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Impearls: 2002-12-15 Archive

Earthdate 2002-12-21

The origins of federalism

Eugene Volokh and Stuart Banner do back to back postings on the 2002-12-20 Volokh Conspiracy regarding the fundamental nature of federalism in the American constitutional system.

Stuart Banner's posting, entitled “The Origins of Federalism,” considers the question of “Why does the United States have a federal structure?”  Banner answers the question he poses thusly:

Not because federalism is conducive to good government, not because the Framers thought it would be wise to have a country made up of sovereign states, and not because of racism.  We have federalism today because in the late 16th and early 17th centuries, when the English government began establishing colonies in North America, England set up a bunch of separate colonies rather than one big colony.  Distances were so great and technology so simple circa 1600 that North America would have been very hard to govern as a single colony.  By the time of independence it was too late to change.  Canada and Australia have a federal structure today for the same reason.  New Zealand does not, because it was small enough and colonized late enough to be run as a single colony.

Now, I have no idea whether on balance federalism is good or bad.  All I'm saying is that if it's good, we lucked into it, and if it's bad, we're stuck with a system intended for circumstances quite different from our own.

I agree with much of Stuart's reasoning, but I must note his explanation is insufficient to explain the existence much less prevalence of federalism among the British colonial successor states.  After all, the former Spanish empire is presently divided into a number of separate nations — not states or provinces of nations — for exactly the reason Banner points to above (separate colonial administrations), but without a whole lot of federalism, much less republicanism or democracy, resulting (at least until recently, and mostly under U.S. influence).

Thus, beyond a multiplicity of subject administrations created by the colonial power, there must be features in specifically British history, character, and culture that resulted not only in federalism in the subsequent development of the ex-colonial societies, but republicanism and democracy itself.

It was (Frenchman) Alexis de Tocqueville who, writing from the vantage point of a foreigner, observing America during the first half of the 19th century (he visited the U.S. during the 1830s), most perceptively saw and wrote about the kernels of the origins of the American system.

Because of his especially perspicacious view of American society and democracy during the 19th century, Alexis de Tocqueville's great work Democracy in America is so highly regarded here in the United States, in fact, that it is often considered to belong among America's “Crown Jewels.”  America's “Crown Jewels,” unlike the crown jewels of monarchies as they have existed round the world, consists of a small set of documents:  the Declaration of Independence, the Constitution, the Federalist Papers; that's about it — except for Alexis de Tocqueville's Democracy in America.

(This three-part article consists of three postings, the present, now coming to an end; next a moderately-lengthy quotation by Alexis de Tocqueville — presenting his analysis of the origins of Amerian republicanism, democracy, and federalism — which immediately follows this post; and lastly a follow-up post with acknowledgments and links.)

The origins of American democracy   by Alexis de Tocqueville

Quoting Alexis de Tocqueville's Democracy in America: 1

Democracy more perfect than any of which antiquity had dared to dream sprang full-grown and fully armed from the midst of the old feudal society.

The English government watched untroubled the departure of so many emigrants, glad to see the seeds of discord and of fresh revolutions dispersed afar.  Indeed it did everything to encourage it and seemed to have no anxiety about the fate of those who sought refuge from its harsh laws on American soil.  It seemed to consider New England as a land given over to the fantasy of dreamers, where innovators should be allowed to try out experiments in freedom.

The English colonies — and that was one of the main reasons for their prosperity — have always enjoyed more internal freedom and political independence than those of other nations; nowhere was this principle of liberty applied more completely than in the states of New England.

It was at that time generally recognized that the lands of the New World belonged to that nation who first discovered them.

In that way almost the whole of the North American coast became an English possession toward the end of the sixteenth century.  The means used by the British government to people these new domains were of various sorts; in some cases the king chose a governor to rule some part of the New World, administering the land in his name and under his direct orders [Footnote: This was the case in the state of New York]; that was the colonial system adopted in the rest of Europe.  In others he granted ownership of some portion of the land to an individual or to a company.  [Footnote: Maryland, the Carolinas, Pennsylvania, and New Jersey were in this category.]  In those cases all civil and political powers were concentrated in the hands of one man or a few individuals, who, subject to the supervision and regulation of the Crown, sold the land and ruled the inhabitants.  Under the third system a number of immigrants were given the right to form a political society under the patronage of the motherland and allowed to govern themselves in any way not contrary to her laws.  This mode of colonization, so favorable to liberty, was put into practice only in New England.

