Federal judges are more independent than those of most of the States, and less likely to be influenced by any bias. So, too, if he thinks that local prejudice may tell against him, he will prefer a Federal court, because the jurors are summoned from a wider area, and because the judges are accustomed to exert a larger authority in guiding and controlling the jury. But it is usually more convenient to sue in a State court, seeing that there is such a court in every county, whereas Federal courts are comparatively few; in many States there is but one.

The Federal authority, be it executive or judicial, acts upon the citizens of a State directly by means of its own officers, who are quite distinct from and independent of the State officials. Federal indirect taxes, for instance, are levied all along the coast and over the country by Federal custom-house collectors and excisemen, acting under the orders of the treasury department at Washington. The judgments of Federal courts are carried out by United States marshals, likewise dispersed over the country and supplied with a staff of assistants. This is a provision of the utmost importance, for it enables the National government to keep its finger upon the people everywhere, and make its laws and the commands of its duly constituted authorities respected whether the State within whose territory it acts be heartily loyal or not, and whether the law which is being enforced be popular or obnoxious. The machinery of the National government ramifies over the whole Union as the nerves do over the human body, placing every point in direct connection with the central executive. The same is, of course, true of the army: but the army is so small and stationed in so few spots, mostly in the Far West where Indian raids are feared, that it scarcely comes into view in the ordinary. working of the system.

What happens if the authority of the National government is opposed, if, for instance, an execution levied in pursuance of a judgment of a Federal court is resisted, or Federal excisemen are impeded in the seizure of an illicit distillery?

Supposing the United States marshal or other Federal officer to be unable to overcome the physical force opposed to him, he may summon all good citizens to assist him, just as the sheriff may summon the posse comitatus. If this appeal proves insufficient, he must call upon the President, who may either

order National troops to his aid or may require the militia of the State in which resistance is offered to overcome that resistance. Inferior Federal officers are not entitled to make requisitions for State force. The common law principle that all citizens are bound to assist the ministers of the law holds good in America as in England, but it is as true in the one country as in the other, that what is everybody's business is nobody's business. Practically, the Federal authorities are not resisted in the more orderly States.

If the duly constituted authorities of a State resist the laws and orders of the National government, a more difficult question arises. This has several times happened.

In 1808 the legislatures of some of the New England States passed resolutions condemning the embargo which the National government had laid upon shipping by an Act of that year. The State judges, emboldened by these resolutions, took an attitude consistently hostile to the embargo, holding it to be unconstitutional; popular resistance broke out in some of the coast towns; and the Federal courts in New England seldom succeeded in finding juries which would convict even for the most flagrant violation of its provisions. At the outbreak of the war of 1812 the governors of Massachusetts and Connecticut refused to allow the State militia to leave their State in pursuance of a requisition made by the President under the authority of an Act of Congress, alleging the requisition to be unconstitutional; and in October 1814 the legislatures of these two States and of Rhode Island, States in which the New England feeling against the war had risen high, sent delegates to a convention at Hartford, which, after three weeks of secret session, issued a report declaring that "it is as much the duty of the State authorities to watch over the rights reserved as of the United States to exercise the powers delegated." Massachusetts and Connecticut adopted the report; but before their commissioners reached Washington, peace with Great Britain had been concluded. In 1828-30 Georgia refused to obey an Act of Congress regarding the Cherokee Indians, and to respect the treaties which the United States had made with that tribe and the Creeks. The Georgian legislature passed and enforced Acts in contempt of Federal authority, and disregarded the orders of the Supreme Court, President Jackson,

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who had an old frontiersman's hatred of the Indians, declining to interfere.

Finally, in 1832, South Carolina, first in a State convention and then by her legislature, declared the tariff imposed by Congress to be null and void as regarded herself, and proceeded to prepare for secession and war. In none of these cases was the dispute fought out either in the courts or in the field; and the questions as to the right of a State to resist Federal authority, and as to the means whereby she could be coerced, were left over for future settlement. Settled they finally were by the Civil War of 1861-65, since which time the following doctrines may be deemed established:

No State has a right to declare an act of the Federal government invalid.

