fore ipso jure void.1 Those who disobey Federal authority on the ground of the commands of a State authority are therefore insurgents against the Union who must be coerced by its power. The coercion of such insurgents is directed not against the State but against them as individual though combined wrongdoers. A State cannot secede and cannot rebel. Similarly, it cannot be coerced.

This view of the matter, which seems on the whole to be that taken by the Supreme court in the cases that arose after the Civil War, disposes, as has been well observed by Judge Hare,2 of the difficulty which President Buchanan felt (see his message of 3d December 1860) as to the coercion of a State by the Union. He argued that because the Constitution did not provide for such coercion, a proposal in the Convention of 1787 to authorize it having been ultimately dropped, it was legally impossible. The best answer to this contention is that such a provision would have been superfluous, because a State cannot legally act against the Constitution. All that is needed is the power, unquestionably contained in the Constitution (Art. iii. § 3), to subdue and punish individuals guilty of treason against the Union.3

Except in the cases which have been already specified, the National government has no right whatever of interfering either with a State as a commonwealth or with the individual citizens thereof, and may be lawfully resisted should it attempt to do so.

"What then?" the European reader may ask. "Is the National government without the power and the duty of correcting the social and political evils which it may find to exist in a particular State, and which a vast majority of the nation may condemn. Suppose widespread brigandage to exist in one of the States, endangering life and property. Suppose contracts to be habitually broken, and no redress to be obtainable in the State courts. Suppose the police to be in league with the assassins.

1 It may, however, happen that a State law is unconstitutional in part only, perhaps in some trifling details, and in such cases that part only will be invalid, and the rest of the law will be upheld. For instance, a criminal statute might be framed so as to apply retrospectively as well as prospectively. So far as retrospective it would be bad, but good for all future cases. (See Constit., Art. i. § 10, par. 1.)

2 Lectures on American Constitutional Law, p. 45.

3 The Swiss Constitution allows the Federal government to coerce a disobedient canton. This is commonly done by quartering Federal troops in it at its expense till its government yields-a form of coercion which Swiss frugality dislikes, or by withholding its share of Federal grants.

Suppose the most mischievous laws to be enacted, laws, for instance, which recognize polygamy, leave homicide unpunished, drive away capital by imposing upon it an intolerable load of taxation. Is the nation obliged to stand by with folded arms while it sees a meritorious minority oppressed, the prosperity of the State ruined, a pernicious example set to other States? Is it to be debarred from using its supreme authority to rectify these mischiefs ?"

The answer is, Yes. Unless the legislation or administration of such a State transgresses some provision of the Federal Constitution (such as that forbidding ex post facto laws, or laws impairing the obligation of a contract), the National government not only ought not to interfere but cannot interfere. The State must go its own way, with whatever injury to private rights and common interests its folly or perversity may cause.

Such a case is not imaginary. In the Slave States before the war, although the negroes were not generally ill treated, many shocking laws were passed, and society was going from bad to worse. In parts of a few of the western, and especially of the south-western States at this moment, the roads and even the railways are infested by robbers, justice is uncertain and may be unattainable when popular sentiment does not support the law. Homicide often goes unpunished by the courts, though sometimes punished by Judge Lynch. So, too, in a few of these States statutes opposed to sound principles of legislation have been passed, and have brought manifold evils in their train. But the Federal government looks on unperturbed, with no remorse for neglected duty.

The obvious explanation of this phenomenon is that the large measure of independence left to the States under the Federal system makes it necessary to tolerate their misdoings in some directions. As a distinguished authority1 observes, "The Federal Constitution provided for the protection of contracts, and against those oppressions most likely to result from popular passion and demoralization; and if it had been proposed to go further and give to the Federal authority a power to intervene in still more extreme cases, the answer would probably have been that such cases were far less likely to arise than was the Federal power to intervene improperly under the pressure of party passion or policy, if its intervention were permitted. To have authorized 1 Judge Cooley, in a letter to the author.

such intervention would have been to run counter to the whole spirit of the Constitution, which kept steadily in view as the wisest policy local government for local affairs, general government for general affairs only. Evils would unquestionably arise. But the Philadelphia Convention believed that they would be kept at a minimum and most quickly cured by strict adherence to this policy. The scope for Federal interference was considerably enlarged after the Civil War, but the general division of authority between the States and the nation was not disturbed."

