposes. Nor are his purposes and those of a plurality of the electorate for the time being necessarily the same. One may question whether it is the end of government to enable a majority to exercise force for the sake of exercising it, or rather also to direct the application of force no matter who is exercising it. At any rate, the proposition that a democracy must be an absolute democracy, that a constitutional democracy is a contradiction in terms, in the hands of realists who hold that the government is but a name for the individual men who wield the force of politically organized society, becomes a proposition that the officials who act as the agents of a democracy must in the nature of things be free of constitutional restraints. An idea of a covenant of a people not to do certain things and only to do certain other things in a certain way was well known in the formative era of our polity. I t was an idea of the Puritan Revolution. Lord Acton tells us that the Puritan ideal was the "ideal of local self-government and of democracy." But the idea of an absolute democracy has no place for local self-government. Shall we say then that the foundations of modern democracy were undemocratic, or shall we say that

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Demos no less than Rex may, in the words attributed to Bracton, rule under God and the law? To the Puritan, the precedent of the covenant which made Abraham and his seed forever the people of God justified the selflimitation of a sovereign people to keep within the bounds of a bill of rights, really a bill of liberties, and to respect the claims of localities to home rule. No doubt from a logical analytical standpoint this idea is untenable. How can the postulated political omnipotence put limits on itself or on the agents through whom it must act - who, the realists tell us, are the reality which we cover up by a pious wish or superstition of rule by the whole people? In America, we are beginning to hear this theoretical objection to our constitutional polity from the advocates of bureaucratic administrative absolutism. The same logical-analytical objection was urged in the last generation with respect to charters and constitutions granted by absolute monarchs. In the nature of things, the sovereign which was above legal limitation could not limit itself. Nothing but force could hold down a man or a body of men who wielded the force of politically organized society. We are told today that law itself must have behind it, must be imposed by, a force able to impose itself upon all other forces. Hence there is nothing to law but force. What ever is done by those who wield the force of politically organized society is law. It is not that they may act according to law or without law or against law. What they do is law because they do it. Each item is law and attempt to generalize and lay down principles of their action is only superstition. This is said to be realism. But it is as much a C93

theory of government as the teaching it rejects as unreal and as being a mere theory. It is as unreal as any theory purporting to give a systematized picture of actualities can be. The history of civilization shows increasing restraint upon exercise of force simply as such. Indeed, there has always been something restraining behind even the most autocratic of autocrats. In a federal democracy this restraining element is given efficacy by a balance of central authority and local authority, of lawmaking, administration, and adjudication, and of politically organized society and individual man, maintained by law. Our polity has been based on a conception of a country of local political organizations which historically and economically have each a certain unity, which internally have a large degree of peculiar interest, and geographically have conditions of their own, often quite diverse even from those of their neighbors. It has been based also on a conception of the individual human being as the moral and social and so the political and legal unit. To the Puritan as each man was an equal unit before God, so he should be before the state and the law. The official was on no higher plane than the private individual who took part in choosing him. As John Robinson, the great preacher of the Pilgrims, put it, we are with one another, not over one another. There is to be consociation, not subordination. An equal is to apply objectively the predetermined precept to an equal, not a superior to apply his will to the conduct of an inferior. Subjection of the will of one to the arbitrary will of another was abhorrent to the Puritan. He waged 10

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a constant and consistent warfare upon institutions which seemed to him to involve any such subjection. The exposition of the common-law rights of Englishmen in Lord Coke's commentary on Magna Carta appealed to the Puritan as the sort of system of predetermined precepts, limiting the power of the magistrate to defined situations, treated by a defined technique, by which alone one free and equal human being could be trusted or allowed to judge another. Coke's "Second Institute" was published by order of the Long Parliament and was a legal and political Bible to the lawyers who took part in setting up our frames of government. The fundamental thing, they felt, was to declare men's liberties, not to define social ends and set up administrative tribunals to give effect to those ends in the most efficient way. Coke's struggle with the administrative tribunals of the Tudors and Stuarts was ever present to their minds. A different idea, much urged in the decades between the last and the present world war, finds instead the social and political and so the legal unit in the occupational group. The thought of the moment does not trouble itself about a moral unit. Economic determinism, now much in fashion, looks at everything through spectacles adjusted to focus upon the self-interest of an economically dominant class. Under such a theory of a society of occupational groups the task of politically organized society may be conceived as one of keeping the peace among these units by the official application of force or as one of maintaining and furthering civilization by adjusting their relations and regulating their

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conduct through the systematic and orderly application of that force. In a country of continental domain it may well be that this last would call for a federal legal polity even in the completest democracy. But is this theory of the occupational group as the unit a true picture of the society in which our legal order obtains? Granting that every one of us is in some group or association or relation, most of us are in many, some with strong hold upon us, many with feeble hold. The occupational group is not the only type of group or even necessarily the most significant group. In the past, religious association has proved at least as powerful as any form of association. Men may be coerced into political association and are often coerced into the most characteristic and most powerful of occupational associations. In the modern world they enter into religious associations from conviction: as the Puritan put it, they are held together in such associations by a "willing covenant of conscious faith." Beliefs have at least as strong a hold on men's loyalties as have their pockets. A federal polity can not be an autocracy. The unlimited political power of the autocrat necessarily swallows up the authority of the local governments. The agents of politically organized society in the locality are but the agents of the central autocrat. Nor can it be organized on the basis of absolute rule of a majority in the whole. The absolute power of the majority in the whole swallows up the authority of the majority as well as that of the agents of local government in the part. The latter are all of them the agents of the majority in C"3

the whole, not those of the majority in the part. This is true also in a polity in which there is a central oligarchy of unlimited power. A federal organization is impossible under such an oligarchy. But the choice is not limited to, on the one hand, the absolute rule of an autocrat or an unlimited oligarchy or an unlimited majority of the whole, and, on the other hand, a mere federation with at most a feeble central authority. As there can be, as our political history has shown, a balance between the executive or administrative and the legislative organ of a politically organized society, so there can be a balance between the central government and the local government. There may even be, as experience in the present century in many states has shown, a balance between the general state government and municipal governments upon which the state constitution has devolved a large lawmaking power with respect to matters of local concern. Thus in Los Angeles, for example, the inhabitant is subject to three lawmaking bodies: the Congress of the United States, the legislature of California, and the municipal lawmaking authority of the city. Under such a polity, each governmental agency has full power within its scope, but each is limited in respect of that scope. Thus there may be a democratic polity in the central government and a democratic polity in each local government, and yet no absolute majority without limit upon its power in either. But, we are told, the balance contemplated by our polity has not been maintained. The relative weight on the sides of the scale has altered more than once, and there are those who consider the whole idea of balance

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obsolete and hold that it is disappearing in the development of our polity. It is quite true that the relative position of the legislative, the executive, and the judicial departments in our governments, national and state, has not remained as it was in the last decade of the nineteenth century. Despite our constitutional theory of three co-ordinate and co-equal departments of government, the hegemony of the legislative department from the framing of our polity to the Civil War is clear enough. Legislators thought of themselves as peculiarly the representatives of the sovereign people, with all the powers of that sovereign devolved upon them. As late as the impeachment of Andrew Johnson it was confidently asserted that the executive was accountable to the legislative for the exercise of powers committed to the executive by the constitution. State legislatures summoned judges before them to be interrogated as to particular decisions exactly after the manner of the famous colloquy between James I and the judges of England. There was an idea of legislative omnicompetence. The earlier legislatures did not hesitate to enact statutes reversing judgments of the courts in particular cases. They sought to admit to probate wills rejected by the courts. They sought to dictate the administration of particular estates. They sought to suspend the statute of limitations for a particular litigant in a particular case. They sought to exempt a particular wrongdoer from liability for a particular wrong for which his neighbors would be held by the general law. In at least two states the local constitution for a long time allowed their legislatures something of the omnicompetence t »4 3

claimed by the Stuart King. But judicial resistance to such claims where the constitution followed the typical American plan of separation of powers and new constitutions elsewhere put an end to legislative justice and legislative administration. We must remember that the legislative was the first of our departments of government to get its growth. It was the first to develop in the colonies and it took on an American aspect from the start. Before the Revolution, the executive was a royal governor or a proprietary governor and so could afford no model for the future. In the first century of colonial existence courts were not needed on any large scale. Magistrates, with an appeal to the legislature or to the governor and council, sufficed for the simpler relations of the beginnings. Organization of the judiciary in courts manned by judges has its real beginning in the last decade of the seventeenth century, and the courts and the bar had only begun to be strong on the eve of the Revolution. The executive department in our governments, state and national, had to be developed after independence - indeed, after the constitutional polity was set up. As might be expected, the departments of government rose to leadership in the order of their development. While they were theoretically coequal, as has been said, there was a legislative hegemony from the Revolution to the Civil War. Quite as clearly there was a judicial hegemony from the Civil War until the beginning of the present century. The tendency of the nineteenth century to reduce everything to rule, by no means confined to the law but manifest in every field of

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activity, led to analytical theories of exact and detailed assignment of every feature of governmental action exclusively and for all purposes to some one department. It led to attempts to reduce the standard of reasonableness, prescribed in the bills of rights, to detailed rules analogous to rules of property. This gave the judiciary, for a time, too much weight in the scale, as the legislature had formerly attained an over weight. As the balance has been restoring in the present century by the rise of administrative agencies, the result has been an executive hegemony and over weighting on the executive side. Yet it must be noted how the balance has come back in the past. Thus far no department has been able to make permanent its temporary leadership. The essentials of the system of balance and distribution of powers have remained. In the same way, the balance of nation and state has not remained constant. The relative political position of nation and state has shifted with the increasing economic unification of the country, with the growth of enterprises and businesses transcending state lines, and with the advent of rapid transportation and instantaneous communication. Many things that were local have become national. But it is one of the conspicuous merits of the federal constitution that, as it was drawn up before the coming of the nineteenth-century tendency to govern everything by precise rule, it did not attempt detailed laying down of what was national and what local, but left the details to be settled by experience under a general principle. Thus the balance of the national and the local, characteristic of our polity, can

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maintain itself, since changes in relative economic importance affect the application of the principle but not the principle itself. An illustration may be seen in the tendency toward unification of law following economic unification. For a time, under the influence of ideas of natural law, there was much uniformity of law throughout the land. Then came for a time a veritable cult of local law. Local legal anomalies were deemed proud possessions. A distinctively local local-law seemed to be considered an end. But the work of the commissioners on uniform state laws, the restatement of the common law under the auspices of the American Law Institute, and the influence of national law schools teaching a general law, as contrasted with the local law schools, teaching local law to a local student body, have been making for legal unity in the present century. Yet the movement has not been wholly toward legal unification. One of the first strokes against the rising cult of local law was the doctrine of the federal courts as to independent judgment upon questions of general and commercial law, making the law uniform for these courts, however diverse in the states in which they sat. In the present decade, despite the general shift to nationalize rather than localize, that doctrine has disappeared. It is curious that although constantly under attack in the era of local law and apprentice-trained local lawyers, especially from those hostile to federal jurisdiction, it maintained itself for nearly a century, to be overthrown in the heydey of unification and nationalism. It is significant that the judge who had perhaps most to do with overthrowing

