Year XXXII, 1990, Number 1 - Page 8

 

 

The Federal Idea and the British Liberal Tradition
 
JOHN PINDER
 
 
The British have been among the best placed of Europeans to grasp the idea of the federal constitution. Its value, both as a defence against an over-centralized state and as a way for states to live well together in an ever more interdependent world, has not ceased to grow. It has been increasingly understood and put into practice by other peoples. But the British have been unable to apply it to their own affairs, whether within the United Kingdom or as a principle to guide their relations with other states. Why?
 
The federal constitution: a product of the British liberal tradition.
 
The reasons why the British were so well placed to understand what the founding fathers of the US Constitution had done are not far to seek. It was not only a matter of language, culture and contact. The founding fathers were steeped in the British political tradition, and more specifically its liberal tradition in the wider sense of a “system of civil, political and religious freedom”.[1]
The authors of The Federalist refer in particular to Locke and Montesquieu. Locke’s influence on political thought in the American colonies was fundamental. For the generation of Hamilton and Madison, Montesquieu’s L’Esprit des lois was “a sort of Bible of political philosophy”, which they cited in The Federalist “much as the Schoolmen cite Aristotle”.[2] In this they were still following the Lockean tradition, which Montesquieu had rationalized and refined. Although they do not appear to mention it, it is of interest that Montesquieu went beyond Locke in including an analysis of the merits of a federal system in his book, thus suggesting its compatibility with Lockean political philosophy.[3]
The American revolution rejected British rule. But the Americans did not reject British political ideas. On the contrary, they found in those ideas the solution to the problem that most concerned them: the limitation and control of political power. Just as Locke’s philosophy had reflected the needs of those who wanted to curb the pretensions of an absolutist monarch, so the Americans wanted a constitution that would defend them against any such pretensions and ensure, instead, the control of power by the people. It was Locke’s philosophy and the British constitution which indicated how this could be done, through individual rights guaranteed by the rule of law, with laws made and the executive controlled by elected representatives of the people.
The several states needed to unite in order to protect such a polity against external threats or internal dissension; and the experience of confederation, with the union’s authority ignored by member states, proved to be decisive evidence that a federal government, in direct relationship with the citizens, was required. But this again raised the question: how to control the government’s power? How to prevent an over-mighty federal government from oppressing the citizens and gutting the bodies politic of the states? Part of the answer was seen in the separation of powers, which was central to the Lockean tradition even if decreasingly practised in Britain. Part was seen in a new application of that basic idea: the division of powers between the union and the states.
The division of powers, entrenched in the constitution, not to be altered unilaterally by either the central institutions or the states, seems such a simple extension of the principle of separation of powers that it is hard to grasp, with hindsight, the novelty and the full reach of the founding fathers’ innovation. Yet from the time when this simple innovation was embodied in the US Constitution there was living evidence that a liberal constitution could be applicable, not only within states, but also for unions of states that were ready to apply its principles. The federal idea could be seen as completing these principles in a way that, as Acton was to put it, was “capable of unlimited extension”.[4]
Being rooted in British political philosophy, completed only by a logical extension of a basic Lockean principle, the ideas of The Federalist could hardly fail to be highly accessible to British political thinkers. As Professor Bernard, Chichele Professor of International Law and Diplomacy at Oxford, was to write: “I know of no finer model of political writing than some of these papers”.[5] But that was nearly a century later. It was to be a long time before the British began to bend their minds to the implications of what the Americans had done.
 
Liberal thinkers and the federal idea.
 
