One of the most noticeable phenomena in the world history of the last two or three hundred years is the subjugation of Asia by Europe. Asiatic civilization and institutions have in the shock of conflict with European civilization and European institutions either succumbed or have been made to suffer great modifications. In some instances political control has passed from Asiatic to European hands. In others, while Asiatic rulers have been able to maintain themselves in at least nominal control, their freedom of action has been curtailed by treaties forced from them by the fear of the loss of political independence.

Furthermore, in those few cases of contact between the European and the Asiatic in which the latter has not suffered a serious loss of independence, European commercial and industrial organization has exercised a remarkable influence over Asiatic life. The steamship and the railway, both European inventions, have bound together the East and West in bonds so strong that it is futile to think that they will ever be broken, and have at the same time given to most Eastern countries means of transportation which are surely and with continuingly increasingly rapidity transforming the conditions of Eastern life.

Webster, as a prelude to his reply to Hayne, asked for the reading of the resolution before the Senate, in order that the mind of his hearers might be led back to the original and perhaps forgotten subject of the debate. Today we may well imitate his example, by recurring to fundamental principles. For five months we have stood in the presence of one of the most appalling wars in history, appalling not only because of its magnitude and destructiveness but also because of its frustration of hopes widely cherished that the progress of civilization had rendered an armed conflict between the leading powers of the world morally impossible. As a result we have since the outbreak of the great conflict been tossing about on the stormy sea of controversy, distrustful of our charts and guides, and assailed on every hand with cries of doubt and despair. We have been told that there is no such thing as international law; that, even if its existence be admitted, it is at most nothing but what superior force for the time being ordains; that international understandings, even when embodied in treaties, are practically worthless, being obligatory only so long as they may be conceived to subserve the interests or necessities of the moment; that the only security for the observance of international rules, general or conventional, is force, and that in force we must in the last analysis find our sole reliance.

In recent years there has been an interesting and very remarkable extension of judicial control over the acts of the administrative authorities in France. The doctrine of recourse in annulment for excess of power, in particular, has undergone such an extraordinary development that it is probably safe to say that there is now no other country where private rights are better protected against arbitrary and illegal acts of public officers. It is an interesting fact also that this protection has not been created by legislation but is mainly the work of the council of state, and, to a less degree, of the court of cassation, the two supreme judicial tribunals of France.

The solicitude which the council of state, especially, has shown for the protection of individual rights and the independence which it has exhibited as over against the government by whom the councillors of state are appointed and by whom they may be removed at pleasure is a sufficient answer to the criticism of those English and American writers who assert that the French administrative courts are the docile and servile instruments of the government, and that in controversies between the administration and private individuals their decisions are generally in favor of the administration.

There is no country in which it is as important that the lawyers should be well educated for their profession, as it is in the United States. Here they hold a political position. They are a recognized part of the machinery of government. All are officers of courts that have the acknowledged power of interpreting constitutions and statutes, which may be invoked as grounds of action or defence in pending litigation, and of holding statutes inconsistent with a constitution so interpreted to be void. Other nations may confer on the judiciary a similar authority in terms, but nowhere else is the exertion of such authority common and accepted by all as conclusive. In the last resort, questions of constitutional law and statutory construction will be decided in a court, manned exclusively by those who have been trained for the bar, after hearing argument from lawyers who have been educated in the same manner.

The constitution of the American Bar Association has a standing committee on “Legal education and admission to the bar.” Their reports, from time to time, have been influential in securing action which, since the foundation of the association in 1878, has served to lengthen the general term of study required for the admission to the bar, to broaden the field of study, and to transfer the general place of study from a lawyer's office to a law school.

The submission of proposals for the abolition of the state senate to the people of Oregon at the two preceding general elections is occasion for a summary of considerations in reference to the bicameral system of legislation.

The bicameral system has been so long and so widely prevalent that until very recently its “necessity” has been almost universally regarded as “a demonstrated truth.” The British legislature, “the mother of parliaments,” is a development from the assembly of “estates.” Five distinct “estates” were present in the “Model Parliament” of 1295, but through the consolidation of interests, the organization of two legislative chambers, the House of Lords and the House of Commons, was soon evolved. The origin of the bicameral system was thus “not owing to any conviction that two houses would work better than either one or three, but was a matter of sheer accident,” and was not “the invention of any clever constitution-maker.” The bicameral system of legislation, generally based upon English precedent, has usually followed the extension of constitutional government, and at present most national legislatures consist of two chambers.

In 1806 Prussia engaged in war with Napoleon. The swiftest of his triumphs followed. In two months the Prussians had surrendered their fortresses, and seen annihilated the greatness which Europe had failed to crush in the time of Frederick the Great. A period of humiliation followed, and for some years the people lived under the conqueror's yoke.