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it, put his decision on the ground of its incompatibility with the balance of nation and state. It does not require us to reject the principle of federal organization, the principle of parceling out governmental power between the general government and the states and maintaining a balance between them, to show that the line as to what is national and what local shifts with economic changes and frequently involves difficult questions of classification. We have an example of these problems of shifting lines in application and difficulties of classification in the state constitutional provisions which grew out of the movement for municipal home rule a generation ago. Ever since municipalities in a number of states had large lawmaking powers with respect to matters arising within the limits of the municipality devolved upon them, questions have arisen as to what are municipal matters and what are matters of general concern to be governed by the general laws of the state. Ohio, California and Michigan have such provisions for municipal home rule. In Ohio, a municipality adopted an ordinance denying to a motor bus company use of the streets as a stopping or starting station to let off or take on passengers, but allowed the busses to run through the town on a street. The home rule provisions gave the municipality full control of its streets for all purposes of local self-government. A divided court rejected the argument that to prevent through busses from stopping to let off and take on passengers at the town in question was to interfere with the commerce of the whole state, since people anywhere might want to go to that towji by bus, and, C 18 3

if they did, would be prevented, and upheld the ordinance. On the other hand, in California, Pasadena had a home rule charter giving the municipality authority to regulate traffic in the streets. An ordinance forbade driving of automobiles in the streets within the municipal limits faster than fifteen miles an hour. The state motor vehicle act permitted a greater speed. The California court held that in view of the general travel by automobile, driving in the streets was not a purely municipal matter. Where the matter was municipal, the court in other cases held that the ordinance would supersede the state law within the municipal limits. In Michigan, an ordinance fixing the price of gas in the city was held ultra vires. Power to regulate the rates of a public utility was held to belong to the general lawmaking authority of the state and not a power necessary to local self-government. Thus it will be seen that three different views were possible as to how the line between matters of general concern and matters of municipal concern were to be drawn. Ohio decided in favor of the municipality even where municipal control affected general travel. California considered general travel so much a state concern, even when going through the municipal streets, that the general state law must prevail. Michigan resolved doubts against the municipality (where Ohio resolved them in its favor) and considered rate-fixing a matter of general concern. Partly these differences grew out of differences in the constitutional texts. To a great extent they grew out of different local conditions to which the constitutional provisions for municipal C »9 3

home rule were to be applied. The significant point, however, is that those provisions (which were in the right line of development of a federal polity) raised difficult points of classification and of assigning particular items of governmental action to one category or to another, exactly as happens in our federal organization of the United States as between nation and state. In law no classification can be made that will not involve such difficult cases of application. Things which are distinct enough at the core shade into one another at the periphery because of the infinite variety of human behavior and the social and economic changes involved in life, the essence of which is change. It does not invalidate classifications and categories to show that a hundred per cent, exact delimitation, so that everything can be referred infallibly to one category or another, is impossible. We are dealing with a practical activity and our classifications and categories are intended for and to be judged by practical results. Most of the difficulties in our constitutional law have been due to nineteenth-century analytical attempts to maintain theoretical absolute lines. This was notably so with respect to the constitutional separation of powers. The sound legal political sense of Chief Justice Marshall saw long ago that there were powers of doubtful classification and that, where a power might well be attributed to either of two departments of government, it was a legislative function to assign it to an appropriate department. But it was not till the second decade of the present century that this solution became established in the decisions in the face of analytical attempts to

put everything once and for all and exclusively in one place. In practice we have come to a combination of analytical and historical criteria tempered by the recognition that there are powers which are of doubtful classification which may be exercised by more than one department a§ the legislature may decide. So it is with the line between what is national and what is local, what is for the general government and what is for the states. We must not expect to draw it once for all by analysis so that, to use Jhering's phrase, it will break but not bend. As everywhere else in law, experience developed by reason and reason tested by experience give us a practical working line answering its practical purposes. It is for professors to put the results in the order of reason in order to prevent the line from becoming arbitrary. But it is not for them to make arbitrary theoretical lines which will not stand the test of experience. It is no ground for giving up what has been gained by experience organized by reason to show that it does not absolutely conform in all its details to a theory of it which was worked out and got currency at some other particular time. Even if the lines can not be drawn at any one time absolutely - and in law and politics which deal with life none can be so drawn - the national and the local are distinct at the core, and the experience of Englishspeaking peoples has shown that local matters are best dealt with in the locality instead of by postulated ex officio supermen at a distance. That more things have taken on a national aspect more than formerly means only that with the growth of an urban industrial society C21 3

the facts to which the distinction must be applied have changed. But what is a legal and political principle but an authoritative starting point for reasoning, a starting point from which to deal with continually changing details, an authoritative premise to be adapted by reasoning to changing facts of relations and conduct and the ordering thereof? My proposition, then, is that a federal democratic polity is perfectly possible, the analytical theorist to the contrary notwithstanding. Einstein has shown us that we live in a curved universe in which planes and straight lines and right angles and perpendiculars do not exist. Yet they are useful postulates sufficiently approximating to reality for practical purposes. His discoveries in theoretical physics do not require us to give up surveying. Half of civilization is the control over internal or human nature which has made possible the accumulated control over external or physical nature, the harnessing of physical nature to man's use of which the scientists are justly proud. In each, in the control over internal nature and in the control over physical nature, we have the accumulated experience of centuries to draw upon. The experience of control of human behavior through law is as real, it is as subject to objective scrutiny and ordering by scientific hypotheses, as anything with which the scientist has to do. The phenomena given us by experience in the social sciences are not mere subjective opinions. Nor are the conclusions we draw from them, to which we give the name of principles of law and politics, mere prejudices. If our hypotheses of law

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and politics, of valuing interests and adjusting relations are not and perhaps cannot be absolutely demonstrated, they have exactly the same validity that the hypotheses of the physical scientists have, namely, a high degree of probability on the basis of observation. We are not required by Neo-Kantian doctrines of the impossibility of theoretical demonstration to reject what the experience of the English-speaking world has taught us as at the bases of a democratic polity carried on in accordance with law. No domain of continental extent has been ruled otherwise than as an autocracy or as a federal state. Confederacies have fallen apart. Consolidations of independent states, unless in a limited domain, have developed into autocracies. In antiquity the consolidation achieved by Alexander and the almost world-wide consolidation achieved by the Romans resulted in autocratically ruled empires. In the modern world the German-Roman empire of the Middle Ages fell apart. I t was neither autocratic nor federal. The British commonwealth of nations has fallen apart politically. Russia has only changed its type of autocrat. But the United States and Canada and Australia show us what we may well call continental domains held together politically, sometimes under great stress, by a federal polity. Professor Mcllwain has shown us the origin of the federal idea in the balance of central government and local self-government achieved in medieval England. Medieval England, too, achieved not a little distribution of powers between Crown, Parliament, and Judi-

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ciary from which comes our separation of powers as an actual polity, even if the theory goes back to Aristotle. Both the local self-government idea and the idea of separation of powers were affected in England by the absolute authority of Parliament after 1688. But both ideas were part of the inheritance claimed by the Continental Congress in 1774. We hear often today that the separation of powers was nothing but a fashion of eighteenth-century political thinking. Aristotle propounded it and Montesquieu mistakenly thought he saw it in the English polity of his time. It was in the air when our first constitutions were adopted and so entered into them as a matter of course. Nothing could be more mistaken. It was not a mere fashion of political thought which gave us written constitutions, declaring themselves in Coke's language the supreme law of the land, including bills of rights, and laying down a separation of powers, from the very beginning of our independence. In all of them the separation of powers is much more insisted upon than the details of political organization. Often the latter were left much as they were or were committed to legislation. We must note die experience that led up to this. Already the Puritan Revolution had produced a written frame of government and important projects for a written constitution reflecting experience of absolute government and high-handed administration under the Tudors and Stuarts. But if the seventeenth-century colonists came to the new world with some such ideas, the eighteenth-century colonists had good cause to develop faith in them. Down to the Revolution, full conA

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trol of each colony or province was in the Privy Council at Westminster. It had power to disallow all provincial acts and kept Pennsylvania twenty-one years without a court organization because no statutes organizing the courts of the province could be framed to suit the ideas of the Council. It had the ultimate executive power in each province, exercised through instructions to the royal governor. It had the ultimate judicial power in each province, and one of the chief causes of disallowing colonial or provincial statutes was attempt by legislation to limit appeals to the Privy Council. Again, in each province there was a like concentration of power in the governor and council. The Crown named the governor and he often named the council. Often this body was the upper house of the legislature, subject to scrutiny of its acts by the Privy Council. It had complete control of administration, subject to the scrutiny of the Privy Council, which called for reports from the governor and issued instructions to him. It was often the highest court of appeal in the province, and its judgments and those of any other body set up as the highest court, were subject to appeal to Westminster. Often the legislature exercised undistributed powers with no limitation beyond veto of laws or reversal of judgments by the Privy Council. This gave the colonists first hand experience of what is called today a subordinating justice, a justice which, instead of treating the individual and the official as equal, puts the official on a higher plane and subordinates the interests of individuals to the interests which he conceives represent the public in his person. It is no wonder that two years

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before the Declaration of Independence the Declaration of Rights of the Continental Congress claimed as against omnicompetent legislatures and councils and administrative bodies without limited powers the immemorial common-law rights of Englishmen, as declared by Coke and Blackstone, as being their birthright. Many of the colonies had already enacted Magna Carta as a declaration of their fundamental law, and today we are told that this, too, was a mere fashion, a lawyers' myth. But Magna Carta, as the colonists knew it, was more than a compact between the king and his tenants in chief, to be given an economic interpretation in terms of the twelfth century. There were in Magna Carta general provisions, a redress of the common grievances of all. It called for reasonable fines, proportioned to the offense and the offender. It called for justice as something of right, not to be sold, denied or delayed. It called for security of property, which was not to be taken for the king's purposes without the old customary payment. It called for security of the person. The free man was not to be imprisoned or banished or outlawed or disseised or deprived of his established privileges without a lawful judgment or otherwise than according to law. These general provisions, even if devised for particular grievances of a particular class in a particular time and place, were applicable to like grievances in any time and place. What we now regard as the significant provisions of the Great Charter were adapted to new tasks, set in new lights, put in modern form by the great lawyers of the sixteenth and seventeenth

