so strongly against all violation of the Federal compact that the
result would be a federation and not an alliance. But the state-
ment in the text is practically sufficient.

2 Cf. the writer's International Law in South Africa, c. III.
and pp. 273, 275, supra.



chap, viu] FEDERATION DISTINCT FROM ALLIANCE 2(f)

don't do such things ! ' It is the improbability that a
particular act will ever enter into the calculations of
statesmen at all, which counts. Breach of treaties,
though never lawful, is always possible to contemplate.
Revolutionary violence — for that is what disregard
of federal compact must be — is much more outre. The
statesman who embarks upon it does so as an outlaw.
His new conception is out of focus with the ground-
plan of the world which he, in common with the rest
of people, is bound to entertain on pain of utter con-
fusion of idea. It may quite well be successful : but it
is inconsistent with so much, that it does not easily
find a foothold in the mind. And an idea which does
not easily get a hearing in the mind is not likely to have
its probable success calculated. People are too busy
to attend to it.

And there is this further great practical consideration.
In an armed conflict between independent states one of
which lias broken an engagement, the rest of the world
must remain strictly (and ridiculously) neutral. In an
armed attempt by a Federal power to enforce its clear
rights, it is difficult to see that neutrality is necessary.

The broad distinction is between advantages for the
fulfilment of which one looks primarily to a particular
state or person, and advantages which one looks upon as
simply one's own, without the intervention of any one
else. It may quite well be that (as in the case of an
ordinary contract of sale) one ultimately expects to get
the goods (or damages) even against the will of the vendor.
But it is through the operation of his will and within the
limits of his resources that the promisee must expect
satisfaction. 1

1 Formally and logically, the two classes of advantages are
distinguished as conferred respectively by " rights availing against
a particular person," and "rights availing against persons gene-
rally." The right availing against a particular person (or state)
includes such rights as arise out ofjpromises. The rights availing



300 FEDERATION [chap, viii

It is therefore apparent that there are at least seven
relations to be distinguished :

1. Absolute independence.

2. Independence tempered by treaties which depend
for their execution on the state itself and deal with isolated
topics.

3. Alliances, resting on contractual engagements, but
such as are of a more intimate character.

4. Close alliances, resting on contractual engagements,
but providing for institutions imitating the common
cabinets, courts and camps of federal states.

5. Federation (or Dependence), resting on a cession of
more or less independence.

6. Absorption, with a concession of autonomy.

7. Absolute absorption.

The Close Alliance has the disadvantage of resting
entirely upon the continued willingness and ability of

against persons (or states) generally are the negative rights which
secure that no one shall interfere with the things which we regard
as our own. The terminology is unsatisfactory ; because it con-
nects dissimilar things. It is not really the right to the fulfilment
of the promise which is parallel to the vague army of " rights "
to be undisturbed by unknown and unknowable multitudes in
our enjoyment of our own. One docs not, in thinking of one's
possessions, mainly, or much, think of the myriads whom one is
entitled to exclude from them. But when one thinks of a promise,
the individuality of the promisee saute aux ycux. The formal
awkwardness of coupling rights (such as those conferred by a
promise) with concrete things (such as horses and ships), induces
thinkers to prefer to invest with prominence these negative rights
of exclusion, and to couple them with the rights which avail
against definite persons. Of course, a person never thinks of —
" my loans and my powers of excluding people from my pro-
perty," but of " my loans and my property " — when the borrower
docs not pay. It may be strongly doubted whether " I had a
right that my horse should not be kicked " is not a forced ex-
pression which no one but a student of jurisprudence would
employ.



chap, vni] INTERNAL FEDERALISM 301

its components to fulfil their engagements to respect the
decisions of the common organs. If one of them is to
be forcibly brought to reason, it must be by war or its
equivalent. Foreign countries must be neutral in the
contest. Its own subjects will have no scruples as to
the legality of fighting for it. In a Federation there are
doubts and difficulties which render it hard for the
government of a component state to assert a sovereignty
which it has not got. They render its opposition to the
Federal forces (acting within their powers) rebellion and
not lawful war.

