been difficult to say precisely what were the respective
international positions of the Provinces and the Union
respectively. Article 10 does not conclude the point ā
' Que nulle desdites provinces, villcs ou mcmbres, ne
pourront faire aucune confederation ou alliances avec
1 The Hanoverian Government, in 1831, corresponded with
that of Portugal through the British Foreign Olticc (i>s S.P. 332,
Ompteda in Palmerston, 15 Sept. 1831).
' Duinont, V. i. $23.
chap, viii] NETHERLANDS 323
mils seigneurs ou pays de leur voisinage, sans consente-
ment de ces provinces-unies, et de leurs confederez."
It left it open to the provinces to conclude treaties, and
to maintain relations, with foreign powers, so long as
they did not amount to alliances.
Temple in 1668 still calls the Netherlands a confederacy
of seven sovereign provinces. But a common Stadt-
holder and a common States-General had made this
sovereignty illusory for external purposes ā if not im-
plicitly for all internal ones as well ā by that time. Al-
though the consent of each province might constitutionally
be necessary to the waging of war, foreign statesmen
thought of the Netherlands as a unit and as a whole.
Temple notes that on one occasion ' he secured the
consent of the States-General to three treaties without
complying with the form of obtaining the concurrence
of the provinces and free cities ; which clearly proves
the constitutional and subordinate nature of their sove-
reignty. The provinces gave a subsequent assent : but
that was only to relieve the members of the States-
General from municipal penalties. It did not invalidate
the treaties. In fact, the States-General are treated
as the sovereign of the country in all the treaties of the
time. For example, in the French Treaty of 1644, Art. 6
uses the phrase ā " Le roy et lesdits sieurs Etat-Generaux
venant a conclure unc paix ou une treve, . . ." 3
The French invasions of 1672 and 1747 precipitated
the unity of Holland by settling practically unlimited
power in the person of the Stadtholder. At the time of
the Armed Neutrality four of the states were in favour
of that alliance, and three against. This division of
opinion did not hinder the accession of the country to
the league.
1 Observations on the United Provinces, p. 36. But this consent
of the States-General, subject to ratification, seems to have been
nothing extraordinary.
2 Dumont, loc. cit. VI. i. 295.
324
FEDERATION [chap, viii
At first treaties were occasionally ratified by the separate
provinces : e.g. the treaties of 1608 with James I. 1 But
this seems only Scottish caution : see the Danish treaty
of i62i, a the Brandenburg of 1605 and 1624, 3 Swedish
of 1614, 4 and even the British of 1625, 5 etc. When the
Duke d'Alencon was elected to the chief magistracy,
in 1580, 6 he agreed to take the oath in each province, as
well as the oath to the States-General, but this of course
was matter of constitutional order. When William of
Hesse invaded East Friesland, that province was em-
powered by the States-General to enter into a treaty
with him to regulate the support and behaviour of the
Hessian troops. 7 The central authority were parties to
the treaty, which therefore seems little more than such
a contract as the Corporation of Dover might to-day
make for the supply of paving-stones with a foreign
government.
A less certain verdict must be pronounced on the
early status of the provinces of North America. Isolated
from Europe by geographical position and by settled
policy, it might perhaps have been possible to the States
to assert their international existence, though debarred
from direct foreign relations. The Civil War demon-
strated that in 1861 the possibility no longer existed.
" State rights " must, since that conflict, be constitutional
rights and not international ones. So far as the rest of
the world is concerned, forty-two states may wipe out
the forty-third without comment. Their ' internal "
federalism, like the Swiss, unlike the Dutch, has not
been without the stress of violence, due to the arti-
iiciality and legalism of its framework. It was too close
a union for such diverse ideals as those of Louisiana and
Massachusetts. The reason why the United States of
North America, which were undoubtedly meant to
1 Dumont, he. at. V. ii. 94. 6 35-
Ā» lb. 399. 3 lb. 53. 4<>5- 4 Ib - 2 45. 249.