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centuries, and most of all by Coke. But without professing to deal in universals, Magna Carta responded to a fundamental and universal problem of human nature. The very features of human nature that make government and law necessary, yet make government and its legal agencies dangerous to the freedom they exist to maintain and further. The English in the Middle Ages found how to have a strong central government along with local self-government, a strong administration tempered by strong courts and the doctrine of the supremacy of law. This is the polity we inherited. As Mr. Justice Miller put it, the theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. Thus the ingredients in our polity are inherited ideas of balance between central government and local selfgovernment, maintained by a representative central legislative body and coequal executive and local administrative agencies, all operating within limits set by law; the medieval idea of a king ruling according to law, developed by the ideas of the Puritan Revolution; ideas of balance between politically organized society and the individual, developed by seventeenth-century lawyers as the common-law rights of Englishmen and given color by ideas of the Puritan Revolution, even if we later found a philosophical basis in Continental theories of natural rights; and finally, the democratic ideas of the end of the eighteenth century. That no one of these sets of ideas was carried out to its logical extreme at the expense of the others has been a source of strength to our polity. Indeed, when the generation C 27 3

which framed the constitution expressed fear of democracy, its objection was to an absolute, unlimited rule of majorities, a feature of the inherited distrust of all unlimited governmental power which had been strengthened by colonial experience. Three ideals, and resulting canons of value for the recognition, delimitation, and securing of interests, obtain in juristic thought. One looks at all things from the standpoint of the individual human personality. It regards state and law as existing only to guarantee the security and development of the individual. Civilization gets its significance as a means of educating the individual. The highest end is individual freedom. A second looks at all things from the standpoint of organized society. I t reckons personality values and civilization values in terms of community values or political values. The significant values are collective values. Morals and civilization are means toward the purposes of the state. The highest end is the nation. A third regards the first two as transcended in the conception of civilization and the values of civilized life. It reckons personality values and community values in terms of civilization values. Individual self-assertion, spontaneous individual initiative and free individual activity, on the one hand, and cooperation and planned collective activity, on the other hand, are thought of as means toward or agencies of civilization. Morals, law, and the state get their significance as making for civilization. The first, carried out to its logical extreme, leads to philosophical anarchy. The second, carried out, leads to autocracy. The third calls for government according to law, and in any

wide domain, for a federal polity maintaining a balance of nation and state, of state and locality, of politically organized society and individual which can only be assured by law. A federal polity is necessarily a legal polity. Only a constitution which is the supreme law of the land can hold the whole and the parts to their appointed spheres. Also it is a polity requiring a separation or distribution of powers, since concentration of all governmental power anywhere not merely threatens the regime of balance, it cuts off means of preserving the balance when it is disturbed. While a constitution has a purely political side, as setting up a frame of government, it must be, especially in a federal polity, a legal document, a body of authoritative precepts - rules, principles, and standards enforceable and enforced as the supreme law. The fate of the paper constitutions set up with highsounding declarations of guaranteed rights which have come to nothing in the Roman-law world since those of the French Revolution, when compared with the stability of the written constitutions of English-speaking peoples, made to the idea of supremacy of law, speaks for itself. The doctrine of disappearance of law and government by administrative ordinances and orders has no place where Anglo-American institutions obtain. In an autocracy if the administrative agencies are held to system and order in the exercise of the powers of politically organized society, it is by a superman leader. In an absolute democracy, repeated referenda at every crisis of administrative action would be called for. Only in a city-state democracy can administration be carried C 29 3

on by town meeting. As relatively small a domain as Switzerland is ruled by a federal democracy. We in America, in an age of absolute governments, showed the world the possibilities of a free people ruling under law, of a legal constitutional polity at the same time democratic and efficient, at the same time federal and efficient, at the same time keeping a balance between central and local government, between politically organized society and the individual, and yet efficient so that it could develop a continental domain, and survive a great civil war - and, I am not afraid to prophesy, so that it can survive the shift from a pioneer, rural, agricultural, to an urban industrial society, and survive the economic unification which industry and the achievements of science have brought in their train. We developed English legal and political institutions to our own experience. We need not be troubled by Continental theories of logical democracy, of disappearance of law and administrative absolutism, nor of public law as a subordinating law putting the rest of the community on a lower plane than the official. To all such things, as I said in another connection, we may return Diogenes' answer - solvitur gubernando. If our theories are logically and philosophically impossible, they have worked well; and Continental Europe can point to no such governmental results.

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The Historical Background of Federal Government Some Sources of Our American Federalism C H A R L E S H. M c I L W A I N

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N THIS PAPER, owing to my own procrastination - a procrastination, however, which was neither voluntary nor avoidable - 1 have unintentionally had the great advantage of reading in advance the admirable discussions of the federal principle under the varying influences of our national history in the papers of Professors Pound and Nichols. The interrelation of two striking statements drawn from these two papers, when applied to our earlier history, may be taken as the main theme of the present one. One of the statements just referred to is that of Professor Pound: "A federal polity is necessarily a legal polity." The other is a quotation by Professor Nichols from Mr. Justice Frankfurter: "Federal governments are the product of economic and social pressures." A federal system is indeed invariably the result of actual pressures; but, on account of the delimitation of the

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spheres of the central and the local units, no such complicated system as a federal one is ever workable without a definition of the mutual boundaries of these spheres. In a federal polity definition becomes a necessity, and definition is the equivalent of law: the polity can not be other than "necessarily legal," as Professor Pound says. Though it is actual pressures which thus produce federalism, and though this inevitably results in a legal definition of the respective spheres of the central and the local organs of government, the various pressures which have thus operated in the past have not always been precisely the same pressures in all periods, and not necessarily the same pressures as those with which we are so familiar today. At least it may be said that the relative importance of these different pressures has varied and varied vastly from age to age. And probably no mistake has had a more deleterious influence on the modern accounts of our earlier institutional development than the hasty half-baked assumption so often made consciously or unconsciously that our own scale of relative values must inevitably have been just the same as those of our ancestors; for pressures result in ideas and ideas result in definition. In his statement Mr. Justice Frankfurter limits these pressures to the social and the economic, by which he seems to imply merely the domestic; and in this no doubt he has in mind properly enough our own present civilization alone. But strictly contemporary history itself, and even here, but above all abroad, seems to Cs«3

show that another pressure must be added to these two; and one no less important than they, either in our own time or in the past: a pressure exerted not from within but from without; the danger from external attack, and the consequent need for defense. Whatever may be true of the present time, in the past with which I am here primarily concerned I believe that this external pressure has had an effect not less, but at times greater, than that of the merely domestic ones; and an effect fully as noticeable in the growth of federalism as in other parts of our political system. It has at times given rise to comment that Plato in his Republic makes his military guardians the basis of the whole government of his state. In the Philadelphia Convention of 1787 the debaters seem for the most part to refer expressly to ancient or foreign examples of federalism rather than to precedents nearer home. The Achaean League was apparently more in their minds, if we may judge from their words, than the structure of the English Realm or Empire; and Alexander Hamilton in Number I X of the Federalist in which he discusses this problem cites the excesses of the petty republics of Greece and Italy almost exclusively in his argument in favor of a greater centralization. In these arguments we find the expression of a conscious theory of the state. But such express references as these to the classical instances, so much in favor in the eighteenth century, should not blind us to the possible influence on the founders of our state of the striking examples of the federal principle in the earlier history of the empire of 133 1

which these men had so recently been a part. Such examples were less referred to in express terms, and their influence may have been in many cases largely subconscious; but I am convinced that they are by no means negligible. A t least they have been less considered by subsequent historians, which may be a justification - or if you will, at least an excuse - for giving them some attention here. But it would be going too far to regard these purely British instances as merely.subconscious. Some fifteen years before the constitutional convention, in 1774 and 1775, the question whether the British Empire was a unitary or a federal state had been debated in a remarkable series of books and papers appearing in the American colonies. This was the last and the strongest of the American constitutional claims. The whole argument is concerned with the constitution of the Empire, most of the Americans contending that it was a truly federal state, while their opponents held the same view as that of the English Rump in 1649 in the Act establishing the Commonwealth, in which it was declared that "the People of England, and of all the Dominions and Territories thereunto belonging, are and shall be, and are hereby Constituted, Made, Established and Confirmed to be a Commonwealth and Free-State: And shall from henceforth be Governed as a Commonwealth and Free-State by the Supreme Authority of this Nation, The Representatives of the People in Parliament, and by such as they shall appoint and constitute as Officers and Ministers under them for the good of the people, and that without any King or House of Lords." Note the sig-

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nificant words of that act: "A Commonwealth that is a single commonwealth, not a series of them; but one to be governed by "the Supreme Authority of this Nation", that is by the Parliament at Westminster, and by no assembly at Philadelphia or Boston. The Empire is here declared to be a unitary state, not a federal one; and the dominions belong to it: they are not coordinate parts of a greater whole, but subordinate dependancies of "this Nation" of England. The British Empire, if it could be so called by anticipation, is here officially declared to be one unitary state. It was the last, the strongest, and the most far-reaching of the strictly constitutional arguments of Englishmen in the colonies just before the American Revolution that this unitary interpretation of the British constitution was fundamentally false. For them the earlier precedents pointed to a conclusion radically different. T h e true constitution of Britain was not unitary, but federal. This was indeed the central constitutional problem of the British Empire then, and it has remained so ever since and down to our own time. Compared with it, even the fundamental question of taxation without representation becomes a mere incident. In 1649 the Rump, after cutting off the King's head and abolishing the institution of kingship itself, had no practical alternative but to subordinate to the English parliament, or the remnant of it still sitting at Westminster, the whole of the former dominions of the King. This, however, was a mere exercise of force, illegal and without precedent. Englishmen in the American colonies were later to return to precedent. The reasoning of the English act of 1649 was I 35 3

repeated with emphasis by Daniel Leonard of Boston in 1774 and 1775. As he put it, with special reference to the American colonies, "When a nation takes possession of a distant country, and settles there, that country, though separated from the principal establishment or mother country, naturally becomes a part of the state." In answer John Adams asserted that the colonists on reaching America "got out of the English realm, dominions, state, empire, call it what name you will, and out of the legal jurisdiction of Parliament." He was careful to add, however, that "the King might, by his writ or proclamation, have commanded them to return." This is nothing but federalism, a personal union in the person of the King, of coordinate commonwealths. John Adams was not a member of the constitutional convention, but James Wilson was, and a very active and influential one; and in 1774 he had written

his Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, of which the central thesis was identical with John Adams's. To the same general effect was John Dickinson's Essay on the

Constitutional Power of Great Britain over the Colonies in America, and Thomas Jefferson's Summary View of the Rights of British America, both appearing in the year

1774, and a number of others. Independence, of course, made such federal theories of the British Empire purely academic in America after 1776, but they had played a great part in the last constitutional phase of the great contest between the colonists and the English parliament. In view of this importance it is not likely that the many earlier ex-

amples of British federalism so often repeated in these remarkable pamphlets should have ceased to influence their authors or readers who helped to frame our federal system so soon as 1787. It is with a few of these earlier British examples of federalism that I shall be principally concerned here. But first of all, in returning to Mr. Justice Frankfurter's dictum that federalism is the result of actual pressures, and including among these the pressure from outside the state, it should be noted in general what a vastly different influence upon federalism the pressure of external dangers has in our modern time when compared with earlier epochs. Nowadays danger of attack from without seems always to lead to a concentration of governmental power at the center. At this moment we are witnessing such a concentration in the United States on a scale hitherto almost unheard of, and some of it no doubt will remain after the crisis which called it out has passed. The most effective resistance to foreign attack can be organized effectively only from a single center. The political effect of external pressure today is therefore a centripetal one; it invariably gives to the central government enlarged powers over all local political units. A central government today can organize defense far more quickly than a host of scattered states or provinces; and we are sometimes led to assume that this has always been so; to repeat the old blunder of generalizing from only partial and perhaps exceptional data. However, as we trace backward the history of the relations of the central government to the local in the C37]

development of our own institutions, we find that national defense has less and less of this centralizing effect, and at length we come to a period when its normal result is not centralization but rather the very opposite of it. For in medieval times, if not for a good while afterward, defense seems to lead to political decentralization as normally as it leads today to the concentration of governmental power. The reason is not far to seek. It lies, of course, in the revolution in the physical means of communication. In earlier ages of poor and slow communications no action from the center could ever be prompt enough for the emergency of a foreign attack or even of a border foray; measured in time Westminster was then almost as many weeks distant from Chester or Durham as it is minutes now; in such circumstances large powers had to be conceded to local authorities to act on their own initiative; and such emergency powers can never wait for the actual emergency to arise: they are of necessity permanent. Thus the needs of defense, the pressure from outside the state, had, under the conditions prevailing in the middle ages and after, an effect on federalism the very opposite of the one we are witnessing today. The formula: defense equals centralization is false and misleading if we ignore the peculiar conditions of the time. In fact, we may find one of the chief precedents not for our modern centralization, but for our federalism, in the medieval methods of national defense. The framers of our constitution lived at a time when communications were nowhere much more rapid than they had been in the middle ages. They could not posCSS]