Federation, it is unnecessary to add, must be distin-
guished from the so-called " Federal States " of which
North America, Mexico ' and Brazil are types. The
designation of the provinces of the North American Union
by the word " state," which has come to be the accepted
type-word for a social organism of a very different kind —
the self-contained, independent unity which is the normal
subject of modern international law — has caused a great
deal of confused thought. It is still not without an un-
due amount of influence on current speculation. " The
States," as a common expression, means the United States
of North America — which are not states at all : which, at
the uttermost stretch, have only a shadow of the reality
of the independent states of Europe. By a transference
of the name, one is deceived into thinking that the hetero-
geneous, self-poised, states of international law could
readily be converted into Americanized " States " of a
World-Union. Local sentiment was strong at the time
of the formation of the Unions of North America, of
Mexico, of the Argentine and of Brazil. It may also be
suspected that the first was the object of conscious imita-
tion by the rest. But it is certain that it met the require-
ments of their case. There are plenty of incidents in
the stormy history of South America and Central America
to prove how party feeling centred in localities, and how

1 See for Mexican Constitution (31 Jan. 1824) 13 S.P. 695, 701.



302 FEDERATION [chap, viii

loose was the tie which kept distant places together.
Bahia, Para and Rio — Buenos Ayres and Salt a — Vera Cruz
and Mexico City — all the jealousies of cities like these go to
show that a loose constitutional organization was inter-
nally an advantage if not a necessity. But everybody
knows that the State of Matto Grosso, the State of Okhla-
homa, the State of Corrientes are names and nothing more,
outside the limits of their own federations. And if the
State of Paysandu and the State of Colorado have had
a wider fame through potted tongue and a potato beetle,
it is not as self-governing communities that they are
conspicuous. It is Brazil, Mexico, Argentina, the United
States, which the law of nations takes into account.

Sometimes, again, one speaks of a " Federation " of
the British possessions. Some scheme for the represen-
tation of the Colonies in Parliament, coupled, perhaps,
with the concession of a certain autonomy which that
Parliament could not lawfully infringe, appears to be
the central idea of such a conception. But whether the
Imperial Parliament were supreme (as it is at present) or
not would remain a wholly domestic concern. The limits
of its powers, if any, would remain a wholly domestic
concern. Foreign nations would know, as they had
known, the Foreign Office, and a Great Britain for which
it spoke. If it was constitutionally unable to coerce
Australia, the whole Empire would have to stand the
risk. If a nation chooses to spread its powers, it must
take the consequences.

A word ought to be said of the " Feudatory " Princes of
India. It was certainly intended that they should retain
a measure of independence. It might even be argued
that their treaties only imposed on them a contractual
obligation. But from the time that that audacious Scots-
man, Dalhousie, asserted that the sole right of interpreting
the meaning of those treaties rested with the British
Government, it became impossible' any longer to consider
them t<» be anything but step-children of the Empire —



chap, vni] PSEUDO-INDEPENDENCE 303

without the rights of children, but with all a child's com-
plete subjection. There powerfully co-operated to bring
about this result the exclusion from diplomatic intercourse
with foreign states, which was enjoined on the Princes.
Indeed, it may be taken as a principle that the first and
main essential which a state ought to look to, if it wishes
to preserve an international existence, is to retain the
power of diplomatic intercourse. States cannot be ex-
pected to take an interest in nations of whose existence
they are officially ignorant.

Exactly the same remark as has been made regarding
the princes of India must be repeated with regard to the
rulers of Zanzibar and the Malay States. Their position
is the same, though they are not controlled by the India
Office, but by the Foreign or Colonial Office. Their rulers
are mere cloaks for the exercise of power by the British.
The reason for the retention of such soi-disant " Sultans '
was avowed with more simplicity than cynicism by the
general officer who was Governor of Singapore after
the Perak War. " It would be inconvenient," he re-
marked, ' to invest the population with the rights of
British subjects." It was more convenient to govern
through the forms of oriental despotism. This con-
sideration, and by no means any sentiment of chivalry,
it was that turned the scale against candid annexation.
It will very much surprise any jurist if a transparent
device of this nature can outweigh the obvious facts of
the case, even where English law alone is concerned. A
population which is de facto under the absolute control
of the British Crown, however it comes to be so, must be
treated as a part of the British dominions, simply because
that is the fact. Certainly, in Mighcll v. Johore, the
Supreme Court held the Sultan of Johore to be a foreigner,
on the certificate of the Foreign Office. But Johore was
long on a much more independent footing than the rest
ol the Malay Peninsula: and to this day it might be
argued to have a certain amount of independence, which



