Chapter VII: Extrication of the Idea Of Federation

Since, in theory and in history, Authority and Liberty follow one another as by a kind of polarisation;

That the first declines imperceptibly and withdraws whilst the second grows and reveals itself;

That a kind of subordination results from this double movement in accordance of which Authority takes up more and more the cause of Liberty [au droit de la Liberté];

Since, in other words, the liberal or contractual regime from day to day gets the upper hand over the authoritarian regime, it is to the idea of contract that we must attach ourselves to as a dominant idea of politics.

First, what do we mean by contract?

The contract, says the civil code art. 1101, is a convention by which one or several person(s) binds themselves towards one or several others to do or not to do something.

Art. 1102. It is bilateral or synallagmatic when the contracting parties bind themselves to one another in a mutual way.

Art.1103. It is unilateral when one or several person(s) are bound to one or several others, without any commitment in return.

Art.1104. It is commutative when each of the parties commits itself to give or do a thing which is considered the equivalent of what is given or is done for it. When the equivalent consists of a gain or of a loss for each of the parties, following an uncertain event, the contract is risky.

Art. 1105. The contract of charity is one in which one of the parties gives to the other a completely gratuitous benefit.

Art.1106. The onerous contract is one that subjects each one of the parties to give or do something.

Art.1371. We call quasi-contracts the voluntary acts of man, from which results some commitment towards a third party and sometimes a reciprocal commitment of both parties.

To these distinctions and definitions of the Code, related to the form and condition of the contract, I will add a last one, concerning their subject:

According to the nature of things we deal with or the object we offer each other, the contracts are domestic, civil, commercial or political.

It is this last type of contract, the political contract, that we are going to deal with.

The idea of contract is not entirely foreign to the monarchical regime, no more than it is to fatherhood and the family. However, according to what we have said about the principles of liberty and authority and their role in the formation of governments, one understands that these principles do not intervene in the same way in the making of the political contract; that therefore the obligation which binds the monarch to his subjects, a spontaneous obligation, unwritten, resulting from the clannishness and quality of the people, is a unilateral obligation, since in accordance with the principle of obedience, the subject is obliged more towards the prince than vice versa. The theory of divine right expressly says that the monarch is responsible only to God. It can even happen that the contract of the prince to the subject degenerates into a contract of pure charity, when by inertia or by idolising the citizens, the prince is requested to take hold of authority and to take care of his subjects, [considered] incapable of governing and defending themselves, like a shepherd and flock. It is much worse when the principle of heredity is accepted. A plotter like the duke of Orleans, later Louis XII, a parricide like Louis XI, an adulteress like Mary-Stuart, retain, despite their crimes, their potential right to the crown. Birth making them inviolable, one can say that a quasi-contract exists between them and the subjects faithful to the prince they have to follow. In short, by the mere fact that authority is preponderant in the monarchical system, the contract is not equal.

The political contract only acquires all its dignity and morality provided that 1) it is synallagmatic and commutative; 2) it is contained, as to its object, in certain limits: two conditions that one supposed to exist under the democratic regime, but that, here again, are most often only a fiction. Can one say that in a representative and centralised democracy, in a constitutional monarchy based on restricted suffrage, all the more so in a communist republic, such as Plato’s, the political contract that binds the citizen to the State is equal and reciprocal? Can one say that this contract, which takes away from the citizens half or two thirds of their sovereignty and quarter of their product, be contained in fair limits? It would be more true to say, what experience confirms too often, that the contract, in all these systems, is outrageous, onerous, since it is for a more or less considerable part without compensation; and risky, since the promised advantage, already insufficient, is not even assured.

So that the political contract fulfils the synallagmatic and commutative condition that suggests the idea of democracy; so that, contained within wise limits, it remains advantageous and practical to all, the citizen by entering the association must: 1) have as much to receive from the State as he gives up to it; 2) keep all his liberty, his sovereignty and his initiative, minus what is related to the special objects for which the contract is formed and for which one asks for the guarantee of the State. Thus settled and understood, the political contract is what I call federation.

Federation, from the Latin foedus, genitive foederis, i.e. pact, contract, treaty, convention, alliance, etc., is a convention by which one or several heads of family, one or several communes or States, unite with each other in a mutual and equal way, for one or more specific tasks, whose responsibility specially and exclusively falls to the delegates of the federation.[1]

Let us go back to the definition.

What makes the nature and the essence of the federative contract, and what I draw the reader’s attention to, is that in this system, the contracting parties, heads of families, communes, cantons, provinces or States, not only unite synallagmatically and commutatively with each other, they individually reserve for themselves, by forming the pact, more rights, liberty, authority, property, than they give up.

