In the United States we have seen a revival of the ancient discussion concerning the line of demarcation between national and State authority under our complex federal system, but there is an underlying question which cannot have escaped the thoughtful observer involved in the growing popular distrust of the representative system whereon both federal and State governments are based. This tendency is being manifested in very material modifications in representative government, as understood by the founders of our government, and I therefore ask your attention to the consideration of The Future of Representative Government.

This form of government, wherein the sovereign power of law-making is wholly delegated to deputies elected by the people, is of comparatively modern origin, and in the modern sense of the term it was unknown to the ancients. While its origin is obscure, we know that it was in England that representative government found its development in the form in which it was so greatly impressed upon the framers of our Constitution. Sir Henry Maine in his Popular Government says that it was virtually England's discovery of government by representation which caused parliamentary institutions to be preserved in England from the destruction which overtook them everywhere else, and to devolve as an inheritance upon the United States.

Students of the history and working of representative legislative institutions in every part of the world where these institutions are in existence are under indebtedness to Professor Redlich for the thoroughness and completeness with which he has performed a task never before attempted by any historian of the house of commons. In his scholarly book, published in German in 1905, and now more generally available through Mr. Steinthal's admirable translation into English, supplemented by a chapter of twenty-one pages by Sir Courtenay Ilbert, Professor Redlich has traced the history of house of commons procedure from the earliest days down to the important time-economizing changes which were made in the first and second sessions of the parliament elected in January, 1906.

As far as my knowledge goes there are now in existence only two modern books—only two books published since the reform act of 1832—in which any detailed history of parliamentary procedure at Westminster is to be found.

It is an essential theory of our constitutional system that the relations between the Union and the States are determined by the Constitution of the United States, and hence that the powers of the government of the one may be neither increased nor diminished (except in the few instances provided for in the Constitution) by the action of the government of the other. How far this theory has been actually embodied in law it is important to inquire in regard to all three functions of government, legislation, jurisdiction, and administration, but the present discussion will be limited to illustrations of the delegation of legislative power by congress to the States. The acts of congress with which we are here concerned form three distinct classes: those involving the concurrent powers of the States which may be exercised in the absence of conflicting congressional legislation; those involving powers of the States which may be exercised only by reason of some positive action of congress; and, last, a class in which there is an adoption of laws of the States as laws of the United States.

The Illinois Constitution of 1870 prohibited the State legislature from enacting local or special laws incorporating cities, towns, or villages, or changing or amending the charter of any town, city, or village. In 1872 an act was passed, providing for the government of all cities in the State of Illinois. In 1875 Chicago abandoned its special charter, and accepted the provisions of the general law of 1872. This law, with a series of amendments, has continued for a generation as the fundamental law of the city of Chicago. The very rapid growth of the city, however, in territory, in population, and in the complexity of its municipal interests has rendered the law of 1872 wholly inadequate for the present needs of the great metropolis. Widespread agitation in regard to this subject led to the initiation, in 1903, of a constitutional amendment authorizing the State legislature to enact special laws regarding the government of Chicago, providing that such laws should not go into effect until approved by the voters of Chicago. This amendment was adopted by the people of Illinois in November, 1904, after a vigorous campaign had been carried on in its favor by the citizens of Chicago. The legislature of 1905 met very shortly after the adoption of this act, so that a complete charter could not be presented to them. A bill providing for a new system of municipal courts, and abolishing the old “justice shops,” was prepared, however, by a citizens' committee; was presented to the legislature, and passed. A committee of the city council also drew up a proposed charter for the city, which was introduced into the State legislature, but of which only a small fragment was finally enacted. The term of the mayor was extended from two years to four; provisions were made enabling the city to secure the interest on its public deposits; and some other minor powers were contained in this rump charter. These acts were voted upon in November, 1905, and approved by the people. So far, however, as comprehensive legislation was concerned, very little had been accomplished, except the establishment of the new courts.

