It requires no little hardihood to appear at this time and place as a critic of the system of federal government. Such an attitude may well seem to indicate ignorance in a professor, incivility in a foreigner and ingratitude in a guest. But I am willing in the interests of scientific investigation to immolate myself upon the altar of my own temerity; I will merely remind you by way of personal apology that my own country like yours is organized upon a federal basis, and that if I have chosen to select the United States as the most conspicuous illustration of the case I wish to establish, it is merely because the advanced stage of federal development attained by this republic renders it the most proper field of investigation for the theorist. In this essay I deal with the operation of federal government in the economic and industrial sphere. It is my purpose to show that this system of government is developing, under modern economic conditions, disadvantages of increasing magnitude and is out of harmony with the general environment of modern industrialism.

In discussing this subject it will be necessary to refer to democratic principles of government. Unless it is understood distinctly just what is meant the statements made will not convey clear ideas. There are two senses in which the word democratic is used—one having respect primarily to means and the other to ends. From the one point of view, all institutions that pretend to put power in the hands of the people are democratic in their character. An instance of this assumption appears in last year's programme of this association, wherein the direct primary, the initiative, the referendum, and the recall are designated as “the newer institutional forms of democracy.” From the other point of view, the quality of institutions is not decided by the emotions and intentions with which they are created, but is to be discerned from their results, so that the democratic value of any institution is wholly contingent upon its usefulness in subjecting the operations of government to the control of the people. From this point of view, the classification quoted from last year's programme begs the very question that is to be determined.

The increased control, since the adoption of the first twelve amendments to the Constitution of the United States, of state activities by the federal authorities is not because of any recent increase of federal power. There has been no increase of federal power since the adoption of the thirteenth, fourteenth and fifteenth amendments to the Constitution of the United States. All the powers given to the federal government permitting control by it of state action is found in the constitution. If power is not delegated by the constitution to the national government it does not possess it at all; for all powers are reserved to the states or to the people thereof which have not been delegated to the government of the United States by that instrument. The acts of congress passed to enforce the powers delegated to the United States by the constitution do not create or confer powers not delegated by the constitution. But with the adoption of the last three amendments to the constitution, particularly the fourteenth, the powers delegated to the national government were greatly increased, and with such increase, following the legislation of congress to enforce the same, came greatly increased control of state activities by the federal courts. Before the adoption of these amendments the greater part of federal interference with state action arose out of the commerce clause of the constitution and the inhibition contained therein against the passing by any state of any ex post facto law, or law impairing the obligation of contracts. The first twelve amendments to the constitution did not restrict state action, and the first ten amendments are only a limitation upon the powers of the federal government.

Any discussion of a subject of so much interest and importance as that which has been assigned to me by the courtesy of the Association, within the limit of time allowed, must necessarily be exceedingly condensed, and more or less partial and superficial.

It is doubtful whether 12 words have ever been written in any law which have been fraught with more momentous consequences, than those found in Section 8 of Article I of the Constitution of our country which declare that:

“The Congress shall have power … to regulate commerce among the several States.”

Among the causes which led up to the formation of the Constitution and the establishment of the Federal government under it, the following may be mentioned as the most potential:

1. The impotency of the Confederacy to protect international and interstate commerce, and navigation over the high seas, and upon the navigable waters of the several States.

2. The insolvency of the Confederacy because of its abject dependence upon the States for its revenues.

3. The injury to the States from the abuse by some of them of the power to tax and control interstate traffic.

4. The imbecility of the Confederacy in respect to the protection of the States against the injurious or hostile acts of foreign nations, and from domestic violence.

It is not my purpose to discuss problems of either international or municipal law which are merely speculative in character. My discussion will be limited to the problems of law presented by what invention has already accomplished, or conditions which are reasonably certain to flow from its achievements. Whenever mechanical, chemical, or electrical science introduces new forces into the life of man, it may reasonably be conceived to be the task of jurisprudence to adjust and coordinate the legal relations of both states and individuals under the new conditions. Nor is it always the part of wisdom to disregard formulative methods by relying on the application of principles derived from an old régime.

It has been urged against our own Constitution that, being written, and difficult of amendment, its provisions tend to become unfitted to the changing conditions of life. The advancement of science has made state boundaries merely political where they once were social as well. One of the most difficult duties which our Federal courts have to discharge is the interpretation of the brief, simple phrases of the Constitution to be adequate to the needs of the nation, once a sparsely settled community with slow, meager and irregular means of communication, now a vast commonwealth bound together by arteries of speedy and regular railroad transportation and by immediate communication through telegraph and telephone.

