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NATIONAL SECULAR SOC1™’
HOME RULE
AND
FEDERATION.
WITH EEMABKS ON
LAW AND GOVERNMENT AND INTERNATIONAL ANARCHY;
AND WITH A PEOPOSAL EOB THE
FEDERAL UNION OF FRANCE AND ENGLAND, '
AS THE MOST IMPOBTANT STEP TO
THE FEDERATION OF THE WORLD.
BY
A
DOCTOR
Author
of
OF
MEDICINE,
“The Elements of Social Scib.vce”.
LONDON:
E. TRUELOVE, 256 HIGH HOLBORN.
(REMOVED FROM TEMPLE BAR.)
1 8 8 9.
�“ The time may come when the aspirations and the wishes of some
among us may be realised, and we shall see all the possessions and
the colonies of England united in one great federation. When that
tiTHo. comes we may have a great federal authority which will be pre
pared to take the place, the supreme place, in the government of our
Empire which is now occupied by the Imperial Parliament.”—Lord
Hartington {Speech at Norwich, Feb. 27, 1889).
“ Some of us who look with hope to a possible federation of the
whole of the dominions now nominally or really subject to British
rule, recognise that we shall then have to face the huge difficulty of
constitution-making.”—Mr. Bradlaugh {National Reformer, Feb. 10,
1889).
�g 23 24-
THE QUESTION OF
IRISH HOME RULE.1
i.
As a warm friend of Ireland, though, an opponent of Home
Rule in the sense of an Irish Parliament Separate from that of
Great Britain, I may perhaps be permitted here to make a few
remarks on the great and complicated Irish question. I know
that on this subject I have the misfortune to differ in certain
respects from some whose opinion I value very highly and with
whom I am anxious to be agreed ; but I think that the differ
ences are partly owing to the ambiguity in the phrase “ Home
Rule” or “local self-government”, which is used in at least
three widely different senses, and that at bottom we have the
same earnest desire—that the supremacy of the Imperial Parlia
ment and the unity of the kingdom should be preserved, and
that Ireland should not be separated from Great Britain.
The Irish question has been divided into the three parts of
local self-government, or Home Rule, the land system, and
social order—including under the first terms not only an Irish
parliament, whether on the colonial or the federal model, but
also minor forms and degrees of local self-government, and
meaning by “social order” compliance with law and the re
pression of outrages and boycotting; and besides the above
there is a fourth question which should, I think, be attentively
considered, namely, the Irish Churches, Catholic and Protestant,
and their relation to the State. I need scarcely say here, more
over, what Mr. Bradlaugh and Mrs. Besant have so nobly and
strenuously contended for, that the population question lies at
the very root of the social evils, in Ireland as in all other old
countries, and should be carefully taken into account.
The most serious objection to an Irish Parliament, I venture
to think, is this—that if such a parliament were “independent”,
or in other words if it were neither subject to the British
Government nor subject along with it to a higher common
government, it would make Ireland an independent, separate,
1 Reprinted from the National Reformer.
�2
DEMAND EOR LEGISLATIVE INDEPENDENCE.
or foreign State like France or Holland; while if, on the other
hand, it were “dependent” on the British Government, it
would put Ireland in an inferior position to that which she now
occupies, and it would therefore not content Mr. Parnell and
his followers but would be used by them as an instrument for
effecting entire separation. Mr. Parnell claims for Ireland
“legislative independence” and “the full and complete right
to arrange our own affairs, to make our land a nation, and to
secure for her, free from outside control, the right to direct her
own course among the peoples of the world”. But an inde
pendent legislature free from outside control could not possi
bly, as it seems to me, exist in Ireland unless it were entirely
separated from Great Britain. The word “independent” some
times means distinct or detached, but its proper sense, and the
sense in which it is evidently here used by Mr. Parnell, is “ not
dependent” or “not subject to outside control”. An inde
pendent legislature or government is therefore equivalent to a
supreme or sovereign government, and means a government
which is not subordinate or subject to the commands of any
higher authority. Such a government can only exist in a
separate or independent State, for the very meaning of an
independent State is a political society consisting of a sovereign
government and its subjects, and there cannot be two sovereign
governments in the same State. “By ‘an independent political
society ’, or ‘ an independent and sovereign nation
says Mr.
John Austin in his lectures on jurisprudence, “we mean a
political society consisting of a sovereign and subjects, as
opposed to a political society which is merely subordinate”.
Mr. W A. Hunter, M.P., a high legal authority, says also in
his work on Boman Law, “ Since the time of Hobbes, the pro
position that sovereign power is one, that there cannot be two
sovereign powers in one State, has become a political common
place ”. There may be many distinct legislatures or govern
ments in the same political community, as we see for instance
in the United States and in the British Empire, but there can
be only one independent and sovereign government to which
all the rest are subject, for otherwise the community could not
form a single State.
The great majority of Englishmen who are in favor of a
separate Parliament for Ireland have, I believe, radically
different views and aims on the subject from Mr. Parnell.
They do not wish that the Irish Parliament should be inde
pendent and free from outside control, which would inevitably
have the effect of making Ireland a foreign country. Thus Mr,
Bradlaugh holds that there should be a federal union in these
islands, as in the United States, and that Ireland should be
fully and constantly represented in the Imperial Parliament.
He said at a Home Bule meeting in St. James’s Hall, in
�FEDERAL FORM OF HOME RELE.
3
explaining his views on the subject, “Let Ireland share in
Imperial legislation. It was asked ‘ How will you prevent the
Irish members from voting on English, Scotch, and Welsh
■questions?’ Let English, Scotch, and Welsh questions go to
English, Scotch and Welsh assemblies. Let the Parliament of
England be an Imperial Parliament.” “ I contend ”, he writes
in another place, “ that Ireland ought not in any event to be
deprived of its fair and constant representation in the Imperial
Parliament. As I have often said, my desire is that all local
affairs should be withdrawn from the Imperial Parliament and
dealt with under wide powers of local self-government.” A
political community like the United States is often called a
■composite State and is said to be under a supreme Federal
Government. Mr. Austin carefully examines the constitution
of the United States with the view of determining where the
sovereignity resides, and he shows that all the different legisla
tures, both State and Federal, form together the sovereign
government, to which each of these legislatures, taken singly,
is subject or subordinate; just as in our own constitution, and
in all other cases where the sovereign power is vested not in a
single person but in a body of persons, each member of the
body, taken singly, is subject to the whole body taken collec
tively. “In the case of a composite State or a supreme Federal
•Government”, says Mr. Austin, “ the several united governments
of the several united societies, together with a government
common to those several societies, are jointly sovereign in each
■of these several societies, and also in the larger society arising
from the Federal union. Or, since the political powers of the
common or general government were relinquished and conferred
upon it by those several united governments, the nature of a
composite State may be described more accurately thus: As
compacted by the common government which they have con
curred in creating, and to which they have severally delegated
portions of their several sovereignties, the several governments
of the several united societies are jointly sovereign in each and
all.” To this aggregate and sovereign body, he says, “ each of
its constituent members is properly in a state of subjection”.
Under a Federal system, therefore, though the Irish Parliament
would be a part of the sovereign body, it would not be inde
pendent, but would on the contrary, if taken singly, be in a
state of subjection to the whole body; and hence Mr. Parnell
has always, I believe, been opposed to the Federal scheme,
when regarded as an ultimate aim or policy for Ireland.
The other leading scheme of Home Pule which has been
proposed, and of which Mr. Parnell is (or was until lately) an
adherent, is that called the colonial, from its resemblance to the
form of government in many of the English colonies. Under
it the Irish members would be excluded from the House of
�4
COLONIAL FORM OF HOME RULE.
Commons, or would at most only take part in debates on.
Imperial questions, and Ireland would have her own legislature
for the management of Irish affairs, with an executive or ad
ministrative government responsible to it. This is evidently a
proposal of a widely different and far more separatist character,
repealing as it does the union of the British and Irish Parlia
ments, and I believe that comparatively very few English
Liberals or Radicals are in favor of it. They object to the
exclusion of the Irish members, or to their taking part only in
certain debates, even if the latter suggestion could be carried
out in practice. Mr. Bradlaugh, for instance, says of such a
suggestion, “ with this part we utterly disagree. We contend
that every member of the House of Commons should have equal
right, but that purely local questions should be relegated to
local assemblies.” It was keenly debated in the House of:
Commons whether the Imperial supremacy would be retained,
or whether the two countries would be separated, if the Irish
members were excluded, and the controversy evidently turns
upon the question whether or not the Irish Parliament would be
independent. If it were dependent on the British Government,
the supremacy of the latter would be retained and the countries
would remain united, but Ireland would he placed in the same
intolerable position of inferiority as she occupied prior to 1782;
if it were independent, on the other hand, then Ireland as
we have just seen would be a foreign country. In the
course of the debate, Sir Henry James defined supremacy as
“ the power of making laws for the whole dominions of the
Crown ”. He also defined sovereignty (which, he said, is
another phase of supremacy) as consisting in two things,
namely, that a Sovereign Parliament “ must be subject to the
control or decision of no man or body ”, and that “ it must be
able to alter and re-model its own constitution ” ; and he
maintained that if the Imperial Parliament, after the departure
of the Irish members, had no longer the power of legislating
for Ireland, its supremacy would be gone and the countries
would be entirely separated from one another. “I am con
tent ”, he said, “ to take my stand upon the dictum that if you
give up the abstract right—and I make no distinction between
abstract right and right—of legislation, the country over which
you give it up becomes an independent and foreign State ”, It
is true that the two countries would still be connected as regards
their foreign affairs which would be entirely under British
control, but Ireland would here be reduced to the humiliating
condition of an inferior having no voice in the management.
What tends to obscure this question is the peculiar position of
the British Colonies, which are nominally dependencies but
really independent States, connected with the mother-country
by a voluntary alliance and not by the legal or compulsory tie-
�AMBIGUITY OF WORDS
FREEDOM AND INDEPENDENCE
5
of subject and governor. The eminent judge, Sir James Stephen,
lately pointed out that the colonies might separate from this
country if they chose, without any attempt being made to
retain them by force; and that the superior power nominally
reserved, and indeed not unfrequently exercised, by the Im
perial Parliament of making laws to bind the colonies is at
bottom “ merely theory ”, since no laws would be imposed on
them against their will, and if any serious conflict arose the
English law would give way. “As to the great colonies ”
says Sir James Stephen, “it is plain that wherever, as in
Canada, South Africa, Australia, and New Zealand, constitu
tional government has been granted, the grant has involved,
as indeed it was meant to involve, the consequence that from
that time forth the connexion between such a colony and the
British Islands should depend ultimately on the good will of
both parties, and that every idea of retaining it by force in
any event whatever, and in the last resort, should be definitively
renounced. That the Dominion of Canada could, if the Canadian
Parliament thought proper, separate from the United Kingdom
as effectually and completely as the United States, and that if
it determined to do so no civil war would take place, can be
denied by no reasonable man.” Where countries are connected
together but have the power of separating if any of them
please, it is evident that their connexion, in its essence, is not
a legal or compulsory union but only an alliance, and that
they really stand to each other in the relation of free and in
dependent States.
II.
But the words “ freedom and independence ” are used in
very different senses when applied to individuals and when
applied to States, and this ambiguity of language should be
carefully noticed, as it seems to me the source of endless con
fusion and of the most dangerous errors. As applied to indi
viduals, the words mean freedom and independence under law
and government, but as applied to States they mean freedom and
independence in the absence of law and government, or in what
jurists call “the state of nature” or of anarchy. The former
may be called legal or political, and the latter lawless or
anarchical freedom and independence. The wide difference
between them will be seen if we reflect that freedom and inde
pendence, when the words are used with reference to individuals
(as for instance in speaking of a freeborn person or an emanci
pated slave) are legal rights which are protected or secured, like
�6
ANARCHY BETWEEN INDEPENDENT NATIONS.
all other such rights, by means of corresponding duties imposed
by the law on other persons, forbidding them under penalties
to violate the rights in question. “ What, for example”, says
Mr. Hunter, “is the meaning of a ‘right to liberty’? It
means that all men are bound to abstain from interfering with
a man s freedom of action, except in the case where such
constraint is authorised by law.” “ In the civil law ”, he says
again, “duty and right are correlative terms. No duty is
imposed except in the interest of some specified person, who
thus has a right, and no right can exist except by imposing on
another some duty. The subject-matter of the civil law may
thus be described as rights and duties.”
The position of free and independent States, however, is very
different from this. As regards their international relations, or
their dealings with one another, independent nations live to
gether in the peculiar kind of anarchy called by Hobbes, Locke,
Bentham, and other writers “the state of nature”, or the
natural condition of society; that is to say, the anarchy
which does not consist in resistance to, but in the total absence
of, law and government. They have no common government, no
international laws, and no courts of justice for the settlement of
international disputes. In such a state of things, legal right
and legal duty do not exist, for there is no government to
protect the one or to impose the other. Each nation has to
protect itself as best it can by its own strength and resources;
and hence the so-called freedom and independence of nations’
being unprotected by law, are not legal rights, and are quite
spurious and illusory. “ As Mr. Locke has well observed,” says
Blackstone in his Commentaries, “where there is no law, there
is no freedom ”. And in the passage here quoted from his
essay on Government, Locke says: “ In all the states of created
beings capable of laws, where there is no law, there is no
freedom; for liberty is to be free from restraint and violence
from others; which cannot be where there is not law ”.
Law and government are by far the greatest and most
valuable of all institutions, while anarchy with its attendant
war is among the most terrible of evils. So great an evil is
the.anarchy or “ state of nature ” existing between independent
nations, that it has filled all past history with wars, and the
endeavor to put an end to it and to bring mankind under a
common government has been a main cause of foreign con
quests and the subjugation of vast territories by single5States,
especially by ancient Borne, and by Bussia and England in
modern times. But conquest, in addition to the bloodshed and
misery it occasions, is attended with the immense evil that it
reduces free States to the condition of dependencies under a
foreign rule; although their subjection is not unfrequently of
the greatest benefit to "'he conquered race if they are much
�UNION THE REMEDY EOR INTERNATIONAL ANARCHY.
7
inferior in civilisation to their conquerors, and the two peoples
may in time become united on terms of equality. All nations,
like all individuals, should be equal, and have equal political
rights, as soon as they are sufficiently civilised to use them with
advantage; and therefore the true and ultimate mode of putting
an end to the anarchy between nations is not by conquest and
the dependency of one State upon another, but by the legal
union of different States on equal terms. Now States cannot be
legally united together unless they are brought under the same
government, for all laws proceed from government, and a
government can only make laws for its own subjects. It
cannot establish legal relations between those who are not
under its authority and jurisdiction, and thus the unity of a
kingdom or empire depends on the unity of its government.
“ The real unity of a kingdom ”, says Sir Henry James in the
debate already referred to, “ must depend upon the unity of its
laws. I do not mean by that that there must be an identity of
laws. But what I mean is that there must be one power of
making laws for a kingdom supposed to be united. It is not
the identity of manufacture, it is the identity of the manu
facturer that makes the unity of a kingdom.” In order, there
fore, that two or more free and independent nations should be
legally united together, they must have the same government;
and to be united on equal terms, each of them must have a share
in the government, and a share in proportion to its population.