6 lb. 479, 482. " lb. i. 3 ye. 7 lb. VI i. 149.
chap, vim] UNITED STATES 325
appear as a true feck-ration of true states, have become
a single unit to the outside world is not at first sight
apparent. The events of 1862 set the seal on this unity,
but they did not create it. And the explanation which
suggests itself is this : ā that its germ was sown when
geographical expressions were admitted into the Union
on the footing of states. Before that, there had been
reality. Georgia was conscious of itself : Virginia was :
Rhode Island was : Pennsylvania was. But when the
fantastic territories of the West, oblong sections of a
surveyor's map, without separate history, cohesion or
traditions, were incorporated into the federal union
on a basis of population, the knell of Hamilton's con-
ception had struck : the Union had become a unit. The
devotion of the common man in Minnesota or in Ohio
was not to Ohio or to Minnesota. It could not be.
Ordinary people are not fanciful, if they are sentimental.
The United States, as a unit, alone filled the perspective.
The reaction on the Atlantic seaboard of the growing
and energetic West was inevitable. The conception of
a state was reduced to the lowest terms ; and just as
the creation of life peers by the hundred would reduce
the status of the peerage, so the creation of amorphous
states degraded the conception of statehood, until with
the advent of the Ohio President, Lincoln, the crash
came.
Incidentally, mention should be made of the signal
danger which resides in what may be called " attorneys'
constitutions " : constitutions of elaborate draftsman-
ship, designed to supply the want of national sentiment
by precise verbiage. Words can never be entirely free
from ambiguity. The attempt to express finally in
black and white the relations of federated states proves
only that the first requisite of federalism ā a vital con-
viction of the fit limits of central and local power ā does
not exist. That it should be possible to argue whether
or not the constitution, where it invests the federal
326 FEDERATION [chap, viii
legislature with the sole power of regulating inter-state
trade, means to invest it with a power of regulating
anything and everything connected with it, is a melan-
choly proof of the substitution of quibbling for states-
manship which such a state of things effects.
China, on the contrary, presents us with an example
of federation which, were it not so little known, might
almost be called the standard example. For not only
centuries, but ages, the Celestial Empire has been effec-
tively organized on a federal basis. The ancient military
empire decayed : feudalism followed, and then the great
vassals exchanged vassalage for independence, and
inaugurated the chan-kuo or federal regime. 1 It has suited
Western powers to deal with the Emperor at Pekin, and
to regard the local authorities as subject to his complete
control. Half the complications which have arisen in
the history of European intercourse with China have been
due to the fact that its federal structure was imperfectly
recognized. Nevertheless it secured to the country un-
broken peace, and a combination of elasticity and tough-
ness that has carried its rulers successfully through
crises which would have dissolved a kingdom whose
brain was centred in the single nerve of a despotic cabinet.
A federation is not paralyzed by a crushing blow at its
capital. Its organization is independent of its central
authority, and it is no more possible to kill it than the
Lernean hydra at one stroke. The centre of conscious-
ness only shifts elsewhere when the highest head is
cleft. Thus Kossuth wrote from Debreczin in 1849-
" Our nation still exists ! The surrender of the capital
has no effect on its vitality, for our municipal institutions
have now, as throughout all history, asserted their
vitality."
l m Sec an interesting article " International Law in China,"
byW. A. P. Martin, Rev. dr D. I. (1K82), 227. Mr. Martin finds
under the chan-kuo traces of embassies, treaties, balanced power
.nid neutrality, among the twelve leading states.
chap, vnil JAPAN 327
Tycoonic Japan was rather feudal than federal.
Properly speaking, the latter term is wide enough to
comprehend the former. To avoid embarking on the
tangled theme of the Middle Ages, it is best to disem-
barrass ourselves of its discussion. And the feudalism of
Japan was feudalism reduced to a vanishing point, for
sub-infeudation does not appear to have been carried
far, and the supremacy of the Tenno and of the Tycoon
ruling in his name was not limited by any legal bounds.
At the same time, the power of the five hundred daimios
was immense. From the date of the Tokugawa Iyeyesu,
their power and splendour made Japan very like a
federation. It cannot, however, be called an instance
of the failure of federalism, when the era of Meiji was
inaugurated. The daimios, if great and magnificent,
were not only in theory but in thought the subjects
of the Tenno. That might not much have mattered
if the Tenno had consistently left them alone. But the
heavy hand of the Tycoon was everywhere.