In 1628 a charter of that sort was granted by Charles I to the emigrants who were going to found the colony of Massachusetts.

But generally charters were only granted to the New England colonies long after their existence had become an established fact.  Plymouth, Providence, New Haven, and the states of Connecticut and Rhode Island were founded without the help and, in a sense, without the knowledge of the motherland.  The new settlers, without denying the supremacy of the homeland, did not derive from thence the source of their powers, and it was only thirty or forty years afterward, under Charles II, that a royal charter legalized their existence.  [Footnote: In shaping their criminal and civil laws and their procedures and courts of justice, the inhabitants of Massachusetts diverged from English usages; in 1650 the king's name no longer headed judicial orders.]

For this reason it is often difficult, when studying the earliest historical and legislative records of New England, to detect the link connecting the immigrants with the land of their forefathers.  One continually finds them exercising rights of sovereignty; they appointed magistrates, made peace and war, promulgated police regulations, and enacted laws as if they were dependent on God alone.

Nothing is more peculiar or more instructive than the legislation of this time; there, if anywhere, is the key to the social enigma presented to the world by the United States now.

Among these records one may choose as particularly characteristic the code of laws enacted by the little state of Connecticut in 1650.

The Connecticut lawgivers turned their attention first to the criminal code and, in composing it, conceived the strange idea of borrowing their provisions from the text of Holy Writ:  “If any man after legal conviction shall have or worship any other God but the Lord God, he shall be put to death.”

There follow ten or twelve provisions of the same sort taken word for word from Deuteronomy, Exodus, or Leviticus.

Blasphemy, sorcery, adultery, and rape are punished by death; a son who outrages his parents is subject to the same penalty.  [Footnote: The laws of Massachusetts also imposed the death penalty for adultery, and Hutchinson (Vol. I, p. 441) says that several people were actually executed for that crime; in this context he quotes a strange story of something which happened in 1663.  A married woman had a love affair with a young man; her husband died and she married him; several years passed; at length the public came to suspect the intimacy which had earlier existed between the spouses, and criminal proceedings were brought against them; they were thrown into prison, and both were very near being condemned to death.]  Thus the legislation of a rough, half-civilized people was transported into the midst of an educated society with gentle mores; as a result the death penalty has never been more frequently prescribed by the laws or more seldom carried out.

The framers of these penal codes were especially concerned with the maintenance of good behavior and sound mores in society, so they constantly invaded the sphere of conscience, and there was hardly a sin not subject to the magistrate's censure.  The reader will have noticed the severity of the penalties for adultery and rape.  Simple intercourse between unmarried persons was likewise harshly repressed.  The judge had discretion to impose a fine or a whipping or to order the offenders to marry.  [Footnote: Code of 1650, p. 48.  It would seem that sometimes the judges would impose more than one of these penalties, as is seen in a judicial sentence of 1643 {…} which directs that Margaret Bedford, convicted of loose conduct, be whipped and afterward compelled to marry her accomplice, Nicholas Jemmings.]  If the records of the old courts of New Haven are to be trusted, prosecutions of this sort were not uncommon; under the date May 1, 1660, we find a sentence imposing a fine and reprimand on a girl accused of uttering some indiscreet words and letting herself be kissed.

The code of 1650 is full of preventive regulations.  Idleness and drunkenness are severely punished.  Innkeepers may give each customer only a certain quantity of wine; simply lying, if it could do harm, is subject to a fine or a whipping.  In other places the lawgivers, completely forgetting the great principle of religious liberty which they themselves claimed in Europe, enforced attendance at divine service by threat of fines and went so far as to impose severe penalties, and often the death penalty, on Christians who chose to worship God with a ritual other than their own.  [Footnote: Under the penal law of Massachusetts a Catholic priest who sets foot in the state after he has been driven out therefrom is subject to the death penalty.]

