during the war of 1812. At present, though there are several sets of states whose common interests lead their representatives in Congress to act together, it is no longer the fashion for states to combine in an official way through their state organizations, and their doing so would excite reprehension. It is easier, safer, and more effective to act through the great national parties. Any considerable state interest (such as that of the silver miners or cattlemen, or protectionist manufacturers) can generally compel a party to conciliate it by threatening to forsake the party if neglected. Political action runs less in state channels than it did formerly, and the only really threatening form which the combined action of states could take, that of using for a common disloyal purpose state revenues and the machinery of state governments, has become, since the failure of secession, most improbable.
It has been a singular piece of good fortune that lines of religious difference have never happened to coincide with state lines; nor has any particular creed ever dominated any group of states. The religious forces which in some countries and times have given rise to grave civil discord, have in America never weakened the federal fabric.
V. Towards the close of the nineteenth century two significant phenomena began to be seen. One was the increasing power of incorporated companies and combinations of capitalists. It began to be felt that there ought to be a power of regulating corporations, and that such regulation cannot be effective unless it proceeds from federal authority and applies all over the Union. At present the power of Congress is deemed to be limited to the operations of interstate commerce, so that the rest of the work done by corporations, with the law governing their creation and management, belongs to the several states. The other phenomenon was the growing demand for various social reforms, some of which (such as the regulation of child labour) are deemed to be neglected by the more backward states, while others cannot be fully carried out except by laws of general application. The difficulty of meeting this demand under existing conditions has led to many complaints, and while some call for the amendment of the Constitution, others have gone so far as to suggest that the courts ought now to construe the Constitution as conferring powers it has not hitherto been deemed to include.
VI. The want of uniformity in private law and methods of administration is an evil which different minds will judge by different standards. Some may think it a positive benefit to secure a variety which is interesting in itself and makes possible the trying of experiments from which the whole country may profit. Is variety within a country more a gain or a loss? Diversity in coinage, in weights and measures, in the rules regarding bills and cheques and banking and commerce generally, is obviously inconvenient. Diversity in dress, in food, in the habits and usages of society, is almost as obviously a thing to rejoice over, because it diminishes the terrible monotony of life. Diversity in religious opinion and worship excited horror in the Middle Ages, but now passes unnoticed, except where governments are intolerant. In the United States the possible diversity of laws is immense. Subject to a few prohibitions contained in the Constitution, each state can play whatever tricks it pleases with the law of family relations, of inheritance, of contracts, of torts, of crimes. But the actual diversity is not great, for all the states, save Louisiana, have taken the English common and statute law of 1776 as their point of departure, and have adhered to its main principles. A more complete uniformity as regards marriage and divorce is desirable, for it is particularly awkward not to know whether you are married or not, nor whether you have been or can be divorced or not; and several states have tried bold experiments in divorce laws.2 But, on the whole, far less inconvenience than could have been expected seems to be caused by the varying laws of different states, partly because commercial law is the department in which the diversity is smallest, partly because American practitioners and judges have become expert in applying the rules for determining which law, where those of different states are in question, ought to be deemed to govern a given case.3 However, some states have taken steps to reduce this diversity by apointing commissions, instructed to meet and confer as to the best means of securing uniform state legislation on some important subjects, and progress in this direction has been made.
VII. He who is conducted over an ironclad warship, and sees the infinite intricacy of the machinery and mechanical appliances which it contains and by which its engines, its guns, its turrets, its torpedoes, its apparatus for anchoring and making sail, are worked, is apt to think that it must break down in the rough practice of war. He is told, however, that the more is done by machinery, the more safely and easily does everything go on, because the machinery can be relied on to work accurately, and the performance by it of the heavier work leaves the crew free to attend to the general management of the vessel and her armament. So in studying the elaborate devices with which the federal system of the United States has been equipped, one fancies that with so many authorities and bodies whose functions are intricately interlaced, and some of which may collide with others, there must be a great risk of breakdowns and deadlocks, not to speak of an expense much exceeding that which is incident to a simple centralized government. In America, however, smoothness of working is secured by elaboration of device; and complex as the mechanism of the government may appear, the citizens have grown so familiar with it that its play is smooth and easy, attended with less trouble, and certainly with less suspicion on the part of the people, than would belong to a scheme which vested all powers in one administration and one legislature. The expense is admitted, but is considered no grave defect when compared with the waste which arises from untrustworthy officials and legislators whose depredations would, it is thought, be greater were their sphere of action wider, and the checks upon them fewer. He who examines a system of government from without is generally disposed to overrate the difficulties in working which its complexity causes. Few things, for instance, are harder than to explain to a person who has not been a student in one of the two ancient English universities the nature of their highly complex constitution and the relation of the colleges to the university. If he does apprehend it he pronounces it too intricate for the purposes it has to serve. To those who have grown up under it, nothing is simpler and more obvious.
There is a blemish characteristic of the American federation which Americans seldom notice because it seems to them unavoidable. This is the practice in selecting candidates for federal office of regarding not so much the merits of the candidate as the effect which his nomination will have upon the vote of the state to which he belongs. Second-rate men are run for first-rate posts, not because the party which runs them overrates their capacity, but because it expects to carry their state either by their local influence or through the pleasure which the state feels in the prospect of seeing one of its own citizens in high office. This of course works in favour of the politicians who come from a large state. No doubt the leading men of a large state are prima facie more likely to be men of high ability than those of a small state, because the field of choice is wider and the competition keener. One is reminded of the story of the leading citizen in the isle of Seriphus who observed to Themistocles, “You would not have been famous had you been born in Seriphus,” to which Themistocles replied, “Neither would you had you been born in Athens.” The two great states of Virginia and Massachusetts reared one half of the men who won distinction in the first fifty years of the history of the Republic. Nevertheless it often happens that a small state produces a first-rate man, whom the country ought to have in its highest places, but who is passed over because the federal system gives great weight to the voice of a state, and because state sentiment is so strong that the voters of a state which has a large and perhaps a doubtful vote to cast in national elections, prefer an inferior man in whom they are directly interested to a superior one who is a stranger. It is also unfortunate that the president’s liberty of choice in forming his cabinet should be restricted by the doctrine that he must not have in it, if possible, two persons from the same state.
I have left to the last the gravest reproach which Europeans have been wont to bring against federalism in America. They attributed to it the origin, or at least the virulence, of the great struggle over slavery which tried the Constitution so severely. That struggle created parties which, though they had adherents everywhere, no doubt tended more and more to become identified with states, controlling the state organizations and bending the state governments to their service. It gave tremendous importance to legal questions arising out of the differences between the law of the slave states and the free states, questions which the