The peasants, says Hartshorne, had their own assem-
blies and their own magistrates chosen by themselves ;
and under the laws of the province (kuni) they practically
governed themselves in all matters of local interest. In
de la Mazeliere's opinion, the Japanese countryman,
' secure against eviction, yet not allowed to enrich
himself, showed neither zeal for his work nor desire to
improve his methods of culture. In good seasons he
thought only of drinking, pilgrimages and festivals ;
in times of scarcity he resigned himself, with Oriental
fatalism, to misery and death which often he might
have avoided."
Feudalism in Japan, in the last-named author's view,
was a kind of compromise between the territorial feudalism
of Europe and the clan system which it seems to have
superseded. It was territorial, but instead of the rela-
tion of lord and man which superseded that relationship
in Europe, there was the old clan relationship of kin.
328 FEDERATION [chap, vhi
The land system of Japan, brightly as its history illumin-
ates our own, must not detain us here. 1
The system of government in the Malay Penin-
sula was one of a network of semi-independent rajas
under a chief ā the whole population under each such
chief being only a few thousand. Inland from Selangor
lay the interesting federation of Negri Sembilan, or the
Seven States. Under the presidency of the lam Tuan,
the chiefs of these tiny states formed a central council,
under which the villages of the district enjoyed a pro-
longed and prosperous peace. Far longer than the
more absolutist Perak and Selangor, the Negri Sembilan
resisted foreign influence. " Where the needle goes, the
thread will follow," said the wary notables, and declined
the kind offer of a Resident. 2 Now they have the blessings
of thirty new statutes per annum on the best Singapore
pattern, which it is to be hoped they understand, for
it is more than one humble commentator does.
Reverting to Japan, let it be noted how strongly the
principle of communal solidarity is affirmed. Lord
Iozan of Ionezawa, in Tokugawa times, proclaimed : ā
" The cultivator's mission is in agriculture and seri-
culture. Diligent in these, he provides for his family,
and gives his dues to the government in return for its
protection. But all this is possible only by mutual
dependence of one upon another, for which purpose
1 Since the Taikwa reforms of the eighth century, all land,
as in England, in theory belonged to the Crown. Grants to
private persons were resumable in six years. In practice they
tended to become, like our copyholds, first life interests and
then estates in fee : and not inalienable. The provincial
governors, nominally appointed for ability, became hereditary
officers, like the Sheriff of Westmorland ; and these became the
daimios of later times. Waste lands could be granted out for
special services, either by the crown or by the daimios. There
was a laud tax of 4^ per cent. : a ten days' corvde : and a
tithe tax on industrial products.
See Law Magazine and Review, Vol. 26 (1901), 312, 407.
chap, viii] IOZAN 329
associations of some kind are necessary, and we hereby
institute anew the Companies of Five and Ten and the
Company of Five Villages, as follows : ā
The members of the Company (kumi) of Five should
be in constant intercourse with one another, and divide
the joys and sorrows of each, as do the members of one
and the same family. The members of the Company
of Ten (householders) should have frequent intercourse
with one another, and listen to the family affairs of
each, as do they who are of kin. They of one village
(iiiura) should be like friends in helping and serving
one another. The villages which constitute the Company
of Five Villages should help one another in time of
distress as befits true neighbours.
' If there is one among you who is old and has no
child, or is young and has no parents, or is poor and
1 annot adopt sons, or is widowed, or is a cripple and
cannot support himself, or is sick and has no means of
help, or is dead and left without burial, or has not fire
and is exposed to rain and dew, or by other calamities his
family is in distress ā let any such who has no one else
to depend upon be taken up by his Company of Five,
and be cared for as its own. In case it lies not in the
said Company's power to succour him, let his Company
of Ten lend him its help. If his case need more than
the latter can do, let his village see to it. Should some
calamity overtake one village, so that its existence is
endangered thereby, the four of the Company of Five
Villages should give it willing salvation.
"If there is one who neglects his farm, or follows
not his calling, and runs to other employment, or indulges
in banquets, theatres or other laxities, such should
have the peremptory admonition, first of his Council of
Five, and then of Ten, and in case he is still refractory,
he should be privately reported to the village authorities
and receive due treatment." '
And the Gold Coast of Africa knows a not dissimilar
system.