sibly foresee the amazing future development of steam, electrical power, and the expansion engine; and in the thirteen colonies themselves communications must have been fully as slow and as difficult at the end of the eighteenth century as they had been in medieval England. Thus this pressure of external danger had the same general influence on the founders of our constitutional system that it had had on their medieval ancestors: it furnished for them a strong argument for a federal instead of a unitary system of government in America. One of the most important precedents for our federal system undoubtedly was the pressure of the necessity for national defense. Colonial instances of this could easily be given, but I am concerned here mainly with the earlier precedents in England. We normally think of England as a tight little island with a closely integrated government, and now it is; but England's earlier history scarcely substantiates such a view. Our modern sharp classification of governments as either unitary or federal becomes less and less applicable as we trace our institutions backward. England was indeed a single realm, from the Norman Conquest on at least, but it had many characteristics that appear more federal than unitary. On the north were two ends of a much harried border, the eastern and the western Scottish March; on the west was a similar noman's land lying between the western counties of England and the wilds of Wales. In the Scottish March, the inhabitants had laws that were neither wholly English nor Scottish, but a kind of mixture of both, the so-called Leges Marchiarum. Even in the later eightC 39 ]

eenth century Sir William Blackstone and Lord Mansfield were unable to agree whether the border town of Berwick on Tweed was a part of the realm of England or not, and after the legislative union of England and Scotland in 1707 this doubt has an official echo, in the fact that many statutes were enacted to be in force in "England, Scotland, and Berwick upon Tweed" It is clear that as early as 1215 at least, the inhabitants of the Welsh March lived under a customary law that was neither Welsh nor English, for the Great Charter guarantees a trial secundum legem Marchiae to Welsh barons in all cases concerning a fief within the March. But Wales itself offers one of the best illustrations of the patchwork that was the medieval realm of England. Up to Edward I's time Wales was a foreign country with a foreign law. With his conquest it became a fief of the King. As was said in the case of Craw v. Ramsay in the reign of Charles II, it "was annext to England, Jure Proprietatis." The Statutum Walliae enacted in 1284 extended some of the laws of England to it, but not by any means all, nor did it abolish all native law. With the exception of two revolutionary years, both in the troubled reign of Edward II, no representatives were ever summoned from Welsh counties or boroughs to any parliament of the realm till the year 1535Even in the oldest part of England this same decentralization under pressure of foreign danger is manifest, though in less degree than in the more troubled north and west. The peculiar local privileges of the Cinque Ports, for example, and the unusual authority of their £ 4 0 3

local "Barons" so-called, are without doubt due to the necessity for defense of a part of the coast where a sudden attack by sea was most to be feared. As was said above, the powers thus conceded to the local authorities for defense of the borders may be thought of in a sense as "emergency powers," but for all that they were none the less permanent powers; and they came in time to include many things only very remotely connected with actual defense. As early as 1085 or 1086 Domesday Book shows that the Earl of Chester had in his remote palatinate the third penny of all pleas of breach of the King's peace, provided that peace had been officially proclaimed by the Earl himself and not by the King's own writ or herald. In the County Palatine of Chester writs ran in the Earl's name as well as the King's, and it was literally true, as was said at the'time, that he ruled his palatinate by the sword just as the King ruled his realm by the crown. In this County Palatine we have then clear and early evidence of those two fundamentals which seem to constitute a true federal relation as stressed by Professors Nichols and Pound. In medieval Chester these relations were plainly due to pressure and they must certainly be termed "legal" in character. In the County Palatine of Durham on the exposed border of Scotland, similar examples of federalism are to. be found arising out of a like pressure and resulting in a like legal definition of the respective spheres of government central and local. These might be termed medieval examples of federalism within the realm itself or on its fringes, but they

are not exclusively medieval. The Council in the Marches of Wales still retains extraordinary powers well within the Tudor period, and it was as late as 1640 that Charles I called Strafford to his fate from his important post as head of the Council of the North. Such examples of federalism are the more interesting as a precedent for our own, because they occur within what was or was to be the very body of the realm of England itself. But some of the most striking early instances occur beyond it, as in Ireland, the Isle of Man, or the Channel Islands. These examples of an early British federalism had been much relied on by the American pamphleteers of 1774 and 1775, and they must have been prominent in the minds of the framers of our federal government in the constitutional convention of 1787. These external cases of federalism since they come from beyond the borders of the realm are less the result of outside pressure or fear of attack than those already mentioned. In these outlying dominions federalism seems to be more often the outcome of a gradual development which has its origin in the reciprocal relation between the feudal vassal and his lord. These feudal relations were essentially personal in the beginning, and one of the most difficult problems in the whole of English or of British constitutional history is raised in the question as to how far they remained merely personal after medieval feudalism had been replaced by the national institutions of more modern times. Originally, the bond between the lord and his vassal had undoubtedly been merely personal. Did it C4*

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therefore remain merely personal when the lord happened to be the King himself and after his vassals had become merged in the whole body of his subjects? It is certainly a difficult problem. In the classical statement of high treason in Edward I l l ' s great statute, the relationship seems to be personal in the main, and yet the killing of the Chancellor or Chief Justice is there declared to be treason, which seems to indicate that by the middle of the fourteenth century at least it may be the national office of Kingship and not the mere person of the King that the law of treason protects. Treason was greatly extended during the Tudor period, but the particular instances included in the statutes of the time throw no clear light on the central and fundamental question whether it is because the King is rex or merely because he is feudal dominus that certain offenses against him incur the highest penalties known to the law. The changed relations between England and Scotland brought about by the accession in 1603 of James VI of Scotland as James I of England led to a judicial pronouncement of the greatest importance upon this fundamental point, the great case of the Post-natt, or Calvin's case, in 1608, in the Exchequer Chamber. There it was said that this was a case of first impression, and the arguments pro and con ranged over the whole field of past English history. In favor of this personal or feudal interpretation of allegiance and of treason as a breach of it, Coke, Ellesmere, and Bacon were united; while the strongest statements in favor of the national interpretation seem to be those of Sir John Doddridge, £43 3

one of the King's justices and a legal antiquary notable even in an age of great antiquaries. The essence of Doddridge's argument is contained in his assertion that allegiance is "tied to laws," and therefore that the laws of two nations such as England and Scotland "being several, notwithstanding the union of sovereignty in the King's person, the allegiance of the subjects remaineth still several." Ellesmere's answer to this .is a flat contradiction: "But touching the severall lawes; I say, that severall lawes can make no difference in matter of soveraigntie; and in the bond of allegiance and obedience to one King." Sir Edward Coke was more vehement. The national interpretation, he declared, was "a damnable and damned doctrine," first hatched to hide the treason of the Despencers in the time of Edward II. If Coke had lived a dozen years longer than he did would he have remained of the same mind? I wonder. Oliver St. John in the great case of the Earl of Strafford in 1641, stretched the national interpretation so far even as to charge Strafford with treason against the King because he had taken the side of Charles I in his struggle with the two houses of Parliament. Historically there is much to be said for the national argument as stated by Doddridge, and in pure political theory even more, but as a matter of the law of the constitution, Calvin's case was decisive. Allegiance, whether in the realm or in any other dominion of the King, was officially declared to be owing not to the King's office, but to his person. It is not the only instance, if it is an instance, of bad history becoming

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binding law, even if not altogether good law. Calvin's case was never reversed between 1608 and 1787. For us the interest in this case lies chiefly in its bearing upon the relations between the various dominions of the King, especially that between the realm itself and the colonies. It was equally interesting to the American pamphleteers of 1774 and 1775. Here is John Adams's comment on the central principle involved in it: speaking of the royal grant in the Charter to Massachusetts Bay he said, "As to the territory being holden of the crown, there is no such thing in nature or art. Lands are holden according to the original notices of feuds, of the natural person of the lord. Holding lands in feudal language, means no more than the relation between lord and tenant. The reciprocal duties of these are all personal. Homage, fealty, and all other services, are personal to the lord; protection and similar functions are personal to the tenant. And therefore no homage, fealty, or other services, can ever be rendered to the body politic, the political capacity, which is not corporated, but only a frame in the mind, an idea. No lands here, or in England, are held of the crown, meaning by it the political capacity; they are all held of the royal person, the natural person of the King." The more ancient of the King's dominions naturally present the best specific proof of John Adams's contention, because in their case the relations between the dominion and the realm were originally determined in the midst of the feudal period itself and on purely feudal principles, and because these feudal precedents were jealously guarded ever afterward in those dominions as C 45 ]

guarantees of their peculiar rights and immunities. Instances of importance are to be found in the medieval lordship of Ireland, which was made a Kingdom, but one separate from the realm of England, in the reign of Henry VIII, and in the Isle of Man. But the most ancient instance of all, and therefore in some ways the most striking, is that of the Channel Islands, by which alone I shall have time here to illustrate the early emergence and the lasting character of federalism as a principle of the British constitution. The Channel Islands were never a part of the realm of England. They were not a part a few months ago when they were forcibly seized by the Germans. Unlike Ireland no plausible claim of subordination to the English Parliament or Privy Council could ever be alleged in their case on the ground that they had been conquered; for they never had been conquered. If there was any conquest it was their own duke who had conquered the realm of England. On such grounds the Islanders have always insisted that no acts of Parliament or Orders in Council are binding upon them unless and until these are registered and accepted by their own local authorities. This federal view has been rejected in England, but so far as I know, it has never been disproved historically, or flatly denied officially, and it seems to be entirely consistent with the doctrine of Calvin's case. In the third edition of his Law and Custom of the Constitution, which appeared in 1908 and was, I think, the last edition to appear in his lifetime, Sir William Anson wrote thus of this question of the alleged subordination of the islands to the English

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parliament or council: " I will not pronounce upon a question which a Committee of the Privy Council have recently evaded. I t is sufficient to say that the rights of the Crown are asserted, and that they are contested except as regards the exercise of the prerogative of mercy." I think I need add nothing to that! In this particular paper I have not been concerned primarily with the proof or the disproof of the federalistic theory of the British Empire upon which the American colonists based their claim to immunity from parliamentary control in England just before the Revolution. All that I have been attempting here to show, and all that I would venture now to assert, may be stated in two or three short propositions: First, that the ultimate constitutional issue between the colonists and the British parliament was a purely federalistic question, the question as to whether the various dominions together with the mother country truly constituted one state, as the Rump had declared in 1649; or whether they were all merely a federation of separate and coordinate dominions of a common King of which no one could ever have any legitimate authority over any other. Second, that the surviving pamphlets of the time conclusively show that after 1775 at least, the better educated American colonists in general, and the members of the later constitutional convention in particular, must have been thoroughly acquainted with this constitutional issue, must have been familiar with the arguments employed, and must in consequence have known and considered the English or British prece1:47 3

dents upon which these arguments were so largely based. And finally, therefore, if all this be true, that we must regard these earlier instances of English or British federalism as one of the prime sources of the federal frame of government under which we still live at this present day.