Finally, sometimes the passion for regulation which possessed them led them to interfere in matters completely unworthy of such attention.  Hence there is a clause in the same code forbidding the use of tobacco.  We must not forget that these ridiculous and tyrannical laws were not imposed from outside — they were voted by the free agreement of all the interested parties themselves — and that their mores were even more austere and puritanical than their laws.  In 1649 an association was solemnly formed in Boston to check the worldly luxury of long hair.  {…}

Such deviations undoubtedly bring shame on the spirit of man; they attest the inferiority of our nature, which, unable to hold firmly to what is true and just, is generally reduced to choosing between two excesses.

Alongside this criminal code so strongly marked by narrow sectarian spirit and all the religious passions, stimulated by persecution and still seething in the depths of men's souls, was a body of political laws, closely bound up with the penal law, which, though drafted two hundred years ago, still seems very far in advance of the spirit of freedom of our own age.

All the general principles on which modern constitutions rest, principles which most Europeans in the seventeenth century scarcely understood and whose dominance in Great Britain was then far from complete, are recognized and given authority by the laws of New England; the participation of the people in public affairs, the free voting of taxes, the responsibility of government officials, individual freedom, and trial by jury — all these things were established without question and with practical effect.

These pregnant principles were there applied and developed in a way that no European nation has yet dared to attempt.

In Connecticut the electoral body consisted, from the beginning, of all the citizens, and that is readily understood.  [Footnote: Constitution of 1638 {…}.]  In that nascent community there prevailed an almost perfect equality of wealth and even greater intellectual equality.  [Footnote: In 1641 the general assembly of Rhode Island declared unanimously that the government of the state was a democracy and that power resided in the body of free men, who alone had the right to make the laws and provide for their enforcement.  Code of 1650 {…}.]

At that time in Connecticut all executive officials were elected, including the governor of the state.

Citizens over sixteen years of age were obliged to bear arms; they formed a national militia which appointed its officers and was bound to be ready to march at any time to the country's defense.

In the laws of Connecticut and of all the other states of New England we see the birth and growth of that local independence which is still the mainspring and lifeblood of American freedom.

In most European nations political existence started in the higher ranks of society and has been gradually, but always incompletely, communicated to the various members of the body social.

Contrariwise, in America one may say that the local community was organized before the county, the county before the state, and the state before the Union.

In New England, local communities had taken complete and definite shape as early as 1650.  Interests, passions, duties, and rights took shape around each individual locality and were firmly attached thereto.  Inside the locality there was a real, active political life which was completely democratic and republican.  The colonies still recognized the mother country's supremacy; legally the state was a monarchy, but each locality was already a lively republic.

The towns appointed their own magistrates of all sorts, assessed themselves, and imposed their own taxes.  The New England towns adopted no representative institutions.  As at Athens, matters of common concern were dealt with in the marketplace and in the general assembly of the citizens.


1 Alexis de Tocqueville, Democracy in America, 12th Edition, 1848, edited by J. P. Mayer, translated by George Lawrence, Anchor Books, Doubleday and Co., Inc., New York, 1969; pp. 39-44.

Tocqueville acknowledgments and links

I decided to excerpt the above quote from the Mayer/Lawrence edition described above — fully crediting J. P. Mayer and George Lawrence's work — instead of obtaining the text from the on-line version pointed-to below, in the hope this will encourage readers to buy or check out the foregoing fine translation of Alexis de Tocqueville's Democracy in America.

Tocqueville's travel diary from his years-long visit to America has also been published.  See:  Alexis de Tocqueville, Journey to America, edited by J. P. Mayer, Yale paperback series, New Haven, 1962.

An on-line version of the entirety of Tocqueville's Democracy in America is available on the Internet here

The U.S. public affairs television network C-SPAN has done a tremendous amount of programming on Alexis de Tocqueville.  Do a search for “Toc” on the index for the C-SPAN on-line store to review all the programming on him that is available.  C-SPAN also has a nice map showing Tocqueville's travels in America.