304 FEDERATION [chap, viii

the polished diplomacy of its rulers long ago secured
for it whilst the more northern territories still jealously
avoided intercourse with Singapore. To this day, there
appears to be no British Resident in Johore. English
law aside, it is plain that no subterfuges such as the
maintenance of a puppet throne will avail in the eyes of
International Law to divorce power from responsibility.
Napoleon's vassal kingdom of Westphalia and the Con-
federation of the Rhine were always treated as what
they were — masks through which spoke the voice of the
successor of Charlemagne.

Chili declined to consider Bolivia as independent,
when confederated with Peru under the dictatorship of
Santa Cruz. 1 " Bolivia and the new Peruvian States,
under the title of Federal, are Provinces of a Military
Autocracy. But even should the Peru-Bolivian Federa-
tion have any reality — should it ever be anything but a
name with which it is attempted to conceal the usurpation
of Peru and the degradation of Bolivia — should it not
be patently condemned to destruction when the moment
shall arrive to give to this fusion of States the unity of
substance and form to which conquerors always aspire, [it]
would not cease on that account to place in manifest
danger the security of the neighbouring republics. Even
if, on that supposition, Bolivia and Peru should preserve
in certain respects their sovereignty under the aspect
that is most important to foreign nations, they would
form one sole political body. . . ."

One is much tempted to say the same of Cuba. The
transitional character of the present regime renders it
impossible to pronounce a definite verdict. But the
French " Protectorates " of Indo-China and the German
and British 'Protectorates" of East Africa, Uganda,
Nigeria and the like, are nothing but colonies.

Sir Fredk. Pollock has remarked that the modern law of
nations breaks down, or is least satisfactory in application,
1 25 S.P. 810, Porlales to Olaneta, 15 Dec. iSjO.



chap, vni] REGIONAL SOLIDARITY 305

in those cases where absolute territorial independence
does not exist. The complexity of feudalism was replaced
by the simplicity of territorial states. But there are
needs for which this simplicity is an inadequate expres-
sion. The work of evolution must be to discover the
necessary formula of synthesis. It must elaborate the
idea of Federation.

It is, however, improbable that the relations of civilized
with semi-civilized countries, now imperfectly and am-
biguously expressed in the institution of " Protectorates,"
constitute the field in which Federation is most urgently
called for. Civilized states are very willing to assume
entire control of less advanced communities. It is true
that they would at the same time like to decline full
responsibility for them : but under no system, federal
or other, could they combine diminished responsibility
with entire control. In a federal union, they must resign
some definite powers over their shadow-sultans and subject
brown races : and this there is no sign of their willingness
to do. It is very probable that with the advent of Federa-
lism, they may have to take such a course. But the real
pressure in favour of the Federal idea is the impoverish-
ment of local life in the centres of civilization.

A very singular phenomenon was witnessed two years
ago. We are accustomed to think of France as a land
of intense national consciousness, where the racial en-
thusiasm of the Celt, the professional enthusiasm of the
savant, the cosmopolitan enthusiasm of the artist, are
swallowed up in a great national patriotism. And there,
in that very France, the country of centralized unity and
provincial insignificance, appeared the portentous legend
of " Regional Solidarity."

