CHAPTER XXVI

FEDERAL AND OTHER COMPOSITE STATES

§ 1. IN the preceding chapter I noticed briefly the historical conditions to which great weight has to be allowed in dividing the territory of a state for purposes of local government; but I did not take these conditions into account in discussing the distribution of functions between central and local governments. Actually, however, the same historical considerations that are decisive in determining areas will often powerfully influence the division of functions. When states or parts of states which have either been formally independent, or have enjoyed a large amount of practical autonomy, are united, either voluntarily or through conquest, into one political community, the portions thus combined are likely to desire to retain important differences in laws and customs. Such differences may be intensified by differences in race, in religion, and generally in the level of civilisation attained; but independently of these the mere memory of the past may leave behind in such "partstates" a sentiment of nationality strongly opposed to com plete absorption in the larger political whole of which they have become parts. In this way an extension of the powers of local governments may become expedient, considerably beyond what would be either desired or desirable, if a single tolerably homogeneous people had merely been subjected to different physical conditions, and spread itself over its common territory with different degrees of density.

But further, even in the case of such a homogeneous

people physical conditions may cause and justify a great enlargement of the powers of local authorities. The mere distance of one part of the territory from another may have this effect, especially when a nation is expanding in the way of colonisation; this is exemplified by the whole history of the English colonies, through all the varieties and changes in their forms of government.1

A state including parts that have, from one or other of the above-mentioned causes, a high degree of political separateness, may be called practically composite; even if the governments of its parts are regularly controlled by one supreme legislature and executive, so that its constitution still remains formally unitary. If a state thus constituted is under popular government and its supreme legislature is elected only by-or consists only of-the citizens who reside in a portion of its territory, the other parts of the state are commonly said to be "dependencies" of the portion to which the legislature is formally responsible: and a similar difference may practically exist under other forms of government, although the formal constitutional rights of the great majority of the inhabitants may be the same throughout the territory of the state. E.g. under absolute monarchy, though no part of the state can be formally a dependency of any other part, it may be so practically; the monarch may choose his leading subordinates exclusively or mainly from a portion of his dominions, and be practically under the exclusive influence of its public opinion. This position of dependence, whether formal or only practical, is calculated to cause discontent : and it is not likely to be permanently acquiesced in by communities habituated to popular government, and feeling themselves on a level in civilisation with the dominant community;—unless, indeed, they are very inferior in strength to the latter, or unless their exclusion from political rights is compensated by economic or other advantages, which would be generally likely to excite the jealousy of the

1 The maintenance of the federal system in the United States may be partly attributed to a sense of the difficulty of governing its vast territory by the methods of a unitary state.

Hence,

inhabitants of the dominant portion of the state. unless one portion of such a composite state is overwhelmingly superior in size and strength, there will be a tendency to an approximate equalisation of political status among the parts; and if, at the same time, there is a general desire to maintain the political separateness of the parts as well as their union in the larger whole, there will be a further tendency to demand a stable constitutional division of functions between the government of the whole and the governments of the parts, securing to the latter a substantial amount of legislative independence. We thus arrive at the general idea of a "Federal" state, as a whole made up of parts politically co-ordinate and constitutionally separate: though, as we shall presently see, there remain considerable divergences of view as to the exact definition of " Federality."

§ 2. A federal state has to be distinguished on the one side from a unitary state with well-developed local governments, and on the other side from a league or confederation of independent states: but in neither case is the distinction simple and sharp, since the balanced combination of "unity of the whole aggregate" with "separateness of parts," which constitutes Federality, may be realised in very various modes and degrees. It will be well therefore to examine either distinction carefully before we consider the circumstances under which any form of federal constitution is expedient.

The clearest formal1 difference between a federal state and a unitary state whose parts are approximately equal in political privileges is, as I have just said, that in the former.

1 We doubtless find in history instances of federal unions in which there was no clear and precise constitutional division of powers, although practically the parts retained their independence, while effectively united in a larger whole. And no doubt a modern state might be practically federal, without a precise and stable division of powers, if the substantial autonomy of the parts were maintained by custom and public opinion. But if the central legislature were recognised as having the power to abolish this autonomy, I should regard the state as formally unitary; and if the point were left doubtful, I should regard the form of government as seriously lacking in definiteness. And such lack of definiteness is not merely a theoretical defect: it involves an obvious risk of friction and conflict between the government of the parts and the government of the whole.

1

the power of the ordinary legislature of the whole is constitutionally limited in favour of the autonomy of locally distinct parts. But we may further lay down (1) that unless this autonomy is considerable in extent, it would be paradoxical to call the state federal; (2) that when the federality is well marked, the compositeness of the state will find expression somehow in the structure of the common government; (3) that if the federal character of the polity is to be stable, the constitutional process of changing the constitutional division of powers between central and local governments must be determined in harmony with the principle of federalism.

Let us consider briefly each of these three conditions:I. In laying down that the autonomy of the parts of a federal state must be considerable in extent, I mean that we should hardly call a state federal merely because the independence of local governments in certain minor matters was guaranteed by the constitution. At the same time, we cannot say that Federality implies any definite division of functions between the governments of the parts and the common government of the whole. The principle of federal union is sometimes stated to be that the federated parts are to be independent as regards "internal matters," while they have a common government for "external matters." And no doubt this statement indicates roughly the line of division that is both usual and expedient. But, firstly, it leaves doubtful how matters external to the parts but not to the whole-matters that concern the mutual relations of the parts are to be determined; and this intermediate region is very important in modern states:-for instance, hardly any point is likely to be more vital for the cohesion and stability of a federal state than to secure free trade among the federated part-states. And, secondly, matters prima

1 Theoretically we should perhaps include the case in which parts divided by race or religion, and not by locality or habitation, have a substantial autonomy; but the term "federal" is not usually applied to such combinations.

2 The constitutional prohibition of restrictions on commerce among the federated part-states has been of fundamental importance in the history of the North American Union.

facie internal-in the strictest sense-to each part may be of serious common interest to the whole, on account of the mischief or waste of labour caused by want of uniformity, as was pointed out in the preceding chapter. This is the case (e.g.) with such matters as regulation of currency, patents and copyrights, bankruptcy, and generally commercial law-and, in short, all such matters as it would be most palpably unwise to assign to local governments in a unitary state. Such matters as these should undoubtedly be included in the province of the common government,

-at any rate if the federal territory be approximately continuous no less than the management of foreign relations, and the organisation and the control of the military forces necessary for protection against foreign aggression. Again, the common government ought to have the power of enforcing the fulfilment of international obligations, and this must occasionally involve interference in the internal affairs of the part-states, to suppress or punish conduct mischievous to foreigners. It may even be expedient for the wellbeing of the whole that the internal political constitutions of the part-states should be to some extent determined in the federal constitution; owing to the mutual disturbance which polities based on fundamentally diverse principles are likely to cause if brought into close contact through federation.1

It may be further noted that the federal character of the whole state becomes more marked if the powers of the common government are defined, while those of the partial governments are left indefinite in the constitutional division; that the residuary powers belong to the part-states.

II. It is a natural, if not a necessary, characteristic of a federal polity that the separate political existence of partstates as members of the whole state should be somehow represented in the structure of the common government. This may be done in various ways and degrees: (1) as the part-states, if independent, would be formally equal in international rights,

1 On this ground the North American Union prescribes a republican constitution as an absolute condition of membership.