We turn back to the one standard example of per-
manent and familiar federalism ā the Germanic Empire.
1 lJ;irtsliorne, Japan, II. 78,
330 FEDERATION [chap, viii
Based on feudalism and religion, the Empire had to
adapt itself in the sixteenth and seventeenth centuries
to individualism and religious schism. It is a common-
place to dwell on its failure, and on its phantasmal after-
career. Less than justice is done by this summary
judgment. From 1648 to 1848 the German Empire and
the Germanic Confederation gave Germany the possi-
bility of ordered peace. Frederic II. of Prussia is vir-
tually the sole example of a monarch who defied its
organization. One has only to reflect on the hundred
and thirty-four sovereign princes and cities who during
most of its career composed it, to realize what a tre-
mendous force for good was the consolidating Empire.
Far from being dead or moribund, the great Federation
lived to shelter under its wings the multitudinous
centres of life and development which made Germany
the seed-plot of thought and placed on her brows the
crown of music ā the one art in which the modern world
is supreme.
There are thinkers who turn away in sadness from
the picture of this Germany. Divided and numbered,
delivered over to a hundred and thirty-four courts,
they see her condemned to deadly dulness and impotence :
politics a court intrigue, commerce a court toy. They
fail to see further than the surface. Beneath the veneer
of dull ceremonial, the individual life of localities was
nourishing and stimulating genius which, so far, has
not been the mark of Centralized Germany. The flame-
clear spirit of Kant ā the colossal grandeur of Bach ā
the penetrating grasp of Leibnitz ā the delicate taste of
Winckelmann ā nay, the patriotic intensity of Korner,
and the patient statecraft of Hardenberg ā were the
products of this dismal nadir of the politician's fancy.
And we can close the list with the names of Hegel and
Wagner. Are Strauss and Nietzsche improvements?
Centralized Germany, in the opinion of some, is a
Germany which is decaying at the heart. Old lofty
chap, vni] GERMANY 331
ideals, old chivalric sentiments, are withering. The
German of the past, with the plain straight mind and
practical downright ways, and yet with such a deep,
soft vein of romantic sensibility and emotion, is, they
tell us, disappearing. Is it merely a coincidence that
he flourished better in the days when home rather than
empire was the watchword of the race ?
Certainly ā though a similar transformation of ideals
may be noted in England and America ā the misgivings
may have some semblance of truth. Since Bismark's
triumph, there has been a note of hardness and of ma-
terialism in Germany which was not apparent before.
Far may it be from us to say that Germany no longer
occupies herself with unselfish ideals, and with gracious
observances. No one who knows her will say that.
But it is not to be disputed that their ground is less
secure than it was in the early days.
May it be possible that in a return to the ampler local
life of the old confederations, avoiding their faults,
Germany may find a priceless spiritual gift ? As Antaeus,
touching Earth, derived new strength and freshness, so
a nation which condescends to come to close quarters
with localities, will draw from them a perennial supply
of that vitality which comes to its children from their
local homes. The signs are visible that Bavaria and
the southern states are not content. A more generous
federalism is the clamant need of the Empire. The
present Prusso-federalism is not based on reality. It
will be one more of the " failures of Federalism."
Indeed, it is difficult to say whether or not the federa-
tion leaves the single states with any international exist-
ence. Is there a Prussia to-day, in the sense in which
there was a Prussia in 1854 ? Is there a Hesse-Darm-
stadt ? ā or a Wurtemberg ? ; except as provinces of
a Germany ?
One great reason for holding that there is, lies in the
fact that three States ā Bavaria, Saxony and Wurtemberg
332 FEDERATION [chap, viii
ā entertain foreign diplomatic representatives. Their
reflected glory may be cast upon all the rest. It is main-
tained by some that the reception of these personal
envoys, sent to the local German courts mainly (if not
entirely) on account of family relationships, does not
and cannot affect their status. The answer is clear. It
is of no consequence what functions are in fact fulfilled
by an ambassador. If he simply sits still in his armchair
and smokes cigarettes, the very fact of his being received
is prima facie notice of the existence of an international
power which receives him. States cannot be allowed
to discriminate, and to declare as suits themselves what
are, and what are not, proper ambassadorial functions.