It was a French, not a British, liberal thinker who first made the significance of the American federal Constitution widely known. Alexis de Tocqueville visited the United States in 1831 because he wanted to know how democracy and equality could be combined with liberty, thus preserving France from any repetition of the illiberal regimes that had followed the French revolution. It was thus that he happened upon the federal element in the constitution and expounded its advantages in De la Démocratie en Amérique,[6] published a quarter of a century before it received any comparable attention by British writers. Following the waves of immigration in the 1830s and 1840s, however, the potential of the United States became more evident to the British, and by the 1860s their literature began to make up for lost time. They had, by then, the benefit of greater knowledge of how the federal Constitution had worked in practice. As Bernard, whose Two Lectures on the Present American War, published in 1861, was one of the earliest British scholarly works on the subject, pointed out, de Tocqueville’s view of the constitution was taken mainly from The Federalist. Bernard himself showed close knowledge of the history of the US Constitution and of the literature on the principles underlying the issue of secession.[7]
It was also in 1861 that J.S. Mill’s Considerations on Representative Government was published, containing a chapter entitled “Of Federal Representative Governments”.[8] This was an informative essay on federal government, showing a clear understanding of its principles, and underlining in particular, as Bernard did, the crucial nature of the direct relationship between federal government and citizens, as well as the need for a clear division of powers between federal and state governments, and an arbiter independent of both.[9]
In his essay On Liberty, published two years earlier, Mill had provided a context within which such a division of power could be placed, when he posed the question of delimiting the sovereignty of the individual and the authority of society, and of the struggle between liberty and authority.[10] Although he did not explicitly link these principles with his analysis of federal constitutions, he did implicitly offer a bridge between the constitutional federalism of the Anglosaxons and the federal idea being developed contemporaneously by Proudhon, based on reconciling the two essential poles of liberty and authority.[11]
While Mill’s analysis of federal government was clear, the conclusions he drew were somewhat contradictory. Thus his ideal was the greatest dispersion of power consistent with efficiency, yet he preferred unitary government whenever possible, despite its evident bias towards the concentration of power.[12] He affirmed that a real international tribunal was “one of the most prominent wants of civilized society”, and that the US Supreme Court provided the first great example; yet he concluded that the “boundaries of governments” should usually coincide with those of nationalities and that, although the distinction between citizen and foreigner was an uncivilized one, in the present state of civilization it could not be helped.[13] Even if one discounts the evidence of the Swiss federal constitution, enacted only thirteen years before, or defines nationality so as to exclude the Swiss linguistic groups, it does seem surprising that Mill, who was usually so much concerned about the need for civic education, should have expressed no thoughts about the need for education designed to overcome this uncivilized distinction and make it possible to satisfy one of civilized society’s “most prominent wants”.
We shall return to the question of Mill’s apparent inconsistencies. Meanwhile, by the time of the third edition of Representative Government, which appeared in 1865, he was able to refer in glowing terms to E.A. Freeman’s History of Federal Government in Greece and Italy, published in 1863.[14] While Freeman himself referred to the recent works by Mill and by Bernard, he had been brooding on the subject for a long time.[15] This volume was intended to be the first of a complete History of Federal Government, from the foundation of the Achaian League to the disruption of the United States; and the aim of this first volume was to see the idea “in its germ as well as its perfection”. Freeman saw its “perfect form” in the Constitution of the United States;[16] and although his History never got farther than Greece and Italy, with a fragment on Germany in the posthumous 1893 edition, the volume that did appear contained a very substantial introduction on the characteristics of federal government, with particular reference to the US and Switzerland. Following an idea of de Tocqueville’s (himself following Montesquieu), Freeman expatiated on the advantages offered by a federal system in combining the internal peace and equal rights enjoyed by the citizens of large states with the participation in political life by the citizens of small ones.[17] For the constitutional mechanism, he introduced the term of sovereignty divided between co-ordinated authorities.[18] His great merit, as a historian who was later to be the Regius Professor of Modern History at Oxford, was to help establish federalism as a subject of academic study in Britain.
All such material was grist to Acton’s mill. Although he did not succeed Seeley in the Regius chair of Modern History at Cambridge until 1895, and his History of Freedom and Other Essays was not published until 1907, the four of those essays that concerned federalism were published, or delivered as lectures, between 1862 and 1889. He brought his immense erudition to bear on that aspect of federalism which concern the dispersal rather than the uniting of power. Thus he found the excesses of democratic centralization profoundly repugnant, and deplored the substance of the ideas of the French revolution as being “not the limitation of the sovereign power, but the abrogation of intermediate powers”.[19] He took issue with Mill over the theory that the state and the nation must be co-extensive and with the “national unity which is the ideal of modern liberalism”. He held, to the contrary, that “the coexistence of several nations under the same state is ... the best security of its freedom”; and he saw federation as the “most efficacious and the most congenial of all the checks on centralized oppression of minorities”.[20] As we saw earlier, however, he also saw federalism to be capable of unlimited extension, as “the only way of avoiding war”, allowing “different nationalities, religions, epochs of civilization to exist in harmony side by side”.[21]
One of Acton’s four essays concerning federalism was a review article on The American Commonwealth by James Bryce, published in 1888. Bryce had become a friend of Freeman following a brilliant essay on the Holy Roman Empire that he wrote in 1863. He became Regius Professor of Civil Law at Oxford in 1870, a Liberal MP in 1880, and served as a Liberal minister in three Cabinets. The two volumes of The American Commonwealth were twenty years in the making, and its 1700 pages were to remain the standard work on the subject on both sides of the Atlantic for half a century.[22] Within its comprehensive analysis of the American political system were half a dozen chapters specifically on the origins, principles and working of the federal Constitution. Bryce took a sympathetic view of the federal idea and removed any excuse that educated British people might previously have had for being inadequately informed as to how it worked in the United States.
Of the four friends whom Bryce thanked in his Preface, Henry Sidgwick came first, for having “read most of the proofs with great care and made valuable suggestions upon them”.[23] Sidgwick, who did much to establish the subject of political science in British academic life, was by then Knightsbridge Professor at Cambridge, and the lectures he gave there between 1885 and 1899 were the basis for his posthumous book, The Development of European Polity.[24] This contained sections on Greek federalism, drawing heavily on Freeman, and on modern federalism, for which he was able to use his close knowledge of Bryce. He saw the advantages of federalism both in gaining external strength and economic benefits through uniting states, and in securing local liberties within formerly unitary states; and he thought that a West European federation, following the US example, was “the most probable prophecy”.[25] In The Elements of Politics, which contained a chapter on federalism and one on sovereignty, he made a similar prediction.[26] 
A.V. Dicey, Vinerian Professor of English Law at Oxford from 1882 to 1909, was one of Bryce’s closest friends. They visited the United States together in 1870, when Bryce was in the early stages of preparing his great book. But unlike Bryce and Sidgwick, Dicey had no sympathy for the federal idea. His classic Introduction to the Study of the Law of the Constitution, first published in 1885, which went into eight editions over the next thirty years, with several subsequent reprints, contained a big chapter on “Parliamentary Sovereignty and Federalism”. While this, too, was a major contribution to British knowledge about federal government, its aim was to show the superiority of centralized government and parliamentary sovereignty. “The fundamental dogma of English constitutional law”, he wrote, “is the absolute legal sovereignty, or despotism, of the King in Parliament”, which is incompatible with a federal constitution (or, more precisely, with “a fundamental compact, the provisions of which control every authority under the constitution”); and a federal constitution implies weak government, legalism and divided allegiance.[27]
By the end of the nineteenth century, then, a fairly comprehensive literature on federal government was available to the British in the fields of history, law and politics.[28] Much of this was due to writers in the liberal tradition. Apart from Mill, Acton was a Liberal MP from 1859 to 1865, had a step-father who was three times a Liberal Foreign Secretary, and was a close friend of Gladstone, with much influence on him particularly with respect to Home Rule for Ireland; Bryce’s credentials as a Liberal statesman have been mentioned; Freeman stood twice for Parliament as an independent radical candidate and was invited to be a Liberal candidate in 1886. Sidgwick was much influenced by J.S. Mill – though, as we have seen, more positive than Mill about federalism. These Liberals were predominantly favourable to the federal idea. But there was another strand in British liberalism. Dicey was a Liberal until 1885, when he became a Unionist in reaction against Gladstone’s proposal for Irish Home Rule. In championing parliamentary sovereignty against federalism, he was following the other liberal school: the one which Bryce, in a book published in 1901 containing four essays on federal themes, was to attack as representing “the dogmas” of Bentham and Austin, which had “had most influence” in England during the previous 70 years.[29]
 
Theories of parliamentary and national sovereignty.
 
