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When this is done, the government is called a "representative democracy" or "republic." By the use of the representative principle, the territory which may be united into a single democratic state is practically unlimited.
§ 14. Confederation of States. A confederation of states, or a confederacy, is the name applied to a number of states which have, by treaty, agreed to act in common concerning certain specified matters. A confederacy is a mere league of states. Each state retains its full sovereignty, and therefore no sovereign power is vested in the confederacy itself.
§ 15. The Modern Federal State. A federal state, on the other hand, exists where several states have surrendered to a permanent central government full power in certain matters of a common interest, retaining in themselves only a power limited to such affairs as are not within the jurisdiction of the central government. The federal state is a permanent political organization, while a confederation, depending upon treaty, may be discontinued by the withdrawal of the states which form it. Such a withdrawal is called "secession." In the American Civil War the principal issue was whether the United States constituted a federal state or a mere confederacy. If the latter, any State might rightfully withdraw from the Union at any time when, in its opinion, the terms of the treaty of confederation were broken. If, however, the Union was a federal state, it was as permanent as the individual States themselves.
§ 16. The Branches of Government. The government performs its functions through the establishment and execution of laws. It has been thought necessary for the attainment of the highest excellence in the performance of these functions that the duties of making, applying, and executing the laws should be distributed between different bodies of officers; hence most of the leading states have three different branches of government, called the "legislative," "judicial," and "executive " branches, respectively.
The legislative branch or department of government is the department whose duty and power it is to establish laws.
The judicial department is that department whose power and duty it is to interpret the law, and apply it to particular cases. We have seen that a law is in the nature of a rule. It is the judicial duty to show the application of this rule to a particular state of facts.
The executive department is the department which has for its function the execution of the laws. The execution of the laws may consist merely of carrying out the instructions of the judicial power in the fulfilment of the sanctions of the law, or it may be a direct compliance with the instructions of the legislative
branch of the government. Executive officers are now the servants of one, now of the other, department. Let us suppose, to illustrate the latter class of executive function, that the legislature. pass a law providing for the stocking of a certain river with fish. It is hardly probable that such a law would ever come before the judiciary for interpretation and application. It is executed, therefore, by some executive officer a fish commissioner, perhaps actually putting the fish into the river.
B. GOVERNMENT IN THE UNITED STATES
§ 17. General Character of United States Government. The United States is a noted example of a pure federal state. It is composed of organized communities, technically called "States," so united under a general national government that, while each individual State retains control over its own local affairs, and is supreme as to those affairs, yet the general government is permanent and supreme as to certain matters delegated to it. In other words, the United States constitution is not a mere compact or treaty of confederation between the States, but an instrument creating a government on such a plan that the nation and the States are both supreme, the former in matters of a national character, the latter in all other matters; and the question what matters are to be regarded as of a national character is answered in the constitution itself. The form of both the national and State governments is that of representative democracy or republic. 18. The Colonial Government. Previous to 1776, the inhabited portion of the territory now occupied by the United States was divided among thirteen colonies, all of which were under the governmental control of England. The colonies were allowed certain rights of self-government, most of them having a local legislative body, whose laws might, however, be defeated by the royal governor of the colony by a mere refusal of his assent to them. The English parliament reserved and exercised the right to legislate for the colonies whenever it saw fit to do so. Each colony was distinct in its government from every other, but they had at various times sent delegates to general conventions or congresses which were called for the purpose of discussing provisions for their common defense against the Indians and other matters pertaining to the general welfare. It was not till 1774, however, that a regular series of these assemblies began, under the name of "Continental Congresses"; and it was one of these congresses which, in 1776, as representatives of the people of the colonies, issued the Declaration of Independence. In this instru
ment the colonies formally renounced all allegiance to the British
19. Revolutionary Government and Articles of Confederation. The Articles of Confederation consisted of a mere compact between the States, in which it was plainly stated that "each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not, by this confederation, expressly delegated to the United States in congress assembled." During the early part of the war which followed the Declaration of Independence, such government as the new States had was exercised by the continental congress. This form of rule was revolutionary, and somewhat unstable in its character. The need was soon felt for a stronger form of government. The first effort to meet this need was the adoption of the Articles of Confederation. Under these articles, the confederation was a loose league between the States. It was soon found that the general government did not have sufficient power to adequately perform its functions; and this led to the adoption of the constitution.
§ 20. The United States Constitution. A recognition of the deficiency of the Articles of Confederation led to the summoning of
8. The enacting clause of the decla ration was as follows: We, therefore, the representatives of the United States of America, in general congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies, solemnly publish and declare that these united colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown; and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent States, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor."