This is not the case, for example, in the universal society of goods and earnings, authorised by the civil Code, in other words community [communauté], picture in miniature of [all] absolute States. The one who commits oneself to such an association, especially if it is permanent, is surrounded by constraints, subjected to more burdens than one keeps [in] initiative. But that is also what makes this contract rare, and what in all times made the cenobital life unbearable.[2] Any commitment, even a synallagmatic and commutative one, that, demands from the associates all their efforts, leaves nothing to their independence and sacrifices them entirely to the association, is an excessive commitment, one which is equally repugnant to the citizen and to the man.

According to these principles, the contract of federation, having as an objective, in general terms, to guarantee the confederated States their sovereignty, their territory, their citizen’s liberty; to settle their disagreements; to provide, by general measures, everything of interest to the common prosperity and security, this contract, I am saying, despite the size of the interests committed, is basically limited. The Authority in charge of its execution can never get the upper hand over its constituents, I mean that the federal allocation [of tasks] can never exceed in number and in reality the communal or provincial ones, likewise these cannot exceed the rights and prerogatives of man and citizen. If it were different, the commune would be a community [communauté]; the federation would become again a centralised monarchy, the federal authority, instead of the mere agent [mandataire] and subordinate function that it should be, would be regarded as dominating, instead of being limited to a special service, it would tend to embrace all activity and all initiative; the confederated States would be converted into prefectures, intendancies,[3] branches or local governments. The political body thus transformed could be called a republic, democracy or anything you like but it would no longer be a State constituted in the fullness of its autonomies, it would no longer be a confederation. The same thing would take place, even more so, if, by a false sense of economic efficiency, by deference or by some other cause, the communes, cantons or confederated States put one of themselves in charge of the administration and the others the government. The federative republic would become unitary; it would be on the road to despotism.[4]

To sum up, the federative system is the opposite of administrative and governmental hierarchy or centralisation by which one distinguished, ex oequo, imperial democracies, constitutional monarchies and unitary republics. Its fundamental, characteristic, law is as follows: In the federation, the attributes of the central authority become specialised and limited, decrease in number, in immediacy, and, if I dare to say, in intensity as the Confederation grows by the addition of new [member] States. In centralised governments on the contrary, the attributes of the supreme power increase, expand and immediately draw into the domain of the prince the affairs of provinces, communes, corporations and individuals, in direct proportion to the territorial area and to the size of the population. Hence under this crushing [weight] all liberty, not only communal and provincial but also individual and national, disappears.

One consequence of this fact, by which I will end this chapter, is that since the unitary system is the opposite of the federative system, a confederation between big monarchies, all the more so between imperial democracies, is an impossible thing. States like France, Austria, England, Russia, Prussia, can make alliances or commercial treaties amongst themselves; they are reluctant to federate, firstly because their [organising] principle is against it and would put them in opposition to the federal pact; because, secondly, they would have to give up some of their sovereignty, and to recognise above them, at least for some cases, a referee. Their nature is to command, not to compromise or to obey. The Princes who, in 1813 were supported by the insurrection of the masses, were fighting for the liberties of Europe against Napoléon, and who later formed the Holy-Alliance,[5] were not confederated: the absolutism of their power forbade them to take that title. They were, as in ’92, allied; history will not give them any other name. It is not the same for the Germanic Confederation presently in the middle being reformed, whose character of liberty and nationality threatens to erase one day the dynasties that hinder it.[6]

End Notes

[1] In J-J. Rousseau’s theory, which is the one of Robespierre and the Jacobins, the social contract is a lawyer’s fiction, hypothesised [imaginée] to provide an alternative to divine right, paternal authority or social necessity for the formation of the State and relations between the government and individuals. This theory, borrowed from the Calvinists, was in 1764 progress, since it had as a goal to bring back to a law of reason that what had been considered until then as belonging to the law of nature and religion. In the federative system, the social contract is more than a fiction, it is a positive, effective pact which has really been proposed, discussed, voted, adopted and which is regularly modified according to the will of the contractors. Between the federative contract and Rousseau’s and ’93, there is the whole distance from reality to hypothesis.

[2] A reference to cenobitic monasticism, a monastic tradition that stresses community life. The life of prayer and communal living in the monastery was one of rigorous schedules and self-sacrifice. (Editor)

[3] An area associated with a supplies or estate office. (Editor)

[4] The Helvetic Confederation comprises twenty-five sovereign states (nineteen cantons and six demi-cantons), for a population of two million and four hundred thousand inhabitants. It is therefore governed by twenty-five charters or constitutions similar to our ones of 1791, 1793, 1795, 1799, 1814, 1830, 1848, 1852, in addition to a federal constitution that we do not have in France. The spirit of this constitution, true to the above principles, results from the following articles:

“Art. 2. The confederation aims to insure the homeland’s independence against the outside, to maintain tranquillity and order within, to protect the liberty and the rights of the confederated, and to increase their common prosperity.

