The Online Library of Liberty

A project of Liberty Fund, Inc.

• Book I.
• Preface.
• Introduction.
• Chapter I.: General Division of the Aggregate Body of the Law.
• Chapter II.: Constitutional Law.
• Chapter III.: Civil Or Distributive Law. *
• Chapter IV.: Penal Law.
• Chapter V.: Procedure Law. †
• Chapter VI.: Financial Law.
• Chapter VII.: Prescriptions Or Bearings of the Other Codes Or Branches of Law, to the Constitutional Code.
• Chapter VIII.: Public-opinion Tribunal.
• Chapter IX.: Good Rule and Bad Rule.
• Chapter X.: Corruption.
• Chapter XI.: Delusion.
• Chapter XII.: Fiction.
• Chapter XIII.: Factitious Honour.
• Chapter XIV.: Established Religion—none.
• Chapter XV.: Supreme Constitutive.
• Chapter XVI.: Supreme Legislative.
• Chapter XVII.: Supreme Operative.
• Book II.
• Preface to the Original Edition of Book II.
• Chapter I.: Territory of This State, Name, Situation, Boundaries, Divisions.
• Chapter II.: Ends and Means.
• Chapter III.: Sovereignty, In Whom. *
• Chapter IV.: Authorities.
• Chapter V.: Constitutive Authority. *
• Chapter VI.: Legislature.
• Chapter VII.: Legislator’s Inaugural Declaration. *
• Chapter VIII.: Prime Minister.
• Chapter IX.: Ministers Collectively.
• Chapter X.: Defensive Force.
• Chapter XI.: Ministers Severally.
• Chapter XII.
• Chapter XIII.
• Chapter XV.
• Chapter XVI.: Quasi-jury.
• Chapter XVII.
• Chapter XVIII.
• Chapter XIX.: Government Advocate General.
• Chapter XX.: Eleemosynary Advocates.
• Chapter XXI.
• Chapter XXII.
• Chapter XXIII.
• Chapter XXIV.
• Chapter XXV.
• Chapter XXVI. *
• Chapter XXVII.
• Chapter XXVIII.
• Chapter XXIX.
• Chapter XXX.
• Chapter XXXI.
• Appendix.
• No. I.
• No. II.
• No. III.
• No. IV.
• No. V.
• No. VI.
• No. VII.
• No. VIII.

CHAPTER XXXI.

Government, Simple or Federative.

Section I.

Topics for Consideration.

Instructional.

Art. 1. Throughout this Code, the supposition has been, that the form of Government being Republican, is simple, in contradistinction to federative.

But, in fact, among Republics, the federative form is most in use. From this consideration arise several unavoidable questions.

1. Considered in general, which form is preferable?

2. Supposing the simple form preferable, to wit, by reason of its simplicity, are there any, and what cases of exception, in which the federative form of government is matter of necessity, or a fit object of preference?

3. In either case, what are the alterations by which the simple form here exhibited, may in the most advantageous manner be altered into the federative?

Even supposing that, in the political state in question, the federative government is the only one which circumstances admit of the formation of, the present Code, though penned on the supposition that the Government is proposed to be of the simple kind, is not the less adapted to the purpose in view, if the only form employable is the federative. To convert it into a federative government, all that is wanting is, the giving appropriate power to the several Sublegislatures.

Section II.

Government Federative—its disadvantages.

Expositive. Instructional.

Art. 1. Of a Federal Constitution, a description may be given in either of two methods—the analytic and the synthetic.

i. In the analytic method, a Federal Constitution may be thus described. Conceive a number of Sublegislatures, as according to the present Code: conceive them, one or more, or all of them, as to this or that point, or any number of points, supreme: not subordinate with relation to the Legislature.

ii. In the synthetic method. Conceive a number of Republics, each independent: in each of them the authority of the Legislature supreme, but agreeing to stand as to certain specified points, one or more, subordinate to a Central Legislature, the members of which shall be deputed from the several thus Confederated States.

Of these two correspondent and opposite forms, the analytic presents itself, as being in itself the most simple, and accordingly the most easily conceived.

Instructional.

Art. 2. In an abundance, which cannot but call forth proportionable regret, the federative system presents to view a host of difficulties.

These difficulties divide themselves into two classes: those which regard the substance of the arrangements, and those which regard the form; meaning in this case those which regard the operation of giving apt and adequate expression to whatsoever arrangements may have come to be on all sides really intended.

