The American Commonwealth - Viscount James Bryce

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years, the Union was not successful in the management of its foreign relations. Few popular governments are, because a successful foreign policy needs in a world such as ours conditions which popular governments seldom enjoy. In the days of Adams, Jefferson, and Madison, the Union put up with a great deal of ill-treatment from France as well as from England. It drifted rather than steered into the war of 1812. The conduct of that war was hampered by the opposition of the New England states. The Mexican war of 1846 was due to the slaveholders; but the combination among the Southern leaders which entrapped the nation into that conflict might have been equally successful in a unified country; the blame need not be laid at the door of federalism. The principle of abstention from Old World complications has been so heartily and consistently adhered to that the capacities of the federal system for the conduct of foreign affairs have been seldom seriously tried, so far as concerned European powers; and the likelihood of any danger from abroad is so slender that it may be practically ignored. But when a question of external policy arises which interests only one part of the Union (such, for instance, as the immigration of Asiatic labourers), the existence of states feeling themselves specially affected may have a strong and probably an unfortunate influence. Only in this way can the American government be deemed likely to suffer in its foreign relations from its federal character.

      II. For the purposes of domestic government the federal authority is now, in ordinary times, sufficiently strong. However, as was remarked in the last chapter, there have been occasions when the resistance of even a single state disclosed its weakness. Had a man less vigorous than Jackson occupied the presidential chair in 1832, South Carolina would probably have prevailed against the Union. In the Kansas troubles of 1855–56 the national executive played a sorry part; and even in the resolute hands of President Grant it was hampered in the reestablishment of order in the reconquered Southern states by the rights which the federal Constitution secured to those states. The only general conclusion on this point which can be drawn from history is that while the central government is likely to find less and less difficulty in enforcing its will against a state or disobedient subjects, because the prestige of its success in the Civil War has strengthened it, and the facilities of communication make the raising and moving of troops more easy, nevertheless recalcitrant states, or groups of states, still enjoy certain advantages for resistance, advantages due partly to their legal position, partly to their local sentiment, which rebels might not have in unified countries like England, France, or Italy.

      III. Everybody knows that it was the federal system and the doctrine of state sovereignty grounded thereon, and not excluded, though not recognized, by the Constitution, which led to the secession of 1861, and which gave European powers a plausible ground for recognizing the insurgent minority as belligerents. Nothing seems now less probable than another secession, not merely because the supposed legal basis for it has been abandoned, and because the advantages of continued union are more obvious than ever before, but because the precedent of the victory won by the North will discourage like attempts in the future.1 This is so strongly felt that it has not even been thought worth while to add to the Constitution an amendment negativing the right to secede. 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 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

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