The doctrine of the legal indestructibility of the Union is now well established. To establish it, however, cost thousands of millions of dollars and the lives of a million of men.

IV. The combination of States into groups was a familiar feature of politics before the war. South Carolina and the Gulf States constituted one such, and the most energetic, group; the New England States frequently acted as another, especially 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 cattle-men, 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.

V. 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 unless where accompanied by intolerance. In the United States the possible diversity of laws is immense. Each State can play whatever tricks it pleases with the law of family relations, of inheritance, of contracts, of torts, of crimes.1 But the actual diversity is not great, for all the States, save Louisiana, have taken the English common and 1 Subject to a few prohibitions contained in the Constitution.

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 might be 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.1 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. 2

VI. He who is conducted over an iron-clad 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 break-downs and deadlocks, not to speak of an expense much exceeding that which is incident

1 Judge Cooley, however, observes to me that there is little substantial diversity in the laws of marriage in different States, the general rule everywhere being that no special ceremony is requisite, and the statutory forms not being deemed imperative. He adds that even as regards divorce far more trouble arises from frauds practised on the laws than from divergent provisions in the laws themselves. It may be observed that although the law of Scotland still differs in many material points from that of England and Ireland, having had a wholly different origin, British subjects and courts do not find the practical inconveniences arising from the diversities to be serious except as respects marriage and the succession to property. The mercantile law of the two countries tends to become practically the same.

2 American jurists, and especially Mr. Justice Story, have done much to elucidate this difficult branch of law, to which the name of Private International Law is usually (though not very happily) applied.

to a simple centralized government. The Americans do not seem to feel this. They tell you that smoothness of working is secured by elaboration of device, that complex as the mechanism of their 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 com plex 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 firstrate 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, the competition probably 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 dis

tinction in the first fifty years of the history of the Republic.1 Nevertheless it often happens that a small State produces a firstrate man, whom the country ought to have in its highest places, as President, or as Speaker of the House of Representatives, 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.

I have left to the last the gravest reproach which Europeans have been wont to bring against Federalism in America. They attributed to it th 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 Constitution had either evaded or not foreseen. It shook the credit of the Supreme court by making the judicial decision of those questions appear due to partrality to the Slave States. It disposed the extreme men on both sides to hate the Federal Union which bound them in the same body with their antagonists. It laid hold of the doctrine of State rights and State sovereignty as entitling a commonwealth which deemed itself aggrieved to shake off allegiance to the national government. Thus at last it brought about secession and the great civil war. Even when the war was over, the dregs of the poison continued to haunt and vex the system, and bred fresh disorders in it. The constitutional duty of re-establishing the State governments of the conquered States on the one hand, and on the other hand the practical danger of doing so while their people remained disaffected, produced the military governments, the "carpet bag" governments, the Ku Klux Klan outrages, the gift of suffrage to a negro population unfit for such a privilege, yet apparently capable of being protected in no other way. All these mischiefs, it has often been argued, are the results of the Federal structure 1 Webster may be fairly counted to Massachusetts, as he settled there in early life, and sat for many years as senator from it.

f

of the government, which carried in its bosom the seeds of its own destruction, seeds sure to ripen so soon as there arose a question that stirred men deeply.

It may be answered not merely that the National government has survived this struggle and emerged from it stronger than before, but also that Federalism did not produce the struggle, but only gave to it the particular form of a series of legal controversies over the Federal pact followed by a war of States against the Union. Where such vast economic interests were involved, and such hot passions roused, there must anyhow have been a conflict, and it may well be that a conflict raging within the vitals of a centralized government would have proved no less terrible and would have left as many noxious sequelae behind.

In blaming either the conduct of a person or the plan and scheme of a government for evils which have actually followed, one is apt to overlook those other evils, perhaps as great, which might have flowed from different conduct or some other plan. All that can fairly be concluded from the history of the American Union is that Federalism is obliged by the law of its nature to leave in the hands of States powers whose exercise may give to political controversy a peculiarly dangerous form, may impede the assertion of national authority, may even, when long-continued exasperation has suspended or destroyed the feeling of a common patriotism, threaten national unity itself. Against this danger is to be set the fact that the looser structure of a Federal government and the scope it gives for diversities of legislation in different parts of a country may avert sources of discord, or prevent local discord from growing into a contest of national magnitude.