that is to say, in the first instance, by the colonial courts, or, if the matter was carried to England, by the Privy Council."1 The statement may be made, as a general rule, that the colonial charter embodied "a frame of government established by a superior authority, creating a subordinate law-making body, which can do everything except violate the terms and transcend the powers of the instrument to which it owes its existence. So long as the colony remained under the British crown, the superior authority, which could amend or remake the frame of government, was the British crown or parliament. When the connection with Britain was severed, that authority passed over, not to the state legislature, which remained limited, as it always had been, but to the people of the now independent commonwealth, whose will speaks through what is now the state constitution, just as the will of the crown or parliament had spoken through the charters of 1628 and 1691." 2 The elective chief magistrate of an American state simply The execu represents another phase of the general process of reproduc- tive power. tion. "The governor of the independent state succeeded the governor of the dependent colony, and he, whether elected or nominated, was essentially a reflected image of kingship. The governor of the state retained the position of the governor of the colony, with such changes as a republican system necessarily required." 3 So far as judicial The judi organization is concerned, there has been but a slight departure from the ancient original. Such differences as do exist are rather differences of detail than of organic structure. In both systems the unit of local judicial administration is the county, where all causes, except equity and probate causes, are tried in the first instance according to the course of English customary law, subject to review in a central 1 Bryce, The Am. Commonwealth, vol. i. p. 243. 2 Ibid., p. 415. The case of Trevett v. Weeden, decided in Rhode Island in 1786, seems to be the first case in which a legislative act was declared void by reason of repugnance to the principles of a state constitution. The second case is that of Bayard v. Singleton, Martin (N. C.), p. 48, decided in 1787. See Cooley (Const. Lim., p..36, note I), who says, in reference to the Rhode 3 Freeman, Hist. Fed. Govt., vol. i. p cial. or circuit conrt the session of race. ster. appellate court modelled after the great courts at WestminIt is not the ancient county court, however, that is The assize the local centre of judicial administration. In America as in England the ancient county court is overshadowed by the special pos- assize or circuit court held periodically in every county by the English the itinerant or circuit judge sent to preside in the local tribunals by state authority. In every assize or circuit court held where English law prevails, the jury of presentment and the trial jury enter as component parts into the structure of a tribunal, which, in its modern form, is the special possession of the English race. Each colony started out by adopting the whole body of English statutory and customary law1 so far as its principles could be adapted to their changed social and political conditions. By a perusal of the colonial codes it is possible to trace the beginnings of the great work of adaptation, which has not yet eliminated all of the obsolete elements of the ancient system. Even in the land law of the United States, which rests upon the broad principle that all lands are held allodially, definite traces of feudal law still survive. Although feudal tenures were abolished by the still linger statute of 12 Car. II. c. 24, the leading principles of the system still survive as the basis of the English and American law of real property. As one of our own jurists has expressed it, "Though our property is allodial, yet feudal tenures may be said to exist among us in their consequences and the qualities which they originally imparted to estates." 2 When all of these elements of likeness are considered, who can fail to perceive that the typical English state in America is, in a constitutional sense, simply the English kingdom transferred to a new theatre, where it has entered upon a wider destiny with its political horizon unclouded by the waning shadows of nobility, feudality, and kingship. Feudal principles in Ameri can land law. Federalism as a system ment. 6. Having traced in some detail the growth of the English of govern- colonies in America down to that point in their history at which they appear as thirteen sovereign commonwealths, each one of which is a substantial reproduction of the English kingdom, the attempt will next be made to outline the 1 "British and colonial statutes made prior to the Revolution continued also in force unless expressly repealed." The Critical Period, etc., p. 69. 2 Gibson, C. J., in 9 Serg. and R. (Penn.), p. 333. See, also, 3 Serg. and R., p. 449. ernment. process through which these commonwealths were drawn together first in lax and imperfect confederacies, and finally in the most perfect federal union which has ever existed in ancient or modern times. In order the more clearly to comprehend the process through which federalism has finally taken on in America its most perfect form, it will be helpful to glance for a moment at its history as a system of government prior to the making of its last and most successful experiment. A federal union may be defined to be the joining together of sovereign states under any form of confederation more permanent than a mere alliance, wherein each state surrenders a part of its sovereignty for the common good of all, without the surrender of its individual right to regulate such internal affairs as concern it only. It is the very opposite of that kind of union which is brought about by the incorporation or fusion of two or more states or cities into a single body with equal rights common to all. The ideal or perfect federal government may be defined to be one A perfect federal gov which is but a single state in all matters which concern the federal body as a whole, and yet a group of states perfectly independent in all matters which concern each member of the group as a local self-governing community. To the ideal federal government, the federal commonwealths which have actually existed in history can only be regarded as more or less close