So, too, in the international world, the increase in number and efficiency of the means of transportation and intercommunication, the application of new forces applied to the conduct of warfare and the pursuit of commerce in times of peace, create new conditions which must be analyzed and dealt with in a manner satisfactory to the demands of justice and consistent with a humane conduct of life among men and nations.

By permission this address will be published in full in the American Journal of International Law. The following is an abstract:

In the paper entitled the Law of Nature and Early American Diplomacy, an attempt was made to estimate the influence which the Continental text-writers had upon American conceptions of the Law of Nations. These text-writers, from Grotius to Vattel, were widely read and studied by the statesmen of the Revolutionary era. They were used in preparation for the bar, and frequent references to them are to be found not only by those who had the direction of American diplomacy from and after 1776 but also by the courts. International law found entrance into American legal thought through the law of prize. As early as 1776 a Massachusetts court, in the case of Grover v. the Brig William, held that by the Law of Nations, Boston was in March, 1776, a place besieged. Courts in the various states at the outset assumed full admiralty jurisdiction, refusing to make the English distinction between courts of instance and of prize. The decisions of the courts in these early prize-cases followed neither British precedent nor the continental text-writers, but usually what seemed to be the best European practice. Although there appears to be little in these decisions drawn directly from the Law of Nature, it is otherwise in the writings of the early diplomats. There the influence of the text-writers is more apparent. The treaties with France in 1778, as the first American attempts at the formulation of international rights and duties, show the influence of the writers as well as of continental practice. As the United States proceeded upon its carreer as a nation, American diplomats depended more and more upon the ideas of International Law as developed by the Federal Courts. To single out certain principles as drawn from the Law of Nature is difficult owing to the elusive nature of the conceptions of that law, It is safe to say, however, that the Law of Nature furnished the founders of the Nation with an ideal as to international rights and duties somewhat comparable with those ideals of individual liberty derived from the doctrines of Natural Rights.

By Chapter 429 of the Laws of 1907 there were created in the State of New York two Public Service Commissions, displacing the Railroad Commission, Gas Commission, State Inspector of Gas Meters and, in New York City, the Rapid Transit Commission. The Commission for the First District was given jurisdiction in the four counties comprising the city of New York and the Second District Commission jurisdiction in the remainder of the state. The latter Commission has the problems arising from transportation on the great steam roads and from the many gas, electric and street car and interurban companies in the cities and towns of the State.

The Commission for the First District because of its jurisdiction in New York City is concerned almost exclusively with municipal questions, though actually exercising state functions except as to rapid transit. It has to deal with comparatively few companies, but because their business touches millions of people confined to a comparatively small area, the problems that arise have elements involving personal and municipal relations to a greater degree than is true with a commission with jurisdiction over a wide territory and scattered population.

The surface, elevated and subway companies in New York City carry annually over 1,300,000,000 passengers, which is over 66 per cent more than the total number of passengers carried on the steam railroads of the entire country. They have a capitalization of over $533,000,000 and derive annually from their passengers over $62,000,000 in fares. Until the recent receiverships the operating companies were concentrated into six groups.

The Bureau of Municipal Research is an exponent of the inductive method applied to political science. In its point of view and method it is opposed to a static conception of political principles and ideals, and it aims through its activity at a new interpretation, on the basis of experience and contemporary social conditions, of governmental ideals. It sees in the science of government an opportunity of continuous interest for democracy, and urges a recognition of the existence of a science of government outside the colleges and universities. The Bureau of Municipal Research is not concerned with traditional concepts of governmental relations, but it is continuously and actively interested in present community needs to which government is, or may be related, and the performances of government with respect to the satisfaction of those needs. It seeks to awaken popular intelligence, not about political principles, but with respect to current acts and omissions of governmental agencies. It is fighting for the realization of the philosophical concept of a robust, real democracy and an equality of opportunity, by securing an efficient discharge of the community business.

The method of the Bureau is:

1. To study governmental problems through scientific analysis of community needs, governmental functions, legislative and admisistrative procedure and transactions.

2. By continuous iteration, publication, reiteration and republication of facts concerning governmental problems, methods, official acts, results and omissions, to focus public attention on current happenings and to educate continuous interest in the common business of the community.

3. Correction of defects of government, stimulation of official activity, and checking of abuses by publicity of facts and constructive improvement of administrative methods in coöperation with public officials.

I regret that the suddenness of the call to speak upon this theme forbade the preparation of a paper, and compels me to talk in a random manner from such memoranda as I was able to put together hastily this morning. If the Secretary of the Commission were present, as was expected, he could give to you inside information; but I must speak from general knowledge, except as to the beginning of the Commission, with which it happens I was concerned personally.