They cannot, as we have seen, be legally united at all unless
one of them has the power of making laws for the others ; and
they cannot be united on equal terms unless each of them has
this power and can make laws for the others as well as for
itself; that is to say, unless they have a common government
and are mutually subordinate to one another. Mutual legislation,
and mutual subordination or subjection, are the requisites for a
legal union between free and independent States under repre
sentative institutions.
These conditions are fulfilled by the two great and invaluable
methods of uniting nations, called the complete union and the
federal union; which agree in the cardinal point that they are
not mere alliances but real legal unions, since in each of them
a single State, consisting of one sovereign government and its
subjects, is formed by the junction of two or more separate
States. They differ, however, in this respect, that in the com
plete union the sovereign powers of the State thus formed are
vested in a single body of persons, while in the federal union
they are divided between several distinct assemblies, which
together make up the sovereign government, and each of which,
taken singly, is a subordinate or non-sovereign legislative body.
It is by means of a complete union, or in other words, by
incorporation under one central government (whether consisting
�8
COMPLETE UNION AND FEDERAL UNION.
of a sovereign assembly or of a single person or monarch), that
the grea 1 majority of modern States, such as France, Italy, and
the United Kingdom, have been gradually built up out of the
host of petty independent kingdoms, principalities, tribes, or
clans, perpetually at war with each other, which at early times
existed in every part of the world. As to the federal union,,
which is more complicated, it is of comparatively recent origin,
having been first planned and instituted by the eminent men
who founded the United States, and it has since been adopted
in several other countries, including Switzerland, Canada, and
Germany. Under both systems of government in advanced
countries, as, for instance, in the United States and the United
Kingdom, there is complete political equality between the
different states or nations taking part in the union. Thus
Ireland has exactly the same political rights and privileges as
England or Scotland; she is just as free and independent as
they are ; each country has a share in the government in pro
portion to its population, so that they mutually legislate for
and are mutually subject to one another; the colonies and
dependencies of the empire belong to Ireland no less than to
Great Britain, and the one has the same privileges and duties
as the other with respect to them; it is not the “British” or
the “English” Government and Empire (though often so called
for shortness), but the British-Irish Government, and the
British-Irish Empire which are common to all the three countries
alike, and in which each of them has an equal part and interest.
Many Irishmen, however, have sought to sever this connexion,
and hold that Ireland has in strict justice a right to separate
and be independent if she prefers separation to union. Mr.
Dicey, professor of law at Oxford, in his work on “ England’s
case against Home Rule ”, alludes to those “ Nationalists who
still occupy the position held in 1848 by Sir Charles Gavan
Duffy and his friends, and who either openly contend for the
right of Ireland to be an independent nation, or accept Home
Rule (as they may with perfect fairness) simply as a step
towards the independence of their country.” Mr. Parnell too,
in the passage already quoted, claims for Ireland legislative
independence, freedom from outside control, and the full and
complete right to manage her own affairs, which are just the
distinctive characteristics of a separate and independent State.
On the contrary, Mr. Bradlaugh and almost all Englishmen and
Scotchmen to whatever party they belong, strenuously deny
the right of separation. Some months ago Mr. Bradlaugh
said in the House of Commons that ‘ ‘ he had preached the
doctrine of Home Rule for twenty-five years. He preached it
in New York in 1873, when he was attacked by Irishmen in a
perfectly friendly spirit, because, though he supported Home
Rule, he declared that he would resist separation by force if
�ANARCHICAL LIBERTY AND INDEPENDENCE.
force were employed to bring it about.” The question as to the
true relations between England and Ireland is evidently only a
part of a far wider question which concerns every country in
the world; namely, is it a good thing for any nation, and has
any nation a right in morality and justice, to be independent
and separate from others, and to have a sovereign government
to itself apart ? I venture to think that no nation has such a
right, but that all nations ought to be legally united together;
and that the rights which Mr. Parnell claims for Ireland, of
legislative independence, freedom from outside control, and
exclusive management of her own affairs, are not a good or a
blessing either to Ireland or to any other country, but on the
contrary enormous evils to mankind.
The only kind of freedom or liberty which is really a blessing
is political or civil liberty—that is to say, the freedom which
exists under the reign of law and government, and whose nature
is thus described by Mr. Austin: “Political or civil liberty”,
he says, “is the liberty from legal obligation which is left or
granted by a sovereign government to any of its own subjects ”,
Moreover, before we can call liberty a blessing it must be such
liberty as is consistent with the welfare of society, or, in other
words, the acts permitted by government must not be of a mis
chievous character and hurtful to other people. “The liberty ”,
says Bentham, “ which the law ought to allow of and leave in
existence—leave uncoerced, unremoved—is the liberty which
concerns those acts only by which, if exercised, no damage
would be done to the community as a whole ”. Now, the
liberty of independent States in their dealings with one another
is not political or civil, but anarchical or lawless, liberty, that
is to say, the liberty which is unrestrained by government and
law; for independent nations, as already remarked, have no
common government, and therefore no international laws pro
perly so called, but live together in a state of nature or of
anarchy. Hence each nation is free to make war upon others,
to oppress them, to violate their rights, to defraud them, and
to do them any act, good or bad, which lies in its power, and
which it may think conducive to its own interests. Such liberty
as this is evidently not a blessing, but an incalculable evil to
mankind.
.Again, the truly desirable kind of independence and sove
reignty is not that which a nation possesses for itself apart, but
that which it shares with others, and which, moreover, is
coupled with dependence or subjection in such a man nor that
each sharer in the sovereignty is both independent and depen
dent, sovereign and subject. The states of the American Union,
and. the different parts of the United Kingdom, did not lose
their sovereignty or independence when they combined to
gether, but shared it with others by forming in each case one
�10
HAVE NATION'S A RIGHT OF SEPARATION ?
independent and sovereign State. Moreover, it is only in their
collective capacity that the supreme governments in England
and America are sovereign and independent, while each of
their constituent parts or members, taken singly, is dependent
or subject to the will of the whole. The countries which
really lose their independence by being united with others are
dependencies such as India, which have no share in the govern
ment, and this is an evil which we should seek earnestly though
cautiously to remedy till at last we can become united with
them on equal terms. But the sovereignty or independence
which is.shared with others is not an evil but a good, whereas
that which is held by a nation for itself apart is anarchical
independence and is attended by all the frightful evils and
dangers of anarchy ; for whenever there is more than one
supreme or sovereign government it is evident that the different
sovereign governments are in a state of nature or of anarchy
with respect to each other. It is independence in union, and
not in separation, that is a real blessing to mankind.
III.
As to the question whether a nation has a right, in morality
and justice, to be separate from others and to have the exclusive
management of its own affairs, it seems to me that in justice
nations should be legally united together and that each nation
should have a voice in the management of affairs which concern
them all. There is a wide difference, as Mr. Mill points out,
between those of a man’s acts which affect himself alone, and
those which affect other people ; the former are really his own
affairs, and he should be allowed to manage them for himself;
but the latter are just as much the affairs of others as of
himself, and they have an equal right with him to a share in
the management. The most important of the affairs which
concern all mankind and in which therefore all should have a
voice, are the rules of justice, whose essential character is that
they are the rules which forbid a man or a nation to hurt others
—to kill or enslave, to rob, cheat, or oppress them. ‘ ‘ The
moral rules”, says Mr. Mill, “which forbid mankind to hurt
one another (in which we must never forget to include wrongful
interference with each other’s freedom) are more vital to human
well-being than any maxims, however important, which only
point out the best mode of managing some department of
human affairs. Now it is these moralities primarily which
compose the obligations of justice.” Each nation, I venture
to think, should have a share in laying down and enforcing the
�FEDERATION OF MANKIND.
11
essential rules of justice not only between nation and nation,
but between man and man and between rulers and their
subjects, all over the world. The first rights of man, the
security of person and property and the fair and equal ■ treat
ment of individuals, concern everyone deeply, and should be
under the common protection of all. But law and government
are institutions whose main object is to lay down and enforce
the rules of justice among mankind. How then can it be just
for a nation, how can a nation have a right, to separate and
remain apart from others, when by so doing it puts an end to
law and government between itself and them, and thus saps
the very foundations of justice ?
Instead of seeking to make Ireland “free and independent ”
in the spurious and anarchical sense oi these terms, we ought
rather to seek that no country whatever should be independent
in this sense, but that all should have the true freedom and
independence which can only exist under the reign of govern
ment and law. It seems to me that one of the grandest aims
ever conceived—indeed, next to the removal of poverty and the
other population evils, the very greatest reform that could be
effected in human affairs—is to get rid gradually of the present
system of independent or sovereign States, which is attended
with complete international anarchy, and to substitute for it a
system of law and mutual subordination by bringing all
mankind under a common government; in such a way that
there should be only one supreme or sovereign federal govern
ment, of which the national governments in the different
countries, together with a general congress composed of re
presentatives from them all, would form parts or members,
and to which each of these governments, taken singly, would
be subject or subordinate. All States would thus be legally
united or confederated with one another, while the component
parts of each State would be joined together either by a com
plete or by a federal union ; and the condition of dependencies,
in which less civilised races are governed by others more
civilised, would gradually be done away with as the backward
populations grew in enlightenment, till at length all nations
were placed on a footing of political equality, and endowed
with equal rights and privileges. This, I believe, is the great
goal to which humanity should aspire and is actually tending,
as is warmly urged by many of the ablest and most prominent
members of the Freethought party, including Mrs. Besant,
“ D.”, Mr. J. M. Robertson, and Mr. W. P. Ball, in late
numbers of the National Reformer. Mrs. Besant said at the
Home Rule Meeting in St. James’s Hall: “They hoped that
this union with Ireland would be the forecast of a wider union
which, in days to come, should bind together every land in one
great commonwealth. What the Radicals hoped for was that
�12
FEDERATION OF MANKIND.
every nation might manage its local affairs in its own way, and
that over and above every nation there should be one vast
Parliament where all should make their voices heard—the
Parliament of that English commonwealth which spreads over
every part of the habitable globe.” “Can any clear-headed
Liberal”, “D.” writes, “doubt for one moment that the future
of Liberal politics lies with the development of the Federal
idea”? and he adds, quoting Tennyson, that “The hope of
the future lies with ‘ the Parliament of Man, the Federation of
the World’”. “True federation”, says Mr. Robertson, “is a
great ideal—an ideal only to be fully realised, indeed, when
nations hitherto armed against each other agree to bury their
jealousies ”, And in a letter on the subject of the Channel
Tunnel, Mr. Ball says, “ Possibly the Tunnel might be a good
thing in the long run by helping to bring about the United
States of Europe. But I should prefer that the United States
of Europe brought about the Tunnel by rendering it safe for
us.” Imperial federation of England and her colonies has
grown rapidly in public favor within the last few years, and
would be an immense step in advance, but the federation of
independent or foreign nations, between whom there is the
risk of war, such as the States of Europe, seems to me of even
greater importance. It is not merely for the sake of strengthen
ing the Empire that federation is to be desired, but above all,
in order to introduce law and government into the society of
nations and do away with the state of nature or of anarchy.
Until there is a common international government among
mankind, there can be no international law, in the proper sense
of the term, nor any legal rights and duties between nations,
but only moral rights and duties; there can be no legal limits
to the power of existing sovereign governments over their sub
jects, nor can the former have any legal rights and duties
towards the latter, but only moral rights and duties; in short,
the dealings of nations with one another, and of sovereign
governments with their subjects must be uncontrolled by law
and must remain as at present in a state of anarchy. There
can be no legal union between countries which are not under
the same government, but only a moral unions; and as regard
the latter, it seems to me impossible that nation s under different
supreme governments should really love and trust each other,
for they have no common superior to lay down and enforce
the rules of justice between them, to settle their disputes, and
redress their mutual wrongs ; and therefore, whenever they
cannot agree and will not yield to one another, so that a com
pulsory settlement is needed, their only resource is the terrible
expedient of war. How can there be real love and trust between
nations who have, as it is called, “ the right of making war”
on one another, that is to say, war between whom is not
�ESSENTIALS OF LAW AND GOVERNMENT.
13
solemnly declared to be a legal crime, and forbidden under
threat of punishment by a government able and willing to
execute the threat against offenders ? The huge standing
armies and navies, the wars and dread of war, the oppression of
weak States by strong ones, and the hatred, jealousy, and
distrust between nations, are really due to the want of a com
mon government and the consequent international anarchy now
prevailing over the world.
These considerations are so extremely important that, in
order to throw additional light upon the subject, I may perhaps
be permitted here to examine a little more closely the essential
nature of law and government together with the nature and
consequences of anarchy, and to quote, in support of the fore
going statements, a . few passages from the writings of the
great jurists Jeremy Bentham and John Austin, and also from
the celebrated treatises, the “Leviathan” and the essay on
“ Government ”, by Hobbes and Locke.
"What then are the essentials of law and government ? Law
may be defined as consisting in a set of commands issued by
governments to their subjects, conferring on them rights and
imposing on them duties ; obedience to these commands being
compelled by means of sanctions or threatened penalties which
are enforced by the power of the State. Thus Sir Henry
Maine in his work on “Ancient Law” observes that “Ben
tham in his ‘ Fragment on Government ’, and Austin in his
‘ Province of Jurisprudence determined ’, resolve every law into
a command of the law-giver, an obligation imposed thereby on
the citizen, and a sanction threatened in the event of disobedience;
and it is further predicated of the command which is the first
element in a law, that it must prescribe, not a single act, but a
series or number of acts of the same class or kind. The results
of this separation of ingredients tally exactly with the facts of
mature jurisprudence.” In like manner Mr. Hunter says :
“The subject matter of law is commands—general rules in
tended to govern men in their conduct towards each other.
‘ Law ’ may be defined sufficiently for the present purpose as a
command of the Sovereign to all persons in given circumstances
to do or not to do something, which persons will be visited
with some evil by the Sovereign if they disobey.” From this
definition it will be seen, in the first place, that laws are
commands addressed by governments to their subjects, and
hence that law is merely the creature or product of govern
ment, and where there is no government there can be no law,
in the legal or political sense of the word; secondly, that all
laws are compulsory, that is to say, they compel people to do
or not to do certain acts by the threat of punishments or
penalties in case of disobedience; and thirdly, that laws are
enforced by an enormous and irresistible power, namely, by
�14
DEFINITION AND DIFFERENT SENSES OF “ LAW ”,
the whole physical force of the community, which is placed, if
need be, at the disposal of the government or supreme authority
in order to execute its commands. Moreover, since government
represents the nation and is chosen under the representative
system by the great bulk of the people to make laws for th pm,
the commands of government may be said to be virtually the
commands of the nation or commonwealth, as is done by
Hobbes in his definition of civil laws. “Civil law”, he says,
is to every subject those rules which the commonwealth
hath commanded him, by word, writing, or other sufficient
sign of the will, to make use of for the distinction of right and
wrong . that is to say, of what is contrary or not contrary to
the rule ”.
