CHAPTER II

THE NATION AND THE STATES

A FEW years ago the American Protestant Episcopal Church was occupied at its annual Convention in revising its liturgy. It was thought desirable to introduce among the short sentence prayers a prayer for the whole people; and an eminent New England divine proposed the words "O Lord, bless our nation." Accepted one afternoon on the spur of the moment, the sentence was brought up next day for reconsideration, when so many objections were raised by the laity to the word "nation," as importing too definite a recognition of national unity, that it was dropped, and instead there were adopted the words "O Lord, bless these United States."

To Europeans who are struck by the patriotism and demonstrative national pride of their transatlantic visitors, this fear of admitting that the American people constitute a nation seems extraordinary. But it is only the expression on its sentimental side of the most striking and pervading characteristic of the political system of the country, the existence of a double government, a double allegiance, a double patriotism. America -I call it America (leaving out of sight South America, Canada, and Mexico), in order to avoid using at this stage the term United States-America is a Commonwealth of commonwealths, a Republic of republics, a State which, while one, is nevertheless composed of other States even more essential to its existence than it is to theirs.

This is a point of so much consequence, and so apt to be misapprehended by Europeans, that a few sentences may be given to it.

When within a large political community smaller communities

are found existing, the relation of the smaller to the larger usually appears in one or other of the two following forms One form is that of a League, in which a number of political bodies, be they monarchies or republics, are bound together so as to constitute for certain purposes, and especially for the purpose of common defence, a single body. The members of such a composite body or league are not individual men but communities. It exists only as an aggregate of communities, and will therefore vanish so soon as the communities which compose it separate themselves from one another. Moreover it

Ideals with and acts upon these communities only. With the individual citizen it has nothing to do, no right of taxing him, or judging him, or making laws for him, for in all these matters it is to his own community that the allegiance of the citizen is due. A familiar instance of this form is to be found in the Germanic Confederation as it existed from 1815 till 1866. The Hanseatic League in medieval Germany, the Swiss Confederation down till the present century, are other examples.

In the second form, the smaller communities are mere subdivisions of that greater one which we call the Nation. They have been created, or at any rate they exist, for administrative purposes only. Such powers as they possess are powers delegated by the nation, and can be overridden by its will. The nation acts directly by its own officers, not merely on the communities, but upon every single citizen; and the nation, because it is independent of these communities, would continue to exist were they all to disappear. Examples of such minor communities may be found in the departments of modern France and the counties of modern England. Some of the English counties were at one time, like Kent or Dorset, independent kingdoms or tribal districts; some, like Bedfordshire, were artificial divisions from the first. All are now merely local administrative areas, the powers of whose local authorities have been delegated from the national government of England. The national government does not stand by virtue of them, does not need them. They might all be abolished or turned into wholly different communities without seriously affecting its structure.

The American Federal Republic corresponds to neither of these two forms, but may be said to stand between them. Its central or national government is not a mere league, for it does not wholly depend on the component communities which we call

the States. It is itself a commonwealth as well as a union of commonwealths, because it claims directly the obedience of every citizen, and acts immediately upon him through its courts and executive officers. Still less are the minor communities, the States, mere subdivisions of the Union, mere creatures of the national government, like the counties of England or the departments of France. They have over their citizens an authority which is their own, and not delegated by the central government. They have not been called into being by that government. They existed before it. They could exist without it.

The central or national government and the State governments may be compared to a large building and a set of smaller buildings standing on the same ground, yet distinct from each other. It is a combination sometimes seen where a great church has been erected over more ancient homes of worship. First the soil is covered by a number of small shrines and chapels, built at different times and in different styles of architecture, each complete in itself. Then over them and including them all in its spacious fabric there is reared a new pile with its own loftier roof, its own walls, which may perhaps rest on and incorporate the walls of the older shrines, its own internal plan.1 The identity of the earlier buildings has however not been obliterated; and if the later and larger structure were to disappear, a little repair would enable them to keep out wind and weather, and be again what they once were, distinct and separate edifices. So the American States are now all inside the Union, and have all become subordinate to it. Yet the Union is more than an aggregate of States, and the States are more than parts of the Union. It might be destroyed, and they, adding a few further attributes of power to those they now possess, might survive as independent self-governing communities.

This is the cause of that immense complexity which startles and at first bewilders the student of American institutions, a complexity which makes American history and current American politics so difficult to the European, who finds in them phenomena to which his own experience supplies no parallel. There are two loyalties, two patriotisms; and the lesser patriotism, as the

1 I do not profess to indicate any one building which exactly corresponds to what I have attempted to describe, but there are (besides the Church of the Holy Sepulchre at Jerusalem) several both in Italy and in Egypt that seem to justify

the simile.

incident in the Episcopal Convention shows, is jealous of the greater. There are two governments, covering the same ground, commanding, with equally direct authority, the obedience of the same citizen.

The casual reader of American political intelligence in European newspapers is not struck by this phenomenon, because State politics and State affairs generally are seldom noticed in Europe. Even the traveller who visits America does not realize its importance, because the things that meet his eye are superficially similar all over the continent, and that which Europeans call the machinery of government is in America conspicuous chiefly by its absence. But a due comprehension of this double organization is the first and indispensable step to the comprehension of American institutions: as the elaborate devices whereby the two systems of government are kept from clashing are the most curious subject of study which those institutions present.

How did so complex a system arise, and what influences have moulded it into its present form? This is a question which cannot be answered without a few words of historical retrospect. I am sensible of the danger of straying into history, and the more anxious to avoid this danger, because the task of describing American institutions as they now exist is more than sufficiently heavy for one writer and one book. But an outline, a brief and plain outline, of the events which gave birth to the Federal system in America, and which have nurtured national feeling without extinguishing State feeling, seems the most natural introduction to an account of the present Constitution, and may dispense with the need for subsequent explanations and digressions. It is the only excursion into the historical domain which I shall have to ask the reader to make.

VOL. I

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CHAPTER III

THE ORIGIN OF THE CONSTITUTION

WHEN in the reign of George III. troubles arose between England and her North American colonists, there existed along the eastern coast of the Atlantic thirteen little communities, the largest of which (Virginia) had not more than half a million of free people, and the total population of which did not reach three millions. All owned allegiance to the British Crown, all, except Connecticut and Rhode Island, received their governors from the Crown;1 in all, causes were carried by appeal from the colonial courts to the English Privy Council. Acts of the British Parliament ran there, as they now run in the British colonies, whenever expressed to have that effect, and could over-rule such laws as the colonies might make. But practically each colony was a self-governing commonwealth, left to manage its own affairs with scarcely any interference from home. Each had its legislature, its own statutes adding to or modifying the English common law, its local corporate life and traditions, with no small local pride in its own history and institutions, superadded to the pride of forming part of the English race and the great free British realm. Between the various colonies there was no other political connection than that which arose from their all belonging to this race and realm, so that the inhabitants of each enjoyed in every one of the others the rights and privileges of British subjects.

When the oppressive measures of the home government roused the colonies, they naturally sought to organize their resistance in common.2 Singly they would have been an easy prey, for it was

1 In Maryland and Pennsylvania, however, the governor was, during the larger part of the colonial period, appointed by the "Proprietor."

2 There had been a congress of delegates from seven colonies at Albany in 1754 to deliberate on measures relative to the impending war with France, but this, of