Contemporary with the recent and very rapid industrial development of the United States has been observed an unexampled liberality of juristic thought. Especially has the process of settlement and industrialization of the West been pervaded by certain unusual social and economic influences, and likewise has been comparatively free from that judicial conservatism prevalent during the periods of colonization and settlement of the eastern and central portions of the country. Extremely dynamic forces, finding their origin in the manner of settlement, the physical characteristics of the country, and the personal attributes of the population, readily developed what may be termed specialized forms of social and legal institutions. As economic and political factors have become adjusted and a stable social poise has been approached, some of the diverging branches of the new sociopolitical life of the West have been pruned back to antecedent form, but others have become component parts of a permanent organization. Incident to the perpetuation of an unusual industrial structure, there have come about the development of new legal concepts which have assumed special relation to property rights in natural resources. This was possible only upon the abrogation of common law precedents and the renunciation of doctrines formerly conceded to be fundamental in American practice.

While it has frequently been stated that in framing the Constitution of the United States the federal convention of 1787 was engaged in a very practical piece of work, it never seems to have been realized how completely the members of that convention were dependent upon their own experience. With the Declaration of Independence the colonies organized themselves as States, framing and adopting constitutions. In the course of the Revolution, those States united under the Articles of Confederation. When this latter instrument of government proved to be inadequate, a fresh essay was made and our present Constitution was the result. That the Constitution was framed because of defects in the Articles of Confederation is universally accepted, but it does not seem to be recognized that experience had shown certain specific defects to exist, that the convention was called for the purpose of correcting those specific defects, and that the Constitution embodied in itself little more than the remedies for those defects.

In order to appreciate this point of view, which it is believed is the true historical interpretation of the action of the federal convention in framing our Constitution, it is necessary to divest oneself of preconceived ideas and prejudices due to modern misinterpretation.

It is inevitable that any undertaking should be judged primarily from the point of view of what was originally attempted by the participants and expected by onlookers rather than by a strict standard of actual achievement. In most of the unfavorable discussion that has been current during and since the conference, the point of criticism is the opinion that the conference has not fulfilled its avowed purpose, rather than a complete denial of the usefulness of such results as actually have been accomplished. At the very opening session of the conference, M. Nelidoff in his presidential address pointed out in disillusioned language the impossibility of realizing certain general ideals that had been entertained with respect to these great meetings. He admitted that “we need not be discouraged from dreaming of the ideal of universal peace and the fraternity of peoples, considering that the essential condition of all progress is the pursuit of an ideal towards which we always strive without ever reaching it. Nevertheless, we should not be too ambitious.” He concluded by saying: “Let us set bravely to work, our path lit up by the bright star of universal peace which we shall never reach but which will always guide us.” While some among M. Nelidoff's audience approved of his cautious conservatism, others felt that his utterances had received an unduly pessimistic tinge from the unfortunate position in which Russia has found herself since the war. Nevertheless, when we now review the efforts and the accomplished work of the conference, we may take as the keynote, the words of the presiding officer, pointing out inevitable limitations and bidding us look for results not in sweeping resolutions, but in detailed and specific arrangements which at first sight may appear somewhat trivial and of a purely technical nature.

When the Fathers were framing the Constitution of the United States they sought at every turn to safeguard the interests of the people and at the same time secure to officials a reasonable degree of independence. This solicitude was especially manifest in the case of judicial officers, whose terms were made to run during good behavior. Impeachment was the method adopted to determine what constituted misbehavior. Chief Justice Marshall early laid down the principle that terms otherwise undefined in the Constitution were used in the sense which was well known and accepted at the time the Constitution was written. Impeachment was adopted and adapted from the English practice. To understand our own law, then, it is necessary to know what the English law of impeachment, the lex et consuetudo parliamenti, was at the time of its adoption and in what way it was modified or changed in being adopted.

Prior to the time of the organization of the national government under the Constitution of 1787 the province of a court was very definitely determined. In accordance with the principles of ancient custom, a court was a tribunal established by law with the power to hear controversies between persons and to administer relief or punishment. It was the business of a court to interpret, pronounce and execute the law, to decide controversies and enforce rights. In the words of Lord Coke, “ a court is a place where justice is judicially ministered.”

Such was the traditional position of a court when the Federal Constitution went into operation in 1789. A supreme court was provided for, to be organized by congress, in whose hands was placed the authority to create such inferior courts as might be necessary to carry out the judicial duties allotted to the federal government. The supreme court which was established by one of the first acts of the congress which met in 1789 very soon recognized and affirmed the limited and definite field for the exercise of judicial authority.