The word “law”, as Mr, Austin points out, is used in four
widely different senses, which are often blended and confounded
with one another but should be carefully distinguished. There
are, in the first place, the laws, strictly and emphatically so
called, which are set or prescribed by governments to their
subjects ; secondly, the laws or rules of morality which are set
hy public opinion / these laws together with the foregoing con«,
stitute law or morality as it is, and may be either good or bad,
wisely or unwisely framed; thirdly, the moral law, or morality
as it ought to be, that is to say, .the standard of right to which
legal and moral rules ought to conform, and must conform if
they are to merit approbation; and, fourthly, the scientific
laws, which are only called laws in a metaphorical or figurative
sense, as they are not rules for conduct but uniformities or
invariable relations existing between natural phenomena. The
first and second classes of laws, which it is particularly important
here to distinguish, are called respectively by Mr. Austin positive
law and positive morality and are thus defined by him- “The
essential difference”, he says, “of a positive law (or the differ
ence which severs it from a law which is not a positive law)
may be stated generally in the following manner. Every
positive law, or every law simply and strictly so called, is set
by a sovereign person, or a sovereign body of persons, to a
member or members of the independent political society,
whereof that person or body is sovereign or supreme. Or
(changing the phrase) it is set by a monarch or sovereign
number to a person or persons in a state of subjection to its
author.” Of positive morality, or the laws imposed by opinion,
he. says: “No law belonging to the class is a direct or cir
cuitous command of a monarch or sovereign number in the
character of a political superior ” ; and he adds, “ The character
or essential difference of a law imposed by opinion is this :
that the law is not a command, expressly or tacitly, but is
merely an opinion or sentiment, relatively to conduct of a
kind, which is held or felt by an uncertain body, or by a
�BENTHAM ON GOVERNMENT.
15
determinate party ”, Positive law gives rise to legal rights
and duties, but positive morality only to moral rights and
duties, or in other words, to rights which are not protected
and duties which are not enforced by the State. Now the
rules which guide and influence sovereign governments in their
dealings both with foreign nations and with their own subjects
are not positive law but positive morality merely. “ For
example , says JMr. Austin, “ the so-called law of nations
consists of opinions or sentiments current among nations
generally. It therefore is not law properly so called.” The
same may be said of those parts of constitutional and adminis
trative law which concern the acts of the supreme govern m rm f
itself, and not of its political subordinates; in short, the con
duct of sovereigns, whether they be single persons or bodies
of persons, and whether in their foreign or their domestic
relations, is not under the control of law but only of morality
and public opinion.
IV.
The difference between political society, in which there exists a
government, and natural society, or society in the state of
nature, in which there is no government, is described as follows
by Bentham and Austin,. the latter of whom points out also the
distinction between an independent political society, such as
the United Kingdom, and a subordinate political society, or
dependency, such as India, in the former of which the govern
ment is sovereign and independent, while in the latter it is
control of another and higher government.
“When a number of persons (whom we may style subjects}
says Bentham in his “ Fragment on Government ”, “are sup
posed to be in the habit of paying obedience to a person, or an
assemblage of persons, of a known and certain description
(whom we may call governor or governors} such persons alto
gether (subjects and governors) are said to be in a state of
political society”. On the other hand, “When a number of
persons are supposed to be in the habit of conversing with each
other, at the same time that they are not in any such habit as
mentioned above, they are said to be in a state of natural society ”.
In criticising some remarks of Blackstone, Bentham says also :
ti ? S.tate °f na^ure’ a man means anything, it is the
state, 1 take it, men are in or supposed to be in before they are
under government, the state men quit when they enter into a
state of government, and in which, were it not for government
they world remain. ”. As examples of men living together in a
�16
BENTHAM ON GOVERNMENT.
state of nature or of anarchy, without any common government,
Bentham instances not only tribes of savages amongst them
selves, but also all independent nations and governments in
their foreign or international relations. Thus he speaks of
“the kings of France and Spain” as being “ in a perfect state
of nature with respect to each other ”, and observes that the
Spanish provinces of the Netherlands, having effected their
independence, “are now in a state of nature with regard to
Spain”. In fact, all men are in a state of nature in relation to
those who do not belong to the same political society with
themselves; to all who are under a different supreme govern
ment to their own, they are foreigners or aliens.
The following is the definition of sovereignty and independent
political society given by Mr. Austin. “ The superiority which
is styled sovereignty ”, he says, “ and the independent political
society which sovereignty implies, are distinguished from other
superiority and from other society by the following marks or
characters. 1. The bulk of the given society are in a habit of
obedience or submission to a determinate and common superior;
let that common superior be a certain individual person, or a
certain body or aggregate of individual persons. 2. That
certain individual, or that certain body of individuals, is not in
a habit of obedience to a determinate human superior. Or the
notions of sovereignty and independent political society ”, he
continues, “ may be expressed concisely thus: If a determinate
human superior, not in a habit of obedience to a like superior,
receive habitual,from the bulk of a given society, that
determinate superior is sovereign in that society, and the society
(including the superior) is a society political and independent.
To that determinate superior the other members of the society
are subject; or on that determinate superior the other members
of the society are dependent,” As to the distinction between
an independent and a subordinate political society, Mr. Austin
says: “ By ‘an independent political society’ or ‘an independent
and sovereign natiop’, we mean, a society consisting of a
sovereign and subjects, as opposed to a political society which
is merely subordinate^ that is to say, which is merely a limb
or member of another political society, and which therefore
consists entirely of persons in a state of subjection ”. And
with regard to a society in the state of naimre or anarchy, he
says: “A natural society, a society in a state of nature, or a
society independent but. natural, is composed pf a number of
persons who are connected bjhapiutual intercourse but are not
members, sovereign or subject, M-a; political society. None of
the persons who compose it live irr-the positive state which is
styled a state of subjection.” He shews that from the absence
of a common international government, "tefiependent nations
are really in a state of nature with regard to ohe another, and
�AUSTIN ON GOVERNMENT.
17
thus the so-called law of nations or international law is not
properly law at all. “Society formed by the intercourse of
independent political societies”, he says, “is the province of
international law or of the law obtaining between nations.
For (adopting a current expression) international law, or the
law obtaining between nations, is conversant about the conduct
■of independent political societies, considered as entire com
munities. Speaking with greater precision, international law,
or the law obtaining between nations, regards the conduct of
sovereigns, considered as related to one another. And hence
it inevitably follows that the law obtaining between nations is
not positive law; for every positive law is set, by a given
sovereign, to a person or persons in a state of subjection to its
author.” In a similar manner Sir James Stephen says: “ It is
because nations have no common superior that international
law commonly so called is not really law at all, but only a form
of morality ”, Mr. Austin divides the existing systems or
forms of society into the four classes described above, namely,
“societies political and independent, societies independent but
natural, society formed by the intercourse of independent
political societies, and societies political but subordinate ”,
The great object of those who aim at the federation of mankind,
is gradually to change the existing systems and to unite all
nations into one independent political society, consisting of a
sovereign federal government and its subjects, so that there
should be no longer any foreigners or aliens, and that a true
international law should put an end to war and secure peace
and justice throughout the world.
It should be remarked that by “the sovereign”, jurists
■commonly mean the sovereign government, whether it consists of
a. single person or a body of persons. In Europe the only
single persons who are sovereigns in this, the true sense of the
word, are the Emperor of Russia and the Sultan of Turkey,
while all the other royal and imperial persons, though members
of the sovereign bodies, and though their actual shares in the
sovereignty vary greatly in different countries, are, when con
sidered singly, not really sovereigns but subjects. The con
stitutional king or emperor in a so-called limited monarchy
does not differ in this cardinal point from the president of a
republic, and is really subject to the assembly which has the
power to limit him. “Unlike a monarch in the proper accep
tation of the term ”, says Mr. Austin, “that single individual
is not sovereign, but is one of the sovereign number. Con
sidered singly, he is subject to the sovereign body of which he
is a limb. Limited monarchy therefore is not monarchy,”
Each member of a sovereign assembly, taken singly, is subject
to the assembly itself, taken collectively, and can be bound by
laws enacted by the whole. He is thus at once a sharer in the
�18
AUSTIN ON GOVERNMENT.
sovereignty and a subject, a political superior and inferior;
and this constitutes a most important difference between govern
ments of one and of many persons. “ In the case of a monarchy
or government of one ”, says Mr. Austin, “ the sovereign portion
of the community is simply or purely sovereign. In the case
of an aristocracy or government of a number, that sovereign
portion is sovereign as viewed from one aspect, but is also
subject as viewed from another.” Under the representative
system of government, moreover, the whole body of electors
are virtually sharers in the sovereignty, and form, as it were,
an ulterior sovereign behind the immediate or legal sovereign,
Thus, in England, the legal sovereign is the assembly composed
of the Queen and the two Houses of Parliament; but the House
of Commons, by far the most powerful branch of the legisla
ture, is itself elected by the constituencies, who are thus the
ultimate controlling body in the State, and whose desires and
mandates are sure in the end to be obeyed. “ The electorate ”,
says Mr. Dicey, in his lectures on the Law of the Constitution,
“is, in fact, the sovereign of England”. One of the immense
benefits of the representative system is, that it does away with
any degradation connected with habitual obedience to the com
mands of a political superior. Political subjection is only
degrading when it is one-sided, as in the subjects of an abso
lute monarch or in a dependency ruled by another country;
but when the position of superior and inferior is reciprocal, and
when each person commands as well as obeys, and is at once a
sharer in the sovereignty and a subject, there is no degradation
to any one, nor anything repugnant to the great principle of
equality between all mankind. The nation itself is author of
the laws which every one is obliged to obey,
Every sovereign government, whether it consists of a single
person or a body of persons, is absolute and uncontrolled
by law, or, in other words, it is in a state of nature or of
anarchy with regard both to foreign nations and to its own
subjects. This is a necessary consequence of its being
supreme, and not subject to the commands of any higher
government. ‘ ‘ It follows from the essential difference of
a positive law, and from the nature of sovereignty and in
dependent political society”, says Mr. Austin, “that the
power of a monarch, properly so called, or the power of a
sovereign number in its collegiate and sovereign capacity, is
incapable of legal limitation. A monarch or sovereign number
bound by a legal duty, were subject to a higher or supreme
sovereign ; that is to say, a monarch or sovereign number bound
by a legal duty were sovereign and not sovereign. Supreme
power limited by positive law is a flat contradiction in terms.”
In like manner Blackstone says of sovereign governments that
tf there is and must be in all of them a supreme, irresistible,
�AUSTIN ON GOVERNMENT.
19
•absolute, uncontrolled authority ”, that is, an authority which
is not and cannot be limited by positive law. A. sovereign
government is controlled, not by law, but only by morality and
public opinion in its dealings with its subjects, and has no legal
rights and duties towards them, but only moral rights and
duties. “Independence of political duty”, says Mr. Austin,
“is one of the essentials of sovereignty”, and he observes
further that a supreme government ‘ ‘ has no legal rights (in
the proper acceptation of the term) against its own subjects.
To every legal right there are three several parties; namely, a
party bearing the right; a party burthened with the relative
duty; and a sovereign government setting the law through
which the right and duty are respectively conferred and im
posed”. It is powers, and not legal rights, that a sovereign
government possesses in respect of its subjects. On the other
hand, subjects have no legal rights but only moral rights,
together with legal and moral duties, towards the supreme
government. Thus Mr. Austin says, “As against the govern
ment itself you can have no legal right ”, and “ as against the
sovereign there can be no right”. Wherever subjects have
legal rights against their government, it is because the latter is
not sovereign but subordinate to another and higher govern
ment ; as is the case, for example, with the different legislatures
in the United States, each of which is subordinate or habitually
obedient to the Constitution enacted by them all, and with the
■executive or administrative government in this country (often
called emphatically “ the Government ”) which habitually obeys
the will of Parliament. “ The power of Parliament”, as Mr.
Bradlaugh lately remarked, “ is unlimited, but the powers of
"the executive are not unlimited”.
As to the supreme powers or the powers belonging to a
sovereign government, Mr. Austin observes that they are ininite in number and kind, and that the modes in which they
may be shared among the different members of the sovereign
body are also infinite; thus he describes them as “the political
powers infinite in number and kind, which, partly brought into
exercise, and partly lying dormant, belong to a sovereign or
■state ”. Some of these powers are exercised by the supreme
government itself while it delegates others to political subor
dinates, as for instance to the executive authorities and to the
judges. The branch of law which deals with the powers,
rights, and duties of the supreme government and its political
subordinates is commonly divided into constitutional law and
administrative law; the former of which determines the constitution or structure of the government, that is to say, it
determines who shall bear the sovereignty, and also, if the
government consists of a number of persons, how the supreme
powers shall be shared among them; while the latter deter-
�20
AUSTIN ON GOVERNMENT.
mines the ends to which, and the modes in which, the powers
shall be exercised, either by the government itself or by its
subordinates. Now it is evident from the foregoing remarks,
that the parts of constitutional and administrative law whicbe
concern the acts of the supreme government itself, though
included in legal treatises, are not properly law at all, but
merely rules set by morality and public opinion, like the socalled law of nations. “As against the monarch properly socalled, or as against the sovereign body in its collective and.
sovereign capacity ”, says Mr. Austin, “ the so-called laws
which determine the constitution of the State, or which deter
mine the ends or modes to and in which the sovereign powers
shall be exercised, are not properly positive laws, but are laws
set by general opinion, or merely ethical maxims which the
sovereign spontaneously adopts ”, “ Against the monarch
properly so called”, he says also, “or against the sovereign
number in its collegiate or sovereign capacity, cons’itutional
law and the law of nations are nearly in the same predicament.
Each is positive morality rather than positive law. The former
is guarded by sentiments current in the given community, as
the latter is guarded by sentiments current amongst nations
generally.” The individual members of a sovereign assembly
may indeed be bound by laws, but not the assembly itself.
“ Considered collectively, or considered in its corporate char
acter ”, continues Mr. Austin, “ a sovereign number is sovereign
and independent; but considered severally, the individuals and.
smaller aggregates composing that sovereign number are subject
to the supreme body of which they are component parts.
Consequently, though the body is inevitably independent of
legal or political duty, any of the individuals or aggregates
whereof the body is composed may be legally bound by laws
of which the body is the author.” The only possible way to
bring the existing sovereign governments, while preserving
their equality and real independence, under the control of law,
and to give them legal rights and legal duties towards their
subjects as well as towards foreign nations, is to make them
all members of, and subordinate to, one supreme federal
government : whereby the collective wisdom and justice of
the common central authority might remedy the defects of
local authorities, and the tyranny of national rulers over their
subjects, together with revolutions and civil wars, might beeffectually prevented in every country of the world.
�HOBBES AND LOCKE ON GOVERNMENT.