Then there's the web page “” containing numerous links to information about Alexis de Tocqueville and his writings.

Medieval constipation advice for travelers

Dominican friar Felix Faber from the German city of Ulm twice traveled as a pilgrim to the Holy Land during the latter part of the 15th century.  Faber offered up this dry advice for travelers on long Mediterranean boat voyages of his day: 1

As the poet says, “A ripe turd is an unbearable burden” [ut dicitur metrice: maturum stercus est importabile pondus].  A few words on the manner of urinating and shitting on a boat.

Each pilgrim has near his bed a urinal — a vessel of terracotta, a small bottle — into which he urinates and vomits.  But since the quarters are cramped for the number of people, and dark besides, and since there is much coming and going, it is seldom that these vessels are not overturned before dawn.  Quite regularly in fact, driven by a pressing urge that obliges him to get up, some clumsy fellow will knock over five or six urinals in passing, giving rise to an intolerable stench.

In the morning, when the pilgrims get up and their stomachs ask for grace, they climb the bridge and head for the prow, where on either side of the spit privies have been provided.  Sometimes as many as thirteen people or more will line up for a turn at the seat, and when someone takes too long it is not embarrassment but irritation that is expressed [nec est ibi verecundia sed potius iracundia].  I would compare the wait to that which people must endure when they confess during Lent, when they are forced to stand and become irritated at the interminable confessions and await their turn in a foul mood.

At night, it is a difficult business to approach the privies owing to the huge number of people lying or sleeping on the decks from one end of the galley to the other.  Anyone who wants to go must climb over more than forty people, stepping on them as he goes; with every step he risks kicking a fellow passenger or falling on top of a sleeping body.  If he bumps into someone along the way, insults fly.  Those without fear or vertigo can climb up to the prow along the ship's gunwales, pushing themselves along from rope to rope, which I often did despite the risk and the danger.  By climbing out the hatches to the oars, one can slide along in a sitting position from oar to oar, but this is not for the faint of heart, for straddling the oars is dangerous, and even the sailors do not like it.

But the difficulties become really serious in bad weather, when the privies are constantly inundated by waves and the oars are shipped and laid across the benches.  To go to the seat in the middle of a storm is thus to risk being completely soaked, so that many passengers remove their clothing and go stark naked.  But in this, modesty [verecundia] suffers greatly, which only stirs the shameful [verecunda] parts even more.  Those who do not wish to be seen this way go squat in other places, which they soil, causing tempers to flare and fights to break out, discrediting even honorable people.  Some even fill their vessels near their beds, which is disgusting and poisons the neighbors and can be tolerated only in invalids, who cannot be blamed: a few words are not enough to recount what I was forced to endure on account of a sick bedmate.

The pilgrim must be careful not to hold back on account of false modesty and not relieve the stomach; to do so is most harmful to the traveler.  At sea it is easy to become constipated.  Here is good advice for the pilgrim: go to the privies three or four times every day, even when there is no natural urge, in order to promote evacuation by discreet efforts; and do not lose hope if nothing comes on the third or fourth try.  Go often, loosen your belt, untie all the knots of your clothes over chest and stomach, and evacuation will occur even if your intestines are filled with stones.  This advice was given me by an old sailor once when I had been terribly constipated for several days.  At sea, moreover, it is not safe to use pills or suppositories [pilulas aut suppositoria accipere], because to purge oneself too much can cause worse trouble than constipation.

Probably good advice for any time and place.

1 Quoted from A History of Private Life: Vol. II – Revelations of the Medieval World, edited by Georges Duby, translated by Arthur Goldhammer, the Belknap Press of Harvard University Press, Cambridge, Massachusetts, 1988; pp. 587-588.

Quote of the day, from the same volume (p. 589):

Felix conjunctio!  (“Happy coupling”)  —Carmina Burana (10th to 13th century)

Impearls: 2002-12-15 Archive

Earthdate 2002-12-19

Update:  Roaring Camp

Roaring Camp steam locomotives before engine house (photographer: Michael McNeil)

Images have been added to the Roaring Camp piece.  Enjoy!


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