While the American were establishing the US Constitution, Jeremy Bentham wrote four manuscripts on the “Principles of International Law,” the last of which was entitled Plan for an Universal and Perpetual Peace. Following his custom of writing without bothering to seek publication, these papers, though written between 1786 and 1789, were not published until his collected works were produced posthumously in 1838-43. His peace plan was to start with France and Britain, then spread to universal membership. Peace was to be achieved by limiting troops and arbitrating disputes. A free press, hence pressure from public opinion, was to ensure that the decisions resulting from arbitration were applied. Although Bentham expected that to be enough, he allowed that there might perhaps be enforcement by contingents from the participating states, “as a last resort”.[30]
It may appear strange that a man who was so ruthlessly realistic about the need to punish individuals who break the law should have believed that public opinion would be enough to bring nations into line. But Bentham had persuaded himself that there was “no where any real conflict” between the interests of nations.[31] Nor did the thought that there could be conflicts between legal persons in the different states which would not be resolved by the law of anyone of them apparently occur to him. How can such uncharacteristic naivety be explained?
Bryce may have put his finger on the answer when he wrote that Hobbes’s doctrine of sovereignty pleased Bentham “by its vigorous assertion of the legal omnipotence of an authority which a reformer of his drastic type needed for the accomplishment of his purposes”. It is more comfortable for those who want a strong state to impose a pattern on its citizens, to believe that no fundamental problems are raised by the relations among such sovereign states.
The doctrine of indivisible parliamentary and national sovereignty was developed and refined by John Austin, Bentham’s like-minded friend and neighbour. Bryce went on to place greater blame on Austin for the use he made of “Hobbes’s speculations”, because he wrote “as a jurist, professing to describe the normal and typical state”, but described only states “with an omnipotent legislature, of which the United Kingdom and the late South African Republic are almost the only examples, and those with an omnipotent monarch, of which Russia and Montenegro are perhaps the only instances among civilized countries”.[32]
Bryce was writing about the internal aspect of sovereignty; but the internal and the external aspects were closely linked, and went together in the work of writers such as Austin and Dicey. Herbert Spencer, who attacked “the divine right” of parliamentary majorities as dangerous for individual and minority rights, likewise drew attention to the line of descent from Hobbes to Austin, who aimed “to derive the authority of law from the unlimited sovereignty of one man, or of a number of men”; and he attributed this to Austin’s early career in the army, so that “he assimilates civil authority to military authority”.[33] Whatever the reasons for it, Austin provided a theoretical basis for the protagonists of parliamentary and national sovereignty.
The Mills lived next door to Bentham and Austin; and J.S. Mill, although sixteen years younger than Austin, studied law with him for a period in 1820-21. Although J.S. Mill developed utilitarianism way beyond the arid doctrine bequeathed by his father and Bentham, he seemed to find it hard to contradict them; and this may help to explain why his view of federal government was coloured by a preference for unitary nation-states, compatible with their and Austin’s ideas on sovereignty.
Where Bentham had seen public opinion as the mainstay of international arbitration and hence the antidote to war, J.S. Mill cast economics in that role. “Commerce”, he wrote, “is rapidly rendering war obsolete”; and he felt that international trade was “the principal guarantee of the peace of the world”.[34] International trade, and hence interdependence, were certainly rising. But war was far from obsolete; and the reason for this miscalculation, which was generally shared by nineteenth century liberal economists, was that they ignored the need for a framework of law and government for ensuring the proper conduct of international trade within a peaceful international order. Such, at least, was the conclusion expressed by Edwin Cannan during World War One, when he asserted that no liberal economist had given any thought to the need for law and government as the basis for co-operation in the international economy.[35] This theme was picked up and systematically explored by Lionel Robbins in books published in 1937 and 1939, lent urgency by the rise of protectionism and the approach of war. Robbins suggested that the classical economists, including Adam Smith, took too much for granted the framework of law and order that enabled the economy to function, and failed altogether to see that a liberal international economy needs international juridical and political institutions. These are needed, not just for security, but to enact, judge and enforce laws of property, contract, competition and many other most complex matters. In short, economists had not been aware of the contradiction inherent in conceiving a world economy without a world polity.[36] In an article in 1939, von Hayek supported Robbins’s view that this had been “one of the main deficiencies of nineteenth century liberalism”, and underlined the need, instead, for “the abrogation of national sovereignties and the creation of an effective international order of law”.[37]
One of the possible reasons for this lacuna in liberal thought has already been suggested: the desire of some of the utilitarians for strong government led to the theory of indivisible sovereignty, which could not be reconciled with a federal international order. A second reason was that, even if they wanted strong government, liberals usually wanted less government; and although it is logically consistent to want less government in a state where there is too much, at the same time as more government internationally where there is none, the focus on less government may make the need for even a minimum of international government harder to see. Thirdly, as von Hayek pointed out, liberals supported the nationalist cause in Belgium, Greece, Ireland, Italy and Poland and were thus led, like J.S. Mill, into approval of the concept of the nation-state.[38] Fourthly, the security of world commerce and the stability of world money were, in the nineteenth century, largely the responsibility of the Royal Navy and the Bank of England; and this may have made it easier for the British, including liberals, to overlook the deficiencies of the system.
Whatever the reasons, ideas of sovereignty that were inimical to federalism continued to flourish throughout the nineteenth century, and the growing international need for a juridical and political framework continued to be ignored by many liberals. From the 1870s onwards, however, following the Franco-Prussian war and with a resurgence of protectionism, the need for such a framework became increasingly evident; and liberals were the most active in responding with federal proposals to solve international problems.
The Irish question also evoked proposals for federal structures within the United Kingdom. While the British did not bring themselves to the point of applying any such proposals to the UK directly, whether internally or with other states, they had, however, even before 1870, begun to show their capacity for applying the federal principle to the affairs of other states.
 