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Federalism versus Democracy The Significance of the Civil War in the History of United States Federalism ROY F . N I C H O L S

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EDERALISM in the United States today is markedly different from the system conceived by the authors of the Constitution. It has been altered by the continuous pressures exerted by the needs of a society growing increasingly more complex. These pressures caused friction, hot dispute and finally civil war. The disturbances leading to this conflict manifested themselves largely in bitter quarrels over the nature of the federal system and over demands for its redefinition and alteration. The war itself, so largely due to these quarrels, opened the way for fundamental changes in the older federalism; and the system was so altered as thereafter to respond more readily to social pressures. The Civil War, then, was the turning point in the evolution of federalism in the United States and made possible the new federalism of the present day. I Federalism, as originally projected, was a compromise between confederation and centralization whereby C49 3

the sovereignty of each state was curtailed to invest authority in the newly created federal government. Some functions were placed entirely in federal hands, others were left exclusively with the states, while a third group of functions was shared by both. There were to be two systems of law, state and federal, to which all inhabitants were subject. There were to be two taxing powers, simultaneously levying upon the same people and spending the proceeds independently of each other. There were to be two police forces, two forces under arms. Duplication of functions was the order of the day. Justice Frankfurter has aptly described it as "the co-existence of two governments having authority over the same physical territory in respect to different situations." Inevitably, this intricate arrangement must cause conflict, inviting dispute over definition of function. Such conflict would have been severe enough had there been no complicating factors, but these there were in dangerous number. To quote Justice Frankfurter again, "Federal governments are not the offspring of political science; they are the product of economic and social pressures." These pressures changed and multiplied in the course of time, and operated to alter the system they had created. However, these dynamic pressures, insisting upon change, are bound to be resisted. Any system naturally acquires a certain amount of inertia as it becomes firmly established. Its functionaries, growing older with the system, become reluctant to modify accepted patterns. Vested interests become intrenched and fight change,

lest it undermine their position. Also, the pressure for revision can not be exerted with uniform strength over a huge area like the United States; various sections must differ in their initial reactions to proposed changes, and in the time necessary to induce a toleration of change. From its inception the question of the nature of federalism was bound to be a source of conflict within the expanding republic. II The vagueness of language which shrouded some of the clauses of the Constitution, distributing functions among various branches of the federal system, invited controversies which began with the efforts of the first officers to put them into effect. At that time the population was scattered in small and isolated communities and the new republic was weak and of uncertain future. Its great need was strength and Washington and his associates vigorously undertook to use the new machinery of government to generate power. In the process they emphasized central authority and occasionally disregarded local sovereignty, and their type of federalism came to be labeled Hamiltonian. Hamiltonian federalism could not rise unchallenged. I t roused not only personal rivalries, but local jealousies and patriotic fears, for it was held to endanger local self-government and liberty. Jefferson became the leader of a school of apprehension and organized a party to demand that federal functions be curtailed and that most of the powers of government be exercised C5i

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locally, where they could be observed by the citizens at close range. Only in this way could the republican spirit be protected against centralizing and dictatorial encroachment. This local interpretation of federalism came to be labeled Jeffersonian. Despite his ardent championing of it, when Jefferson became President he did little to put it into effect. He found the young republic beset by international dangers, and the nation too eager for the means to overcome its weakness to notice the abandonment of his theories of attenuated central power. Thereafter the Hamiltonian interpretation generally prevailed in spite of occasional modifications, until the I84O'S. In that decade a new set of circumstances connected with national growth intensified the quarrel over the nature of federalism. I t became apparent that expansion of population into the West, the beginnings of mechanized industry and urban growth were making new demands on the system. The divergence between the social and economic interests of various groups and regions became wider, more evident. Again disputes over the nature of the functions and powers of the various parts of the federal system attracted widespread public attention. One group wished the implications of the Hamiltonian theory pushed further. Government should render material aid to private enterprise and promote the progress of western expansion and eastern industrialism. If new regions were opened speedily, if land were freely distributed, if internal improvements, protective tariffs and banks were provided, national prestige and power

would be augmented. Prosperity would be stimulated and the general welfare promoted. Such a program of expanded governmental function and subsidy angered the older rural regions, particularly those firmly established in the South on the basis of slave labor. The planting interest now occupied nearly all of the area possessing a climate hospitable to it. Most of the remaining land would inevitably be developed by settlers from other regions, spreading the free economy. Up to this time, the South had so utilized the principle of equal representation in the Senate that it had maintained itself in a dominant position. The section had protected its institutions by exercising a controlling influence, or at least a veto, upon federal legislation. Now the growth of northern and western hostility to southern institutions, and the increasing virulence of attacks upon slavery and upon southern power in general, were ominous. If the South lost its position of dominance it might suffer political vassalage, economic loss and social chaos. Few thinking southerners could continue to contemplate projects for government subsidy to western settlement with much equanimity. Thus, when the forces of expansion sought to broaden the Hamiltonian theory of federalism, southern leadership turned to re-examine the federal system, for protective devices to serve them. This examination led them to revive the Jeffersonian theory and to seek to put it into effect. The growth of federal power, they felt, must be checked, and the states must make a more zealous effort to reassert their rights. The nation would be healthier if it expanded less quickly, and by its own C53]

efforts, rather than by the artificial stimulus of federal aid. Let laissez-faire be the rule of the national government. Thus the Democratic party under southern leadership, after some preliminary battles in the thirties over banks, tariffs and subsidies, undertook in the forties to formulate and to apply neo-Jeffersonian doctrines. The southern determination to protect its position of dominance by curtailing federal functions led to a series of disputes over the nature of federalism. Those disputes contributed heavily to the sectional bitterness that was driving the nation toward civil war. Ill The contest over the nature of federalism, during the years immediately preceding the Civil War, passed through a significant evolution. The debate started in terms of the relative merits of the Hamiltonian and neoJeffersonian interpretations. Subsequently, in the course of the years 1845 1861, its scope broadened to embrace more revolutionary ideas. This evolution can be traced through controversies over subsidies for internal improvements, over methods for creating new states, and over the rendition of fugitive slaves which may be considered in that order. The rapid growth of the nation focused attention sharply upon the question of the location of the power to grant subsidies. Huge investments of capital obviously were required. There were vast possibilities for expansion in the unoccupied lands of the West. Real estate and commercial interests vied with transportaIl 54 3

tion promoters in their eager demand for improved communication. Natural obstructions to traffic, frequent in great watercourses, seaboard harbors and on the Great Lakes, called for removal. The sums requisite were often larger than could be conveniently mobilized by private interests or even by state governments. The urge for federal subsidy grew apace. Controversy raged over the extent to which the federal government might grant subsidy, if at all. The Constitution itself contained no direct reference to such subsidies; but advocates of appropriations proved ingenious. They cited the powers of Congress: "to lay and collect taxes . . . to . . . provide for the common defence and general welfare of the United States; . . . to regulate commerce with foreign nations, and among the several states . . . ; to establish post-offices and post roads; . . . to declare war . . . ; to raise and support armies . . . ; to exercise exclusive legislation in all cases whatsoever . . . over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." The subsidy advocates argued that these clauses contained sufficient sanction for the federal government to provide for development of transportation and improvements on a large scale. The federal government had begun certain subsidies as early as Jefferson's day. It built a national road, it C 55 3

bought stock in canal companies, it gave federal lands to various states to use in aid of internal improvements, it made a brief experiment in distributing surplus federal revenue among the states to aid them in their enterprises, and it made numerous appropriations for improving harbors and interstate waterways. Through a twelve-year period beginning in 1826 annual expenditures for this latter purpose had averaged $1,500,000 and served political as well as transportation purposes. Controversy over the power of the federal government to give these aids was recurrent and prevented the creation of any general policy. Only by congressional logrolling was it possible to get an inconsistent and erratic series of laws enacted. Then the long depression period after 1837 cut them off almost entirely. Returning prosperity in the mid-forties encouraged a renewal of such grants just as the neo-Jeffersonians were restudying the federal system. Southern representatives were now closely scrutinizing appropriations and discouraging such as might aid the growth of free labor communities. Southern Presidents, Tyler and Polk, vetoed attempts to revive subsidies, particularly rivers and harbors bills. However, the expanding nation produced forces that continued the battle. A western bloc in Congress representing the "land states," so called because they contained large tracts held by the federal government taxfreej was growing in size and influence. They wanted Congress to dispose of federal lands within their bounds so they might control their own resources. Most ambitious of their schemes was a proposal to

C 56 3

give away the public lands to homesteaders. These western representatives were aided by the railroad lobbies, then first appearing in Washington. They were seeking grants of federal lands, not directly to railroads, but in deference to southern scruples, to the states which in turn might use these gifts to aid the building of railroads. In the fifties the diverse forces battling for subsidy met varied fortunes. The railroad promoters led by Senator Stephen A. Douglas of Illinois won a notable victory in 1850 when clever congressional bargaining made possible land grants to Alabama, Mississippi and Illinois in aid of a railroad from the Great Lakes to the Gulf of Mexico. In 1852 a further grant was made to Missouri to aid in building the first section of a railroad to the Pacific. Also a rivers and harbors bill was passed that same year. A Whig President signed these bills. But it proved a false dawn. With the election of Franklin Pierce in 1852, the Democrats returned for eight years of power. Pierce and his successor, James Buchanan, thought as Polk had thought and exercised the veto freely on behalf of neo-Jeffersonianism. Pierce vetoed a bill granting 10,000,000 acres of land to the states to be used for the care of the indigent insane, arguing that such grants would open the way to federal responsibility for the support of the poor who were not insane; his reasoning was at the opposite pole from that of Democratic executives of more recent times. Pierce, like Polk, vetoed a general rivers and harbors bill and various appropriations for specific projects. This produced a congres-

nsn

sional revolt and a number of his own party voted successfully to override his will. Buchanan was equally opposed to such bills, but his vetoes were not overridden. Thus discouraged, rivers and harbors log-rolling lapsed until a much later date. On other forms of subsidy Pierce and Buchanan were likewise unyielding. Pierce vetoed a mail allowance to the Collins steamship line. Buchanan killed a grant of land to the states for promoting education in agriculture and the mechanic arts and even a great homestead bill. In only one class of subsidies did these Democratic executives make concessions. Both favored federal land grants in aid of a Pacific Railroad, on the ground that it was necessary for military defense and Pierce signed bills giving land grants for railroads to eight states. Despite these concessions, the vetoes that came so freely from the White House and the failure of the Pacific Railroad and other subsidy and land bills to pass through Congress roused the West to intense anger. The quarrel over the powers of the federal government to subsidize state enterprise reached an ominous bitterness. The South received the blame for blocking these measures and the irate West, with increasing support from the East, looked for means to secure a more Hamiltonian interpretation of federalism. If the South remained permanently in a position to block legislation, other sections and their interests would be continually frustrated. Northern publicists began to see the light. Their answer was to abandon federal balance and appeal to the masses. Let northern spokesmen at home on the hustings demand the rule of C58J

the majority and insist upon democracy. Would not this prove a potent formula for rousing and uniting public opinion to assert the numerical voting superiority of the northern section ? Such a proposition involved a drastic modification of the federal system. It involved taking an idea considered applicable to small groups and applying it to large ones. Democracy had been considered adaptable to town meetings, congregations, small legislative bodies, clubs, stockholders' meetings and groups gathered in one place. It was a device thought desirable in choosing candidates within a unit, such as a district or a state. The subsidy group now proposed to apply this localized device to the nation as a whole. Democracy, the rule of the majority, should take the place of a federalism which respected state and minority rights. Commonplace as this may seem today it was not so then, for in those days in spite of the common use of the words, "democratic" and "democrat," particularly with a capital D, there was no general acceptance of the United States as a democracy. In fact, a reading of the public utterances of the fifties shows that many persons regarded democracy as a dangerously radical doctrine, something like present day communism. I t represented a leveling, an agrarian tendency. The conservatives in the late fifties, particularly in the South, vowed contempt of democracy and of the rule of the masses, expressing fear of the tyranny of the majority. Prominent Southerners declared its acceptance would mean the destruction of the Republic, a violation of the American way. C59 3