21
V;
The great and permanent cause of government—the cause
which has given rise to governments in the past, maintains
them at present, and will ultimately, it may be hoped, unite
all nations under a common federal government—is the per
ception of the enormous evils attendant on the state of nature
or anarchy, and a wish to escape from these evils. “ The only
general cause of the permanence of political governments, and
the only general cause of the origin of political governments ”,
says Mr. Austin, “ are exactly or nearly alike. Though every
government has arisen in part from specific or particular causes,
almost every government must have arisen in part from the
following general cause, namely, that the bulk of the natural
society from which the political was formed were desirous of
escaping to a state of government from a state of nature or
anarchy.” I may quote also the words of Thomas Hobbes, the
powerful thinker who has done more than almost any other to
throw light on the theory of government, and of whom Mr.
Austin says: “I know of no other writer (except our great
contemporary Jeremy Bentham) who has uttered so many
truths, at once new and important, concerning the necessary
structure of supreme political government, and the larger of
the necessary distinctions implied by positive law”. In his
“Leviathan ” (a figurative title by which he means a Common
wealth or State) Hobbes says: “The final cause, end, or design
of men, who naturally love liberty and the dominion over
others, in the introduction of that restraint upon themselves in
which we see them live in Commonwealths, is the foresight of
their own preservation and of a more contented life thereby;
that is to say, of getting themselves out of that miserable con
dition of war, which is necessarily consequent to the natural
passions of men, when there is no visible power to keep them
in awe, and tie them by fear of punishment to the performance
of their covenants and observance of the laws of nature ”. In
like manner the illustrious philosopher, John Locke, in his work
on Civil Government, observes that “the end of civil govern
ment ” is “to avoid and remedy these inconveniences of the
state of nature, which necessarily follow from every man being
judge in his own case ”. No one has explained more clearly
than Hobbes and Locke the evils of the state of nature or of
anarchy; the former of whom deals chiefly with the anarchy,
or absence of a common government, existing among savages
and between independent political societies, while the latter
draws attention also to the evils and dangers of the other kind
of anarchy, namely, that consisting in the absolute power, un
controlled and uncontrollable by law, which, as we have seen,
�22
HOBBES AND LOCKE ON GOVERNMENT.
is possessed by all sovereign governments over their own
subjects.
The chief evils of the state of nature arise from the want of
a provision, such as government essentially is, for securing
peace and justice among mankind. There is a want of a known
and settled law or rule of justice, and of a sufficient power to
compel obedience to it. Men’s judgments with regard to right
and wrong conduct differ widely, and are very often erroneous ;
and therefore, as in numberless cases they cannot agree on
what is just, the only way to settle disputes and to keep the
peace between them, is that an umpire or arbiter should be
appointed to lay down beforehand and apply to each particular
case the rules of justice, and that all parties should agree to
abide by his decisions. “As when there is a controversy in
an account ”, says Hobbes, “ the parties must by their own
accord set up, for right reason, the reason of some arbitrator
or judge, to whose sentence they will both stand, or their
controversy must either come to blows or be undecided for
want of a right reason constituted by nature ; so is it also in
all debates of what kind soever.” Moreover, since it is not
mere advice or exhortation, but the compulsory settlement of
disputes and redress of injuries, that are required from the
arbiter, he must have sufficient power to compel obedience to
his laws and sentences by the punishment of those who disobey
them: for as Blackstone observes, “nothing is compulsory but
punishment”. What is needed therefore, to secure peace and
justice in human society, is a supreme authority, or government,
which all are obliged to obey, and which can lay down, apply,
and enforce the rules of justice. Where no such authority
exists to restrain the passions of mankind, and where each
person is free to do to others whatever lies in his power, and
is himself judge in his own case of what is just, there can be
no real justice or real peace for anyone, but a perpetual war or
the dread of war. “ In the nature of man ”, says Hobbes,
“ we find three principal causes of quarrel. First, competition ;
secondly, diffidence” (that is, distrust or suspicion); “thirdly,
glory. The first maketh men invade for gain ; the second, for
safety; and the third, for reputation. The first use violence
». to make themselves masters of other men’s persons, wives,
children, and cattle; the second, to defend them; the third,
> for trifles, as a word, a smile, a different opinion, and any other
sign of undervalue, either direct in their persons, or byreflexion
in their kindred, their friends, their nation, their profession, or
their name. Hereby it is manifest that during the time men
live without a common power to keep them all in awe, they
are in that condition which is called war: and such a war as
is of every man against every man. War consisteth not in
battle only. For as the nature of foul weather lieth not in a
�HOBBES AND LOCKE ON GOVERNMENT.
23
shower or two of rain, but in an inclination thereto of many
days together; so the nature of war consisteth not in actual
fighting, but in the known disposition thereto, during all the
time there is no assurance to the contrary. All other time is
Peace. Whatever therefore is consequent to a time of war,
where every man is enemy to every man; the same is conse
quent to the time, wherein men live without other security
than what their own strength and their own invention shall
furnish them withal.” It will be seen that in the above passage
Hobbes includes under the term “war ” not only actual fighting,
but also the dread of war and the constant danger of it, as the
characteristic evils of the state of nature or of anarchy.
A similar account of the evils arising from the want of a
government is given by Locke. Men, he says, are led to quit
the state of nature, and to “unite for the mutual preservation
of their lives, liberties, and estates, which I call by the general
name, property. The great and chief end therefore of men’s
uniting into commonwealths and putting themselves under
government is the preservation of their property. To which in
the state of nature there are many things wanting. First,
there wants an established, settled, known law, received and
allowed by common consent to be the standard of right and
wrong. . Secondly, in the state of nature, there wants a fair
and indifferent judge, with authority to determine all differ
ences according to the established law.” Such an impartial
judge is evidently needed to prevent men from being judges in
their own cases, when they are so apt to be blinded by passion
or self-interest. “That ‘no man shall be judge in his own
cause ’ (that is, in any matter in which he is interested) ”, says
Mr. Samuel Warren in his Introduction to Law Studies, “is a
great fundamental principle in the administration of justice ”,
Locke continues : “ Thirdly, in the state of nature, there often
wants power to back and support the sentence when right, and
to give it due execution. They who by any injustice offend,
will seldom fail, where they are able by force, to make good
their injustice ; such resistance many times makes the punish
ment dangerous, and frequently destructive, to those who
attempt it. To avoid these inconveniences, which disorder
men’s properties in the state of nature, men unite into societies
that they may have the united strength of the whole society to
secure and defend their properties and may have standing rules
to bound it; by which every one may know what is his.” In
the state of nature no one knows clearly what is his and what
another s, what is mine and thine, for there is no government
either to define the rights of each individual or to protect
them.
We have seen that, according to Bentham and Austin, the
state of nature not only exists, or has at one time existed,
�24
HOBBES AND LOCKE ON GOVERNMENT.
among savage tribes, but prevails at present over the whole
world between independent political societies in their dealing»
with one another. Independent nations have no common
government, no international law properly so called, nor any
judges or courts of justice for the compulsory settlement of
international disputes and redress of wrongs ; but each nation
is itself judge in its own case as to what is just towards others,
and has absolute liberty to make war upon them and to do
them any other harm within its power, unrestrained by the fear
of legal punishment. Among nations the anarchy is between
commonwealth and commonwealth, just as among savages it
exists between man and man or between families. This i&
pointed out by Hobbes and Locke, who show that the effectsof such a state of things are essentially similar to those described
above, and that it necessarily leads to a want of real justice and
of real peace, as well as of mutual love and trust, between
nations, and to what may be called the condition of “ war ”, if
we understand by this term not only actual hostilities, but also
the dread and danger of war, and habitual preparations against
it. Thus Hobbes says, after referring to the anarchy among
savages : “ But though there had never been any time wherein
particular men were in a condition of war, one against another ;
yet in all times, kings and persons of sovereign authority, be
cause of their independency, are in continual jealousies, and in
the state and posture of gladiators; having their weapons
pointing and their eyes fixed on one another; that is, their
forts, garrisons, and guns upon the frontiers of their kingdoms;
and continual spies upon their neighbors; which is a posture
of war”. “And as small families did then”, that is, among
barbarous communities, he says in another place, “ so now do
cities and kingdoms, which are but greater families, enlarge
their dominions upon all pretences of danger and fear of in
vasion or assistance that may be given to invaders, and endeavor
as much as they can to subdue or weaken their neighbors by
open force or secret arts.” And again, in speaking of the
liberty of independent states in their dealings with each other,
he says that this “ is not the liberty of particular men, but of
the commonwealth, which is the same as that which every
man then should have, if there were no civil laws nor common
wealth at all. And the effects of it also be the same. For as
amongst masterless men there is perpetual war of every man
against his neighbor, no inheritance to transmit to the son nor
to expect from the father, no propriety of goods and lands, no
security, but a full and absolute liberty in each particular man ;
so in states and commonwealths not dependent on one another,
every commonwealth, not every man, has an absolute liberty
to do what it shall judge, that is to say what that man or
assembly that representeth it shall judge most conducive to
�HOBBES AND LOCKE ON GOVERNMENT.
25-
their benefit. But withal, they live in the condition of aperpetual war and upon the confines of battle, with their
frontiers armed and cannon planted against their neighbors
round about.” The terrible truth of this may be seen from the
history of Europe, which has never ceased to suffer either from
actual war, or from the dread and danger of it, and where the
vast standing armies, far larger and provided with far deadlier
weapons now than at any former time, are calculated to amount
to about ten millions of men.
Locke points out in like manner the state of nature existing
between independent rulers, and draws attention to the onlv
effectual remedy for war and security for peace among mankind,
namely, a common government. “ Since all princes and rulersof independent governments, all through the world ”, he say-,
“are in a state of nature, it is plain the world never was, nor
ever will be, without numbers of men in that state”. With
regard to war and the means of preventing it, he says that
“ force, or a declared design of force upon the person of another,
where there is no common superior on earth to appeal to for
relief, is the state of war. To avoid this state of war (wherein
there is no appeal but to heaven, and wherein every the least
difference is apt to end, where there is no authority to decide
between the contenders) is one great reason of men’s putting
themselves into society and quitting the state of nature; for
where there is an authority or power on earth from which
relief can be had by appeal, there the continuance of the state
of war is excluded, and the controversy is decided by that?
power.” And as to peace, he observes that “civil society” is“ a state of peace, amongst those who are of it, from whom
the state of war is excluded by the umpirage which they have
provided in their legislative for the ending all differences that
may arise amongst any of them ”. In civil society, peace isfurther secured by forbidding under penalty all force or violenceexcept in self-defence; and then too, only while the wrong isbeing actually committed, and there is no time to appeal tothe law for assistance or redress. Men are not allowed forcibly
to redress their own wrongs, or what they conceive to be their
wrongs, and to exact any penalty they please, but must in all
cases appeal for redress to a court of justice. “When the
wrong is consummated, when the mischief is done ”, says Mr.
Hunter, “it is never lawful to resort to force; the peaceful
remedy of an action or criminal accusation can alone be em
ployed. . But if the invasion of my right, or the attack on my
person is not completed, as a general rule force may be used in
defence.” Beal peace, like real justice, real liberty, and rpal
independence, can only exist under the reign of government
and law.; whereas the so-called peace which alternates with
open strife in the state of nature or anarchy, and which is
�26
POLITICAL UNION.
accompanied by huge armaments and by hatred, jealousies,
and distrust between nations, is but a veiled form of war.
VI.
We now come to the great permanent remedy for war and
the other evils arising from the state of nature or anarchy,
namely, the formation of a common government. The anarchy
prevailing at the present day is not between individual men or
single families as among savage tribes, but between inde
pendent political societies in their dealings with one another;
.and what is needed to put an end to it is the political union of
different nations and of different sovereign governments, by
methods which have already been repeatedly employed with
success in building up the existing states and empires of the
world. Whether between individuals or between nations, a true
legal or political union is always essentially the same process,
and consists in submitting all wills, and entrusting the whole
strength of society, to the will and direction of one sovereign
government, composed either of a single person or of one or
more bodies of persons acting collectively, so as to avoid that
division of wills and of physical force which leads to war and
to the appalling evils characteristic of the state of nature or
anarchy.
Thus Hobbes says, in describing the generation of a Com
monwealth among a society living in the state of nature:
“ The only way to erect such a common power as may be
able to defend them from the invasion of foreigners and the
injuries of one another, and thereby to secure them in such
sort as that by their own industry and by the fruits of the
earth they may nourish themselves and live contentedly, is, to
confer all their power and strength upon one man, or upon one
assembly of men, that may reduce all their wills, by plurality
of voices, into one will; which is as much as to say, to appoint
■one man or assembly of men to bear their person; and every
one to own and acknowledge himself to be the author of what
soever he that so beareth their person shall act, or cause to be
acted, in those things which concern the common peace and
safety ; and therein to submit their wills, every one to his will,
and their judgment to his judgment. This is more than consent
or concord; it is a real unity of them all in one and the same
person, made by covenant of every man with every man; in
such a manner as if every man should say to every man, ‘I
authorise and give up my right of governing myself to this
man, or to this assembly of men, on this condition, that thou
�DANGER OF OPPRESSION BY SOVEREIGN GOVERNMENTS.
27
give up thy right to him and authorise all his actions in like
manner
This done, the multitude so united in one person is
called a Commonivealth.”
In a similar manner Blackstone observes that harmony of
wills ‘ ‘ can be no otherwise produced than by a political union;
by the consent of all persons to submit their own private wills
to the will of one man, or of one or more assemblies of men, to
whom the supreme authority is entrusted; and this will of that
one man, or assemblage of men, is, in different states, according
to their different constitutions, understood to be law”.
Locke says also in describing the formation of a Common
wealth : ‘ ‘ This is done whenever any number of men, in the state
of nature, enter into society to make one people or body politic,
under one supreme government; or else when one joins himself
to and incorporates with any government already made; for
hereby he authorises the society, or, which is all one, the
legislative thereof, to make laws for him as the public good of
the society shall require; to the execution whereof his own
assistance (as to his own decrees) is due. And this puts men
out of a state of nature into that of a Commonwealth, by setting
up a judge on earth with authority to determine all the con
troversies and redress the injuries that may happen to any
members of the Commonwealth; which judge is the legislative1
or magistrate appointed by it.” He adds that “ whosoever out
of a state of nature unite into a community, must be under
stood to give up all the power necessary for the ends for
which they unite into society to the majority of the community,,
unless they expressly agreed in any number greater than th©
majority”. The rule that if opinions differ among the members
of a sovereign body, the majority or some other fixed propor
tion must decide, is evidently needed to secure the unity of
will and action which is indispensable for the purposes of
government.