The movement flickered out as suddenly as it began.
The wine-growers who had threatened armed insurrection
came quietly to terms with Paris. But the earth from
which such an inflammable mist exhaled is evidently
very far from solid. France has not forgotten the Com-

20



306 FEDERATION [chap, vrn

mune. Local solidarity, if the signs are not fallacious,
is going to count for a great deal in the future. It seems
to us the only alternative to the warfare of classes. Let
us quote Cobden's eloquent words : — '

" I have looked even further : I have speculated, and
probably dreamt, in the dim future — a thousand years
hence — I have speculated on what the effect of the triumph
of this principle [free trade] may be. I believe that the
effect will be to change the face of the world, so as to
introduce a system of government entirely distinct from
that which now prevails. I believe that the desire and
the motive for large and mighty empires, for gigantic
armies and great navies — for those materials which are
used for the destruction of life and the desolation of the
rewards of labour — will die away ; I believe that such
things will cease to be necessary, or to be used, when
man becomes one family and freely exchanges the fruits
of his labour with his brother man. I believe, that if we
could be allowed to reappear on this sublunary scene,
wc should sec, at a far distant period, the governing system
of this world revert to something like the municipal
system. ..."

Such a state of things would restore coherence and
interest to life. Bui it implies Federation.

Many hard tilings have been said of Federalism. It
lias, for instance, been said by a close student and an
interested observer, to mean weak government, judicial
government and conservative government. Perhaps it is
difficult to say how far these objections are meant to con-
note disapproval. The first certainly appears condem*
tiatory : the third may perhaps import neither praise nor
blame ; whilst as to the second, it may even be supposed
laudatory — but with this practical set back, that only a
very law-abiding nation can be fit for Federalism. We
shall try lo prove that Federalism is neither weak, legality-
ridden, nor essentially unprogressive.

1 Cited in The Arbiter in Council, Macmillan, 1006.



CHAr. vni] SUPPOSED DEFECTS 307

Is it weak ? First of all, is weakness imputed to it as
a defect ? A weak government, like a weak solution of
iodine, may be an excellent thing. If it is meant that
Federalism clips the growing feathers from Cesar's wing,
no one need find fault with it on this score. Assume,
however, that it is a blameworthy weakness that is meanl :
how is it supposed to arise ? It is natural to fall back on
the ancient symbol of a bundle of sticks : the Federation's
power is necessarily divided among local and central
authorities ; it must necessarily be dissipated and partly
lost — divide ct imp era. Unity is strength.

But the real meaning of the parable is more accurately
expressed by saying, " Harmony is strength." The crude
piling up of material does not create the greatest strength.
A bundle of sticks is stronger if all the sticks do not lie
in the same direction, but if some arch outwards all round.
The steel in a pair of scissors, though moving in opposite
directions, is far more effective than if it were all massed
into the single blade of a knife. States are strong when
the force latent in them is distributed in such a way as to
obtain the maximum effect : not when it is concentrated
in one hand. This is admitted by the critics of Federalism.
They admit that a federal government may be, in certain
unfortunate circumstances, the strongest possible. Bui
nevertheless it is weak. It is a pity that the circumstances
are so unfortunate as to prevent the formation of a
strong central government.

It may indeed be theoretically possible that a popula-
tion might be so homogeneous and so little desirous of
originality, that its ideal government would be a single
central one. In that case, its practicable single govern-
ment might be stronger than the most perfectly adjusted
federal power in a more varied community. Such a
population, however, and such a simple government, are
the mere abstractions of mathematics. Were such a
Laputa possible, its mechanical uniformity would neu-
i ralize the strength of its unity. The vivifying iniluence



3°8 FEDERATION [chap, viii

of variety, by which each section progressively imitates
the excellences of the rest, would be absent. Laputa
must stagnate in its " strength," or immediately develop
differentiation and acute weakness.

Admiration of such a mathematical perfection is some-
what akin to the spirit which condemns in the great name
of efficiency the Swiss method of selecting cabinet ministers
from separate cantons. Mathematically, if you choose
seven ministers from seven cantons, you will not get the
seven best men in the country. Local jealousies may
make it necessary to adopt such a stupid rule. And the
philosopher sighs at the necessity. He does not take
account of the emotional factor, and he ignores the
immense stimulus which is exerted on a minister who
takes his seat at the council-board, not on his own merits
alone, but as the representative of a great district. In the
same way, Federalism is regarded by the enthusiast as a
pis-aller. On the contrary, under all conceivable human
circumstances it contributes an accession of strength to
political organization.

