View of the Constitution of the United States. St. George Tucker
these essential powers for both, they are then one state: such is the state of England and Scotland, since the act of union made at the beginning of the eighteenth century, whereby the two kingdoms were incorporated into one, all parts of the supreme power of both kingdoms being henceforward united and vested in the three estates of the realm of Great Britain: by which entire coalition, though both kingdoms retain their ancient laws and usages in many respects, they are as effectually united and incorporated, as the several petty kingdoms, which composed the heptarchy, were before that period.
But when only a portion of the supreme civil power is vested in one person, or council for both, such as that of peace and war, or of deciding controversies between different states, or their subjects, whilst each state within itself exercise other parts of the supreme power, independently of all the others; in this case they are called systems of states: which Burlamaqui defines to be an assemblage of perfect governments, strictly united by some common bond; so that they seem to make but a single body with respect to those affairs which interest them in common, though each preserves its sovereignty full and entire, independently of all the others. … And in this case, he adds, the confederate states engage to each other only to exercise with common consent, certain parts of the sovereignty, especially those which relate to their mutual defense, against foreign enemies. But each of the confederates retains an entire liberty of exercising as it thinks proper, those parts of the sovereignty, which are not mentioned in the treaty of union, as parts that ought to be exercised in common. And of this nature is the American confederacy, in which each state has resigned the exercise of certain parts of the supreme civil power which they possessed before (except in common with the other states included in the confederacy) reserving to themselves all their former powers, which are not delegated to the United States by the common bond of union.
A visible distinction, and not less important than obvious, occurs to our observation in comparing these different kinds of union. The kingdoms of England and Scotland are united into one kingdom; and the two contracting states by such an incorporate union are, in the opinion of Judge Blackstone, totally annihilated, without any power of revival; and a third arises from their conjunction, in which all the rights of sovereignty, and particularly that of legislation, are vested. From whence he expresses a doubt whether any infringements of the fundamental and essential conditions of the union, would of itself dissolve the union of those kingdoms, though he readily admits, that in the case of a federate alliance, such an infringement would certainly rescind the compact between the confederate states. In the United States of America, on the contrary, each state retains its own antecedent form of government; its own laws, subject to the alteration and control of its own legislatures, only; its own executive officers, and council of state: its own courts of judicature, its own judges; its own magistrates, civil officers, and officers of the militia; and, in short, its own civil state, or body politic, in every respect whatsoever. And by the express declaration of the twelfth article25 of the amendments to the constitution, the powers not delegated to the United States by the constitution, or prohibited by it to the states, are reserved to the states respectively, or to the people. In Great Britain, a new civil state is created by the annihilation of two antecedent civil states; in the American States, a general federal council, and administrative, is provided, for the joint exercise of such of their several powers, as can be more conveniently exercised in that mode, than any other; leaving their civil state unaltered; and all the other powers, which the states antecedently possessed, to be exercised by them, respectively, as if no union, or connection were established between them.
The ancient Achaia seems to have been a confederacy founded upon a similar plan; each of those little states had its distinct possessions, territories, and boundaries, each had its senate, or assembly, its magistrates and judges; and every state sent deputies to the general convention, and had equal weight in all determinations. And most of the neighboring states, which, moved, by fear of danger, acceded to this confederacy, had reason to felicitate themselves. The republic of Lycia was a confederacy of towns, which they ranged into three classes, according to their respective importance. To the cities of the first rank, they allowed three votes, each, in the general council; to those of the second two, and to those of the third one. … The assembly of the Amphictyons, that assembly whose councils enabled Greece to withstand the power of the Persian monarchy, and whose decisions were held in such veneration that their sentences were seldom, or never, disputed, was composed of deputies from the several states of Greece, in number twelve, each of which sent to this grand council one, two, or three delegates, according to their respective importance. The Helvetic confederacy consists in the union of several republics. They have a common assembly, in which all matters interesting to the whole community are debated: whatever is there determined by a majority, binds the whole; they all agree in making peace, and declaring war; and the laws and customs, which prevail throughout the Swiss cantons, are, excepting the difference of religion between the Protestant, and Popish cantons, nearly the same. There are, however, some important differences both in constitution, and administration.
The United Provinces of the Netherlands before their late revolution, maintained a common confederacy; each province possessing a constitution and internal government of its own, independent of the others: this government is called the states of that province; and the delegates from them formed the states-general, in whom the sovereignty of the whole confederacy was vested; but though a province might send two or more delegates, yet such province had no more than one voice in every resolution; and before that resolution could have the force of a law, it must have been approved by every province. … The council of state consisted likewise of deputies from the several provinces; but its constitution was different from that of the states-general; it was composed of twelve deputies, (some of the states sending two, and some one, only), who voted by persons, and not by provinces, as in the states-general. Their business was to prepare estimates, and ways and means, for raising the revenue, as well as other matters that were to be laid before the states-general.
It is very probable, says the president Montesquieu, that mankind would have at length been obliged to live constantly under the government of a single person, had they not contrived a constitution, (such as we are now speaking of) that has all the internal advantages of a republican, together with the external force of a monarchical, government. It was these associations, he adds, that contributed so long to the prosperity of Greece. By these the Romans attacked the universe, and by these only the universe withstood their power; for when Rome was arrived, to her highest pitch of grandeur, it was the associations beyond the Danube, and the Rhine, associations formed by terror, (such was the foundation of the American confederacy) that enabled the barbarians to resist her.
A confederate government, according to the same author, ought to be composed of states of the same nature, especially of the republican kind. The spirit of monarchy is war and the enlargement of empire and dominion: Peace and moderation is the spirit of a republic. These two kinds of government cannot naturally subsist in a confederate republic. Greece was undone as soon as the kings of Macedon obtained a seat among the Amphictyons. The confederate republic of Germany, composed of princes and free towns, subsists by means of a chief, who is in some measure the magistrate, and in some the monarch of the union.
These confederacies by which several states are united together by a perpetual league of alliance, are chiefly founded upon this circumstance, that each particular people choose to remain their own masters, and yet are not strong enough to make head against a common enemy. The purport of such an agreement usually is, that they shall not exercise some part of the sovereignty there specified, without the general consent of each other. For the leagues to which these systems of states owe their rise seem distinguished from others (so frequent among different states) chiefly by this consideration; that in the latter, each confederate people determine themselves by their own judgment to certain mutual performances, yet so that in all other respects they design not in the least to make the exercise of that part of the sovereignty, whence those performances proceed, dependent on the consent of their allies, or to retrench anything from their full and unlimited power of governing their own states. Thus we see that ordinary treaties propose, for the most part as their aim, only some particular advantage of the states thus transacting; their interests happening at present to fall in with each other; but do not produce any lasting union as to the chief management of affairs.26 Such was the treaty of alliance between America and France in