No State has a right to secede from the Union.

The only authority competent to decide finally on the constitutionality of an act of Congress or of the National executive is the Federal judiciary.

Any act of a State legislature or a State executive conflicting with the Constitution, or with an act of the National government done under the Constitution, is really an act not of the State government, which cannot legally act against the Constitution, but of persons falsely assuming to act as such government, and is therefore ipso jure void. Those who disobey Federal authority on the ground of the commands of a State authority are therefore insurgents against the Union who must be coerced by its power. The coercion of such insurgents is directed not against the State but against them as individual though combined wrong-doers. A State cannot secede and cannot rebel. Similarly, it cannot be coerced.

CHAPTER XXVIII

CRITICISM OF THE FEDERAL SYSTEM

It has long been agreed that the only possible form of government for America is a Federal one. All men have perceived that a centralized system would be inexpedient, if not unworkable, over so large an area, and have still more strongly felt that to cut up the continent into absolutely independent States would not only involve risks of war but injure commerce, and retard in a thousand ways the material development of every part of the country. But regarding the nature of the Federal tie that ought to exist there have been keen and frequent controversies, dormant at present, but which might break out afresh should there arise a new question of social or economic change capable of bringing the powers of Congress into collision with the wishes of any State or group of States. The general suitability to the country of a Federal system is therefore accepted, and need not be discussed. I pass to consider the strong and weak points of that which exists. The faults generally charged on federations as compared with unified governments are the following:

I. Weakness in the conduct of foreign affairs.

II. Weakness in home government, that is to say, deficient authority over the component States and the individual citizens. III. Liability to dissolution by the secession or rebellion of States.

IV. Liability to division into groups and factions by the formation of separate combinations of the component States. V. Want of uniformity among the States in legislation and administration.

VI. Trouble, expense, and delay due to the complexity of a double system of legislation and administration.

The first four of these are all due to the same cause, viz. the existence within one government, which ought to be able to

speak and act in the name and with the united strength of the nation, of distinct centres of force, organized political bodies into which part of the nation's strength has flowed, and whose resistance to the will of the majority of the whole nation is likely to be more effective than could be the resistance of individuals, because such bodies have each of them a government, a revenue, a militia, a local patriotism to unite them, whereas individual recalcitrants, however numerous, would be unorganized, and less likely to find a legal standing ground for opposition. The gravity of the first two of the four alleged faults has been exaggerated by most writers, who have assumed, on insufficient grounds, that Federal governments are necessarily weak. Let us, however, see how far America has experienced such troubles from these features of a Federal system.

I. In its early years, the Union was not successful in the management of its foreign relations. Few popular governments are, because a successful foreign policy needs in a world such as ours conditions which popular governments seldom enjoy. In the days of Adams, Jefferson, and Madison, the Union put up with a great deal of ill-treatment from France as well as from England. It drifted rather than steered into the war of 1812. The conduct of that war was hampered by the opposition of the New England States. The Mexican war of 1846 was due to the slaveholders; but as the combination among the Southern leaders which entrapped the nation into that conflict might have been equally successful in a unified country, the blame need not be laid at the door of Federalism. But when a question of external policy arises which interests only one part of the Union, the existence of States feeling themselves specially affected is apt to have a strong and probably an unfortunate influence. Only in this way can the American government be deemed likely to suffer in its foreign relations from its Federal character.

II. For the purposes of domestic government the Federal authority is now, in ordinary times, sufficiently strong. However, as was remarked in last chapter, there have been occasions when the resistance of even a single State disclosed its weakness. Had a man less vigorous than Jackson occupied the presidential chair in 1832, South Carolina would probably have prevailed against the Union. In the Kansas troubles of