Instructional.

Art. 3. I. In regard to substance, how to secure in the quantities, absolute and relative, apt and agreed upon, the affording of the requisite supplies in the two shapes necessary; to wit, the personal and the real—men and money, or money’s worth—these are the problems for which solution is required.

Instructional.

Art. 4. As to what regards men, the case presents not, comparison had with that which belongs to money and money’s worth, much difficulty. Only from Stipendiaries can the quotas of contributed men, or say contributees, from the several States, be furnished to the central army. For, if not Stipendiaries at the time of the contribution, they are by it rendered such. Whether the men contributed by each State shall be kept distinct or mixed indiscriminately in the central army, will be a question for consideration.

Instructional.

Art. 5. As to money or money’s worth, two difficulties present themselves. First, how to settle, as between State and State, the quota; and, secondly, how to secure the actual furnishing of it.

1. How to settle the quotas. For this purpose, a preliminary operation necessary is, a statistic account of the mass of the matter of wealth, absolute and relative, in each constituent State: relative—meaning with reference to the quantity of the population among which it stands distributed.

Instructional. Ratiocinative.

Art. 6. 2. How to secure the actual and perpetual furnishing of the supply settled and agreed upon.

This operation divides itself into two suboperations.

1. Taxation: that is to say, legislation applied to the purpose in question.

2. Collection and transference of the supply so obtained: that is to say, the administration of it.

Comparatively speaking, the legislational involves little difficulty. Legislation is a sort of operation performed, (exceptions excepted,) once for all: and performed for the whole territory of the union, by a single assembly, without change of place.

Not so the administrational and judicial branch: the causing the ordinary supplies to find their way, from each source, surely and periodically, into the common treasury.

Instructional. Ratiocinative.

Art. 7. On this occasion, two antagonizing arrangements present themselves.

1. Each State, to its own taxes imposed for its own peculiar purposes, adds others, imposed on the same sources, or say contribution-yielding subject matters of taxation; or, on other and additional ones. In both cases it collects the money by its own collectors: and from the aggregate fund thus composed, periodically conveys the quota agreed on, or such lesser share as it chooses to part with, for the use of the whole confederacy, to the central spot. Call this the Single-taxation system.

2. Each State, under such restrictions and conditions as are agreed on, gives permission and authority to the Central Government to impose, at its own choice, taxes to the stipulated amount, on the citizens of the several Confederated States.

In this case follow, as a necessary consequence, in each State, two separate Department Official Establishments: to wit, a branch of the Administrative, and a branch, or the whole, of a Judiciary Establishment: the one, for the collection of the correspondent part of the revenue, in uncontested cases; the other, for the collection of it, in contested cases. Call this the Double-taxation system.

Instructional. Ratiocinative.

Art. 8. Evils attached to the Double system, are as follows:—

1. Addition to the expense: of the two branches of the additional establishment, namely, the administrative and the judiciary, the maximum of the addition will be reduplication in both cases. But in the case of the administrative, this maximum is susceptible of alleviation in a greater degree than in the case of the judiciary. For, the subject matters of taxation being given, and the number of intended contributors, or say taxees, given likewise, as well as the other circumstances (local circumstances included) upon which facility of collection depends, (such as density of population,) being also equal,—the expense of collection may be not considerably greater in the case of double, (or a still greater multiple of the sum in question,) than in the case of the original sum.

Instructional. Ratiocinative.

Art. 9. 2. Danger of disagreement, ill will, and consequent rupture of the association of States: accompanied or not—followed or not, by hostility as between States and States. The state of things in question is that of an imperium in imperio: the Central Government commanding that which the Local Government inhibits; or, vice versâ, the Local commanding what the Central inhibits. At any time, on any occasion, such repugnancy is liable to have place. “No man,” says the proverb, “can serve two masters.” Yet here does the servant subject, stand engaged to serve two masters.

Instructional. Ratiocinative.

Art. 10. Manifest, on the bare statement, is the comparative simplicity of the Single-taxation system, and the comparative complicatedness of the Double-taxation system. Manifest, accordingly, the superiority of the Single-taxation system, on the supposition that execution and effect can be and is given to it.