From the necessity of submitting all wills and entrusting all
power to one man or one assembly (or to any number of
assemblies, at any distance apart, provided they act together
by a majority of their body and arrive at joint decisions or
enactments) in order to avoid the division of wills and of the
forces of society; and from the fact, already noticed, that the
power of a monarch properly so called or of a sovereign
assembly cannot be limited by law, there arises the great in
herent evil and danger of government, which, like the opposite
evil of anarchy, has caused such countless miseries to mankind,
namely, the abuse of their immense powers by rulers to plunder
and oppress their subjects. This evil, though it has always to
be most carefully guarded against, is far more severely felt
under an absolute monarchy, which was the earliest form of
government as the simplest way of obtaining one supreme will,
�28
SUBJECTS CAN, SOVEREIGNS CANNOT, BE BOUND BY LAW.
and which, still prevails in most of the backward countries of
the world. Thus Locke says, in replying to the advocates of
monarchical rule: “I shall desire those who make this objec
tion to remember that absolute monarchs are but men; and if
government is to be the remedy for those evils which necessarily
follow from men’s being judges in their own cases, and the
state of nature is therefore not to be endured, I desire to know
what kind of government that is, and how much better it
is than the state of nature, where one man, commanding
a multitude, has the liberty to be judge in his own case,
.and may do to all his subjects whatever he pleases, without
the least liberty to anyone to question or control those who
•execute his pleasure ? and in whatsoever he doth, whether led
by reason, mistake, or passion, must be submitted to?” “If
it be asked”, he says again, “what security, what fence is there
in such a State against the violence and oppression of this
absolute ruler ? the very question can scarcely be borne. To
ask how you may be guarded from harm or injury on that side
'where the strongest hand is to do it, is presently the voice of
faction and rebellion; as if when men, quitting the state of
nature, entered into society, they agreed that all of them but
one should be under the constraint of laws, but that he should
still retain all the liberty of the state of nature, increased with
power and made licentious with impunity.” In a sovereign
assembly, though its power is as great as that of a monarch,
being absolute and unlimited by law, Locke points out that
there is this great safeguard against oppression, that each of
the members, taken singly, is a subject, and is himself amenable
to the laws which the assembly enacts. When the people, he
says, found that monarchs abused their power, they “ could
never be safe nor at rest, till the legislative was placed in
collective bodies of men, call them senate, parliament, or what
you please. By which means every single person became
subject, equally with other the meanest men, to those laws
which he himself, as part of the legislative, had established.”
An even greater security against oppression under the repre
sentative system is that the constituencies, who form the bulk
of the nation, are themselves virtually authors of the laws by
which they are to be governed. Mr. Mill shows that in the
representative system (though he points out grave defects in it
as now existing, especially the want of a fair proportional
representation of minorities and the denial of a share in the
suffrage to women) the sovereignty, or ultimate controlling
power, is really vested in the entire community, and that this
is far superior to any other form of government. “ There is no
difficulty in showing ”, he says, “that the ideally best form of
government is that in which the sovereignty, or supreme
controlling power in the last resort, is vested in the entire
�DIEEEliENCE BETWEEN UNION AND ALLIANCE.
2f
aggregate of the community; every citizen having not only a
voice in the exercise of that ultimate sovereignty, but being,
at least occasionally, called on to take an active part in the
government by the personal discharge of some public function,
local or general ”. From these improvements in government
and from the growing feelings of brotherhood and of common
interest between all mankind, aided powerfully by easier
means of communication, the obstacles to the political union of
nations have greatly diminished, while the beneficial effects of
such union on the relations of governments, not only to each
other but to their own subjects, cannot, I think, be exaggerated.
The oppression of subjects by their rulers is largely due to the
■absolute power, uncontrolled and uncontrollable by law, which
resides in every supreme government, whether it consist of a
single person or a body of persons ; and to reduce the evil as
far as possible, there should be only one supreme or sovereign
federal government, of which the existing legislatures in the
different countries would be members (or might, if it were
thought preferable, elect a part while the people elected the
other part, of the members), and to which each of them, taken
singly, would be subject or subordinate. In this way the
national governments would be no longer isolated from one
another, as at present, or sole judges in their own cases; but
the common judgment and authority of all would be brought
to bear on all, and oppression by local rulers, as well as rebellion
among subjects, might be legally controlled and prevented in
■every part of the world.
A legal or political union between two or more independent
states should be carefully distinguished from a mere alliance.
An alliance is an agreement between them, while remaining
-separate states, that is, while remaining under different sovereign
governments, to co-operate for certain purposes; all the acts
of each of them, including the continuance of the alliance or
its dissolution at any time, being determined by the will of its
own government. A political union, on the other hand, is an
agreement between them to unite together into one state, that
is, to have one and the same sovereign government, by whose
will all their acts, including the continuance of the union or its
repeal at any time, are to be determined. Though an alliance
is often very valuable for temporary purposes, it has no effect
in putting an end to the state of nature or anarchy existing
between independent communities. “It is not every compact
which puts an end to the state of nature between men ”, says
Locke, “but only this one of agreeing together mutually to
enter into one community and make one body politic; other
promises and compacts men may make one with another, and
yet still be in a state of nature.” In an alliance there are
•different supreme governments, or supreme wills, each claiming
�30
PERMANENT ALLIANCES DISTINGUISHED FROM UNIONS.
obedience from its own subjects among the allied nations, which
is the state of nature or anarchy; whereas in a political union
there is only one supreme government with claim to obedience
from the whole united people, and this submission of all willsto one is, as we have seen, the essence of government. Some
alliances, of a more complicated character than others and
intended to be more permanent, are particularly apt to beconfounded with true political unions, and among them Mr.
Austin instances the confederations of states existing in his
time in Switzerland and in Germany before the formation of
the present federal governments in these countries. Mr. Dicey
also describes as a “permanent alliance rather than a union”
the dual system of government in Austria-Hungary, which
resembles in its main features the bond now connecting to
gether the two kingdoms of Norway and Sweden. The distinction between a system of confederated states, like the
former Swiss and German confederations or the dual system
of Austria-Hungary, and a composite state or supreme
federal government such as that of the United States of
America, is thus pointed out by Mr. Austin. “A composite
state and a system of confederated states ”, he says, “ are
broadly distinguished by the following essential difference.
In the case of a composite state, the several united societies are
one independent society, or are severally subject to one sovereign
body; which through its minister the general government, and
through its members and ministers the several united govern
ments, is habitually and generally obeyed in each of the united
societies, and also in the larger society arising from the union
of all. In the case of a system of confederated states, the several
compacted societies are not one society, and are not subject to
a common sovereign; or (changing the phrase) each of the
several societies is an independent political society, and each of
their several governments is properly sovereign or supreme.”
The agreement to form the Confederation at the beginning,
and the subsequent resolutions passed by it, are not enforced
on the different governments or on their subjects by the
collective will of the whole, but are spontaneously adopted by
each government and enforced upon its own subjects. “In
short ”, continues Mr. Austin, “ a system of confederated states
does not essentially differ from a number of independent
governments connected by an ordinary alliance. If in the
case of the German or the Swiss Confederation, the body of
confederated governments enforces its own resolutions, those
confederated governments are one composite state, rather than
a system of confederated states. The body of confederated
governments is properly sovereign; and to that aggregate and
sovereign body, each of its constituent members is properly in
a state of subjection.” As to the dual government of Austria-
�TTNION ON NATIONS ALREADY FAR ADVANCED.
31
Hungary, Mr. Dicey says, after giving a detailed account of it:
“ The Austro-Hungarian system is therefore briefly this:
two separate states, each having a separate administration,
a separate parliament, and separate bodies of subjects or citizens,
are each ruled by one and the same monarch; the two portions
of the monarchy are linked together, mainly as regards their
relations to foreign powers, by an assembly of delegates from
each parliament, and by a ministry which is responsible to the
delegations alone, and which acts in regard to a limited number
of matters which are, of absolute necessity, the common con
cern of the monarchy.” He says also that “the Hungarian
Diet has, as such, no legislative authority in Austria, and the
Reichsrath has no legislative authority in Hungary.” The dual
system of Austria-Hungary is really an alliance or agreement
between two separate states, under different supreme govern
ments, to manage together their foreign affairs and all matters
relating to war and to finance; both countries having the same
emperor, who though not a monarch or a sovereign in the true
sense of the terms, but only a member of each of the two
sovereign bodies, has considerably more political power, accord
ing to Mr. Dicey, than royalty possesses in England.
VII.
A true political union, on equal terms, between two or more
independent states, can only be effected by uniting together into
one their different sovereign governments, in such a manner that
each state shall have a share, proportional to its population, in the
common government thus resulting. The union of nations
under a common supreme government, whether on a footing
of equality or on that of sovereign and subordinate states, and
whether by conquest or by mutual agreement, has already
been carried out to such an extent in the course of ages, that,
according to the Government Year Book for 1888, “the chief
independent countries of the world, arranged on the basis of
their nominal forms of government ”, are now only forty-four
in number, eight of them being absolute monarchies, while the
others have more or less fully developed representative institu
tions. “Theoretically”, says the writerafter giving a list of
them, “thirty-six out of the forty-four states just enumerated
are under various forms of popular government, having repre
sentative institutions, and executives based upon contracts
between the governing and the governed”. The most im
portant difficulties now standing in the way of the equal
political union of nations and its immense benefits, seem to me
�32
CHIEF DIFFICULTIES NOW OPPOSING UNION.
to be the very backward condition, of some populations, the
existence of absolute monarchies, the distances of nations from
one another, and difference of language. The last two of
these, however, may be surmounted by some adaptation of the
invaluable principle of federal government; as we see, for
instance, in the United States, which are nearly as large as the
whole of Europe, and where the local State legislatures, though far
distant from one another, make up together one sovereign body;
and in Canada, where a million and a half of French colonists
are united with three millions of English under the same federal
constitution and on terms of complete political equality. Abso
lute monarchies, on the other hand, though they may favor
the reduction by conquest of many nations under the dominion
of one supreme ruler as in Russia, are, I think, incompatible
with their union on equal terms, the only conditions on which
civilised states can be expected voluntarily to unite with one
another. This follows from the essential character of an abso
lute monarch as contrasted with a sovereign assembly. ‘ ‘ The
difference between monarchies or governments of one and
aristocracies or governments of a number”, says Mr. Austin,
“is of all the differences between governments the most precise
and definite, and in regard to the pregnant distinction between
positive law and morality incomparably the most important
An absolute monarch is purely sovereign, and cannot be bound
by law; whereas each member of a sovereign assembly, taken
singly, is a suZy'eci, and may be bound by laws enacted by the
whole. By uniting therefore on equal terms with another
government, a monarch ceases to be sovereign, becoming a
member of a sovereign body, and thus amenable to the control
of law. What is commonly called a “limited monarchy”, as
Mr. Austin points out, is not really monarchy at all, but is
“one or another of those infinite forms of aristocracy which
result from the infinite modes wherein the sovereign number
may share the sovereign powers”. A limited monarch, such
as the Emperor of Germany or the Queen of England, is not a
monarch or a sovereign in the true sense of these terms, but a
member of a sovereign assembly, and either is or may be made,
like the president of a republic, amenable to laws passed by
the whole body. Limited monarchy is therefore no barrier to
the equal political union of independent states, as is clearly
shown by the fact that four kings, together with reigning
princes, grand dukes, and others, are included in the great
federal union forming the German empire. Amenability to
law, it should be remarked, is a matter of the utmost import
ance, for one of the chief ends of civilisation is to bring man
kind universally under the dominion of law and government,
so that all acts whatever (except those of a supreme govern
ment in its collective capacity) should bp ’fither permitted, or
�GOVERNMENT THE ORGAN OE COMPULSION.
33
■enjoined, or forbidden by law. This end has been attained in
cur own and other countries with regard to subjects or citizens,
but not with regard to their rulers or to the mutual intercourse
of different nations. As observed by Montesquieu, the rela
tions of mankind in society may be divided into those existing
■either between subject and subject, or between subjects and
their government, or between one sovereign government and
another. Now it is only the relations of subject to subject,
and of a subject towards his government, that have been
brought under the dominion of law; whereas the relations of
the existing supreme governments towards their subjects, and
of one supreme government to another—as we have already
seen—are quite uncontrolled by law, or in other words, are in
a state of nature or anarchy. If all nations could be united
under a common federal government, as is urged by those who
aim at the federation of mankind, the reign of law, whether
Tietween individuals, between nations, or between national
rulers and their subjects, would be universal, and the only acts
which would, of necessity, remain exempt from legal control
would be those of the supreme federal government itself.
Government is the organ, and the only legitimate organ, by
which compulsion or force is employed in a community. It not
only lays down in its laws or commands the duties of each
individual, but compels him to perform them and to abstain
from mischievous acts, or acts which are hurtful to other
people. “The general object of all laws”, says Bentham, “is
to prevent mischief,”. Law does not exhort or entreat, but
always compels, and the manner in which it exercises its com
pulsion is by the threat of punishments or penalties to be inflicted
on those who disobey. Thus Mr. Mill observes that “penal
sanction is the essence of law”. In like manner Sir James
Stephen says : “ The distinctive and special characteristic of
all law and government is force—coercion in some one of its
shapes. It is this which draws the line between law and
advice, between government and speculative discussion.” He
points out also that no other compulsion than that authorised
by government (excepting of course the compulsion coming
from public opinion or from one’s own conscience) can right
fully, be exercised over any individual; and that “the first
principle of the supremacy of the law of the land is that it is
the only form of coercion .... which ought to be brought
upon all,.whether they like it or not”. It is true that the
great majority of people suffer no inconvenience from this legal
control, feeling it as little, to use Mr. Hunter’s striking simile,
as “the weight of the atmosphere”, because they are con
vinced in the main of the justice of the laws and have a voice
in making them; but the control or compulsion exists never
theless, and is absolutely indispensable to the happiness and
�34
j
GOVERNMENT THE ORGAN OE COMPTTLSION.
security of society. However willing or desirous men may beto abstain from mischievous acts, no free choice is given them
in the matter, for it is felt that society cannot be sufficiently
protected against such acts without the compulsion exercised'
on all persons alike, willing or unwilling, by the fear of legal
punishment if they offend. If a man has not a sufficient love
of justice and regard for the interests of his fellows to keep
him from crime, he must be deterred from it by the fear of
punishment; and, moreover, just laws are well known to have
a most powerful effect in making men just, and giving them a
genuine love of virtue for its own sake. These truths are well
understood with regard to a particular society, and are quite
as applicable to the great society of nations. Every national
government in its dealings with other nations and with its own
subjects ought, like every private individual, to be under the
control of law as well as of morality and public opinion. It
should be bound by compulsory rules, laid down and enforced
by a common authority, not to injure other nations or to
oppress its subjects. Now, a common authority, armed with
the irresistible power which is needed to enable it to lay down
and enforce the laws, is obtained in each community by the
political union of all the citizens—or, in other words, by the
submission of all wills and all physical force to the will and
direction of one sovereign government—and in like manner in
the general community of mankind such an authority can only
be obtained by the political union of all the nations. A mere
alliance between separate states is of no avail; what is needed
is a legal or compulsory union under one sovereign government •
for nations which are not under the same supreme government
can have no legal relations, but only moral relations, to each
other. The laws of one independent state have of themselves
no validity whatever in another, though they are often, from
motives of comity, allowed to take effect, or speaking more
accurately, are spontaneously adopted by the courts of justice
in trying cases between citizens of different states who are
under different systems of law. Thus the eminent American
judge, Story, in his work on “ The Conflict of Laws ”, says :
“ It is plain that the laws of one country can have no intrinsic
force, proprio vigore, except within the territorial limits and
jurisdiction of that country. Whatever extra-territorial force
they are to have is the result, not of any original power to
extend them abroad, but of that respect which from motives of
public policy other nations are disposed to yield them.” This
absence of any power to exercise legal compulsion over inde
pendent states, and of any code of international law prescribed
by a common authority, seems to me the essential cause of
wars and revolutions. Force or compulsion is so indispensably
needed for the settlement of disputes in which the parties can-
�MATIONS UNITED BY UNITING THEIB, REPRESENTATIVES.