9. Judge Cooley sums up the defects of the Articles of Confederation in a singularly concise manner: "The confederation was given authority to make laws on some sub
jects, but it had no power to compel obedience. It might enter into treaties and alliances which the States and the people could disregard with impunity. It might apportion pecuniary and military obligations among the States in strict accordance with the provisions of the articles; but the recognition of the obligations must depend upon the voluntary action of thirteen States, all more or less jealous of each other, and all likely to recognize the pressure of home debts and home burdens sooner than the obligations of the broader patriotism involved in fidelity to the Union. It might contract debts, but it could not provide the means for satisfying them. In short, it had no power to levy taxes, or to regulate trade and commerce, or to compel uniformity in the regulations of the States. The judgments rendered in pursuance of its limited judicial authority were not respected by the States. It had no courts to take notice of infractions of its authority, and it had no executive. It became at last difficult to enlist sufficient interest in its proceedings to keep up the forms of gov ernment through the meetings of congress and of the executive committee." Cooley Const. Law 15.
a convention of delegates from the several States to meet in Philadelphia in May, 1787, for the purpose of revising the articles. Instead of a mere revision of them, however, it was thought best by the delegates to formulate a new plan of government. Accordingly, they prepared the instrument which was then called and is still referred to as the "Constitution of the United States of America." This constitution was adopted by the States and went into effect March 4, 1789. The constitution, as above stated, is therefore a purely written constitution. It is not limited by any unwritten rules except those relating to its interpretation. Many countries, like England, for example, have what is called "unwritten constitutions," by which is meant that their governments are regulated by rules which are not embodied in any one formal document. These rules are traditional or customary, and, although they are sometimes reduced to writing, in the historical papers and records of the nation, such records are usually fragmentary, and valuable only as evidence of what the rules are, rather than as having any intrinsic authority. In the United States, however, the constitution is the source of all governmental regulations. The constitution of the United States created a strong central government, which is known as the "Federal Government." Each State, in adopting it, surrendered to this central government a portion of its authority. Among the various functions which are thus delegated to the federal government are the conduct of all international affairs;10 the carrying on of war; the regulation of foreign and interstate commerce; the coinage of money; the conduct of a postal system; patent and copyright matters; and various other functions which pertain to the nation at large, rather than to any one locality.11
§ 21. Relation of the State and Federal Governments. The powers of the federal government in the United States are limited to those granted to it either expressly or by implication in the United States constitution. All other powers are reserved to the State governments.
The federal constitution contains a grant of powers to the central government. There have been various views entertained as to the proper interpretation to be applied to the instrument; but
10. All international affairs being within the control of the general government, foreign nations do not recognize the individual States as sovereign nations; yet, although that portion of the sovereignty which pertains to foreign relations is exercised through the federal government, the sovereignty in respect to all matters of mere local importance finds its ex
ercise through the state governments. The sovereignty itself is, of course, in the people; but the people have ordained that it shall be exercised through two different instruments,the federal and the State governments.
11. As to the constitution of the United States see infra, § 40.
it is now generally agreed that its construction should be liberal; that the federal government should be allowed to exercise, not only the powers expressly delegated to it, but also all those incidental powers necessary to carry the express powers into execution. The constitution also contains certain restrictions on the powers of the several States; for example, the rule that no ex post facto12 law shall be passed.13
The State and the federal governments are two distinct parts of the same system. They are vitally united, yet so distinct in their powers that there is no conflict in the exercise of their functions. A particular citizen owes allegiance to the federal government in national matters alone. In all other matters he is under the control of his own State. There is ordinarily no appeal in local affairs from the State to the national government. The decisions of the State courts on matters pertaining to those affairs are supreme so long as they do not encroach upon the powers delegated to the United States or violate the United States constitution. In other words, the State is not a mere instrument of government established by and under the control of the federal government, but is an independent political organization, equally as permanent, equally as supreme in matters within its jurisdiction, as the general government itself.
§ 22. Sovereignty in the United States. It is a fundamental theory in the United States that sovereignty is in the people; that all governmental powers reside primarily in the whole body of United States citizens.14 This sovereign body, however, exercises
12. An ex post facto law is one which acts retrospectively, making a certain deed criminal which was not so when it was performed. See 8 Cyc. 1027.
13. See infra, § 40.
14. The powers of the general government, it has been said, are delegated by the States, who alone are truly sovereign, and must be exercised in subordination to the States, who alone possess supreme dominion. It would be difficult to sustain this proposition. The convention which framed the constitution was, indeed, selected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing congress of the United States, with a request that it might 'be submitted to a convention of delegates chosen in each State by the people thereof, under the recommen
dation of its legislature, for their assent and ratification.' This mode of proceeding was adopted; by the convention, by congress, and by the State legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely on such a subject,- by assembling in convention. It is true, they assembled in their several States; and where else would they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one mass. Of consequence, when they act they act in their States. But the measures they adopt do not on that account cease to be the measures of the people themselves, or become the measures of the State governments.
"From these conventions the constitution derives its whole authority.