But here lies the great difficulty: and in such a degree is the difficulty capable of varying, as between confederacy and confederacy, that in the instance of this or that confederacy, it may be capable of being carried into effect; in this or that other, not. In this latter case, supposing it realized, nothing will remain but to submit, and give to the yoke such alleviation as it is susceptible of.

Instructional.

Art. 11. Another difficulty connected with the federative system is, how to settle the seat of the aggregate government—the seat of the heart, into which the matter in question shall be received, from and out of which it shall be distributed, and into which it shall reflow.

Instructional.

Art. 12. II. In regard to form—namely, uncertainty, by reason of diversity of interpretation, accompanied with sincerity, and free from evil consciousness on both sides.

This arises from the difficulty of finding, in every part of the field, locutions sufficiently well adapted to the purpose of marking out the boundaries between the authority of the Central Government, and the authority of each particular Confederating State.

To the complete accomplishment of this object, an altogether consummate acquaintance with the art and science of logic, is an indispensable requisite. Even in the Anglo-American Confederacy, no such consummation, nor any near approach to it, has as yet been effected.

Instructional. Ratiocinative.

Art. 13. Under the federative system, the magnitude of the aggregate territory will be productive of various other evils. The distance and consequent length of time would cause tardiness and unfrequency of communication between the seat of the Central Government, with its head offices, administrative and judiciary, on the one part, and the seats of the several particular governments on the other part. Of this distance and consequent tardiness, the ill effects will perhaps be, in a more particular degree, obvious and striking in the Judiciary than in the Administrative Department.

True it is, that by the universal registration and publication system, as applied to judiciary proceedings, evil in this shape would, under the present proposed Pannomion, be minimized: and the tardiest pace of communication, under that system, would be promptitude in comparison of the least tardy, which in suits regarded as important, has place at present in English practice. Still, however, the quantity of it would constitute a serious objection, of sufficient weight, perhaps, in some cases, to turn the scale.

Instructional. Ratiocinative.

Art. 14. In addition to the adjustment of territorial limits as between State and State, it will be necessary to make adjustment of the use to be made of waters in the several States, whether running or stagnant, salt or fresh: the land covered with them respectively being so situated, as to be capable of being turned to use, by one, more, or all of the several States.

Of such uses, examples are as follows:—

1. Fishing.

2. Irrigation.

3. Navigation for the purpose of access to water, useful in either of the above two ways.

4. Navigation for the purpose of warlike operations, offensive or defensive, against a nation at whose hands hostility has place, or is apprehended and regarded as impending.

Adjustment must also be made of the limits within which, by encouragement, intended or unintended, given to this or that branch of its own trade, discouragement shall be applied to the trade of this or that other of the mutually contracting States.

These matters being adjusted, and a Judicatory, composed of agents from each State, for the peaceable termination of future contingent pursuits, established, the probability of continuing in a state of amity seems not to be, in any determinate degree, increased by coalescence into a Confederated State.

But under the federative system, in so far as, on the part of any one or more of the thus associating States, any plan of conquest, or less extensive scheme of depredation or oppression, at the charge of other States, one or more has place,—to the purpose of defeating such a scheme, the sort of Judicatory in question would not, with anything like certainty, be adequate: though by the publicity of such discussions, and the appeal thus made to the Public-Opinion Tribunal, every such mischievous scheme would receive the most effectual check, which, by anything but superior warlike force, the nature of things admits of.

Instructional. Exemplificational. Ratiocinative.

Art. 15. An idea which will be apt to present itself, and which, unless corrected, will be but too apt to produce pernicious error in practice, is this,—namely, that to establish an effective and permanent union of this kind, nothing more is necessary than to take for the model, and for a subject matter of exact imitation, the system exemplified in the case of the Anglo-American States. In one essential circumstance, the case of that confederacy is but too widely different from all those which, in the same continent, are either already formed, or are in a way so to be. This is the eminent altitude in which the public mind was seated, in respect of political and legislative intelligence, at the time of the establishment of the confederacy: while, in the other instances, the public mind has been reduced to a correspondently low degree, by Spanish tyranny and Portuguese misrule. Intellectual aptitude, in a maturer state, may be obtained from without; but moral aptitude, and in correspondent degree and proportion, must have place within, or all intellectual aptitude will be useless.

Instructional. Exemplificational.