35
■not agree, and for the prevention and redress of injuries, that
if it cannot be applied in a legal form it is sure to be resorted
to in another. War, conquest, and the oppression of weak
■states by strong ones, are the barbarous and arbitrary methods,
in the absence of a common superior, for effecting this compul
sion between nations; while political union, law, and a common
government where disputes can be settled by the voice of a
majority, are the peaceable and civilised means for compelling
■one nation to be just to another and national rulers in every
part of the world to abstain from tyranny over their subjects.
To form an equal political union and common government
between independent states, it is the real and not merely the
nominal rulers of each state who must be united together into
■one sovereign body. Now under the representative system, the
dorm of government which is rapidly tending to become univetsal among civilised communities, the real rulers are the
elected representatives of the nation. “ The meaning of repre
sentative government”, says Mr. Mill, “is that the whole
people, or some numerous portion of them, exercise through
■deputies periodically elected by themselves, the ultimate con
trolling power, which, in every constitution, must reside
somewhere ”, In England the real government is very different
from the nominal one, and is in fact representative: for al
though by constitutional law the Crown has the power of refus
ing assent to Bills which have passed both Houses of Parliament,
-and . also of appointing the members of the executive or
administrative government, yet by custom and constitutional
morality these powers have become practically obsolete, the
Crown’s veto not having been used since 1707, in the reign of
Queen Anne, and the executive government being really
appointed and removable by, or in common phrase being
■“responsible to”, the House of Commons. “The constitu
tional morality of the country”, says Mr. Mill, “ nullifies these
powers (of the Crown), preventing them from being ever used;
and, by requiring that the head of the administration should
always be virtually appointed by the House of Commons,
makes that body the real sovereign of the state.” In a similar
manner Mr. Dicey says : “The executive of England is in fact
placed in the hands of a committee called the Cabinet. If there
be any one person in whose single hand the power of the state
is placed, that one person is not the Queen, but the chairman
of the committee, known as the Prime Minister.” Moreover,
the House of Lords, though nominally possessed of equal legis
lative powers, acts rather as a checking or restraining body to
secure further discussion of disputed questions, and is really
¡subordinate to the House of Commons, to whose will it is
■obliged sooner or later to conform. “ The British government ”,
says Mr. Mill, “is thus a representative government in the
�36
NATIONS UNITED BY UNITING THEIR REPRESENTATIVES,
correct sense of the term : and the powers which it leaves in
hands not directly accountable to the people can only be
considered as precautions which the ruling power is willing
should be taken against its own errors.” Mr. Dicey observes
that the various rules and customs of constitutional morality,
or as he calls them “the conventions of the constitution”,
which have been established in this country by the growing
influence of the constituencies and have gradually changed thegovernment in reality though not in name, “ have all one
ultimate object. Their end is to secure that Parliament or the
Cabinet which is indirectly appointed by Parliament, shall in
the long run give effect to that power which in modern Eng
land is the true political sovereign of the State- -the majority of
the electors, or (to use the popular though not quite accurate
language) the nation.” “ The conventions of the constitution ”,
he says again, “now consist of customs which (whatever their
historical origin) are at the present day maintained for ensuring
the supremacy of the House of Commons, and ultimately,
through the elective House of Commons, of the nation.”
Since, therefore, the elected representatives of the people are
the real rulers in this and other countries having popular
forms of government, an equal political union of such countries
can only be effected by uniting their representatives into one
sovereign body; whether that body consist of a single assembly
as in the United Kingdom, or of several distinct assembliesacting collectively as in the United States. Nations, in fact,
are politically united under the representative system in exactly
the same way as the different parts of the same nation, namely,,
by bringing their representatives together into one supreme
governing body, so that all matters requiring a compulsory
settlement may be decided, not by war and violence or by
diplomatic pressure, but by fair and open discussion and the
vote of a majority. Thus the essential articles in the treaties
of Union between England and Scotland, and between Great
Britain and Ireland, are those which joined together their
Parliaments, declaring in the former case that “ The United
Kingdom shall be represented by one Parliament ”, and in the
latter, “ That there shall be one Parliament, styled the Parlia
ment of the United Kingdom of Great Britain and Ireland ”.
On the other hand, the demand which is, or was, put forward
by Mr. Parnell and the Nationalist Party for an Irish Parlia
ment, to be formed by the withdrawal of the Irish members
from the House of Commons, seems to me not really a demand
for Home Pule, but for the separation of the countries. Home
Rule properly so called means, I think, the rule of local legis
latures, of a subject or subordinate character and possessing a
delegated authority, in countries which are united with others
on equal terms under the same supreme government. Countries
�HOME BULE PROPERLY MEANS FEDERALISM.
37
which are under different supreme governments are separate
from one another; and a common supreme government, on
equal terms, between states with representative institutions,
can only be obtained by joining their representatives into one
sovereign body. If their representatives are separated, the
countries cannot be united on equal terms, but must either be
separate from each other or united on the footing of sovereign
and subordinate states, a form of union which would never
again be tolerated between Great Britain and Ireland, and is
fast becoming quite impracticable between any civilised nations.
The great English colonies such as Canada and Australia, which
have legislatures of their own, are only nominally subject to
the English rule, and are really and essentially, as we have
already seen, independent states which are connected with the
mother country by a voluntary alliance, and have the power of
separating from her if they please. To withdraw the Irish
members from the House of Commons seems to me, therefore,
really equivalent to the separation of Ireland from Great
Britain.
VIII.
Nations which are independent and separate from others are
not said to have “ Home Rule”, but only those nations which
are politically united with others under a constitution of a
peculiar kind. Every country which can properly -be said to
have Home Rule must, I think, like one of the states in the
American union or in the German empire, be under two
governments, namely, a common supreme government in which
it has a share together with other states by the union of their
representatives in one sovereign body, and a local subordinate
government, composed exclusively of its own representatives,
for the management of its domestic affairs. A dependency, if it
has a legislature of its own, is often said to have Home Rule,
but improperly, as it seems to me, or at least in a widely
different sense of the term, for the legislature in such a case is
subject to the government of the dominant country, in which
the dependency has no share. Mr. Austin observes that all the
laws made by a subordinate legislature require the consent or
approval of the supreme legislature, and ‘ ‘ derive their validity
from its express or tacit authority. For either directly or
remotely the sovereign or supreme legislator is the author of
all law”. But if the above definition is correct, and if in
dependent and separate nations, as well as dependencies,
though possessing parliaments of their own, cannot rightly be
said to have “ Home Rule ”, it follows that neither Ireland nor
�38
FEDERAL SYSTEM OF GOVERNMENT.
the British colonies have ever yet had Home Rule in the true
sense of the word; for Ireland up to the time of the Union was
either a dependency of England or an independent nation, and
the colonies, as we have seen, are nominally dependencies, but
really and virtually independent states. In speaking of laws
enacted by subordinate legislatures, Mr. Austin says : “ Such
were the laws made by the Irish Parliament before that Act of
the British Parliament which acknowledged the independence
of Ireland (1719-1782). In fact and practice, the Irish legis
lature (consisting of the King and the Irish Houses of Parlia
ment) was in a state of subjection to the supreme legislature of
Great Britain; that is to say, to the same King and the British
Houses of Parliament.” Neither Ireland nor the colonies could
properly be said to have Home Rule in their relations with this
country, unless they not only had local legislatures but were
fidly and fairly represented in the supreme imperial legislature,
or in other words, unless they were federated with Great
Britain.
Home Rule properly so called is thus identical with Federalism
or the federal system of government. As to the very different
system of government often called “the colonial form of Home
Bule ”, in which countries having parliaments of their own are
not represented along with others in a common supreme parlia
ment, it should not, I think, be spoken of as “Home Rule”
at all, since the countries in this case are necessarily either
dependencies or independent and separate states. The federal
form of Home Rule is the one advocated by Mr. Bradlaugh and
I believe by the great majority of Englishmen and Scotchmen,
as well as Americans, who are in favor of a separate Irish
parliament; and it is the only kind of Home Rule to be desired
among civilised nations, who should be united as equals, and
not on the footing of dependencies and sovereign states. In
equality is only justifiable in dealing with backward and
uncivilised populations, till they are sufficiently advanced to
have equal political rights. The federal system, which was
first introduced in the United States and has since been modified
in other countries, especially in Germany, seems to me one of
the greatest discoveries ever made, and of an importance to
human happiness which cannot possibly be exaggerated; for it
supplies the means of uniting independent nations under a
common government, so as to do away with the state of nature
or anarchy now existing between them, and to put an end to
war. It fulfils the three main conditions of a satisfactory
political union, for it unites nations legally and effectively by
bringing them under the same sovereign government; it unites
them on equal terms, by joining their representatives in
one supreme body, and thus giving each nation a share in the
government proportional to its population; and moreover it
�FEDERALISM IN UNITED STATES AND GERMANY.
39
secures to them the advantages of sei!/-government or govern
ment exclusively by their own representatives, wherever this is
thought desirable, by allowing them to retain their national
legislatures for the management of their domestic affairs.
Each nation is thus placed under a general supreme legislature
composed of its own representatives along with those of other
states, and a local subordinate legislature composed of its own
representatives exclusively. The advocates of Federation hold
that Home Rule in the above sense, or as meaning Federalism,
ought to be extended over the whole world; and that all
nations, besides having their national rulers, should be united
together under one supreme federal government. The federal
■system is so important and so different in some respects from
the government with which we are acquainted in this country
that it deserves an attentive consideration.
The form of federation existing in the United States seems
to me to differ in one very important point from that which
has been adopted in Germany; namely, that in the former
country the sovereign government consists, as already remarked,
•of all the State legislatures acting collectively, and that the
general legislature or Congress, composed of the Senate and
the House of Representatives, together with the President, is a
subordinate body; whereas in Germany the Diet or general
legislature, composed of the Bundesrath, the Reichstag, and
the Emperor, is itself the sovereign government. This will
appear, I think, if we consider the powers possessed by these
bodies, and also the distinction between supreme and subordi
nate political powers, and between a sovereign and a subordinate
government. Thus Mr. Austin observes with regard to political
powers: “Of all the larger divisions of political powers, the
division of these powers into supreme and subordinate is perhaps
the only precise one. The former are the political powers,
infinite in number and kind, which, partly brought into exercise
and partly lying dormant, belong to a sovereign or state. The
latter are the portions of the supreme powers which are dele
gated to political subordinates.” Mr. Dicey in pointing out
the signs or maiks which distinguish a sovereign government,
■such as the English Parliament, from a subordinate govern- '
ment, such as Congress or a state legislature in the United
'States, says: “ These then are the three parts of parliamentary
sovereignty as it exists in England; first, the power of the
legislature to alter any law, fundamental or otherwise, as freely
and in the same manner as other laws; secondly, the absence
of any legal distinction between constitutional and other laws;
thirdly, the non-existence of any judicial or other authority
having the right to nullify an Act of Parliament, or to treat it
as void, or unconstitutional”. As to “the marks or notes of
legislative subordination” he says: “These signs by which
�40
FEDERALISM IN UNITED STATES AND GERMANY.
you may recognise the subordination of a law-making body are,
first, the existence of laws affecting its constitution, which such
body must obey and cannot change; hence, secondly, the
formation of a marked distinction between ordinary laws and
fundamental laws ; and lastly, the existence of some person or
persons, judicial or otherwise, having authority to pronounce
upon the validity or constitutionality of laws passed by such
law-making body”. Sir Henry James also, in a passage
already quoted, reduces the distinctive marks of a sovereign
government to these two—that it “ must be subject to the
control or decision of no man or body”, and that it “must be
able to alter and remodel its own constitution ”, Judging by
these marks or tests, we can see at once that the American
Congress is a subordinate government, whereas the German
Diet appears to be a supreme or sovereign assembly. The
Constitution of the United States (a written document which
was agreed to as the fundame: tai law of their union by all the
States in 1787-1789, soon after they acquired their independ
ence of Great Britain) creates Congress and grants to it certain
legislative powers strictly defined and limited, and creates also
a supreme court of justice, with jurisdiction in all cases arising
under the constitution and with an authority, which has not
unfrequently been exercised, to declare void any law passed by
Congress in excess of its powers; and moreover, changes in the
constitution cannot be effected by Congress, but only by a
majority, of three - fourths of the state legislatures. Such
changes or amendments may be proposed either in Congress or
in a convention called by the States, and if approved of there,
must be sent for ratification to all the state legislatures, and
must be ratified by three-fourths of these bodies, before they
are adopted. Hence Mr. Dicey observes that “the legal
sovereignty of the United States resides in the majority of a
body constituted by the joint action of three-fourths of the
several States at any time belonging to the Union ”, On the
other hand, although Germany also has a written constitution,
adopted in 1871, which distributes the various powers and
departments of legislation between the Diet or federal govern
ment and the State governments, there is, I believe, no judicial
body corresponding to the Supreme Court in the United States
with authority to declare void any act of the Diet, but the
latter is itself judge in disputes between the States, and may
settle them, if need be, by federal legislation ; and the Diet,
moreover, has itself the power of changing or amending the
constitution. Thus the German Constitution (which is given
in full in the Government Year Book for 1888) says: “ Litiga
tions between several States, in so far as they do not concern
private rights and are not thereby within the competence of
ordinary tribunals, will be adjudged by the Bundesrath, on the
�MR. DICEY ON FEDERALISM.
41
demand of one of the parties. Disputes concerning the consti
tution, where there is no authority competent to decide such
disputes, must be amicably adjusted by the Bundesrath, on the
demand of one or other of the parties, and if this cannot be
effected, they must be determined by federal legislation. Changes
in the constitution are to be effected by Acts of the Assembly ;
but such modifications must receive in the Bundesrath the
support of a majority of two-thirds of the representative votes.”
It thus appears to me that the German Diet, like the English
Parliament, or like all the state legislatures in the United
States acting collectively, is a sovereign government, and, as
such, possesses powers which cannot be limited by law.