approximations. Out of the entire group of such commonwealths four have been specially commended for study to students of the history of federal government for the reason that their constitutions illustrate the closest approaches which have so far been made to the perfect federal ideal. These four are the Achaian League (B. C. 281-146); the The closest Confederation of the Swiss Cantons (from 1291); the Seven to such an United Provinces of the Netherlands (1579-1795); and the United States of North America (from 1781). "Of these four, three come sufficiently near to the full realization of the federal idea to be entitled to rank among perfect federal governments. The Achaian League, and the United States since the adoption of the present constitution, are indeed the most perfect developments of the federal principle which the world has ever seen." In considering the internal structures 1 Freeman, Hist. of Federal Government, vol. i. pp. 5, 6. approaches ideal. Federal govern ments di two classes. "1 of these more perfect federal systems a sharp distinction must be drawn between those in which the central power deals only with the government of states as states, and those in which the central power acts directly upon all citizens. According to the manner in which the central power exercises its special vided into functions federal governments are usually divided into two classes. Those in which the central power is only authorized to issue requisitions to the state government for each to carry out are known as "confederated states;" while those which are sovereign within their own spheres, and which can enforce such sovereignty directly upon every citizen, are known as "composite states." The scholars who have in our own time passed beyond the Greece of Thucydides into the Greece of Polybios, who have passed beyond the period in which the independent city-commonwealth was the dominant political idea into the later and less brilliant period of Hellenic freeGreek fed- dom occupied by the history of Greek federalism, have at last the Achaian put before us in a tangible form the history of at least one ancient federal league whose internal structure entitles it to be ranked among "composite states." Careful analysis of the constitution of the Achaian League seems to have clearly established the fact that its government was really national; that there was an Achaian nation, with a national chief, a national assembly, and national tribunals; that every Achaian citizen owed a direct allegiance to the central authority as a citizen of the league itself, and not merely of one of the cities that composed it.3 The supreme power was vested in a single primary assembly which met at stated intervals, and in a general (τparnyòs), elected for a stated term like the American president, who was assisted by ten magistrates who formed eralism, League, 1 As to the distinction between the two classes, see J. S. Mill, Rep. Govt., p. 301; Prof. Barnard, Lectures on American War, Oxford, 1861, pp. 6872; Tocqueville, Democracy in America, vol. i. pp. 250, 265 et seq.; Freeman, Hist. of Fed. Govt., vol. pp. 11, 12, and notes. Tocqueville (vol. i. p. 201) says that the constitution of the United States is neither exactly national nor exactly federal: it is a novel thing without a name - “un gouvernment national incomplet." See upon the whole subject, Federalist, Nos. xxxviii., xxxix. 2 See Mommsen, Römische Geschichte, vol. ii. p. 427, as to the character of Polybios as a historian. Mr. Freeman, after referring to Grote's depreciation of "the Greece of Polybios" (vol. xii. pp. 527-530), laments the fact that his great work "lies almost untouched in our universities."- Fed. Govt., pp. 219227, note 1. In Germany the federal period of Grecian history has excited more interest. 3 "The Achaian League was, in Ger man technical language, a Bundesstaat, and not a mere Staatenbund." — Free man, Hist. of Federal Govt., vol. i. p. 259, citing Helwing, p. 237. tional gov around him a permanent cabinet or council.1 Although the central assembly did undoubtedly levy federal taxes (ai koɩvai eio popaí), the probabilities are that such taxes were collected not by federal tax collectors, but through the requisition system under which each city was permitted to raise its quota through its own local machinery. The Achaian League can whose na therefore only hold its place among "composite states " by ernment virtue of the fact that its national government acted directly acted directly upon upon the citizen, and not by reason of the fact that it had the citizen. passed beyond the requisition stage to that in which a federal government collects its taxes through the direct agency of its own officers. And yet, whatever general resemblance may be traced between the Achaian League (the product of a union of city-commonwealths) and the United States (the product of a union of modern states), the fact remains that the history of the one had no direct or conscious influence upon the making of the other. That the makers of the Makers of constitution of the United States had no real knowledge of the history of the ancient league is made certain by that tion had no writer in the "Federalist" who tells us that "could the interior edge of this structure and regular operation of the Achaian League be league,ascertained, it is probable that more light might be thrown by it on the science of federal government, than by any of the like experiments with which we are acquainted." The only federal governments with whose internal organizations only ac the builders of our federal republic were really familiar, and quainted whose histories had any practical effect upon their work, structures were those which had grown up between the Low-Dutch tonic communities at the mouth of the Rhine, and between the leagues,High-Dutch communities in the mountains of Switzerland, and upon the plains of Germany.5 second constitution of the United Down to the making of the 4 No. xviii. That the American Union was not a conscious imitation of the Achaian League is clearly brought out in Federal Government, vol. i. p. 319. Such knowledge as the framers did possess of Greek federalism seems to have been chiefly drawn from the work of the Abbé Mably, Observations sur l'Histoire de Grèce. See Federalist, No. xviii. p. 117. See Federalist, Nos. xix., xx. our federal constitu real knowl ancient with the |