Art. 16. Since the disruption of the Spanish Monarchy, several federations have been either effected or endeavoured. In no instance does it appear probable, that these unions have had, for their efficient cause, on the part of the ruling few, by whom they have been effected, an opinion that, of the change, a preponderant good to the many would be the result. The phenomenon has had for its more natural cause, perceived or unperceived, the love of power: for the more extensive the union, the greater the power in the hands of the Central Government, and thence of the several individual functionaries sharing in it.

In this case, ambition wears a mask less transparent than in most other cases.

Under the name of allies, history shows how the Athenians proceeded to render tributary so many republics, whom they found weaker than themselves.

Section III.

Government simple—its advantages.

Enactive. Ratiocinative.

Art. 1. Exceptions excepted, in no instance will a Federal Constitution, or, say, a confederated form of Government, be employed in preference to the simple, or, say, unconfederated.

Reasons. 1. Complicatedness of the Federal form: 2. Thence, difficulty of the several operations of creation and preservation in relation to it: 3. Difficulty of effecting an agreement as to the purport of the arrangements to be established: 4. Difficulty of framing apt expressions for the designation of those same arrangements: 5. Danger of jealousies, from supposed partiality, as to this or that particular State: 6. Danger of disagreement and eventual hostility on the part of the States, a confederacy of which is formed, or in contemplation to be formed.

Instructional. Ratiocinative.

Art. 2. The advantages which the Simple form possesses, in comparison with the Federative, howsoever constructed, are altogether obvious, and not less undeniable.

1. It is more easily understood: corruption is, therefore, more easily and surely kept out of it: for the less perfectly is the form and conduct of the Government understood by the many, the more easily will they be imposed upon by the few, and the sinister sacrifice, in proportion as opportunity offers, be thus made.

2. If, in general terms, the choice be in favour of the Federative, thereupon comes the choice as between every proposable modification of the Federative form, and every other: and here comes matter for debate without end.

3. A Federative form supposed established: danger of conflict between the general government and each particular government is a danger that cannot but be perpetually impending.

4. Take each dispute by itself, and suppose it settled, still the basis on which it is settled will be to be settled: and by the expression given to the settlement, whatsoever it be, so much additional complication is introduced.

5. In comparison of a Simple form of government, constructed upon the same republican basis, and framed or adopted, and carried into execution and effect, by a people under the same degree of civilisation,—a Federative Government, even if constructed upon the best possible plan, will, so long as it exists, be a weak one: the weaker, the stronger the powers of the several Local Governments.

Of this weakness, the Anglo-American Federative Government exhibited, in its original form, a striking exemplification and proof. The ties were too loose: necessity compelled the strengthening them.

Instructional. Ratiocinative.

Art. 3. The advantages of having, in the given space, a number more or less considerable of political debating assemblies, instead of no more than one—the additional and all-pervading strength thus given to the public mind in every part of the country, each particular Government operating as a check upon the Central Government, as well as upon every other—are advantages, the importance of which is altogether above dispute. Among the causes that contributed to the fall of the French Republic, the want of this advantage was, perhaps, the most influential. While to the capital was confined almost the whole of the political light, the provinces remained, if not in absolute, in different degrees of comparative darkness.

Instructional. Ratiocinative.

Art. 4. But, from the very first, for the securing this advantage, provision the efficiency of which will hardly be deemed exposed to dispute, has been here made, with the utmost anxiety, in and by the existence of, and the powers and duties given to, the Sublegislatures.

In this code, each Sublegislature is a seminary for the Legislature.

In each Sublegislature, public men are continually formed, and sent out upon the stage of public life, furnished with inducements, as well as means, for acting with guardian vigilance, as instruments of control, to the proceedings of the universal Legislature.

In the form here proposed, may be seen a body, and a vast body it may be, with but one soul. In the Federative form, there cannot but be as many souls as distinct governments, and amongst them there may any day be jarring ones.

Instructional. Ratiocinative.

Art. 5. An exception might be where, for defence against hostility, actual or probable, at the hands of another political State, in such sort and degree powerful, that by no other means does resistance against conquest, at the hands of such overpowerful State, afford an adequate promise of being effectual.

But it seems questionable whether, for defence against a common enemy, any preponderant demand for federation has place in any instance. Neither does it appear, that in respect of security against mutual hostility between member and member of a proposed Federal State, any clearly preponderant demand has place, comparison had with such other means as the nature of the case affords.

APPENDIX.