The controversy over the relation between state and federal powers in the realm of subsidy had thus developed into radical differences regarding the nature of federalism. Now were inaugurated demands for redefinitions and modifications of the system. They were to bear bitter fruit. IV The second of the controversies over the definition of federalism - the controversy concerning admission of new states - was likewise a result of national growth. The creators of the federal system had foreseen new states and bound down their creation with no static system. They had provided that "New States may be admitted by the Congress into this Union; . . . . The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory . . . belonging to the United States." In other words, new units might be elevated from territorial subordination to equal membership in the Union. The federal system was to be continued indefinitely, limited only by the extent of territory possessed by the United States. Herein the makers of the Constitution showed a broad prevision; but the process they planned proved difficult of operation and these difficulties at length threatened the permanence of the system. For many years the admission of new territories into the Union as states had been almost exclusively a process controlled by the federal government. Only C 6 o ]

when the consent of older states had been necessary to release territory, or where boundaries were in dispute, did federal and state authority function jointly; no confusion had arisen from this dual sovereignty. However, as sectional rivalry intensfied, various demands were made that the process be revised, that federal power be adjusted to new formulae. Sections sought to assure creation of states with like institutions and were bound to lock horns at the first opportunity. It was presented in the late forties, when the vast areas acquired from Mexico and released by Great Britain had to be assimilated. Northern representatives put forward the Wilmot Proviso - a requirement that slavery be barred from this region. The South first tried to secure a division of the territory between the two systems and, failing this, decided on a more daring proposal. They now contended that slaves, being property, were embraced within the meaning of the fifth amendment and might not be excluded from the common territory. This proposal and the Wilmot Proviso were irreconcilable and for a time it seemed as though there might be secession in 1850. But compromise was achieved by further complicating the federal system. A new technique of state making was formulated in the Compromise of 1850 and the Kansas-Nebraska Act of 1854. B y phraseology susceptible of double meaning a type of procedure was agreed upon, sometimes referred to as popular sovereignty and at others as squatter sovereignty. By these acts it was claimed that Congress delegated to the people of the territories a rather indefinite amount of sovereignty, to be exercised C61 3

before such communities became states. This gave the people of the territories, through their legislatures and by means of referenda, the power to determine the character of their local institutions, and particularly to define property so as to admit or exclude slavery. The slogan was, "Let the people rule." There should be democracy in the territories. Dispute immediately arose as to when this delegated power might be exercised. I t was generally held in the South that it was confined to the time of admission to statehood. Not until then could the territorials make any decision. Douglas and the northern proponents of this grant of premature sovereignty declared that the early settlers, the squatters, might in their first territorial legislature exercise this power, even if it prevented southern migration into virgin territory. In effect, this new procedure gave a chance for a laboratory experiment in democracy out on the plains of Kansas, and the experiment worked very badly. National attention was focused upon a spectacular and deplorable episode. In Kansas both northern and southern immigrants congregated and fell into a stormy rivalry for control. They found it impossible to carry on orderly elections or legislative procedure. Among them guerrilla warfare and armed force took the place of peaceful democracy. In the course of the hostilities one section of the territorial population rebelled against the authority constituted and recognized by the federal government, straining the federal tie to the danger point. In the end the southern interest lost the battle. The failure of this experiment had particularly un-

fortunate effects in the South. The whole episode added much to the growing sense of grievance nursed in that section. Southerners concluded that this new process for extending the federal system was a delusion; it meant only increasing northern power. I t also strengthened southern belief in the dangers involved in accepting the simple democratic principle of the rule of the majority. The territorial question therefore moved the South to a new and more determined effort to redefine federalism. Gone was the complacency with which Southerners earlier accepted the idea of non-intervention in the territories. At first they had been willing to let the people and federal officials work out government as best they could, for that attitude fitted in well with the general laissez-faire tendency of the neo-Jeffersonian philosophy. As it became apparent that this laissezfaire policy would permit the exclusion of southern interests from the remainder of the territories, their opinions changed. They now held that territorial government could have no power to limit institutions, particularly forms of property which were recognized by the southern states. They threw consistency to the winds and demanded an extension rather than a curtailment of federal power. The federal arm must be stretched forth to protect their rights. In other words, southern spokesmen were now injecting into the federal controversy a new element. Impelled by the necessity of representing the growing self-consciousness of their section, they were, in effect, demanding that sections as well as states and the federal government be included in the federal system. A C63 3

new doctrine, not of states rights but of minority or sectional rights, began to be formulated. With this they proposed to offset the northern contention for the rule of the majority. Federal power must prevent majority rule from infringing upon the rights of the minority. This was a new interpretation of federalism. V T h e third federal controversy, that over the return of fugitive slaves, had the most dangerous implications. T h e growing intensity of northern anti-slavery zeal lent great enthusiasm to those laboring to aid escaping slaves. The organization of the Underground Railroad, while not vitally decreasing the number in slavery, was a continual reminder to the South of northern hostility. The controversy, though primarily legal in character, discussed in the language of the law, and fought out in Congress and the courts, nevertheless had very alarming emotional possibilities likely to foment acts of violence. The crux of the contest was the interpretation of Section 1 of Article 4 of the Constitution, which provided that persons "held to service or labour" in a state, escaping into another "shall be delivered up on claim of the Party to whom such service or labour may be due." A s this was patently an interstate matter Congress had made provision for it in the first extradition act, in 1793. It provided that a master or his agent be "empowered to seize or arrest such fugitive from labour," and take him before a federal court or "before c

6

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any magistrate of a county, city or town corporate, wherein such seizure or arrest shall be made," and upon proof to the satisfaction of such judge or magistrate, either by oral testimony or affidavit, "it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant . . . which shall be sufficient warrant for removing the said fugitive." This law also prescribed a penalty for anyone who sought to hinder the claimant or conceal the fugitive. Obviously the act was entirely in favor of the slave-owner, who need only convince a magistrate. Slight defense was permitted the Negro, for he was not allowed a hearing before a jury. As there were very few federal judges, the law practically placed the enforcement of this federal matter in the hands of state officials. This arrangement opened the way for conflict. As the antipathy toward slavery grew in northern states, it became harder to convince local officials that the Negroes in question were fugitives; therefore slave agents not infrequently resorted to kidnapping devices, whereupon states like Pennsylvania passed laws making these devices punishable. Thus, a man in carrying out a federal statute might be committing an offense against a state, creating a condition which produced a legal dilemma eventually reaching the Supreme Court. Here in 1842, just on the eve of the revival of Jeffersonian federalism, the court decided that the Pennsylvania law was unconstitutional, for under it a state might interfere with a federal responsibility. The court further decided that the "power of legislation upon this subject is exclusive in the national government." L65 3

Two direct results flowed from this decision, both of which contributed to the growing controversy over the nature of the federal system. Many of the northern state governments held that the decision released them from any obligations to aid in the return of fugitives; this left the federal machinery totally insufficient. Southern opinion began to demand a more effective federal arrangement, and secured as a part of the Compromise of 1850 a measure which provided a series of federal commissioners in northern communities responsible only to Washington, before whom slave owners or their agents might appear and upon affidavit secure right to take the fugitive back home. This fugitive slave act lighted a flame of indignation in the North. The law was openly defied, fugitives were even rescued by violence from their lawful captors. Furthermore a vigorous constitutional debate was initiated. Northern political lawyers argued that the law was invalid because it was a federal usurpation of an undelegated power, which must be left with the states. Also it denied the slave a trial by jury and suspended the privilege of the writ of habeas corpus, because these proceedings were ex parte, and allowed the fugitive no recourse to these rights. Northern legislatures passed various personal liberty laws, which so hampered federal enforcement as to make it well-nigh unattainable. The constant conflict of authority reached a high point in the famous Oberlin rescue controversy. In this case a Negro fugitive, properly in custody under procedures prescribed by the Act of 1850, was rescued from federal authorities by citizens of Ohio. These citizens were then t

66 ^

arrested by federal marshals for obstructing the Act, whereupon Ohio law was invoked in a threat to punish the federal officials for arresting Ohio's citizens. More alarming was the attitude in Wisconsin, where the supreme court declared the Act of 18 50 unconstitutional, and disobeyed an order of the Supreme Court of the United States. These legal controversies were academic and mild, compared with the popular outbursts which accompanied them. Riots, rescues, and bloodshed were synonymous with the Fugitive Slave Law and fanatic zeal for rescuing those in bondage finally led John Brown to undertake his bloody foray at Harpers Ferry. His capture produced controversy between Virginia and the federal government, over jurisdiction which ended in the federal arm giving way to the state although the former had made the capture. All this disturbance focused popular attention ever more sharply upon the unsatisfactory working of federalism. . It made the South believe that the North would not play fair, would not respect southern constitutional rights. So convinced, the South was faced with the logical consequence, namely, that it was not safe within the Union and must secede and form a new federal system of its own. VI From these three controversies there emerged two entirely new concepts of federalism. No longer did either the South or North look upon it in the old simple

terms of a federal government of limited powers and sovereign states. The North demanded the recognition of the mass of population and called for the rule of the majority, represented by a new central power responding only to majority will and governed only by it. The South on the other hand demanded recognition of the section; when they talked of states rights they now meant sectional or minority rights. Some of the more determined Southerners were following Calhoun's reasoning and demanding an acceptance of the theory of the "concurrent majority." This theory would have made it necessary for any important legislation to receive a majority vote of both southern and northern members. Thus the minority might be protected from the tyranny of the majority. Worse, there had developed in the South a feeling that redefinition of federalism was impossible and that only by destroying the old system, and starting anew and alone, could real federalism be maintained. VII The reason why these controversies reached this fighting pitch is not to be found in the record of the arguments pro and con. Had they been confined to legal or even to congressional debate, to newspaper discussion or to pamphleteering, they probably would not have produced such disastrous consequences. But they were intensified greatly by the operation of another, an extra-constitutional phase of federalism, to a point which aroused tempers to a fighting pitch.