The leading characteristics of federalism are summed up as
follows by Mr. Dicey, who has given a most valuable exposition
of this system and other matters relating to government in his
“ Lectures on the Law of the Constitution ” and in “ England’s
case against Home Rule”. “A Federal Constitution”, he
says, “ must from its very nature be marked by the following
characteristics. It must, at any rate in modern days, be a
written constitution, for its very foundation is the ‘ Federal
pact ’ or contract ; the constitution must define with more or
less precision the respective powers of the central government
and the state governments, of the central legislature and of the
local legislatures ; it must provide some means (e.g., reference
to a popular vote) for bringing into play that ultimate sovereign
power which is able to modify or reform the constitution itself ;
it must provide some arbiter, be it Council, Court, or Crown,
with authority to decide whether the Federal pact has been
observed ; it must institute some means by which the principles
of the constitution may be upheld, and the decrees of the
arbiter or Court be enforced against the resistance (if need be)
of one or more of the separate states ”. He says also in
another place: “The essential characteristics of federalism—
the supremacy of the constitution—the distribution of powers
—the authority of the judiciary—reappear, though no doubt
with modifications, in every true federal state.” This descrip
tion, however clearly it explains the form of government
existing in the United. States or in Switzerland, is not, I venture
to think, equally applicable to the German Constitution, which,
by making the Diet a sovereign body, seems to me a most
important and valuable modification of the federal system.
The essence of federalism in my opinion is the existence of a
common supreme legislature, in which all the federated states
are duly represented, together with local subordinate legisla
tures, consisting solely of local representatives, in the different
states ; while the other remarkable feature in the American
Government, namely, that the sovereign power is vested in all
the state legislatures taken together, and that Congress is a
�42
ELECTORAL SOVEREIGNTY, PARLIAMENTARY SOVEREIGNTY
subordinate body, unable to change its own constitution and
subject to the control of a legal tribunal, does not appear to mo
to be necessarily or essentially a part of federalism. Govern
ments which are not federal, such as the English Pari i am ent.,
might in like manner be made subordinate bodies and might
have their powers limited, if the constituencies who elect them
■chose to retain the legal sovereignty in their own hands. Mr,
Austin points out that although the trust held by the House
of Commons for the constituencies is at present enforced only
by moral sanctions, it might be enforced by legal sanctions;
and that for this purpose, a law or written constitution would
need to be passed by the constituencies themselves, who would
thus form an ulterior legislature. If such a constitution were
enforced by the courts of justice, the legal sovereignty of the
country would then reside in the constituencies or electors,
and not as at present in Parliament. “ In order that the
members of the Commons House might be bound legally and
completely to discharge their duties to the Commons”, says
Mr. Austin, “ the law must be made directly by the Commons
themselves ” with the assistance of the king and the lords, or,
in. a republic, by the Commons alone. In that case, “the
King and the lords with the electoral body of the Commons,
or the electoral body of the Commons as being exclusively
sovereign, would form an extraordinary and ulterior legisla
ture
This is exactly what has been done in the United
States and in Switzerland, where the body of the electors, or
of the State legislatures, have tied down the federal govern
ment by a constitution enforced by the law courts, and have
kept to themselves the ultimate sovereign power. But this
electoral sovereignty seems to me unessential to federalism,
and in many respects a less advantageous principle than par
liamentary sovereignty. It unduly limits or cripples the power
of the central legislature in a country, and makes the govern
ment more complicated; and also, as Mr. Dicey shows in a
striking passage, it vests the legal sovereignty in an inactive
and non-apparent body, and renders any change in the con
stitution a matter of much difficulty, especially in the United
States, where so large a majority as three-fourths is required
for. the. purpose. “From the necessity for placing ultimate
legislative authority in some body outside the Constitution ”,
says Mr. Dicey, “ a remarkable consequence ensues. Under
a federal as under a Unitarian system there exists a sovereign
power, but the sovereign is under a federal state a despot hard
to rouse. The sovereign of the United States has been roused
to serious action but once in the course of ninety years. But
a monarch who slumbers for years is like a monarch who does
not exist. A federal constitution is capable of change, but
for all that a federal constitution is apt to be unchangeable.”
�SHOULD IRELAND BE EEDEBATED WITH ENGLAND ?
43
If Congress were made supreme, these evils would be obviated ;
and I believe that the best means for securing the rights of
the people throughout the world is not by any plan of electoral
sovereignty, however valuable it may be in some respects, but
by uniting the r ations under one supreme federal government,
whose combined authority could protect the people of each,
country from tyranny or oppression by their national rulers.
One advantage of making Parliament supreme is that, as
Hobbes remarks, “there needs no writing”, or in other words,
a written constitution is not needed for a sovereign government,
because its powers are infinite and cannot be limited by law ;
and a constitution of this kind, which defines the delegated
powers and can be enforced by the law courts, would be required
only for subordinate bodies. Even where a written constitu
tion assigns to a supreme government, as well as to its subor
dinates, certain functions or makes other conditions, the supreme
government cannot be legally bound by these conditions, since
it can change the constitution. For all these reasons it appears
to me that parliamentary sovereignty is not only compatible
with federalism but is the principle which might best be
adopted in the federal union of different states.
IX.
If Parliamentary sovereignty were adopted as a part of
federalism, and if the central legislature were made supreme, a
federal government such as that of the United States would
resemble much more closely a unified government as in Eng
land, and they would differ chiefly in the extent of the powers
delegated to subordinate bodies. The question of Irish Home
Rule would then be narrowed to the inquiry as to what powers
should be delegated to a subordinate body or bodies in Ireland
by a supreme parliament in which that country was fairly
represented : for the so-called “ colonial form of Home Rule ”,
in which the Irish members would be excluded from the
Imperial Parliament, seems now to be very generally aban
doned. In a letter to Mr. Rhodes in last June, Mr. Parnell
says ; “I think you have correctly judged the exclusion of the
Irish members from Westminster to have been a defect in the
Home Rule measure of 1886”; and in the following July,
Sir George Trevelyan observed that ‘ ‘ two years ago the mass
of the people were not willing to exclude Irish members from
the English Parliament. Now the Liberal party were ready to
keep those members ”. All parties are agreed, moreover, that
the “ minor representative bodies ”, which according to Mr.
�44
FEDERALISM AND UNIFIED GOVERNMENT.
Mill “ ought to exist for purposes that regard only localities ”,
as, for example, Town Councils, and the newly created County
Councils, are of the greatest value, and that the latter should
be extended to Ireland also as soon as circumstances permit.
These minor bodies are the third kind of government by local
representatives to which the term “Home Rule” has been
applied, though it is usually reserved for the larger and more
important assemblies coming under the designation of parlia
ments or legislatures. The real question at issue, therefore, in
respect to Home Rule, is whether or not there should be a
separate Irish Parliament on the federal model; and it should
be borne in mind that while a state legislature in the United
States is independent of Congress, and is a member of the
ultimate sovereign government, the Irish parliament would be
purely subordinate or subject to the Imperial parliament, sup
posing the latter to continue as at present a sovereign body.
As regards the question of an Irish parliament, which lies at
the bottom of the recent controversies, I confess it appears to me
that the present system of unified government in these islands
is a preferable one. Unification seems to me better than federa
tion, except in cases where the countries to be united are very
distant from one another, or where their inhabitants speak
different languages, and it is chiefly, I think, by overcoming
these two great obstacles to political union that the federal
system is such an incalculable blessing to mankind. It also
renders invaluable service as a first step by uniting together
independent nations who, though near neighbors and having
the same language, would not, for various reasons, consent to
give up their national legislatures and to form at once a unified
government, but who may in course of time see cause to do so,
and to become thoroughly incorporated with one another. A
single parliament is a more complete union than a plurality of
parliaments, and in cases which admit of it, seems to me to
have several important advantages.
Mr. Dicey points out, as in his opinion two of the chief
drawbacks or dangers of federalism, the divided allegiance
of the citizens, who owe obedience both to the central govern
ment and to the government of their own state, and the want
of sufficient power in the central legislature to protect un
popular minorities in the different states. “ Federalism ”, he
says. “ has in its very essence, and even as it exists in America,
at least two special faults. It distracts the allegiance of citizens
and, what is even more to the present point, it does not provide
sufficient protection for the legal rights of unpopular minori
ties ”. To these causes, he considers, were greatly due the
terrible civil wars in the United States and in Switzerland, from
the history of which countries it will be seen that “ the two
most successful confederacies in the world have been keDt
�DRAWBACKS AND DANGERS OK FEDERALISM.
together only by the decisive triumph through force of arms of
the central power over real or alleged State rights.” A signal
instance of the want of sufficient protection for minorities and
oppressed classes, is that Congress had no power to abolish
slavery in the Southern States, and its total abolition could only
be effected at the close of the civil war by a special amendment
of the Constitution. It seems, indeed, to be the chief defect of
the federal system as compared with a unified government, that
the primary rules of justice, the rules for the security of person
and property, which concern every one, and which all should
have a voice in framing, are not discussed and settled by the
representatives of the whole people collectively, but only by the
representatives of each separate state; so that the common
will of all is not brought to bear on all, and laws passed by
particular states may be completely opposed to the feelings of
justice and morality in the great majority of the nation. This
defect, however, might to a great extent be remedied if the
•central government were made sovereign or supreme, and if it
were to lay down a set of conditions in the written constitution
granted to each subordinate legislature, to prevent the latter
from oppressing any class or any individual of its subjects.
Such a set of conditions, commonly called a “ bill of rights ”,
exists in the written constitution of every single state in the
American Union, though it is there inserted by the body of
local electors and not by the central government.
Another feature of federalism which seems open to objection
is its tendency unduly to multiply the number of parliaments
and of .legal systems, thus increasing the labor and cost of
legislation, and at the same time making law and government
more complicated. In the United States there were originally
thirteen and are now thirty-eight States, each of which has a
parliament of its own, consisting, like Congress, of a Senate
and a House of Representatives, together with a governor and
executive staff; and this seems a large proportion, even when
we consider the vast size of the country, which is nearly as
extensive as the whole of Europe. Moreover, each of the State
parliaments has substantially the same functions, namely, to
lay down and administer the great bulk of the civil and criminal
law, or in other words, to deal with all subjects of legislation
and administration except the comparatively small number—
including foreign affairs, the army and navy, national finance,
the currency, the post-office, the bankruptcy laws, and other
matters—which are delegated to Congress or to the President
by the constitution. ‘ ‘ The powers not surrendered to the
Government of the United States”, says Mr. Sterne, a barrister
of New York, in his “Constitutional History of the United
States”, “are much more extensive and much more immediately
related to the rights of the individual, and therefore affect him
�46
DRAWBACKS OF FEDERALISM.
more closely, than the delegated powers of the Federal Govern
ment. In all his functions as a citizen—in his amenability to
the deprivation of life and liberty by the criminal law, in the
assertion or denial of his rights through the civil administration
of justice—the State, with but few exceptions, has absolute
control over the life, liberty, and happiness of its subjects.”
Thus the work entrusted to the State legislatures is performed
thirty-eight times while that entrusted to Congress is only
performed once. In England all affairs, both foreign and
domestic, are managed by one parliament ; but if Ireland had
a legislature of her own on the federal model, there would need
to be at least three and not improbably five parliaments in the
United Kingdom; for the Irish members at Westminster could
no longer take part in the domestic legislation of England and
Scotland, and to confine them to debates on Imperial questions
has been shown to be impracticable. The only resource, there
fore, would be to have a parliament for the management of
domestic affairs in Great Britain also, or possibly in each of the
three countries, England, Scotland, and Wales, as well as in
Ireland, and to deal with Imperial questions in a separate
assembly, as is done in all federal countries. Besides the
difficulty of defining the spheres of the central and the local
legislatures, which gives rise to frequent litigation under a
federal constitution, another source of complexity is the
multitude of legal systems created by the different parliaments:
and the branch of jurisprudence called “ private international
law” or the “ law of domicil”, which is due to the difference
of legal systems and deals with the rights and duties of persons
living in other countries or states than their own—as, for
instance, of Scotchmen residing in France, and even in England,
since English law differs from Scotch law—is well known to be
a very important and intricate one. The American Chief
Justice Story, whose work on the “Conflict of Laws” is
devoted to this subject, says : “ The jurisprudence, then,
arising from the conflict of the laws of different nations, in
their actual application to modern commerce and intercourse,
is a most interesting and important branch of public law. To
no part of the world is it of more interest and importance than
to the United States, since the union of a national government
with already that of twenty-six (now thirty-eight) distinct
states, and in some respects independent states, necessarily
creates very complicated private relations and rights between
the citizens of these states, which call for the constant adminis
tration of extra-municipal principles ”. The above seem to m6
some of the chief objections to the adoption of federalism
between Great Britain and Ireland, but they do not apply
to its past history in the United States, where the federal
system has rendered the most immense services, and, consider
�FEDERATION OR MANKIND.
47
ing the size of the country and the international jealousies at
one time existing, is probably the only kind of common govern
ment which the states would have consented to enter into, or
which would have held them together.
X.
The large and increasing numbers, in different countries, who
advocate federation as the only true remedy for war, for huge
armaments, and for the other evils arising from the want of a
common international government, propose therefore that all
nations should be federally united together. In other words,
they hold that all nations should gradually be brought under
one supreme federal government, consisting of representatives
from each of them, who would legislate on the subjects affecting them all in common; and that they should also have
subordinate national governments, consisting exclusively of
nationaljrepresentatives, for the management of their internal
or domestic affairs. M. de Laveleye in his recent work on the
Balkan Peninsula, which has been translated into English,
describes the federal system as “ theoretically the best form of
government ”, and says of it: “ This form of government allows
the formation of an immense and even indefinitely extensible
State, by the union of forces, without sacrificing the special
originality, the individual life, the local spontaneity of the
provinces which compose the nation ”, Under a federal system,
if it were extended throughout the world, all the existing
sovereign governments would become subordinate or subject to
a common supreme government; while the number of subordi
nate legislatures or governments would depend on various
circumstances, and would in the long run, I venture to think,
be chiefly determined by the consideration already alluded to,
namely, that nations who are very distant from one another
or who speak different languages should have separate parlia
ments of their own, but that for near neighbors speaking the
same language it is in several important respects a great ad
vantage to have one unified parliament. The common inter
national government might be elected by the nations in the
same manner as the federal legislatures in the United States or
in Germany: that is to say, supposing it to consist of two
Chambers, one of them might be chosen by the national govern
ments and the other by the body of the people; each State
sending to both Chambers, as in Germany, a number of repre
sentatives approximately in proportion to its population. This
would apply, however, only to civilised or advanced communi
�48
COMPOSITION OP COMMON INTERNATIONAL GOVERNMENT.
ties, between whom there should always be completely equal
federation. Backward and semi-civilised populations, on the
other hand, could not have equal political rights, since their
vast numbers would enable them to outvote all others; but it
seems to me extremely desirable that no people whatever—much
less the great nations of Asia, some of whom are in many
respects highly polished, and are at the present day rapidly in
creasing in enlightenment under the influence of Western ideas
■—should be treated as a mere dependency of another State. All
nations should, I think, be federated together, that is, they
should all have a share both in the common supreme govern
ment and in the national government of their own country;
but with backward communities the federation could at first
only be on unequal terms, gradually changing to equality as the
inhabitants grew in civilisation. The difficulty now felt in
giving the great dependencies a share in the government arises
from the weakness and isolation of the dominant States, who
fear to lose their ascendancy ; but if the latter were themselves
federated with one another this difficulty would disappear, and
all nations could be represented both in the central and in the
local legislatures in such measure as justice and the real in
terests of each people might require.