Federal constitutions for colonies.
 
It was liberals who, early in the nineteenth century, promoted the idea of self-government for the British colonies with European populations. The first official outcome of this was the Earl of Durham’s report on Canada, written in 1839, which proposed a Canadian executive responsible to a Canadian parliament. But it was not until 1864 that a Liberal government convened a constitutional conference, which resulted in the enactment in 1867 of the British North America Act under the succeeding Conservative government. Conservatives showed themselves no more backward than Liberals in giving federal constitutions to the colonies; and, with the example of the United States next door, it was perhaps not surprising that the geographic and linguistic diversity of Canada was recognized in a federal constitution, though, unlike the US, with a parliamentary not a directly elected executive.
Already in 1846 Earl Grey, a member of the group of Liberals promoting self-government, proposed a Bill to Parliament to provide a federal government for Australia; but its federal provisions were dropped in committee.[39] The Australians had to wait for the 1890s before Conservative governments, worried by other European states’ annexations in the Pacific, convened constitutional conferences and went on to establish the Australian federation in 1900.
The idea of a federal union of South African lands was also mooted by Liberals in the mid-nineteenth century. The Colonial Secretary, Edward Bulwer-Lytton, asked Sir George Grey in 1858 to report on the possibility of such a union.[40] Nothing came of it, however, until after the Boer War, when Milner’s brilliant “Kindergarten” prepared a memorandum containing proposals for union. Inspired by one of their number, Lionel Curtis, and with the enthusiastic participation of another, Philip Kerr (later Lord Lothian), they proposed a federal constitution, based on thorough study of, inter alia, The Federalist. But in 1909 the Liberal government adopted the alternative of a unitary constitution, partly on grounds of economy. Curtis and Kerr were, however, to be, during the following three decades, among the most significant promoters of the federal idea in other contexts.
By the beginning of the twentieth century, then, the British parliament had enacted the constitutions of two of the four federations then existing in the world. That of the United States had been based on thinking in the British liberal tradition, and was by then familiar to educated and interested people in Britain. The Swiss federal constitution of 1848 was inspired by the American example. It can hardly be said, therefore, that in the latter part of the nineteenth century the British were less well placed than most others to give informed consideration to ideas for the further application of the federal principle; and the period from 1870 to the First World War was, indeed, quite rich in such proposals.
 
Federal proposals: Europe, Empire, Ireland.
 