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For federalism in the United States has always been much more than a system of government set forth in the Constitution. It has been and continues to be a pattern of living and thinking ingrained in the general behavior of the nation. It has invested each American with a dual loyalty; he is at the same time Jerseyman and citizen of the federal republic. Each citizen owes allegiance to both state and nation. This dualism permits local peculiarities and national patriotism to exist simultaneously for long periods of time without too much friction. Certain communities, such as South Carolina, upon occasion have maintained a very definite sense of individualism while remaining within the Union. Economic conditions in various states and regions have continued different and business has been conducted under two procedures, interstate and intrastate. Likewise two systems of law have been practiced. Most significant is the political dualism which has been created. All voters must take sides in controversies both state and federal; all are responsible for decision in each. Therefore they become dual partisans. Their situation has produced a federalized partisanship which often confuses issues with a confusion that has woeful consequences. This federalized partisanship, developing almost simultaneously with the organization of the federal system, had become firmly established and even mechanized by the 1840's. It was marked by multiple political organization. Each party had a national organization but its influence and significance were slight C 69 3

compared with the separate units in each of the states. State party managers were largely independent of the shadowy national committees. So it may be said that by 1850 when there were thirty-one states, there were not two parties, but sixty-four with a complexity of organization and variety of leadership which had momentous consequences. Party leaders, and in fact all participants, had two interests to consider in making campaigns:-the national will, with the issues which might gain support and victory on that level, and state and local interests with the appeal necessary for success in the more restricted geographical area. Such divided interest invited a type of political legerdemain which was to be exceedingly dangerous. State and federal campaigners juggled state and federal issues with surprising dexterity and in a fashion to deceive and to excite rather than to enlighten. Partisanship was in constant, active operation at the various elections, which in the days of which we speak were much more frequent than now. About these fundamental procedures the Constitution is almost silent. Section 4 of Article 1 makes certain provisions for congressional revision of local regulations, but leaves in general to the states "The time, places and manner of holding elections." The all important question of who should vote was originally left in large part to the states. Yet the federal system made it necessary to have two sets of officials, state and federal, and often some of each were elected at the same time and place. Therefore, both powers were involved in 1:703

the conduct bf voting and over the elections both had to exercise authority. These elections were held, not as now generally in November in even years, but at various times in different states and in practically all months in each year. Constant electioneering was going on, first in one state, then in another. The urge for office was widespread, and as nominating and electioneering methods were inexpensive and informal many indulged their taste. Naturally the multitude of contenders took the most stirring issues they could find. In local campaigns, particularly, it was good politics to emphasize the dangers impending from the nefarious conduct or designs of dwellers in more remote regions. Particularly effective were demonstrations that the federal government was imposing unjustly upon local interests. Thus the ardent northern spokesmen at home on the stump could campaign for democracy and the rule of the people. Thereby they concocted a formula potent to rouse public opinion and to unite it in support of national rule by the northern majority. Southern power must be broken and no barbaric institution such as slavery should be permitted to bulwark such power. Democracy must be asserted to proclaim liberty and to free the nation, not only from the sin of slavery, but from the shackles of southern domination. Only then could the great possibilities of national growth and power be realized. On the other hand, southern politicians in the press of conflict rang the changes on southern rights. The growing pretensions of the Yankees threatened the C71 3

South with loss of property, loss of stability, loss of power, loss even of independence. Such would be the tyranny of majority rule. Woe betide southern representatives in Washington who made concessions; they might be pilloried as traitors to their own people. The constant campaigning continually advertised the questions at issue; it artificially stimulated passions roused for the effect of the moment. People travelled little and had no means of gaining accurate images, ideational or pictorial, of their opponents. They conjured up exaggerated fantasies and developed hatred of the unseen. These local antagonisms complicated the task of the national officials. When they were called upon to legislate they found they had to make concessions; eastern, western and southern interests had to give and take and compromise, if any laws of importance were to be secured. While national leaders were thinking in terms of necessary compromise, local leaders at home, ambitious aspirants for higher honors, were thinking of the political advantage to be gained by denouncing these concessions as a criminal sacrifice of local interests. Therefore, for home consumption national leaders were forced to display a truculence which they might have avoided if they could have exerted centralized party discipline. The flock of threescore independent state parties made such discipline impossible. The technique of sectional exploitation which thus developed was particularly hard on the Democratic party, which was generally in power during these years. This party had vital strength both North and South. C 72 3

It hoped to keep in control by promoting confidence in vague compromise formulae like laissez-faire, finality of the Compromise of 1850, and popular sovereigntyformulae so vague that they could find acceptance in both sections. The intensification of sectional feeling was a constant menace to such a program. In the North, the opponent of the Democrats was the lusty young Republican party which had no southern wing to placate; its spokesmen could and did appeal vigorously and solely to northern prejudices. In the South, particularly in the crucial years 1856 to i860, the Democratic party confronted an opponent made desperate by political misfortune. The old southern Whigs were fighting for life. They had broken with their northern associates and now were endeavoring independently to gain control of southern state governments. They seized upon anti-foreign prejudice, and preached Americanism. They laid hold on anti-northern prejudices and preached southernism. Whenever southern Democrats consented to compromise or agreed to concession, these "American" leaders, as they were called, could proclaim treason to southern interests and go forth again to whip southern prejudice into frenzy. These tactics made the southern Democrats so fearful that they reached a point where they too believed that concession was treason. At the same time the Republicans were pressing northern Democrats into an impossible situation. It became more and more evident that the Democratic party was doomed. The fruits of this phase of federalism were gathered in i860. The violence engendered in local politics inC 73 3

fected the national parties. The Republican party insistently demanded as federal policies, free soil, protective tariff, transportation subsidy and free land, to be secured by the assertion of the power of the majority. The South had become panic-stricken by the swift rise of this neo-Hamiltonian order, accompanied as it was by defeat in Kansas, by the nullification of their rights in northern courts and legislatures, and by the direful implications of John Brown's raid. They came to fear a Republican national triumph as the death knell of their safety. Southern leaders, therefore, demanded that the Democratic party accept the doctrine of the federal protection of minority rights. Northern Democrats, driven into a corner by the rising tide of Republicanism and the slogan of the rule of the majority, declared that only the vague formula of popular sovereignty would enable them to fight the Republicans with any slight chance of success. The irresistible force had met the immovable object; the Democratic party split. This schism made Republican victory inevitable in November of i860. Triumph of the northern party crystallized southern fears. There seemed to be but one alternative, the destruction of the perverted federal system and the creation by the South of a new and more perfect example of what federalism might mean. Southern secession to organize the new federal system, the Confederate States of America, roused the North to go to war to preserve the older federalism and to assert their own dominance. Their superior force destroyed the Confederacy after four years of civil war. C 7 0

The South, therefore, was forced to accept the northern redefinition of federalism in terms of democracy. The federal power became the dictate of the majority, representing the will of the mass rather than the consent of the states. The states, thereafter, were to be shorn of many of their former pretensions. More and more they became administrative units rather than sovereignties. The fourteenth amendment placed in the hands of the federal government the means for important limitations on state powers; and the annihilation of space and time by inventions hurried on the destruction of state autonomy. As the powers of the federal government expanded, legal and political opinion kept apace. Scholarship also buttressed the trend, with scientific analysis and considered opinion to the effect that the federal system was an anachronism. At length in the twentieth century, the federal government began even to ignore the states and to have financial dealings directly with municipalities and counties, until today it can be argued that there is little left of the spirit of the federal system as conceived by the makers of the Constitution. The controversies over the federal system in the middle period marked the turning point; in so far as they contributed to the Civil War they were the instruments for the transformation of the federal system into something new and strange, they opened the way for the rise of a new federalism.

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Commentaries FRANCIS W.

P

COKER

ROFESSOR M c I L W A I N undertakes to show "the possible influence, on the founders of our state, of the striking examples of the federal principle in the earlier history of the empire of which these men had so recently been a part." He notes that the 1787 founders of our federal system hardly referred at all to the early English examples, but suggests that, since the examples must have been influential, the influences were of a "sub-conscious" sort. Y e t again he suggests that the British instances must have been more than "merely sub-conscious." How has Professor Mcllwain gone about demonstrating that the early instances of English or British federalism were effectively in the consciousness or sub-consciousness of the constitutional founders and thereby significantly influenced the formation of our federal system? His method has been to describe the early British arrangements and to point out that they were appealed to, in a series of books and pamphlets in the years 1774 and 1775, as models in determining the relation of the American dominions to the mother country, and that they must, therefore, have been in some manner in the minds of the members of the ConC763

vention of 1787 at the time that body was formulating our own federal system. I want to examine this argument, particularly to show what inadequacies there seem to me to be in it from the standpoint of political science, or at least from the standpoint of this political scientist, and to inquire whether historians here, including particularly Professor Mcllwain himself, consider the points I raise to be inconsequential. I am not so foolhardy as to challenge Professor Mcllwain's description of the old relations of Wales, Scotland, Ireland, and the Channel Islands to England, or to object to his statement that, as a matter of law, allegiance to the king, within or outside the realm, was owing to the person not to the office of the king. I agree also that Adams, Dickinson, and Wilson (but not Jefferson) discussed those early "federal instances" in their pamphlets of 1774-1775. Thenceforth I must part company with Professor Mcllwain. T o show why, let me restate his argument: 1. The issue between the colonists and the British Parliament was "purely federalistic" i.e. whether the dominions and the mother country constituted one state or merely a federation of separate, coordinate, dominions of a common king, no one dominion having any authority over any other. 1. Prominent American pamphleteers, debating this issue in 1774 and 1775, used the early federal examples as arguments in support of attacks on the authority of the British Parliament. 3. The members of the Convention of 1787 were concerned with a problem of federation and must have had in mind both the 1774-1775 pamphlets (two of the pamphleteers were members of the Convention) and the C W]

early federal instances discussed in the pamphlets. 4. Therefore, "we must regard these earlier instances of English or British federalism as one of the prime sources of the federal frame of government under which we still live at this present day." There is a big gap before that conclusion, it seems to me. We need to consider carefully what the 1774-177 5 pamphleteers said about the British examples, what uses they made of them, what sort of historical arguments any of the members of the Philadelphia Convention actually made in their discussions of the American problem, and particularly what sort of federal system they actually set up. The 1774-1775 writers were trying to show that the British Parliament had legislative authority over the American colonies only up to "the banks of the Ocean" (as Adams said) or "on the high seas" or over "foreign trade" (as others said); that the crown had no rightful authority to appoint judges or otherwise concern himself with the administration of justice in the colonies; and that the powers conceded by the colonists to the crown were really not powers of the office but personal powers of the king. Adams argued that since the settlers of America left England with no bar from king or Parliament, they took with them only so much of the English common law as they wanted to take; that in moving to territory not previously occupied by civilized peoples, they kept or regained "all their rights of nature"; and that nothing in the laws of nature or of nations required emigrants to continue to be a part of the state from which they migrated. Jefferson said that the English settlers of America were as far removed from any right-

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ful control by the government of the country they had left as the sixth-century migrants to England had removed themselves from control by the continental Saxon kingdom they had left. Dickinson and Wilson were (by temperament) somewhat less extreme or outspoken; but all four of the 1774-177 5 pamphleteers were arguing vigorously for a devolution of governing authority. Now, what were the 1787 constitution-makers talking about and aiming at? All felt the need for adding to the powers of a central government. Some wanted togo much further than others in that direction. The feudal analogy would be obviously irrelevant and futile for the purposes of either group, as would also be the discrimination between functions of the crown and functions of a parliament or congress. The advocates of a strong central government described the Amphictyonic, Boetian, Helvetic, Belgic, and Germanic leagues and said that weaknesses in the central governments of those leagues were the chief "vices" of those leagues. "All the examples of other confederacies," said Madison, "prove the greater tendency in such systems to anarchy than to tyranny; to a disobedience of the members than to usurpations of the federal head." The members of the Convention made frequent references to governmental arrangements in England, which were pointed to sometimes as models, sometimes as bad examples. They discussed the English suffrage, veto, impeachment, bills of attainder, inter-relations of governmental departments, etc. I know of only two references to any early British federal instance; both of these referC 79 3

ences were to Scotland. Madison, discussing the problem of apportioning representation in Congress, referred to the early fears of "Scotch Patriots" that the inferiority of the numbers of their representatives in the houses of Parliament would lead to action prejudicial to Scottish interests; he pointed out that those fears had not been realized. Rufus King, arguing that the constitution should contain provisions guaranteeing rights of the states in the new system, said that "the articles of Union between Engl. Scotland furnish an example of such a provision in favor of sundry rights of Scotland." I want the advice of historians here as to whether it is correct to say that M r . Mcllwain hasn't adequately established his conclusion - that the early British federal instances constitute a prime background for our federal system - until he has shown (a) explicit and significant references to those instances by the framers of our system, or (b) such similarities in structural detail or essential principles and objectives that our arrangements could hardly have been set up unless the British arrangements had been taken as models; or (c) until he has shown some strong, continuous current of federalist tradition connecting the earlier and later instances. I suppose M r . Mcllwain was offering his instances as items in a long federalist tradition. T h e y don't seem to me to be of that sort. T h e objectives, in the cases he relates to one another, seem to be significantly different; the circumstances and the results seem different; and there are other adequate, more direct ways of explaining the origins of the federal system set up in 1787. I must say again that the distinction between the feudal powers