The minor German states have, by keeping up, on what-
ever pretext, diplomatic relations, taken a long step in
the direction of preserving themselves from extinction.
The German states, therefore, seem still to exist, though
precariously. Consequently even the present Prussian
Empire is a true federation of internationally sovereign
states. As the Confederations of 1804-1870 erred by
excess of looseness, it errs by excess of strictness. It
needs no prophet to sec that modifications will be
necessary at no distant date.
Those earlier forms of confederation which subsisted
from 1804 to 1848 and from 1848 to 1870 need no special
investigation here. They were quite clearly real federa-
tions of genuine states. They carried on the splendid
tradition of sovereignty controlled by obvious law, which
had been handed down from the mediaeval Empire, and
had been nearly extinguished by the political theories
and (he religious necessities of a stormy century and
a half.
Disparage as we may the German Imperial system as
it existed after the Peace of Westphalia, two facts, one
patent, the other less obvious, stand out in relief, to be
placed to its lasting credit. It gave comparative peace
and quiet and a richly varied development to Germany;
chap, viii] FAULTS OF FEDFRALISTS 333
;md it gave its present jural character to the Law of
Nations. If one peruses the Jus Belli ac Pads of Grotius
and the work of his forerunners and contemporaries, on
turning to the writings of Moser one becomes aware of
a difference which can only be ascribed to the influence
of a new atmosphere of curial justice and submission
to law. In the older authors, one reads pages of vague
ethics and chapters inculcating counsels of perfection and
imperfect duties. One listens with delight to scriptural
parallels and classical illustrations. One admires and
follows at a distance. The inspired teacher scales heights
which leave the humble monarch ā a Gustavus or a
Frederick ā panting and breathless in the rear. The
great Germans such as Rachel and Moser come down
to earth. Their system is practical and imperative.
They view the monarch as bound to his fellows by a very
definite network of rights and duties. Their ideas, in
short, are the ideas of jurists familiar with the daily
1 uactice of the Aulic Council. They treat the controversies
of states as they might be treated in that high tribunal.
There may cling about their work some of the mustiness
of forensic debate. It misses the serene loftiness and
the ample range of their predecessors. But it definitely
stamps the Law of Nations as a system of law and
not a system of ethics. Modern International Law, as
Jefferson expounded it and as Nesselrode understood it,
is a magnified image of the Law of the Germanic Empire.
Federalism, then, has not on the whole had a fair chance.
It requires for success a comparatively delicate adjust-
ment which it has not entered into most people's minds
to consider. The efforts of federalists have oscillated
violently between producing a system of strict union,
tempered by elaborate paper limitations, and a loose
arrangement for preventing internecine war between
cousins-german.
The examples of China and Germany are, at the same
time, not discouraging. A system of great perfection
334 FEDERATION [chap, viii
must necessarily be slow of evolution. From the specific
faults alleged to be inherent in it, federalism is at all events
free. They arise from the failure of statesmen to realize
that federalism is not a ready-made nostrum, but that
it must be carefully adjusted in each particular case to
fulfil and not to cramp or fail to satisfy natural feeling.
Let it be reiterated that the root of national feeling is
a vivid local patriotism. That, in any satisfactory polity
under present conditions, must be the dominant principle.
Then, to secure common action within definite limits,
common principles of right within wider limits, there must
be federations, and federations of federations, each with
functions of a known extent which is not seriously ques-
tioned or questionable without altering the whole mental
attitude of the population concerned. That the world
is ready to accept federations based on one or two such
simple postulates, such as the permanent value of peace
and territorial independence, is scarcely to be doubted.
But there is a grave danger in the schemes which are now
so actively propounded for World-Federation.
Because our national sovereignties preserve internal
peace and do rough justice within their dominions, the
unthinking cry is raised for a world-sovereignty of the
same imperfect type. The dulness of the idea is manifest.
It is precisely this crude absolutism of the legislatures,
of the autocrats, of the bureaucratic cliques, of the chance
majorities, that thinkers in every land are endeavouring
to destroy. The unchecked power of the House of
Commons ā (with occasional bursts of independence on the
part of the Lords) ā in Britain : the unchecked power of
autocracy in Russia : the virtual freedom from effective
restraint of government in Europe generally, are all