its existence. The formation of the United States of America under the present Constitution was the first attempt to realize this form of federation on a scale large enough to command the attention of the world, and the great success of the experiment of combining local independence with national power has impressed itself upon the political consciousness of Christendom. Thus, just as the British Constitution has become the model of representative government for the nations of western Europe, the American federation has become the type of federal government for two continents.
One of the chief difficulties which arises in organizing a federal government of either type consists in discovering means by which disagreements between one or more of the local governments and the central government as to the limits of their respective powers are to be disposed of. The arrangement by which this object was sought to be effected in America, of which Tocqueville expressed his admiration, is thus explained by Mill: “Under the more perfect mode of federation, where every citizen of each particular State owes obedience to two governments—that of his own State and that of the federation—it is evidently necessary not only that the constitutional limits of the authority of each should be precisely and clearly defined, but that the power to decide between them in any case of dispute should not reside in either of the governments, or in any functionary subject to it, but in an umpire independent of both. There must be a supreme court of justice, and a system of subordinate courts in every State of the union before whom such questions shall be carried, and whose judgment on them, in the last stage of appeal, shall be final. Every State of the union, and the federal Government it self, as well as every functionary of each, must he liable to be sued in those courts for exceeding their powers, or for non-performance of their federal duties, and must in general be obliged to employ those courts as the instrument for enforcing their federal rights. This involves the remarkable consequence, actually realized in the United States, that a court of justice, the highest Federal tribunal, is supreme over the various governments, both State and Federal, having the right to declare that any new law made or act done by them exceeds the powers assigned to them by the Federal Constitution, and in consequence, has no legal validity.” The tribunals which act as umpires between the federal and State governments naturally also decide all disputes between two States, or between a citizen of one State and the Government of another. The usual remedies between nations—war and diplomacy—being precluded by the federal union, it is military that a judicial remedy should supply their place. The supreme court of the federation dispenses international law, and is the first great example of what is now one of the most prominent wants of civilized society—a real internal tonal tribunal.
A federal government, then, is a body politic composed of the people of several different, and in some respects independent, States, over which, in its own prescribed sphere, it exerts a supreme authority; while outside of that sphere the States and the people thereof are sovereign within their respective jurisdictions. The character of a federal government varies with the extent of its powers. The first form of ‘federal government’ established in the United States was that created by the ‘Articles of Confederation,’ adopted by the Continental Congress in 1777. The separate colonies, finding some form of central government indispensable to the efficient prosecution of the War of Independence, gave a reluctant consent to those articles, which, while the war lasted and all felt the presence of a common danger, worked tolerably, though not without some embarrassing friction arising from notions of colonial or State sovereignty. But after the independence of the country was established, and the pressure of a common danger no longer existed, there was a disposition to exalt the State and to depreciate the national authority, which to some extent was regarded as a burden. The National Government had no judicial tribunal to make an authoritative exposition of its powers, and no executive officers to enforce its decrees; it was entirely dependent upon the voluntary action of the States for means to carry on its operations; so that, in the language of Washington, it was “little more than a shadow without the substance,” and “Congress a nugatory body, their ordinances being little attended to.” There was, in short, an utter want of all coercive authority on the part of the Government to carry into effect its own constitutional measures. The embarrassments growing out of this state of things were endured till 1787, when a convention of delegates from the several States was held in Philadelphia, “for the purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the Federal Constitution adequate to the exigencies of the Government and the preservation of the Union.” The convention encountered many difficulties arising from diversities of opinion among its members, and from conflicting local interests, but finally succeeded in framing a constitution which the people of the several States finally ratified, and which, with various amendments, has continued to this day. From the time of its adoption different theories of interpretation have prevailed, and these conflicting theories have to a greater or less extent determined the character and aims of political parties. It has been contended on the one side that the Union was merely a league between the several states in their organized capacity, and that each State had the right, at its pleasure, of withdrawing therefrom. On the other side if has been held that the Union, instead of being the creation of the States, as such, was formed by “the people of the United States,” acting, indeed, through their respective State organizations, but still as citizens of a common nationality. According to this theory, no right of secession on the part of a State has any existence; but it is the right and the duty of the National Government to maintain the Union by force. This question was brought to an issue in the Civil War, the slaveholding States seeking to exercise the assumed right of secession for the protection of slavery, and the non-slaveholding States taking up arms for the defense of the Union. The results of the war are generally regarded as a