Bentham’s plan for permanent peace shows no sign that he had digested the principles underlying the American Constitution which was being established when he wrote it. Richard Cobden was much concerned with organization for peace, and proposed a motion in parliament in 1849 for international arbitration, and one in 1851 for a general reduction of armaments, staying with the same concepts as Bentham had proposed. In 1867, however, James Lorimer, occupant of a chair of international law at Edinburgh, wrote a paper on international organization (not published until 1884), which clearly took account of the federal principle embodied in the US Constitution. There was to be a government for international purposes, with a two-chamber legislature, a judiciary, an executive and an exchequer. The government was to dispose of a small standing force and the member states to disarm to the level required for municipal needs. There would be an international tax, levied by the states; and their internal affairs would be excluded from the scope of the central government, save in the event of civil wars.[41]
In 1871, John Seeley, recently appointed Professor of Modern History at Cambridge, added political substance to this general idea. In the wake of the Franco-Prussian war, he was invited by the Peace Society to give a lecture on how to abolish war; and the lecture was published in Macmillan’s Magazine, under the inequivocal title “United States of Europe”. Seeley went straight to the point that international arbitration, if it is to be effective, involves vast political changes. What, he asked, is the “slightest level of federation that will be effective?” His answer, based on the American example, was that the minimum would include an impartial federal judiciary, a European legislature and executive, a direct link between the individual and the federal institutions, and armed force at the disposal of those institutions so as to overcome any possible resistance by the member states, to which troops were to be “absolutely denied”.[42]
Seeley asked whether this idea was practicable. His answer was realistic but constructive. Europe would find it harder than the Americans had done. Europeans would need time to spread the conviction that such a reform in their relations was required. Seeley foreshadowed the belief of Altiero Spinelli in our own days that it could not be done by diplomatic methods: he said that a “universal popular movement” would be necessary. Although he stressed that he was merely responding to the question he had been asked, as to how war could be abolished, and although in his reasoning he did not deviate from rigorous, unemotional logic, he concluded his lecture with the vision of a new Federation arising like a majestic temple over the tomb of war”.[43]
Neither the logic nor the vision appeared to evoke much response. Evidently the Peace Society was not reflecting any general appreciation as to the salience of the problem of abolishing war; and Seeley was unusual in responding so seriously to their concern. A decade later, however, his powerful intellect became preoccupied with a federal project which touched a more sensitive nerve in the British body politic.
The occasion for this new preoccupation was the rise of America and Russia, as predicted by de Tocqueville, to become the great world powers, outpacing all the historic European powers – save Britain, if Britain would only federate with the self-governing colonies, Australia, Canada, New Zealand and the British lands in South Africa, and maintain its relationship with India in a form that would consolidate this united British power. Seeley expounded this idea in his Cambridge lectures in the early 1880s, which were published as The Expansion of England in 1883.[44]
Seeley was far from being a jingoist. He was able, as we have seen, to be inspired by the vision of a peace order based on a federal Europe. He rejected any bombast in his view of the Empire, and insisted that a federation of England with the self-governing colonies would not be an empire, but rather a very large state. He did not take it for granted that bigness was desirable, but concluded from the argument in his lectures, based on the realities of power, that Britain, like the other European countries, would otherwise be outweighed by the two states that have come to be called the superpowers. These were the grounds on which he became a liberal unionist and supported the Imperial Federation League, which was set up in the year following publication of his enormously influential book. The League attracted many Liberals who were disenchanted by Gladstone’s insufficiently active approach to international affairs. The League’s Chairman, William Edward Forstec, was born a Quaker and became a Liberal MP for a quarter of a century. Among the Liberal Unionists who were energetic social reformers and whose equally active view of external policy drew them to the League were Joseph Chamberlain and Alfred Milner.
Michael Burgess has written in detail about the imperial federalists and there is no need to expatiate on them here.[45] The point that must here be made is that, although the League doubtless attracted many people of a different colour, more concerned with domination than federation, there were also genuine federalists such as Seeley, who combined a sense of power realities with a commitment to a liberal constitution based on the rule of law and representative government. Such people were able to apply the federal principle to the problem of international order more generally, as Seeley had done in his lecture in 1871 and as Curtis and Kerr were to do after emerging from Milner’s Kindergarten. The post-imperial reaction may have made it hard for British people to appreciate that imperial federalists of this type were neither narrow nor chauvinistic, but were seeking a reasonable solution to problems of international order in the world in which they lived; and this in turn makes it hard to realize the strength of the British federalist tradition.
In the same period as the proposals for imperial federation were being made, Irish nationalism gave rise to projects of Home Rule, and hence to further occasion for consideration of federal principles. This subject, too, is treated elsewhere.[46] Here, we need only note that Acton’s keen interest in federalism as a principle of decentralization was doubtless enhanced by his role as an influential adviser to Gladstone regarding Home Rule; that the Cabinet Committee which prepared the Irish Home Rule Bill in the early 1890s certainly was not lacking in expert knowledge on federal constitutions, as one of its members was James Bryce; and that the erratic Joseph Chamberlain proposed a UK federation in April 1886 to solve the Irish problem, referred specifically to the Canadian constitution as a model in June,[47] and voted against the Home Rule Bill in July, thus deepening the cleavage in the Liberal Party. Ireland and the Empire also split the federalists three ways: those like Seeley who were for imperial federation but against Home Rule; those like Freeman who were for Home Rule but against imperial federation; and those who were in favour of both. Notable among these was the brilliant journalist and publicist, W.T. Stead.