Late in the autumn of the year, 1906, Walter A. Webster, Esq., then in my office, a young lawyer who had won high reputation for ability and honesty in the legislature of the Commonwealth of Massachusetts, then expecting to make an address as Presiding Officer of the Republican City Convention, consulted with me relative to the financial situation of Boston, the enormous cost of its maintenance, the rapid increase of its debt, and the remedy therefor, and I agreed with him that the first requisite was a thorough knowledge of the actual condition and the causes thereof, that this information could be obtained best by a commission, and that, inasmuch as a portion of the debt and expense was due to state boards over which the city had no control, it would be better for such commission to be appointed by the Governor of the Commonwealth rather than by the city.

Better municipal administration will come when the people awaken to the need of it. As Dr. Goodnow in his “Politics and Administration” (which in a way is an outgrowth of the National Municipal League's work on the Municipal Program) said in regard to the use of permanent experts in the higher posts of the public service, “That this can be accomplished by any changes in the law may, perhaps, be doubted. That it will be accomplished so soon as an educated and intelligent public demands it, is a moral certainty.”

The League is an active agency in the betterment of American municipal administration in that it is directly and particularly engaged in creating “an educated and intelligent public” in the matter of municipal government. From the beginning of its activities in 1894 it has sought to promote a more general interest in municipal questions and especially in their political and administrative aspects.

This paper confines itself to some of the more important general tendencies in state constitutional development during the years from 1901 to 1908, leaving entirely aside any discussion of the unsuccessful efforts to obtain constitutional revision in New England, and mentioning only incidentally the Southern constitutional provisions with reference to the exercise of the suffrage.

The past twenty years have been perhaps the period of greatest activity in state constitutional development; and are comparable with the two decades, 1860–1880, during, which, however, constitutional activity was to a large extent confined to the Southern States, as a result of the extraordinary conditions of the civil war and reconstruction periods. But the constitutional development during the past twenty years has been different from that of earlier periods in that it has been to a greater extent accomplished by constitutional amendments rather than by the adoption of new constitutions. During the past eight years, to which this discussion is confined, four new constitutions have been adopted: Alabama, 1901; Virginia, 1902; Oklahoma, 1907; and Michigan, 1908. From 1901 to 1907 one hundred and eighty-one state constitutional amendments were submitted to and adopted by the people, and during the same period one hundred and one amendments were submitted to and rejected by the people; twenty-three amendments were adopted in Louisiana, eighteen in California, twelve in Michigan, ten in Missouri, and eight each in the states of Colorado, New York, South Carolina, and South Dakota.

By reason of their age, their brevity, their rigidity, and their retention of certain archaic features, the six New England constitutions form a distinct class among our State constitutions. Three were drafted in the eighteenth century and the latest only in 1842. All are little more than bare frames of government, prefaced by declarations of rights. Rhode Island enjoys the distinction of possessing the shortest of State constitutions. All fall far below the average length, and they present an almost startling contrast to the bulky new constitution of Oklahoma. At a time when the legislature and the convention are being more frequently employed for the framing of fundamental laws, the process of amending five of the New England constitutions continues to be peculiarly difficult and slow. Maine interposes fewest obstacles to amendments in the organic law. Two-thirds of both chambers of the Maine legislature may propose amendments; a simple majority of those voting on the referendum suffices to adopt them. In all the other States except New Hampshire, an amendment must pass two successive legislatures—by majorities which vary from State to State—before it may be submitted to the electors for ratification. The New Hampshire constitution requires the sense of the voters to be taken every seven years as to the necessity of revising the organic law. If a majority of the electors voting favor revision, the general court must call a convention for that purpose. New Hampshire requires the excessive majority of two-thirds on the referendum, and Rhode Island three-fifths, for the adoption of any amendment. Elsewhere a simple majority of those voting suffices.

In the study and discussion of American political ideas and methods the emphasis has been laid on the powers and activities of the National Government, and far too little attention has been given to the developments within the States. The State Constitutions of the revolutionary period have been examined, but mainly for the purpose of tracing the development of the Constitution of the United States. Almost nothing has been done to analyze the fundamental changes in the American political system by the revision and amendment of State constitutions in the two or three decades before 1850. The reconstruction period in the Southern States has been studied mainly with reference to the questions of secession and slavery; and other important changes made during that period, both in Southern and Northern States, have been practically neglected. And the full significance of alterations in State Constitutions during the past decade or so are far from being thoroughly appreciated.

It is the purpose of this paper to examine briefly the more recent changes in the Constitutions of the States of the Middle West, including the States of the old Northwest territory and the adjacent states west of the Mississippi river. At first sight, such a subject seems to offer comparatively little material for study. With the exception of Michigan, whose revised Constitution goes into effect with the beginning of 1909, none of these states have made a general revision of its Constitution since 1870; most of the constitutions date from before the Civil War, and a number from the middle of the last century.