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of the king and the legislative authority of Parliament, while adequate for the argument the pamphleteers of 1 7 7 4 - 1 7 7 5 were making, would have been of little assistance to members of the convention of 1787. I have no desire whatever to belittle the influences of English legal and governmental experiences on our own constitutional system. Those influences are numerous and significant, and so clear that they do not need to be sought for through scholastic forms of historical comparison. T h e modern historian, like the natural scientist, dislikes the unique and novel. Both are in search of connections and generalizations. How far should historians go in making surmises and conjectures in order to exclude the distinctive instance? Let me close by quoting admonitions from two of the eighteenth-century Americans to whom we have been referring. Dickinson, in his 1 7 7 4 pamphlet, said he thought "the connection of the colonies with England . . . can be compared with no other case and to receive a just determination, it must be considered with reference to its own peculiar circumstances." T h e available evidence seems to me to indicate that the men of 1787 considered the early federal instances to be unique, or at any rate of not much use to them in settling their problem of properly dividing governmental power. In the Convention of 1787, on June 28, Benjamin Franklin, after listening to long arguments by his historicallyminded colleagues, said that he was troubled by "the small progress" the Convention had made after " 4 or five weeks close attendance & continual reasonings with each other." H e thought it was a "melancholy £8i

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proof of the imperfection of the Human Understanding" that, in recognition of their "own want of political wisdom," they had "been running about in search of it" to "ancient models" and "Modern States all round Europe," and yet had found nothing "suitable to our circumstances." In order to illuminate their understandings he proposed, therefore, "that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly" every day. His proposal was rejected (for the reported reason, which today may seem not good enough to justify a political body in deciding not to do something, that "The Convention had no funds"). But I believe Franklin's proposed appeal to Heaven had more historical justification behind it than Professor Mcllwain's appeal to the sub-conscious. EDWARD SAMUEL CORWIN N READING over Professor Nichols's paper I found it very hard to find anything to quarrel about, but by being a little unfair at some points I did manage to pick two or three quarrels with him. In the first place, I am going to rename his paper. His title is "Federalism versus Democracy - The Significance of the Civil War in the History of United States Federalism." I am going to call it "The Jeffersonian Dilemma." This is really a very justifiable change of title because what Professor Nichols does is to trace the bifurcation of the Jeffersonian conception of federalism which

gradually resulted from the division of the country between 1812 and i860 into two sections. Jefferson's principal concern was for political democracy, the rule of the majority. With this went emphasis on local government because local government is more responsive to public opinion and more responsible to the people. In the North conditions favored the spread of democracy. The democratic impulse overran state lines and at the same time the North gradually became more and more hostile to southern institutions, to southern slavery. In the South the democratic impulse withered away and on account of northern hostility the South was driven in upon itself and JefFersonian localism crystallized as states rights. In short, JefFersonian doctrine was replaced by two sectional interpretations of it. Interestingly enough, this story can be paralleled with a more recent development in the JefFersonian tradition. Jefferson was a thorough-going believer in laissez-faire, but the party which claims to have been Jefferson's creator has latterly become strongly interventionist in the economic field. So in the recent campaign there was quite a good deal of debate whether Mr. Jefferson, if he were living, would vote for Mr. Willkie or for Mr. Roosevelt. On a civil service examination a candidate was confronted with that question, and after pondering it a proper length of time, he finally answered: " I f Mr. Jefferson were still living, he would be too old to take any interest in politics." Professor Nichols makes a statement that I can not agree with. He says that the Hamiltonian interpretation of the constitution prevailed until about 1 8 4 0 8

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that is to say, from about 181:2 to 1 8 4 0 . 1 rather suspect he is putting a little too much emphasis on the fact of the rechartering of the Bank in 1816. The Hamiltonian point of view certainly did not prevail with Madison when he vetoed the Bonus Bill early in 1817, nor with Jackson when he vetoed the Maysville Railroad Bill in 1830, nor did it prevail in the enactment of the Missouri Compromise, for, as King of New York showed, the framers of the constitution had intended that Congress should have the power to attach any conditions that they chose to the admission of new states into the Union. But there the doctrine was established that the new states must be admitted on the basis of equality with the old. Nor did the Hamiltonian interpretation prevail in the Jacksonian veto of Clay's bill to recharter the Bank in July, 183a; nor in the defeat in Congress in 1843 - that's a little past the date stated - of the proposal to give free negroes the right of passage between the states; nor did it prevail with the Supreme Court, which from 1835 to i860 became increasingly states rights. In the case of Prigg vs. Pennsylvania, which Professor Nichols spoke about as a good indication of the way in which the Hamiltonian or nationalistic tradition of the constitution held sway, Justice Story, speaking for the Court, held in effect the national government could not put duties on state officials and compel them to carry them out, although if that doctrine had been established at the beginning of the constitution, the constitution would have fallen to pieces. Three consuming fears obsessed the slave-holding South after 1830. That was the year of Nat Turner's

insurrection, which naturally enough brought the migration of free Negroes under suspicion south of the Potomac. At the same time the South became increasingly fearful that Congress, in an attempt to placate the rising agitation in the North against slavery, would undertake to prohibit the interstate slave trade. And one of the clauses of the Crittenden Compromise of i860 provided that Congress would never do so. Finally, after 1848, the South became increasingly concerned over the fate of slavery in the territories. Now, the Court undertook systematically to develop constitutional doctrine which would reassure the slave interest on all these points. In 1837 the case of Miln vs. New York the doctrine was announced that the states have certain powers which constitute additional limitations to those stated in the constitution upon the powers of the national government, and that doctrine was not entirely laid to rest until the other day in United States vs. Darby Lumber Company. In the second place, some of the Justices developed a distinction between the power to regulate and the power to prohibit commerce; the power to prohibit commerce is not the power to regulate because it destroys the thing that it regulates. That, of course, was to block any stopping of the interstate slave trade. Finally, the national government, in the Dred Scott case, is treated by the Court as the mere trustee of the proprietary states. They were the real owners and sovereigns in the territory and the national government was a mere agent. There has recently been an attempt to rehabilitate Chief Justice Taney as a great exemplar of democratic C85 3

liberalism. Well, this effort has been characterized by more enthusiasm than knowledge. It is true that in his first important opinion for the Court in the Charles River Bridge case he did state some dicta that have afforded much aid and comfort to champions of legislative power in recent years, but on the whole Chief Justice Taney evolved, with his Court, into a more and more narrowly states rights attitude in constitutional interpretation as the years went by. Professor Nichols points out, however, that the South, toward the end of the period he covered, down to i860, developed a peculiarly inverted theory of national power. In the first place, they rejected Douglas's popular sovereignty for the theory that sovereignty in the territories comes from Congress. On the other hand, Congress must use this sovereignty - it was not, after all, sovereignty at all because Congress was not a free agent in the use of it - it must use it to protect slavery in the territories, and Congress's power and duty in the matter of rendition of fugitive slaves were likewise unlimited. Power and duty ran together - national power, in other words, in the service of southern interests, in the interests of southern property. This last phase of southern constitutional doctrine, that in reference to the rendition of fugitive slaves, was met in the North by a revival of states rights doctrine in support of "Personal Liberty L a w s , " and this is a matter, I think, of some importance because secession was the serious threat that it was in i860 not because the states rights theory was strong in the South but because it was strong throughout the whole country. The whole

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country had been converted more or less to the states rights thesis. That made the task of meeting secession much more difficult and is one reason why Lincoln, instead of calling Congress together, decided to use a power of the government which never had been invoked before to anything like the extent to which he intended to invoke it, namely, the so-called war power, which he claimed for the president. Professor Nichols has some very interesting things to say about the effect of political localism in bringing about the Civil War through its stimulation of political passions. I thought those statements especially interesting. To his observations on this point might be added the fact of the disappearance of the old-time leaders from Congress after 1850-men who despite their different outlooks had confidence in one another because they had been living and fighting side by side for many years - for a whole generation. These men, Clay, Webster, Calhoun, were replaced by sectional leaders, Hale, Wade, Yancey, Davis, and so on, who had been brought up in the atmosphere of political animosity bred by local politics, to which Professor Nichols makes reference, and these men had been brought up in the localities; they had not met each other in Washington. They had not had their sharp edges worn off by contact with one another. The question was suggested by Professor Nichols's paper - it might not be suggested to every reader as it was to me - of the relevance of the Jeffersonian tradition to present American conditions. The Roosevelt administration has made a most valiant effort to thrust

Thomas Jefferson forward as the great national hero. Of course, when they went down there, they were confronted by the fact that there were two great memorials, the Washington Monument and the Lincoln Memorial already. Well, they put up a third memorial to Jefferson, making the design of the Mall into a triangle and, of course, I suppose the triangle will be expanded into a quadrangle ultimately. Then the most important postage stamp, which had been, of course, the two-cent stamp on which Washington's face appeared, became the three-cent stamp and Jefferson's face was put on it through a very clever device of putting the first president on the one-cent stamp, the second president on the two-cent stamp, and the third president on the three-cent stamp. More recently still the buffalo's head has been .taken off the nickel and Jefferson's has been put in place of it. I imagine that the statue of Freedom on the dome of the Capitol must be getting a little jittery. Actually Jefferson's Utopia was a loose union of agricultural communities of about equally prosperous proprietors, governed by popularly elected legislative assemblies whose ordinary power could not extend beyond the prevention of force and fraud, except for the maintenance of a public school system. Now, this Utopia is today more Utopian than ever. I t certainly has no place in the philosophy of N e w Dealism. Let me read you an extract from a writing of Jefferson in 1 8 2 1 : " I t is not by the consolidation or concentration of powers, but by their distribution that C

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good government is effective. Were not this great country already divided into states, the division must be made. Were we directed from Washington when to sow and when to reap, we should soon want bread." That's not the viewpoint of the New Deal. When you get down to hard facts, Hamilton and John Marshall were much greater successes as prophets and forecasters of the modern New Deal America than Thomas Jefferson was. I t is true that Jefferson believed in the equality of man, which he thought was compatible with the regime of liberty, whereas Hamilton, with greater discernment, insisted liberty meant inevitably the development of inequality of conditions. On the other hand, I find no evidence that Jefferson's conception of equality went deeper than his rejection of an aristocracy of birth and his insistence on political equality, one man one vote. And it certainly did not extend to the idea of racial equality. Nowhere does Jefferson give an interpretation of the statement of the idea of equality which approaches Lincoln's for profundity of sentiment: "They [the signers] meant to set up a standard maxim for free society which should be familiar to all and revered by all, constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, augmenting the happiness and value of life to all people of all colors everywhere." I t is true, of course, that Jefferson wielded a facile pen and possessed a good style, and that fortune C89 3

afforded him the opportunity of employing these advantages on a certain occasion which remains of great significance in our national history. I am afraid I have been wandering from Professor Nichols's paper. But to come back for an instant to the JefFersonian dilemma - democracy and localism, we are confronted today with the task of weighing these two values against each other on a vaster scale than ever before. The question is: Must democracy have a local habitat or can it operate on an international scale? This, at base, is the issue, or one phase, certainly, of the issue between isolationists and interventionists.

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