Stead was a Liberal whose flair for publicity and commitment to causes gained him much fame and influence in the last two decades of the century. He was Assistant Editor of the Pall Mall Gazette from 1880 to 1883, Editor from 1883 to 1890, then founder and Editor of the Review of Reviews. As Editor, he gave every member of the staff his “Gospel according to the Pall Mall Gazette”, in order to imbue them with the Gazette’s ideals. These included Empire Federation (“as an Empire we must federate or perish”); Home Rule (“the conciliation of Ireland is even more important than the Federation of the Empire”); and a Federated United States of Europe (the establishment of which was “the special role of English Statesmanship”).[48]
Stead’s commitment to a federal Europe was genuine and consistent. He was a lifelong and passionate “advocate of arbitration, not as the ultimate solution of the difficulties, but as an ideal the advocacy of which would strengthen sentiment in favour of the United States of Europe”, in which the law would be enforceable on individuals: “... You can only exorcize the soldier by the aid of the policeman”.[49] There could be no veto and the federation had to have its own financial resources. It was the example of the USA that made the USE “at least thinkable”.[50]
Stead was not a man of structured thought, but he had an outstanding gift for the telling phrase or action. His Gospel’s slogan for Empire Federation was taken up by Attlee in 1940, with his call for Europe to “federate or perish”;[51] and in 1898 he launched an International Peace Crusade, which was echoed in Henry Usborne’s Crusade for World Government half a century later. This started after a peace initiative by Tsar Nicholas II in 1898. Stead made a highly publicized journey round Europe, meeting political leaders on his way to and from meeting the Tsar. On returning to London he organized a big public meeting, at which his speech was, according to Bryce, “as impressive as any I have ever read”. He founded a new weekly, War against War, which called for a million volunteers for the Crusade; he had a million copies of a broadsheet distributed; he published his book, The United States of Europe on the Eve of the Parliament of Peace: the “Parliament of Peace” being the Peace Conference which, thanks significantly to his initiative, was held at The Hague from May to July 1899.[52]
The Peace Conference resulted in conventions on arms limitation, mediation and arbitration. Stead saw such things as steps towards a Federation of Europe, which he likened to “an embryo in the latter stages of gestation”.[53] Unfortunately that growth was to suffer many setbacks before it began again in earnest after World War Two. Almost immediately, the Boer War was to show how far the Hague conventions fell short of what would be required to ensure peace. But Stead continued to propagate the federal idea. In a speech in Berlin in 1907 he spoke of steps towards the federation of the world, “when the armed anarchy of a world split up into forty-six sovereign and independent states becomes a single great federation with but one army and one navy to maintain order and enforce the law”.[54]
Voices such as Stead’s became drowned by the wardrums as Europe drifted towards 1914. But the federal idea continued to spread, in various forms. Milner, who had been Stead’s Assistant Editor at the Pall Mall Gazette, helped Curtis and Kerr in their efforts to establish the Round Table, which became a powerhouse for promoting federal solutions, whether within the UK, for the Empire, or on a wider international basis. Meanwhile, a new school of federalism was gathering strength, inspired by the pluralism of Otto von Gierke. It was first led by Ernest Barker, a miner’s son who, after studying at Balliol College, Oxford in the 1890s, taught at Oxford, London and Cambridge, where he became Professor of Political Science in 1928. Barker wrote, in his Political Thought in England, published in 1915, that there was “much talk of federalism these days”. Behind it lay the feeling that “the single unitary state, with its single sovereignty, is a dubious conception, which is hardly true to the facts of life. Every state, we feel, is something of a federal society”. The “new Socialism” and the “new Liberalism” were both for the “disintegration of the great state into smaller national groups” which would have large powers.[55] This way of thinking had obvious affinities with Acton, with the proudhoniens in France, and with syndicalists such as G.D.H. Cole. It was carried farther with most distinction by Harold Laski. Barker had been Laski’s tutor, and Laski was deeply influenced by his federalism. This is clearly demonstrated in Laski’s Studies in the Problem of Sovereignty (1917), in his The Foundations of Sovereignty and other Essays (1921), and in his A Grammar of Politics (1925).[56] The latter, most influential, work contained extensive treatments of both the internal, decentralist, and the external, unifying aspects of federalism – although the prefaces of successive editions reflected the Marxist stance that Laski adopted in the 1930s, asserting that federalism could not be applied until the class war had been won.
In the Introduction to the eighth edition of his Law of the Constitution, Dicey concurred with Barker’s observation that, by the time the First World War began, federalism was much discussed. But so far from welcoming this as Barker had done, Dicey devoted a substantial part of his massive Introduction to a diatribe against federal government, and against Home Rule and imperial federation in particular. “Thirty years ago”, he wrote, “the nature of federalism had received in England very inadequate investigation. In this, as in other matters, 1914 strangely contrasts with 1884. The notion is now current that federalism contains the solution of every constitutional problem that perplexes British statesmanship”. He went on to assert that “ ... this belief in a new-fangled federalism is ... a delusion perilous not only to England but to the whole British Empire”, and to ask what would be the real position, under a federal government, of “that small country limited in size, but still of immense power, which is specifically known by the august name of England”.[57] If the intensity of his indignation bore any relation to the influence of the federal idea on the eve of World War One, federalism had indeed arrived on the British political scene.
 