Deliverance came when Napoleon, stretching too far his power, and arousing the spirit of peoples, was defeated by Europe in arms. The liberation which alone Prussia could not have accomplished, was yet wrought partly by herself, for deliverance was preceded by regeneration in which her military system was fundamentally reformed. But it may be that what remained after all as the principal heritage from these years was the abiding sense that Prussia had suffered from being weak, and that only through military strength could there be safety in the future.

The expansion and greatness of Prussia left unfulfilled the old idea of a united Germany. Through the middle ages and down to this time Germany had remained disunited, and weak and despised because of it. The smallest states had now disappeared, but still there were larger ones, grouped under Austria in vague and shadowy empire. And the history of Germany in the half century which followed the downfall of Napoleon is a record of yearning and striving on the part of people filled with distant memories, and noble aspiration after that strength and union which had come to their neighbors and yet been denied to themselves.

The course of recent legislation for the regulation of commerce, trade and industry has created the impression that there exists a tendency in our law to transfer powers of determination from the courts which act according to fixed principles to administrative commissions or officials vested with large discretionary powers.

Considering that normally the progress of law should be away from discretion toward definite rule, such a tendency should receive the most careful examination. The first inquiry should however be whether and to what extent the impression is substantiated by facts.

The advent of the new administrative power is in the public mind associated chiefly with public utility and industrial commissions first created for the control of railroads, for the earlier powers over banks and insurance companies, as well as those of medical and other licensing boards, attracted relatively little attention or comment.

I have listened with unusual interest to the learned paper on “Reform in China” just read by President Goodnow. It seems to me, however, that the Occidental people find no end of difficulty in understanding and interpreting our Oriental laws, customs, and institutions. We are told, for instance, that the Chinese like other Asians, who are mainly agricultural peoples, are unfit for representative government. I doubt if this statement can stand the test of adequate proof. Take, for example, the people of China, whose recorded history runs back to 2800 B. C. These Celestials, these agriculturalists, had from time immemorial enjoyed local self-government, had been accustomed to “take communal action:” they would close up their business and resist the imposition of an unjust tax. It is to be remembered that the powers of the mother of parliaments developed in this fashion. “The financial functions of parliamentary assemblies are always the centre of their action.”

In India, another agricultural country, we had the village community which contained the true germs of representative government. These village communities have frequently been described by such authorities as Sir Charles Metcalf, Sir Henry Maine as “little republics.”

Notable among the realities brought into sharp relief by the present war, is the spontaneous display of loyalty on the part of the British dominions. These “new nations within the empire,” notwithstanding a natural pride in their embryo consciousness of nationhood, have enthusiastically and of their own volition rallied to the support of Britain the head of this same empire. The apparent anomaly inherent in this state of affairs merits notice in view of its importance as a bed-rock principle in the politics of the empire. Moreover, the unique political status enjoyed by the dominions invites attention by reason of its very disagreement with the traditional view generally held as to the normal relations between colony and parent state.

It is only within the past decade and a half that the older of the British dominions, bursting the colonial chrysalis, have begun to emerge into nationhood. Amid the transitions of the present age none is more significant than that which is changing the structure and organization of the empire. That this transition has not been more generally recognized is not surprising. Even the inhabitant of the British Isles has found it difficult to understand the attitude and temper of his fellow-citizen of the colonies. To the Englishman of the past the notion of imperial union was based on a helpless and enforced “loyalty.”

As the last summary in the Review of the decisions of the United States Supreme Court on constitutional questions included the cases at the October term, 1910–1911, it may be desirable now under a few headings to group the cases which seem to be of fundamental importance decided during the three judicial years commencing in 1911 and concluding in 1914. Without any numerical summary (which would be difficult and of little value in view of the fact that many cases in which constitutional questions are raised by counsel and briefly referred to by the court are of no significance as indicating any new development or application of constitutional provisions) it may safely be said that the number of important cases in which difficult constitutional questions have been decided has during this period been unusually large. As the activity of Congress in pushing its legislative power constantly closer to the line of its constitutional authority increases, the number of cases in which the limits of such authority are necessarily involved must also increase. But it may further be suggested by way of rough generalization that the principles of constitutional law relating to other subjects on the boundary line between state and federal legislative powers has become reasonably well established, and comparatively few cases of importance relating to their application have recently been decided by the Supreme Court.

