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 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.

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.

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.

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.

Much has been written of the mechanics of legislation in the Senate and the House of Representatives, and of the work performed by the committees of the Senate and the House. Little attention, however, has been paid to the sub-committees of Congress notwithstanding the fact that sub-committees perform a highly important function in legislation.

The Senate and the House are both such large bodies that it is imperative that the work of the bodies be handled initially through numerous committees. In the Senate there are seventy-four standing committees. In the House there are fifty-eight. The very reasons that make it advisable that committees be appointed at all in the Senate and in the House, make it desirable in certain cases that the work of the committees be even further sub-divided as occasion may warrant. When the work assigned to a standing committee of Senate or House is of a definite character that admits of practically no division, or when the committee itself of either body is small and appointed to have immediate consideration of a particular subject, the ordinary procedure is for the full committee to handle its work, without attempting to call upon members of the committee to act as a sub-committee, with the exception of sub-committee work in performance of a perfunctory duty, or, in the preparation, for instance, of a report where one member can prepare it far more expeditiously than could three members, five members, or the full committee.