Conclusion: a rich heritage, remembered briefly, then forgotten.
 
By the end of the nineteenth century, the federal idea had indeed made great progress in British thinking, thanks largely to liberal writers who had digested the American experience and understood the fundamental principles that it embodied. The literature was both knowledgeable and predominantly sympathetic. After several decades when the doctrine of indivisible sovereignty and the growing concentration of power in the hands of the King-in-Parliament went largely unchallenged, the potential of the federal principle to solve problems confronting the British state began to become appreciated. Canada and Australia, both needing unity in diversity, were given federal constitutions, thanks as much to Conservative governments as to Liberals. Empire federation and Home Rule, implying in some of the proposed forms federal structures for the United Kingdom, became major political issues. Although with no such political steam behind it, the idea of the United States of Europe received wide publicity. In the early years of the present century, a pluralist federalism gained support. Even if Dicey’s indignation was disproportionate, it seemed by 1914 that federalism had secured a firm place in British political culture.
Two decades later, there seemed to be little to show for it. The Irish Republic and the Dominions were firmly independent, so federation of the United Kingdom or of the Empire was off the political agenda. Although American isolationism had weakened the League of Nations and undermined any idea of federating the English-speaking peoples, the British government had rejected Briand’s proposal for a European inner structure, in favour of keeping the League as it stood. Federalism was not much discussed.
H.A.L. Fisher’s History of Europe was published in 1936. Fisher had been, in addition to Warden of New College, Oxford, where Kerr and Laski had been among his students, a Liberal MP and Cabinet minister. He had written a two-volume biography of Bryce.[58] A lecture he delivered in 1911, published as a pamphlet on Political Unions, was generally favourable and well-informed about federal government.[59] Gilbert Murray, in the entry on Fisher in the Dictionary of National Biography, wrote that he was “the spirit of liberalism, of Britain, of the nineteenth century”; and Fisher’s History of Europe contained over 400 pages on “The Liberal Experiment”, setting down what he saw as significant in the history of liberalism in Europe. Federalism is barely mentioned, save to describe Bismarck’s Germany as an autocracy with federal elements. Nothing on the Swiss constitution of 1848. Nothing on the federal proposals for the United Kingdom or the Empire. Nothing on the contradiction between indivisible sovereignty and federalism, except for a complacent reference to the refusal of governments to accept any diminution of national sovereignty in the League of Nations, and to the rejection of French ideas for a League police force.[60] It looked as if Dicey need not have worried: as if the pre-war federalist ferment had sunk without trace.
Yet Fisher concluded his book by contrasting the two alternative destinies that now confronted Europe: either to “travel down the road to a new war or, overcoming passion, prejudice, and hysteria, work for a permanent organization of peace”.[61] It was the growing awareness of these alternatives that was about to lead in Britain to a remarkable resurgence of the federal idea.
In 1935, a few months before Fisher wrote the last words of his History, Philip Kerr, by now Lord Lothian, had delivered his Burge Memorial Lecture, which was published as Pacifism is not enough (nor Patriotism Either).[62] Lothian had moved beyond the imperial federalist preoccupations of the Round Table, to face the problem that had concerned Stead: the need for a system that would ensure the abolition of war. Like Stead, he insisted – hence the title of his little book – that justice must have her sword. But his book was much more closely reasoned than Stead’s, crystal clear in its explanation why federal government was required and its analysis of the essential characteristics. Curtis’s magnum opus, Civitas Dei, was published around the same time, showing how the development of liberal democracy, including its embodiment in federal constitutions and hence its potential for solving the problem of world order, had stemmed from a religious appreciation of the value of the individual, leading to the policy based on individual rights.[63] Lionel Robbins, in 1937 and 1939, published his two books making the case for a juridical, hence also a political framework for the international economy.[64] Both Lothian and Robbins were Liberals. All three were heirs to the heritage of literature which included such an impressive account of the nature and workings of federal government, and which was part of the cultural context for the flowering of British federalist literature in the late 1930s and the first period of World War Two, by authors such as Beveridge, Brailsford, Jennings, Joad, Mackay, Wheare and Wootton.[65] Such an outpouring of books and pamphlets of the highest quality, mostly between the years 1938 and 1941, would hardly have been possible had it not been based on a literature and a political culture in which federal ideas and knowledge had been so highly developed. It enabled the British federalists to design proposals for a European federation, based in the first instance on Britain, France and other European democracies, widening to include Germany and Italy when they would return to democracy, and to prepare opinion so that the offer of union to France in June 1940 was so readily approved by the Cabinet and favourably received by the British public.
After the fall of France, the British lost confidence in Europe for the time being; and the outcome of the war restored their faith in the British state, particularly if in alliance with the USA. The result was that, so far from seeking federal solutions to post-war problems, the British suppressed the memory of their pre-war federalist revival, and forgot the earlier heritage on which it had been based. From being among the best placed of Europeans to understand and promote the federal idea, they came to be among the most backward.
This is the more regrettable in that both the need and the potential for federal solutions has continued to grow. Technological progress has increased the need for integration on economic, environmental and security grounds. Rising demand for democratic and other rights points towards federal institutions both to control the supranational integration and to entrench decentralization within the state. At the same time more and more countries become capable of guaranteeing such rights. Liberal constitutions by now prevail throughout Western Europe, North America and Australasia; in India, Japan and a number of other countries; and their principles are gaining ground in most other regions of the world. Several countries have taken advantage of the capacity to apply these principles in federal constitutions. The European Community has begun to apply them in what have been called pre-federal institutions.
Yet contemporary Britain appears parochially unaware how far the liberal constitutional principles that the British did so much to develop are becoming the world’s leading political paradigm; and the British seem oblivious of the fact that the idea of federal government stemmed from those very principles and of the opportunity it offers to solve some of the fundamental political problems of the age. Britain, instead, undermines what autonomy remains to local government, tries to block the development of the European Community into a federal system, and does nothing to promote the application of the federal principle more widely in the world. We have left our baby on the neighbours’ doorstep; it has grown to be one of the most valued citizens of the global village in which we live; yet we look the other way, deny all knowledge of the relationship, and fail to take any advantage of his sterling qualities – even if they can be seen as essential to the health and survival of the polity.
It is high time for the British to take steps to ensure that this tragicomedy does not turn to simple tragedy. One such step could be a closer study of the origins of the idea of federal government, of its relationship with British political philosophy, and of the way in which some of the best British jurists, historians, economists and political philosophers have applied their minds to it in the past. The intention of this essay has been to make a modest contribution to this end.