So far from lamenting as a fault, though an unavoidable fault, of their Federal system, the State independence I have described, the Americans are inclined to praise it as a merit. They argue, not merely that the best way on the whole is to leave a State to itself, but that this is the only way in which a permanent cure of its diseases will be effected. They are consistent not only in their Federal principles but in their democratic principles. "As laissez aller," they say, "is the necessary course in a Federal government, so it is the right course in all free governments. Law will never be strong or respected unless it has the sentiment of the people behind it. If the people of a State make bad laws, they will suffer for it. They will be the first to suffer. Let them suffer. Suffering, and nothing else, will implant that sense of responsibility which is the first step to reform. Therefore let them stew in their own juice: let them make their bed and lie upon it. If they drive capital away, there will be less work for the artisans: if they do not enforce contracts, trade will decline, and the evil will work out its remedy sooner or later. Perhaps it will be later rather than sooner: if So, the experience will be all the more conclusive. it said that the minority of wise and peaceable citizens may suffer? Let them exert themselves to bring their fellows round to a better mind. Reason and experience will be on their side. We cannot be democrats by halves; and where self-government is given, the majority of the community must rule. Its rule will in the end be better than that of any external power." No doctrine more completely pervades the American people, the instructed as well as the uninstructed. Philosophers will tell you that it is the method by which Nature governs, in whose economy error is followed by pain and suffering, whose laws carry their own sanction with them. Divines will tell you that it is the method by which God governs: God is a righteous

Is

Judge and God is provoked every day, yet He makes His sun to rise on the evil and the good, and sends His rain upon the just and the unjust. He does not directly intervene to punish faults, but leaves sin to bring its own appointed penalty. Statesmen will point to the troubles which followed the attempt to govern the reconquered seceding States, first by military force and then by keeping a great part of their population disfranchised, and will declare that such evils as still exist in the South are far less grave than those which the denial of ordinary self-government involved. "So," they pursue, "Texas and California will in time unlearn their bad habits and come out right if we leave them alone: Federal interference, even had we the machinery needed for prosecuting it, would check the natural process by which the better elements in these raw communities are purging away the maladies of youth, and reaching the settled health of manhood."

A European may say that there is a dangerous side to this application of democratic faith in local majorities and in laissez aller. Doubtless there is: yet those who have learnt to know the Americans will answer that no nation so well understands its own business.

CHAPTER XXIX

CRITICISM OF THE FEDERAL SYSTEM

ALL Americans have long been agreed that the only possible form of government for their country is a Federal one. All have perceived that a centralized system would be inexpedient, if not unworkable, over so large an area, and have still more strongly felt that to cut up the continent into absolutely independent States would not only involve risks of war but injure commerce and retard in a thousand ways the material development of every part of the country. But regarding the nature of the Federal tie that ought to exist there have been keen and frequent controversies, dormant at present, but which might break out afresh should there arise a new question of social or economic change capable of bringing the powers of Congress into collision with the wishes of any State or group of States. The general suitability to the country of a Federal system is therefore accepted, and need not be discussed. I pass to consider the strong and weak points of that which exists.

The faults generally charged on federations as compared with unified governments are the following:

I. Weakness in the conduct of foreign affairs.

II. Weakness in home government, that is to say, deficient authority over the component States and the individual citizens. III. Liability to dissolution by the secession or rebellion of States.

IV. Liability to division into groups and factions by the formation of separate combinations of the component States.

V. Want of uniformity among the States in legislation and administration.

VI. Trouble, expense, and delay due to the complexity of a double system of legislation and administration.

The first four of these are all due to the same cause, viz. the