The distinction between constitutions and statutes is a fundamental one in American constitutional law, but it is a matter of surprise that no one has yet attempted to discuss this distinction in its historical origins. Brinton Coxe in his Judicial Power and Unconstitutional Legislation has traced the development of the doctrine that statutes in conflict with the constitution may be declared invalid by the courts. Judge J. A. Jameson in his Treatise on Constitutional Conventions has given a brief account of the adoption of the first State constitutions; but no one has yet studied the adoption of these constitutions in order to find what were the theories of their framers as to the distinction between constitutions and statutes.

By the term constitution, as used both in England and America before the Revolution, was understood the general and more permanent principles upon which government is based. The term was used on both sides of the Atlantic to signify something superior to legislative enactments, and the principles of the constitution were appealed to as beyond the control of the British parliament.

The title bürgermeister first appears in German municipal history during the early part of the thirteenth century, but the exact nature of the tasks imposed upon the official at this period still remains obscured in the darkness of the Middle Ages. We know that there were such officers, and we know something as to the method of their election, but very little as to the extent of their real power. Probably, however, as Von Maurer suggests, the bürgermeister had originally no other duty than that of presiding over the civic council, a simple function, to which came later to be added a general oversight of current affairs and the enforcing of city ordinances.

Considerably more, however, may be learned as to the duties of this officer in the seventeenth century, when the franchise had become more and more restricted and the number of town officers much smaller, and when, partly as a result of this decrease and partly in consequence of the awakening industrial life of the period, there had come to be an increase in the importance of town officials, and naturally among the rest in that of the chief magistrate.

To make representative government more representative is the problem of today. The gradual process of social evolution has changed the industrial basis upon which our political institutions rest, and the increased complexity of our social organization has made the expression of the popular will more difficult. As readjustment to changing conditions is the requisite for any advancing type of life, so political progress becomes impossible unless new agencies are developed to be retained or discarded as experience may warrant.

Among the agencies for political expression, few have made more remarkable progress in the history of recent legislation than the initiative, the referendum, and the recall. State wide referendums for the adoption of State constitutional, and local referendums for local affairs, are familiar institutions in the United States, but it is only within recent years that our States have begun to adopt the initiative and the referendum for State legislation.

The question of majority nominations in primary elections has been before the Wisconsin legislature during the last two sessions. (1905, Special Session, Bill 11A, and 1907, Bill 350A). Both times the proposition of securing majority nominations by means of the “second choice” has met defeat.

This is written with the hope of making plain the basic principle upon which the second choice amendment to the primary rests. It is the principle that the nominee of a political party should represent the party principles or policy of the majority of the voters of the party. It prevents the possibility of a man representing the principles of only one-fourth of the voting strength of the party being nominated as the candidate of the party, and in direct conflict with the views of three-fourths of the voters of the party. It was the recognition of this principle that caused the conventions to nominate by majority vote of the delegates instead of by plurality. The present Wisconsin primary law prevents a number of candidates representing the majority sentiment as to party principles from coming into the field as candidates for the nomination for fear the candidate of a minority may be named by receiving a higher vote than any one candidate among the majority candidates. The present primary is, in effect, a convention to which every voter is a delegate and in which the candidate receiving the most votes on the first ballot is the nominee. The remedy lies either in the adoption of the second choice amendment (derisively known as the Mary Ann law), or by return to the convention system.

The appearance of the eighth and final volume of M. Pradier-Fodéré's Traité de droit international public européen et américain seems a fitting occasion for a brief consideration of the life and works of this distinguished professor, counselor and author; more particularly is it appropriate to consider the extent and character of his services to that branch of public law dealt with in the above treatise, for it was to international law that he devoted the ripest years of a broad scholarship and the maturest judgments of an active life. M. Pradier-Fodéré was not simply and solely a student who looked out upon the hurly-burly of life from the secluded shelter of his study window; he was to no small extent a man of affairs who had come into close and intimate contact with matters of state on both sides of the Atlantic, and who, after a life of rich and varied experiences, settled down when over fifty to round out his life and his literary activity in the production of an extensive treatise on international law.