“For my part,” exclaimed Mr. Asquith at the great Guildhall meeting in September, 1914, “I say that sooner than be a silent witness, which means in effect a willing accomplice of this tragic triumph of force over law and of brutality over freedom, I would see this country of ours blotted out of the page of history.” In giving utterance to these remarkable words, the British Premier was thinking not only of the tragic fate of valiant little Belgium, but also of the life and death struggle for liberty and independence of another small state whose history and position are much less understood by Europe, or by the world in general—Servia. “Give a dog a bad name and hang him,” runs the old adage, which applies with peculiar force to the attitude of public opinion in this instance toward the Servian kingdom. For years the press of Austria-Hungary, copied unthinkingly by that of Germany and other European countries, has been at work deliberately giving Servia a “bad name.” Unfortunately there have been too many dark pages in Servian history—pages stained by violence, intrigue and crime—especially in political circles, not to give just cause for grave criticism. Yet it is manifestly unfair to pass a final judgment upon an intelligent and courageous people by looking only at one side of the shield.

The presidency, intended by the framers of the Constitution to be almost exclusively an executive and administrative office, has, in the course of a century and a quarter, not only augmented its executive and administrative authority, but also has acquired a marked political significance. To his constitutional powers the President has added the prerogatives of party leadership, which constitute him the organ for giving effect to the policies of his party at the same time that he exercises a potent influence in the formulation of those policies. The amazing growth of political parties in the United States and the perfection and strength of their organization have been the causes of astonished comment on the part of foreign observers. Moreover, ours has been, in the main, a country of two parties. In view of these facts, the President as party leader becomes a personage of incalculable political consequence. He possesses the political leadership of an English prime minister with the titular dignity which the prime minister lacks.

Since Jackson's time the presidency has achieved a representative character which is the natural result of the President's assumption of political leadership. He perhaps more accurately reflects the mind of the country at large than either of the houses of Congress. The Senate has been wanting in representative character, until the passage of the seventeenth amendment, because of the indirect mode of its election; while the Representatives, because the center of their interests is local rather than national and because their number has been a hindrance to decisive action, have distinctly lost in prestige. The President is able, and finds it to his advantage, to cultivate a nationalistic conception of his office.

In its broad outlines the state government of Illinois resembles that of most of the American States—but with the most recent tendencies as yet only slightly developed. The present state constitution, adopted in 1870, illustrates the political ideas prevalent in the middle of the nineteenth century—the election of all classes of public officials, the disintegration of the executive branch of the government, and the distrust of the legislature, and the provisions of this constitution are stereotyped by an amending article under which alterations have proved almost impossible. There has, however, been an increasing development of administrative authorities, created by statute, and added one to another with almost no attempt at systematic organization. From 1909 to 1913, there were not less than 34 new state offices, boards and commissions established, and the total number of such executive agencies is now approximately 130.

Under the present arrangements, there is no correlation between related offices, and little or no effective supervision; there is no budget system and no adequate accounting system. As a result the public administration is inefficient and wasteful; it fails to furnish the general assembly with satisfactory advice on legislation; and there is no clearly defined responsibility for the conduct of public affairs; appropriations and expenditures have been rapidly increasing, the appropriations in 1913 for two years amounting to nearly $38,000,000.

Mr. W. J. Shepard, in a review of my work, Die moderne Demokratie, remarks that I have forgotten its spirit in the study of its forms. “It is not the vitalizing spirit,” he writes, “the impelling motive force, the broadly based popular sentiment of democracy that is of interest, but only the forms and mechanism ‥‥ of democratic-republican states.” Now I have in the fifth chapter of the second book presented the theory of political democracy, in the sixth that of social democracy, and in the seventh that of democratic socialism; and in the first of these three chapters I have discussed popular sovereignty and active citizenship, the supremacy of the majority in a democracy, the unlimited constituent power of the people (pouvoir constituant), in which European science has conceived the essence of this form of the state to reside in contradistinction to other forms. But Mr. Shepard has a different conception of its nature. He has raised an interesting question in this connection which I should like to discuss in the following pages.

Brief though his statement on this point is, no one can doubt that he considers the supremacy of public opinion as the essence of democracy, since he writes: “No discussion of the nature, elements and effects of public opinion, no appreciation of the spirit of democracy is to be found in the covers of this volume.” As a matter of fact I have treated of this subject in the above-mentioned first division of the fifth chapter, which is devoted to the discussion of popular sovereignty, though certainly in the brief compass which appeared to me sufficient for the understanding of the nature of democracy.

The evolution of business organization is from the unsystematized through the systematized to the scientific. Governmental work—federal, state and municipal—is still almost exclusively in the unsystematized stage.

Among the causes of municipal inefficiency are the attempt to hamper and control the action of individuals by a multiplicity of petty restrictions unknown in private business, and the separation of the municipal service into scores of divisions with little or no mutuality of interest. Both of these practices tend to prevent group action in the large sense. But undoubtedly the greatest bar to efficiency is the unwillingness to trust the individual as shown by the attempt to thwart evil or selfish designs of the official by board control. This committee management is in my opinion, the most costly hallucination of democracy. As a present day cause of expensive and inefficient government, this bulwark of the stand patter, of special privilege, of the politician and of the crook makes other influences tending in the same direction such as the complacency of civil service and the lack of definite standards, seem almost negligible.