“Art. 3. The cantons are sovereign as much as their sovereignty is not limited by federal sovereignty, and as such, they exert all their rights which are not delegated to the federal power.

“Art. 5. The confederation guarantees to the cantons their territory, their sovereignty within the limits set by Art. 3, their constitutions, the people’s liberty and rights, the citizens’ constitutional rights, as well as the rights and attributes that the people has conferred to the authorities.”

Thus a confederation is not precisely a State: it is a group of sovereign and independent States, united by a mutual guarantee pact. A federal constitution is not what we understand in France as a charter or a constitution, and neither is it the summary of the public law of the country: it is the pact that contains the conditions of the league, i.e., the reciprocal rights and obligations of the States. What we call a federative Authority, finally is not a government; it is an agency created by the States, for the common running of some services that each State gives up and that become in this way federal attributes.

In Switzerland, the federal Authority comprises a deliberating Assembly elected by the people from twenty-two cantons, and an executive Council made up of seven members nominated by the Assembly. The members of the Assembly and of the federal Council are nominated for three years; the federal constitution being able to be revised at all times, their attributes are, like their members, changeable. So that the federal Power is, in all the strength of the term, an agent placed under the control of his principals and whose power changes as they wish.

[5] The Holy Alliance was a coalition of Russia, Austria and Prussia created in 1815 at the behest of Tsar Alexander I of Russia. Ostensibly created to instil the Christian values of charity and peace in European political life, in practice it was a bastion against revolutionary influence (especially from France). It was opposed to democracy, revolution, and secularism. All European nations joined, except for Great Britain, the Papal States and the Ottoman Empire. (Editor)

[6] The federative public law raises several difficult questions. For example, can a State with slaves belong to a confederation? It seems not, no more than an absolutist State: the enslaving of one part of the nation is the very negation of the federative principle. In this respect, the Southern States of the United States would be even more justified to ask for separation since the Northern States do not intend to grant, at least for quite some time, the emancipated Blacks their political rights. However we see that Washington, Madison and the other founders of the Union did not agree; they admitted States with slaves into the federal pact. It is also true that we now see this unnatural pact tearing itself apart, and the Southern States, to maintain their exploitation, tend towards an unitarist constitution, whilst the Northern ones, to maintain the union, decree the deportation of the slaves [to Africa, e.g., the colony of Liberia].

The Swiss federal constitution, as reformed in 1848, decided in favour of equality; its fourth article says: “All the Swiss are equal before the law. In Switzerland there are no subjects, nor privileges of place, birth, people or families.” From the promulgation of this article, which purged Switzerland of all aristocratic elements, dates the true Helvetic federal constitution.

In case of opposition between interests, can the confederated majority oppose the separatist minority [by invoking] the indissolubility of the pact? The Sonderbund answered this question in the negative against the Helvetic majority; today, in America, the Southern Confederacy does so against the Northern Union. For my part, I believe that separation is completely right, if it is about a matter of cantonal sovereignty left outside the federal pact. Thus, it has not been demonstrated to me that the Swiss majority drew its right against the Sonderbund from the pact: the proof is that in 1848 the federal constitution was reformed precisely with a view to the dispute which had led to the formation of the Sonderbund. But it may happen, by considerations de commodo et incommodo [of advantage and disadvantage], that the split compromises the liberty of the States: in this case the question is solved by the right of war, which means that the most significant part, the one whose ruin would lead to the greatest damage, must defeat the weakest one. That is what took place in Switzerland and could also happen in the United States, if, in the United States like in Switzerland, it were not only about an interpretation or a better application of the principles of the pact, like progressively raising the Black peoples’ condition to the level of the Whites. Unfortunately M. Lincoln’s message leaves no doubt on the matter. The North cares no more than the South about a true emancipation, which renders the difficulty insoluble even by war and threatens to destroy the confederation.

In a monarchy, all justice comes from the king: in a confederation, it comes, for each State, exclusively from its citizens. The institution of a federal high court would therefore be, in principle, a dispensation to the pact. It would be likewise for a final court of appeal, since, each State being sovereign and legislative, laws are not uniform. However, as federal interest and federal affairs exist; as offences and crimes against the confederation can be committed, there are, for these special cases, federal tribunals and a federal justice.