It may, perhaps, then be doubted whether it is right
to stigmatize a system as weak, which is not only the
strongest possible, but so strong that it is not easily
possible to conceive a stronger.

It is a mistake to lay too much stress on the friction
between the elements of a federal organism. Friction
there is, and also dissipation of energy. But the latter is
far the more important source of waste. To insist on the
element of friction — to regard the local and central powers
as " pitted against one another " — is surely to take too
gloomy a view of human nature. Because two forces
exist, there is not the smallest reason for concluding that
they must necessarily behave like lighting cocks.

Germany in i860 was weak. But not because she
was federated. She was weak because her local courts
and cabinets were effete and jealous. And if Germany
was weak, government in Germany was far from being



chap, vin] WEAKNESS — LEGALISM 309

so. The United States were not weak in i860. And
government in the United States showed itself strong
enough in 1862. '

And if weakness is no inherent vice of Federalism, so
neither is excessive legalism. Without the law-abiding
spirit, no political organism, federal, feudal or unitary,
can stand for a day. Federalism, no more and no less
than others, requires the presence of such a spirit. But
it is charged against it, that it implies something more
than this elastic response to restraint. It is said that it
implies legalism in the narrow sense of subjection to
lawyers and courts trained in the narrow and rigid ideas,
and administering the methods, of municipal law. Some-
times this legalism is approved, and then the objection
against Federalism is that few countries are fit for it.
Sometimes it is condemned, and then the objection must
be one inherent in the nature of Federalism.

At the present day, when, by what has been called a
happy accident, an altogether unusual standard of probity
and ability has become the traditional characteristic of
the judicial bench in Great Britain and the United States,
it is not surprising that the law-courts have become
endowed in the minds of Anglican writers with a quite
unique political position. Political power tends to centre
in those who are most worthy of it. During the levities
of the Restoration and the corruption of the Georges,
the " legal monks " stood out in their dry infallibility, in
some sort superior to the opportunist statesman, to the
conforming ecclesiastic, and to the detested musketeer.
The badly paid court servant of Stuart times surely and
rapidly grows into the princely judge of recent days : a
co-ordinate power in the state with the minister and the
parliament-man — a greater than the earl and the bishop.
The Lord Justice Farwell, in a recent judgment, talks of
the courts curbing, in days gone by, the power of kings

1 It must nevertheless be borne in mind that the latter example
is one of a state which is not internationally federal.



3IO FEDERATION [chap, viii

and barons. It is a pious imagination. William I. and
Henry VII. were not troubled by judicial checks ; nor
did the courts settle the disputes of the Roses, or quiet
the pretensions of Charles I. The judges were lions
" under the throne." It is since the throne has become
an occasional chair, that the lions have answered to the
Lord Justice's conception. The check on the powers of
force and steel was not the judge but the Cardinal Legate.
The Victorian judge was a real check on the Victorian
government. The modern conception of the courts as an
integral factor in the political machine is an isolated and
curious idea, not wholly naturalized in Continental coun-
tries, even in those in which the dogma of the " separation
des pouvoirs " is most ardently embraced. It is obviously
a decaying idea. No modern government will allow its
will to be permanently thwarted by the courts. The
Taff Vale judgment is followed by a Trades Disputes
Act. The U.S. Government ostentatiously defies the
courts when expedient. Lincoln, in effect, asserted that
he knew the law better than the Supreme Court : he did
not affect (as Camden in the old days did) to commit a
righteous breach of law : his position was rather that in
the crisis in which he found himself the President possessed
sweeping constitutional powers, which the Supreme Court
might or might not concede to him. He deliberately chose
to prefer his own reading of the constitution. And in
earlier years — "John Marshall," observed Buchanan, "has
delivered his judgment : now let him execute it, if he can."
But, if decaying, the idea is still strong in England and