CHAPTER X

THE NATURE OF THE COMPOSITE STATE

THE facts that seem especially to contradict the principles that have been above evolved in reference to the subject of Sovereignty, are those presented by types of Composite, or so-called Federal States. In these political forms appear to be, and by many publicists are recognized to be, examples of States with divided or limited Sovereignty, of non-sovereign States, and of States created by the joint action of other States. So important in the modern world has become this federal type of State life, that it is worth our while to consider at some little length the problems in political theory to which it gives rise. Just as in the Middle Ages the tendency was towards feudalism, and in the fifteenth and sixteenth centuries towards absolutism, so at the present time the movement seems towards Federalism. In Europe we see the federal empire of Germany, the dual empire of Austria-Hungary, the dual kingdom of Norway and Sweden, the Swiss Federation, and the more or less close unions between the various nationalities of the Balkan Peninsula and the other powers. In South America are to be seen the Brazilian and other Federations; in North America, Mexico, and the Dominion of Canada, with their essentially federal

features, and, above all, our own federal Union. The drift towards federalism is also strongly exhibited in the English government of Australasia. Already several of her provinces have joined in federal bonds, and a movement towards an imperial federation of all the English possessions is believed by many to be steadily gaining ground. The strength of the federal movement in general depends upon the means that it affords for satisfying the demands of local or national particularism, and, at the same time, for obtaining unity of political action between Peoples allied by economic, historical, or ethnic interests.

So difficult of classification and interpretation have become many of the phenomena connected with these federal forms, that many writers have been wont to escape from their perplexity by considering this type of political life as sui generis, and as such to be interpreted by laws other than those that apply to ordinary forms. Such a conclusion as this is, however, an obviously fatal objection to any system of political philosophy. If a philosophical system be correct, its laws must be universally applicable, and this is as true in the field of political phenomena, as it is in other domains of fact. It is incumbent upon us, therefore, to apply the principles which we have evolved to the federal form of State life, as well as to other forms, and thereby to demonstrate that the apparent incongruities which the former exhibits are apparent rather than real. The success with which this undertaking

is accomplished will determine in a large measure the correctness of the conclusions which we have drawn.

The problem of properly classifying and designating the various unions into which the States of the world have at different times entered, is one that has especially attracted the attention of German publicists. The most important work in this field is that of Jellinek, entitled Die Lehre von den Staatenverbindungen, which we have already had occasion to cite. Other works are those of Brie,' Westerkamp2 and Waitz.3 This subject is also of course considered by all writers dealing particularly with the public law of the German Empire. The work of Laband is especially valuable in this respect. Those American writers who have dealt with the constitutional character of their own States, have generally limited themselves to a consideration of the differences between a "Federal State" and a "Confederacy."

4

Jellinek, in his classification of unions, makes the first division into Unorganized and Organized Unions.

1 Theorie der Staatenverbindungen.

2 Staatenbund und Bundesstaat.

8 Das Wesen des Bundesstaat, contained in his Grundzüge der Politik.

4 Das Staatsrecht des Deutschen Reiches.

5 Professor A. B. Hart has a monograph entitled, " An Introduction to the Study of Federal Government" (Harvard Univ. Historical Monographs, No. 2) which is rich in bibliographical matter. The work is, however, descriptive and comparative, rather than theoretical. It might also be said that the work of the English historian Freeman entitled Federal Government, is limited to an historical examination of the Grecian types.

These names serve to indicate the distinction that is made between the two classes. In the first class are included instances in which more or less permanent relations between States have been entered into for the regulation of certain mutual interests, but in which no central organization has been created. Such common action as is necessary in these unions is had through one or all of the governmental organs of the individual States. Of course there is not created in any of such cases what would be called a composite State, even by those publicists who use the term "non-sovereign State." Within this category fall such types as "Alliances" for offence or defence, and for the guarantee of particular rights; as, for example, perpetual neutrality of particular territories, etc. Within this class Jellinek also places that type which he terms the Staatenstaat, or that form of union in which there is a superior and an inferior State or States, the latter receiving the orders from the former as from a foreign power, and the citizens of the inferior States owing allegiance only to their own State. The most conspicuous historical examples of this type have been the feudal States of the Middle Ages and the old German Empire. Of this nature are also the relations between the Ottoman Porte and some of his Christian Provinces; as well as the relation between our own State and some of the Indian tribes. Of this order is also the relation of Egypt and Turkey, of Japan and some of the Javanese principalities, and of Nicaragua and the Mosquito Indians. All of

the above unions Jellinek designates as unorganized unions of a juristic character (Nichtorganisirte Verbindungen mit juristischen Charakter).

We may properly ask ourselves, however, whether these "Alliances" constitute in any proper sense of the word, unions of States. Every international treaty provides for the regulation of certain interests in common, or according to conditions mutually agreed upon. In the above mentioned instances there is not the first beginning made or step taken toward the fusion of the contracting States. Certainly, at any rate, they cannot be designated as unions of a juristic character, for, as our previous analysis has shown, treaty relations are not of this character.1

Coming now to "Organized Unions" Organized Unions" we find established in them, as their name imports, permanent central organs. They admit of segregation into four classes, as follows: (1) International Administrative Unions, (2) The Realunion, (3) The Staatenbund (Confederacy), (4) The Bundesstaat (Federal State).

Examples of the first sub-class are combinations of States for the common regulation of particular interests wherein permanent administrative authorities are created. Of this kind are the commissions for the regulation of navigation upon the rivers Po and Danube, and the international Postal and Telegraph Unions. There is the same objection to considering these as types of unions of States, that

1 Upon this point, compare Gareis, Allgemeines Staatsrecht, pp.