The common supreme parliament, though containing repre
sentatives of all the nations, would not necessarily be larger
than other parliaments, even if it consisted only of a single
body, as its size would depend on the proportion of members
to the populations who elected them. It would doubtless
consist, however, not of a single assembly but of several as
semblies in different parts of the world, who would act col
lectively and legislate by a majority of their whole number,
like the State legislatures in the United States when they
exercise their sovereign powers ; an arrangement by which the
difficulty of uniting very distant countries might be overcome
and a fuller representation could be allowed to each people.
The other great difficulty, arising from difference of language,
might also be surmounted by this means ; and wherever different
nationalities were included in the same legislature each member
should be allowed to address the assembly in his own language,
as is the rule at present in several legislative bodies. In
Canada, for example, where a million and a half of French
inhabitants are federally united with three millions of English,
either language may be employed in the Dominion Parliament;
in the Cape Parliament, as mentioned in the Government Year
Book for 1888, Dutch may be spoken as well as English; in
the Hungarian Diet the deputies from Croatia may use their
native tongue; and in Switzerland, where about a fourth of
the people speak French, and nearly two-thirds German, both
languages can be employed in addressing the Federal Assembly.
�BALKAN CONFEDERATION.
49
In Austria, which, apart from Hungary, seems to be really a
federal State with a large share of the sovereignty vested in
the Emperor, the nationalities are more mixed than in any
other country of Europe, and there are seventeen local par
liaments, many of them transacting their business in distinct
languages, in addition to the common central parliament, or
Reichsrath, in which, I believe, only German can be employed.
Though there would doubtless be numerous difficulties in
government from these and other causes, the experience of
federal countries shows that they admit of being overcome by
a spirit of fairness and mutual concession, together with a
stedfast respect for law; and even at their greatest they do
not seem to me to bear comparison with the difficulties con
sequent on the “state of nature” or of anarchy now existing
between independent nations, and the perpetual risk of war.
At present, international questions are not treated by the
methods of law and government at all, but by secret diplomacy
and other methods characteristic of the state of anarchy ;
whereas if mankind were federated, secret diplomacy would
be done away with, and international affairs, like all others,
would be openly discussed by parliament and the press, and
settled in a legal and constitutional manner by the vote of
a majority.
It is evident that a change of such vast extent as the federal
-union of all nations could only be effected by successive steps,
and by the gradual federation of independent countries with
each other, and of sovereign states with their dependencies,
throughout the world ; but I cannot think its final accomplish
ment so distant and so extraordinarily or insuperably difficult
as is often supposed. If the dreadful calamity of another
European war be averted, there seem good reasons for believing
that great progress will be made before long in this direction.
The junction of the numerous separate states in Italy and in
Germany, in the one case by a complete and in the other by
a federal union (which are really the same at bottom, since
both consist in the fusion of two or more supreme governments
into one, and in the formation of a single independent and
sovereign state), has shown in the most striking manner the
enormous benefits of political union; and Mr. Freeman, the
distinguished historian, speaks of the change thus effected as
“the greatest event of our times
If the states in Italy and
in Germany have united together, and thereby greatly increased
their strength and national importance, their security from
attack, and the feelings of sympathy and brotherhood among
the people as fellow-countrymen, why may not other European
states unite with like results ? Many of our most eminent
politicians, both Liberal and Conservative, have declared them
selves in favor of a federation between Turkey, Greece, Bui
'S
�50
IMPERIAL FEDERATION.
garia, and other countries of the Balkan Peninsula ; which
shows that they regard as perfectly feasible the union of nations
who are separated by the widest differences in religion and in
language, and by the memory of ages of war and oppression.
M. de Laveleye warmly advocates a Balkan Confederation as
the.true solution of the Eastern question, and says that it is
desired by the people of the countries themselves as well as by
Austria-Hungary and by the English Liberals. “ This solution,
so just and natural ”, he says, “ has been for many years
advocated by the English Liberals. It is the only one which
is conformed to the right of the populations to govern them
selves, and which avoids giving a dangerous preponderance to
one of.the two large neighboring empires.” What hinders the
execution of this project is no want of feasibility, but the
opposition of Russia, whose aim for generations has been to
keep Turkey and the neighboring states weak and divided, so
that she may seize the magnificent city of Constantinople.
Other countries whose federation seems especially desirable
at. present, and comparatively easy to effect from their near
neighborhood and the identity or affinity of their languages,
are the three Scandinavian kingdoms of Norway, Sweden, and
Denmark; the kingdoms occupying the third great peninsula
of southern Europe, Spain and Portugal ; and the numerous
independent Spanish republics in North and South America,
whose separation from one another, and the state of nature or
anarchy thus produced between them, have led to the most
frightful evils in the shape of constant wars and revolutions.
Political union is evidently most needed and most easily carried
out between contiguous nations and those having the same
language, from the frequency of their intercourse together;
and hence each people should strive above all to be united
with their nearest neighbors and with those akin to themselves
in race and language in other parts of the globe. It is also
much easier to effect a federation between a sovereign state and
its dependencies than between independent countries, for the
former are already united under the same government, and to
the dependencies federation is a manifest gain ; while it is not
less important to the interests of the dominant state, for in thepresent day, when the great ideas of national equality and the
equal rights of nations are spreading far and wide, no empire
can long be held together on the footing of a sovereign state
and dependencies, but if not federated will assuredly fall to
pieces. This tendency to promote federation shows the great
value to mankind at large, and not merely to the dominant
nations themselves, of vast empires such as those of Russia and
England. The policy which the truest friends and admirers of
Russia would wish to see her pursue is not to engage in aggres
sive wars which might end in her own overthrow, but legally
�FEDERAL UNION OF FRANCE AND ENGLAND.
51
-and peacefully, or without revolution, to change by degrees her
present absolute monarchy into a constitutional and representa
tive system of government, and to federate her immense domin
ions. In England the extraordinary importance of Imperial
Federation, or, in other words, the federation of the British
Isles with their colonies, and eventually with India and the other
great dependencies, is recognised by statesmen of all political
parties, and Lord Rosebery lately declared the hope of its
accomplishment to be “ the dominant passion of his public
life ”. The colonies themselves are desirous of being federally
united with the mother country; and meanwhile, as statfid in
the Government Year Book, “ the federation of colonial groups
into dominions has made good progress. The confederation of
British North America is all but complete. That of Australasia
■is, accomplished in part; and in all probability the South
African settlements will follow suit.” It is not for themselves
alone, but for mankind, that Russia and England would
■federate their empires, since other nations would doubtless
sooner or later be admitted, and urgently invited, to join the
federation.
But of all political unions, that which seems to me most
important at present, and most ardently to be desired, is the
federal union of France and England. The statesmen who
could bring it about would render an inestimable service to both
countries, and inaugurate a new era of peace and fraternity,
for in itself and by its probable consequences it would go far
^towards making the federation of mankind, instead of a remote
ideal, an actual and accomplished fact. The advantages to this
•country of such a union, and the weight of the reasons in its
favor, cannot, I think, be exaggerated. The French are our
nearest neighbors; they are one of the bravest and most power
ful, and at the same time most highly cultivated, quick-witted,
■and charming nations on the face of the earth; a nation whom
■any people might be delighted to have as fellow-countrymen.
From its proximity to England, France is the country with
■which we mu3t always have most frequent intercourse, and
with which therefore a union is most of all required; Paris and
London are nearer together than any other great capitals, and
indeed if the project of a Channel Tunnel were carried out, as
■could safely be done if the countries were united, the journey
from London to Paris might be performed, without the dis
comforts of a sea voyage, in about seven hours. Our language,
though of Teutonic origin, has become since the Norman
Conquest so intimately mixed with the French that the latter
is easier for an Englishman to acquire than German, and there
ure probably twenty persons among us who know French for
■one who is acquainted with any other continental language.
'.The strength and resources of the two countries if united
�52
!1
,
)
;
(
'
i's
|(
u
If
FEDERAL UNION OF FRANCE AND ENGLAND.
would be twice as great as of either of them singly; Franc®
would gain England, and England would gain France; and
what is particularly important for countries having distant
possessions of such enormous extent (since the colonies and
dependencies of each nation would then belong to both) their
combined navy would have nothing to fear from any foreign,
foe. Moreover, the paramount reason for every political union,
whether of individuals or of nations, is that it puts an end to
the state of nature or anarchy previously existing between
them, and substitutes for it the reign of government and law.
Mr. Dicey remarks that a separation from Ireland would entail
upon England three great evils, namely, a defeat and surrenderof her traditional policy, a loss of power, and “the incalculable
evil of the existence in the neighborhood of Great Britain of a
new, a foreign, and possibly a hostile state”. Is not theseparation of France and England exactly in the same way am
“incalculable evil ” to both countries ?
It appears to me that the union of France with the United
Kingdom would tend to settle the Irish question and to bring
about a thorough and permanent reconciliation with Ireland ;
that it would strengthen the foundations of the Empire, whosemaintenance is of such vast importance, and for whose complete
security against any hostile attack England urgently needs a
partner; that it would render feasible Imperial Federation or
federation with the colonies, and not improbably also a federalunion with our kinsmen and former fellow-countrymen in the
United States, both of which objects, however ardently to be
desired, are at present surrounded with difficulties that seem
to me insuperable; and that it would enable a share in the
government, in the form of an unequal federation, to be granted
without danger to India and the other great dependencies. It would do' more than almost anything else to convince the Irish.
Nationalists that separation from Great Britain is neither
practicable nor desirable, and that “ national independence ”,
in the sense of a separate supreme government, is only anothername for the state of nature or anarchy between nations, and
opposed to the most vital interests of all. Indeed, if we consider
the matter closely, it will appear, I think, that political unioni
and government are not at bottom founded on what can pro-perly be called a contract or consent, but on a moral duty, namely,
the duty of the minority, when opinions differ, to yield to the
majority (which does not mean that the less numerous nation
should yield to the more numerous, but that the minority of '
both nations taken together should yield to the majority) since
this is at once just in itself, and the only way to secure peaceamong mankind. Moreover, France has at different times beem
allied with Ireland, and was for centuries the ally of Scotland,
in their wars against England; and she is a Roman Catholic:
�FEDERAL UNION OF FRANCE AND ENGLAND.
52
country, and a country of peasant proprietors, which, circum
stances might be expected to aid in overcoming the hostility of
the Irish priesthood and the Irish peasantry, and in enabling
them to obtain the fullest satisfaction of all their legitimate
rights and demands. As regards the federation of England
with the colonies and with the United States, it seems to me that
an insurmountable obstacle to this at present is the unwilling
ness of the latter countries to incur the risk of being involved
in European wars, and obliged therefore, like the nations of
Europe, to maintain huge standing armies and navies. Mr.
Washburne, late Minister of the United States in France, ob
serves : “It had been the traditional policy of our Government
to keep out of all entangling alliances with foreign govern
ments”. Mr. Sterne also, a barrister of New York, from whose
work I have already quoted, says: “Unlike the nations of
Europe, the United States has no neighbor sufficiently powerful
to affect its policy or to modify its constitution. It requires no
standing army : and so long as England performs the police
duties of the seas, it requires but little of a navy.” Why
should the United States, whose standing army is only twenty
thousand strong, and why should the colonies, mix themselves
up with the politics of a continent groaning under the weight
of ten millions of armed men ? But if France and England
were united, the situation would be entirely changed. Their
union would be a guarantee for peace, insomuch that both the
colonies and the United States might safely federate with them,
thus adding immensely to the strength and security of the con
federation and promoting the spread of liberal ideas and re
presentative government throughout the world. One very
powerful motive for union arises from the peculiar circumstances
of Canada. The French are already federally united with the
English in Canada, and if they were similarly united in Europe
the colony would be attracted with double force to the two mother
countries; while the United States also has long been urgently
desirous of federating with Canada, and it is evident that the
only way to satisfy all these deeply-rooted desires is by the
federation of all the four countries together. This would secure
peace in Europe, not only by the union of so many powerful
and peace-loving nations, but by showing how much greater
results can be obtained by political union than by the terrible
weapons of war. If all wars and conquests are to end sooner
or later in federation, why not rather begin with federation and
spare these horrors and miseries to mankind ?
Whatever other nations may do, however, our own policy
in my humble opinion should be to seek a federal union with
France. It would lighten our difficulties, lead to peace and
concord, and tend most powerfully to promote federation and
to solve the problems of government in everv part of the world.
�54
FEDERAL UNION OF FRANCE AND FISTULA nd,
I would conclude with, the words of the great thinker, Thomas
Hobbes, who may be regarded as in many respects the founder
o<f the true theory of law and government, and who says that
‘ the condition of mere nature, that is to say, of absolute
liberty, such as is theirs that neither are sovereigns nor sub
jects, is anarchy and the condition of war ”, whereas “ all other
time is Peace ”,
�
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Victorian Blogging
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A collection of digitised nineteenth-century pamphlets from Conway Hall Library & Archives. This includes the Conway Tracts, Moncure Conway's personal pamphlet library; the Morris Tracts, donated to the library by Miss Morris in 1904; the National Secular Society's pamphlet library and others. The Conway Tracts were bound with additional ephemera, such as lecture programmes and handwritten notes.<br /><br />Please note that these digitised pamphlets have been edited to maximise the accuracy of the OCR, ensuring they are text searchable. If you would like to view un-edited, full-colour versions of any of our pamphlets, please email librarian@conwayhall.org.uk.<br /><br /><span><img src="http://www.heritagefund.org.uk/sites/default/files/media/attachments/TNLHLF_Colour_Logo_English_RGB_0_0.jpg" width="238" height="91" alt="TNLHLF_Colour_Logo_English_RGB_0_0.jpg" /></span>
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Conway Hall Library & Archives
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2018
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Conway Hall Ethical Society
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Home rule and federation : with remarks on law and government and international anarchy, and with a proposal for the federal union of France and England, as the most important step to the federation of the world
Creator
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Drysdale, George
Description
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Place of publication: London
Collation: 54 p. ; 18 cm.
Notes: Part of the NSS pamphlet collection. By 'A doctor of medicine'. Author's name handwritten in pencil on title page.
Publisher
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E. Truelove
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1889
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N194
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Ireland
Anarchism
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<img src="http://i.creativecommons.org/p/mark/1.0/88x31.png" alt="Public Domain Mark" /><br /><span>This work (Home rule and federation : with remarks on law and government and international anarchy, and with a proposal for the federal union of France and England, as the most important step to the federation of the world), identified by </span><span><a href="https://conwayhallcollections.omeka.net/items/show/www.conwayhall.org.uk">Humanist Library and Archives</a></span><span>, is free of known copyright restrictions.</span>
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application/pdf
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Text
Language
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English
Anarchism
Federalism
Great Britain-Foreign Relations-France
Home Rule-Ireland
NSS