[1] H.A.L. Fisher, A History of Europe, London, Edward Arnold, 1936, p. VI.
[2] James Bryce, The American Commonwealth, first edn, 1888; citations from third edn, New York, Macmillan, 1910, vol. I, p. 183.
[3] Charles de Secondat, baron de Montesquieu, L’Esprit des lois (1748), book IX, ch. I-III and book XI, ch. VI; Encyclopédie, vol. XIV, p. 158, col. b et seq., cited in Bernard Voyenne, Histoire de l’Idée Fédéraliste: vol. I, Les Sources, Paris and Nice, Presses d’Europe, 1976, p. 132.
[4] Cited, from notes in Lord Acton’s unpublished manuscripts, in G.E. Fasnacht, Acton’s Political Philosophy, London, Hollis and Carter, 1952, p. 243.
[5] Montague Bernard, Two Lectures on the Present American War, Oxford and London, Parker, 1861, p. 90. The 85 essays brought together in The Federalist were first published in New York journals between autumn 1787 and spring 1788.
[6] Alexis de Tocqueville, De la Démocratie en Amérique, vol. I (1835), Part I, ch. 8.
[7] M. Bernard, op. cit. (n. 5, supra). The observation about de Tocqueville is on p. 90. Bernard also refers (p. 81) to the recently published History, Formation and Adoption of the Constitution of the United States with Notices of its Principal Framers, 2 vols, London, Sampson Law, 1854, whose American author, George Ticknor Curtis, introduced it as the first history devoted to the subject.
[8] J.S. Mill, “Of Federal Representative Governments”, in Considerations on Representative Government, London, Parker, 1861; third edn, 1865, reprinted in Utilitarianism, Liberty, and Representative Government, London, J. M. Dent, 1910, to which citations refer, pp. 366-376.
[9] Ibid., pp. 368-369; M. Bernard, op. cit. (n. 5, supra), p. 69.
[10] J. S. Mill, On Liberty, London, 1859; citations from 1910 edn, see n. 8, supra, pp. 65, 139.
[11] P.-J. Proudhon, Du principe fédératif (1863).
[12] J. S. Mill, op. cit. (notes 8, 10, supra),pp. 168, 374-375.
[13] J. S. Mill, op. cit. (n. 8, supra), pp. 362, 371.
[14] Ibid. p. 369; Edward A. Freeman, History of Federal Government in Greece and Italy (first edn, entitled History of Federal Government from the foundation of the Achaian League to the disruption of the United States, vol. 1 General Introduction - History of the Greek Federations, 1863; citations from second edn, London, Macmillan, 1893).
[15] E.A. Freeman, ibid., p. XIII.
[16] Ibid., pp. 2-6.
[17] Ibid., pp. 14-69.
[18] Ibid., pp. 11-12.
[19] Lord Acton, The History of Freedom and other Essays, London, Macmillan,1907, pp. 98, 280. The four essays that most concern federalism were “Freedom in Christianity” (an address given on 28 May 1877), pp. 30-60; “Sir Erskine May’s Democracy in Europe” (first published in The Quarterly Review, January 1878), pp. 61-100; “Nationality” (first published in Home and Foreign Review, July 1862), pp. 270-300; “The American Commonwealth. By James Bryce” (first published in English Historical Review, 1889), pp. 575-587.
[20] Ibid., pp. 98, 285, 290.
[21] Loc. cit. in n. 4, supra.
[22] See K.C. Wheare, Federal Government, London, Oxford University Press, 1945; citations from second edn, 1951, p. 262; for full reference to The American Commonwealth, see n. 2, supra.
[23] The American Commonwealth (n. 2, supra), vol. I, p. VIII.
[24] Henry Sidgwick, The Development of European Polity, London, Macmillan, 1903.
[25] Ibid., pp. 436-437, 439.
[26] Henry Sidgwick, The Elements of Politics, London, Macmillan, 1897, p. 218.
[27] A.V. Dicey, Introduction to the Study of the Law of the Constitution, London, Macmillan, 1885; citations from eighth edn, 1915, pp. LXXVII-VIII, 141.
[28] In addition to the sources already listed, there is a comprehensive review of sources in K.C. Wheare, op. cit. (n. 22, supra), pp. 261-267.
[29] James Bryce, Studies in History and Jurisprudence, Oxford, Clarendon Press, 1901, vol. II, p. 50.
[30] The essays were published in Edinburgh under the supervision of Dr John Bowring between 1838 and 1843, in his edition of Bentham’s Works. The Essay entitled Plan for an Universal and Perpetual Peace was published in London by Sweet and Maxwell in 1927, from which edition the references here are taken.
[31] Ibid., p. 43.
[32] J. Bryce, op. cit. (n. 29, supra), pp. 88-89.
[33] Herbert Spencer, The Man versus the State, London, Williams and Norgate, 1884, pp. 81-82.
[34] J.S. Mill, Principles of Political Economy, London, Parker, 1848; citations from new edn published in London by Longmans, 1909, p. 582.
[35] Edwin Cannan, An Economist’s Protest, London, P.S. King and Son, 1927, pp. 66-67.
[36] Lionel Robbins, Economic Planning and International Order, London, Macmillan, 1937, pp. 240-241, 225-229, 426-429. The second book was L. Robbins, The Economic Causes of War, London, Jonathan Cape, 1939.
[37] F.A. Hayek, “The Economic Conditions of Inter-State Federalism”, in New Commonwealth Quarterly, September, 1939, reprinted in F.A. Hayek, Individualism and Economic Order, London, Routledge and Kegan Paul, 1949, where the reference is to pp. 269-270.
[38] Loc. cit.
[39] Lionel Curtis, Civitas Dei, London, George Allen and Unwin, 1934-37; citations from new edn, 1950, pp. 396, 402.
[40] Ibid., p. 415.
[41] James Lorimer, Institutes of the Law of Nations: a Treatise of the general Relations of separate Political Communities, 1884, summarized in Finn Laursen, Federalism and World Order, Compendium 1, Copenhagen, World Federalist Youth, duplicated, 1970, pp. 38-39.
[42] Professor J.R. Seeley, “United States of Europe” (a lecture delivered before the Peace Society), in Macmillan’s Magazine, vol. 23, March 1871, pp. 436-448, here pp. 439-442.
[43] Ibid., pp. 446, 448.
[44] Sir J.R. Seeley, The Expansion of England, London, Macmillan, first edn, 1883; second edn, 1895.
[45] Michael Burgess, “Empire, Ireland and Europe: A Century of British Federal Ideas”, in Michael Burgess (ed.), Federalism and Federation in Western Europe, London, Croom Helm, 1986, pp. 127-152.
[46] Ibid.
[47] Ibid., pp. 133 ff.
[48] Frederic Whyte, The Life of W.T. Stead, London, Jonathan Cape, 1925, vol. 1, pp. 322-327.
[49] Document written in 1901, cited in ibid., vol. 1, p. 155.
[50] W.T. Stead, The United States of Europe on the Eve of the Parliament of Peace, London, Review of Reviews Office, 1899, pp. 9, 15 ff.
[51] C.R. Attlee, Labour’s Peace Aims, London, Peace Book Co., 1940, reprinted in C.R. Attlee, Arthur Greenwood and others, Labour’s Aims in War and Peace, London, Lincolns-Prager, 1940.
[52] F. Whyte, op. cit. (n. 48, supra), vol. 2, p. 147.
[53] W.T. Stead, op. cit. (n. 50, supra), p. 41.
[54] F. Whyte, op. cit. (n. 48, supra), vol. 2, p. 286.
[55] Emest Barker, Political Thought in England, London, Williams and Norgate, 1915, p. 181.
[56] Harold J. Laski, Studies in the Problem of Sovereignty, New Haven and London, Yale University Press and Oxford University Press, 1917; The Foundations of Sovereignty and other Essays, London, Allen and Unwin, 1921; A Grammar of Politics, London, Allen and Unwin, 1925.
[57] A.V. Dicey, op. cit. (n. 27, supra), eighth edn, pp. LXXIV, LXXXIII, LXXXIV.
[58] Herbert A.L. Fisher, James Bryce, London, Macmillan, 1927.
[59] H.A.L. Fisher, Political Unions, The Creighton Lecture, delivered in the University of London, 8 November 1911, Oxford, At the Clarendon Press, 1911.
[60] H.A.L. Fisher, op. cit. (n. 1, supra), p. 1172.
[61] Ibid., p. 1222.
[62] P.H. Kerr (Marquess of Lothian), Pacifism is not enough (nor Patriotism Either), London, Oxford University Press, 1935.
[63] Op. cit. (n. 39, supra).
[64] Op. cit. (n. 36, supra).
[65] Many of these sources are cited in John Pinder, “Federal Union 1939-41,” in Walter Lipgens (ed.), Documents on the History of European Integration: vol. 2, Plans for European Union in Great Britain and in Exile 1939-1945, Berlin and New York, de Gruyter, 1986, pp. 26-155.

 

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