The convening of the 64th congress makes timely a brief discussion of the organization and operation of the Democratic caucus system in the house of representatives during the last two congresses; since the Democratic party remains in control of the present congress, it is to be presumed that the past caucus system will be continued in substantially the same form.

The caucus system used in the 62d and 63d congresses was adopted by the Democrats, upon their accession to control of the house in 1910, to replace Cannonism, which had become of ill repute among the voters, and which had been partly over-thrown at the preceding session. The unwieldy size of the house, as well as the exigencies of party, required some extra-legal machinery to coördinate and direct the action of the members; the substitute chosen by the Democratic leaders was an adaptation of the senate caucus, formerly known as Aldrichism. The essence of Cannonism had been the control of the house by the speaker through his power of appointment of committees and his domination of the rules committee, backed by the power of the majority party caucus; the essence of the new system is direct control of legislative action by the caucus itself.

Apart from the agitation of such questions as the regulation of primary elections, equal suffrage, the initiative and referendum, and the debates on the establishment of the board of control of state institutions in 1898 and the creation of the state board of education in 1909, there has been little or no discussion of the problem of the reorganization of state government in Iowa until very recently. Indeed, a lively interest in the problems of reorganization seems first to have found expression in 1913 in the thirty-fifth general assembly which, besides endorsing the short ballot principle by providing for the appointment of the state superintendent of public instruction, the clerk of the supreme court, and the supreme court reporter, authorized the joint committee on retrenchment and reform to employ “expert accountants and efficiency engineers” and to “institute such changes in the administration of public affairs as will promote the efficiency and economical administration of the affairs of the State in its various departments.”

It was in accordance with the legislation of March 17, 1913, that the firm of Quail, Parker & Co. was engaged to assist the joint committee on retrenchment and reform and under the direction and supervision of that committee “to examine and report upon the existing procedures incident to the transaction of the business of the State in the various offices and departments located at the seat of government in the city of Des Moines; and to make recommendations with a view to the betterment thereof.” The sum of $10,000 was appropriated to meet the expenses of the proposed investigations.

In Aristotle's treatise on the constitution of Athens we read of the great lawgiver, Solon, that “when he had completed his organization of the constitution … he found himself beset by people coming to him and harassing him concerning his laws, criticizing here and questioning there, till, as he wished neither to alter what he had decided on, nor yet to remain an object of ill-will to everyone by remaining at Athens, he set off on a journey to Egypt, … giving out that he would not return for ten years.” To the student of American history recalling the comparison with “that old constitution-monger Solon,” so often flung at the framers of the Constitution by the anti-Federalists, the hasty exodus from Athens for a decade after the attempt “to save the country and establish the best laws that were possible,” is full of interest. The actual result of the Solonic experiment in political science we also gather from Aristotle, for “in the fifth year after Solon's government they were unable to elect an archon on account of the dissensions,” and again, four years later they elected no archon for the same reason.

City manager government will soon be in effect over some 250,000 people living in eighteen cities. One hundred seventy five thousand of these people live in Dayton and Springfield—cities which are now completing their first year under this type of administration. Any deductions to be made regarding this type of government as it operates in the case of larger communities, must be drawn from the experience of these two municipalities over the past year.

A most common test of the character of government is economy, although that is no fairer criterion of worth than it is with shoes, furniture, or tobacco. Cheap government is not necessarily good government. Even were the revenue and expense schedules for the present year available, it would be difficult to make an impartial analysis and comparison of finances in Dayton and Springfield under the two types of government. In Springfield the most concrete evidence of economy has been the reduction of the floating indebtedness from $100,000 to $40,000, although the resources were slightly less than those of former years. In Dayton the net expenditures for 1914 from ordinary sources will be approximately $78,000 more than for the previous year. However, with this increase the general revenues were charged for street repair, street lighting, and emergency health work, formerly costing a much larger amount from bonds.

It was Munn vs. Illinois that first interpreted the constitutional provision empowering Congress to regulate commerce in such a way as to charge private business with a public interest. Since that epochal finding our courts have made comparatively swift progress, reaching ultimately (through the Standard Oil and tobacco decisions) a federal trade commission to regulate competition in trade and to restrain illegal combinations. All of this has been done during the professional life of many lawyers of today, for Munn vs. Illinois was decided in 1876.

Writers upon the trend of legislation and of court decisions had clearly predicted this last development of corporation law. The incident of climax importance however, was the remanding of the oil and tobacco cases to the circuit courts where the decrees of dissolution were to be worked out in conjunction with the department of justice. This was administrative work, and a department of the executive branch of the government should do it. Hence the creation of the trade commission, empowered to investigate the carrying out of the decrees of the supreme court and to prepare the form of decree in certain cases referred to it by the circuit courts.