THE

AMERICAN SYSTEM OF GOVERNMENT

The National Government

CHAPTER I.

THE NATION AND THE STATES

The American Union is a Commonwealth of commonwealths, a Republic of republics, a State which, while one, is nevertheless composed of other States even more essential to its existence than it is to theirs.

When within a large political community smaller communities are found existing, the relation of the smaller to the larger usually appears in one or other of the two following forms: One form is that a League, in which a number of political bodies, be they monarchies or republics, are bound together so as to constitute for certain purposes, and especially for the purpose of common defense, a single body. The members of such a composite body or league are not individual men but communities. It exists only as an aggregate of communities, and will therefore vanish as soon as the communities which compose it separate themselves from one another. A familiar instance of this form is to be found in the Germanic Confederation as it existed from 1815 till 1866. The Hanseatic League in medieval Germany, the Swiss Confederation down till the present century, are other examples.

In the second form, the similar communities are mere subdivisions of that greater one which we call Nation. They have been created, or at any rate they exist, for administrative purposes only. Such powers as they possess are powers delegated by the nation, and can be overridden by its will. The nation acts directly by its own officers, not merely on the communities, but upon every single citizen; and the nation, because it is independent of those communities, would continue to exist were they all to disappear. Examples of such minor communities may be found in the departments of modern France and the counties of modern England.

The American Federal Republic corresponds to neither of these two forms, but may be said to stand between them. Its central or national government is not a mere league, for it does not wholly depend on the component communities which we call the States. It is itself a commonwealth as well as a union of commonwealths, because it claims directly the obedience of every citizen, and acts immediately upon him through its courts and executive officers. Still less are the minor communities, the States, mere subdivisions of the Union, mere creatures of the national government, like the counties of England or the departments of France. They have over their citizens an authority which is their own, and not delegated by the central government. They have not been called into being by that government. They existed before it. They could exist without it. The American States are all inside the Union, and have all become subordinate to it. Yet the Union is more than an aggregate of States, and the States are more than parts of the Union. It might be destroyed, and they, adding a few further attributes of power to those they now possess, might survive as independent self-government communities.

This is the cause of that immense complexity which startles and at first bewilders the foreign student of American institutions, a complexity which makes American history and current American politics so difficult to the European who finds in them phenomena to which his own experience supplies no parallel. There are two loyalties, two patriotisms; and the lesser patriotism is jealous of the greater. There are two governments, covering the same ground, commanding, with equally direct authority, the obedience of the same citizen. A due comprehension of this double organization is the first and indispensable step to the comprehension of American institutions: as the elaborate devices whereby the two systems of government are kept from clashing are the most curious subject of study which those institutions present. How did so complex a system arise, and what influences have molded it into its present form? This is a question which cannot be answered without a few words of historical retrospect.

CHAPTER II.

THE ORIGIN OF THE CONSTITUTION

When in the reign of George III. troubles arose between England and her North American colonists, there existed along the eastern coast of the Atlantic thirteen little communities, all owning allegiance to the British Crown. But practically each colony was a self-governing commonwealth, left to manage its own affairs with scarcely any interference from home. Each had its legislature, its own statutes adding to or modifying the English common law, its local corporate life and traditions.

When the oppressive measures of the home government roused the colonies, they naturally sought to organize their resistance in common. Singly they

would have been an easy prey, for it was long doubtful whether even in combination they could make head against regular armies. A congress of delegates from nine colonies, held at New York in 1765, was followed by another at Philadelphia in 1774, at which twelve were represented, which called itself Continental (for the name American had not yet become established), and spoke in the name of "the good people of these colonies," the first assertion of a sort of national unity among the English of America. This congress, in which from 1775 onward all the colonies were represented, was a merely revolutionary body, called into existence by the war with the mother country. But in 1776 it declared the independence of the Colonies, and in 1777 it gave itself a new legal character by framing the "Articles of Confederation and Perpetual Union," whereby the thirteen States (as they now called themselves) entered into a "firm league of friendship" with one another, offensive and defensive, while declaring that "each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation delegated to the United States in Congress assembled."

This Confederation, which was not ratified by all the States till 1781, was rather a league than a national government, for it possessed no central authority except an assembly in which every State, the largest and the smallest alike, had one vote, and this authority had no jurisdiction over the individual citizens. The plan corresponded to the wishes of the colonists, but it worked badly, and was, in fact, as Washington said, no better than anarchy. Congress was impotent, and commanded respect as little as obedience.

Sad experience of their internal difficulties, and of the contempt with which foreign governments

treated them, at last produced a feeling that some firmer and closer union of the States was needed. A convention of delegates from five States met at Annapolis in Maryland, in 1786, to discuss methods of enabling Congress to regulate commerce. It drew up a report which condemned the existing state of things, declared that reforms were necessary, and suggested a further general convention in the following year to consider the condition of the Union and the needed amendments in its Constitution.

Such a convention was summoned and met at Philadelphia on the fourteenth of May, 1787, became competent to proceed to business on the twenty-fifth of May, when seven States were represented, and chose George Washington to preside. Delegates attended from every State but Rhode Island, and these delegates were the leading men of the country, influential in their several States, and now filled with a sense of the need for comprehensive reforms. The majority ultimately resolved to prepare a wholly new Constitution, to be considered and ratified by Congress nor by the state legislatures, but by the peoples of the several States.

The convention had not only to create de novo, on the most slender basis of preexisting national institutions, a national government for a widely scattered people, but they had in doing so to respect the fears and jealousies and apparently irreconcilable interests of thirteen separate commonwealths, to all of whose governments it was necessary to leave a sphere of action wide enough to satisfy a deep-rooted local sentiment, yet not so wide as to imperil national unity.

It was even a disputable point whether the colonists were already a nation or only the raw material out of which a nation might be formed. There were elements of unity, there were also elements of di