William of Occam has fittingly been called the “most subtle doctor of the Middle Ages.” Despite this fact, or perhaps because of it, the vast political writings of this famous fourteenth-century scholastic have been surprisingly neglected by modern students, particularly in England and the United States. It is commonly agreed that among general philosophers of the Middle Ages this “second founder of nominalism” is surpassed by St. Thomas Aquinas alone. Surely, therefore, the presumption is reasonable that the encyclopedic mass of Occam's political writings conceals many “diamonds in the rough,” only awaiting discovery. The present writer hopes that he may throw some light on certain important problems discussed by Occam, especially that most significant one of a “higher” or fundamental law.

An impression seems prevalent in many quarters that Occam obtained most of his political ideas from his famous contemporary, Marsiglio of Padua, who has established himself among modern students as the really great political genius of his times. Without detracting from Marsiglio's well-deserved fame, we are quite unable to accept this view. On the contrary, Occam, as might be expected of such a great general philosopher, can stand upon his own feet, and his political theory in many respects exhibits characteristics entirely independent of any Marsiglian influence.

Representative government on a national scale did not originate in the psychology of primitive Teutons, as English historians long contended; nor is it a mere bourgeois institution of passing significance, designed to delude the masses, as Fascists and Bolsheviks have alleged. Its vast historical complications conform to no such simple thesis. On the contrary, representative government began its career as an instrument of political power, in a given complex of social and economic circumstances, to serve the purposes of ruling monarchs; and it has played a bewildering rôle, in form, spirit, and authority, for more than five hundred years. Flexibility has been its prime characteristic. As a means, not an end in itself, it has served an infinite variety of causes, and has displayed both adaptability and survival power. In form, it has not been a political stereotype. Rather, it has been amazingly variable. In spirit, in the ideas associated with its evolution, and in the uses to which it may be put, representative government is subtle and adaptable, offering to statesmen who have imagination and manipulative capacity a tool of inexhaustible utility.

Our present discontents have evoked many earnest words on the subject of “social planning.” We are told that “capital can be defended only by constructive programs based on the consideration of social responsibility;” that we are headed for “a frightful cataclysm” unless we adopt “a national plan that will control and guide the basic industries, govern the investment of capital, and keep purchasing power in step with production;” that if we are to avoid revolution, “we dare not sit indefinitely in contemplative inaction;” that “we require a leadership that will help us think less about the theories of individualism and more about the tragedies to individuals,” inasmuch as “men cannot eat words … cannot wear words … cannot trust their old age to words.” In brief, if we are to avoid something worse, we must take some thought for the morrow.

In the national House of Representatives that adjourned on March 4,1931, there were introduced 18,356 bills and resolutions, in the Senate 7,080, making a total of 25,436 in two years. Favorable reports were made in the House on 2,734. Of these measures, 747 died on the House calendars, that is, were not acted upon. Measures that passed the House and were not acted upon in the Senate numbered 537; those that passed the Senate and not the House, 381; making a total of 913 that fell between the branches.

The measures that became law numbered 1,524, a figure to be reconciled with the previous figures by taking into account the instances where identical bills were introduced in House and Senate and one of them was laid aside. It is to be borne in mind that individual pension bills are combined in two or three big bills, which makes the showing not quite so bad as it appears on the face. This, however, does not alter the fact that more than one quarter of the measures reported to the House were not acted upon at all, and that between 800 and 1,000 passed one branch and were not acted upon by the other.

The problem of representative democracy has been altered in a final way by the events of the post-war years. It is improbable that any one will again defend its superiority over alternative forms of government in the terms which would have satisfied either Jefferson or Jeremy Bentham. It is obvious that any view which places confidence in the power of universal suffrage and representative institutions, unaided and of themselves, to secure a permanently well-ordered commonwealth is seriously under-estimating the complexity of the issue. Such a view not only gravely exaggerates the power of reason over interest in society; it also misconceives the dynamic nature of the purpose which representative democracy is seeking to secure.

Looking back now, at a generation's distance, upon the success of representative democracy in the nineteenth century, it is plain that this was due to the coincidence of quite special conditions.

At the outset, it is pertinent to recall the high hopes with which, ten years ago, the Washington Conference Treaties were proclaimed to the world. We can still remember the measured words with which President Harding brought the Conference to a close. “This Conference,” he declared, “has wrought a truly great achievement. It is hazardous sometimes to speak in superlatives, and I will be restrained. But I will say with every confidence that the faith plighted here today, kept in national honor, will mark the beginning of a new and better epoch in human progress.”

The grounds for these high hopes were set forth in the official summary transmitted to the Senate along with the record of the proceedings of the Conference and the texts of the treaties themselves:

To estimate correctly the character and value of these several treaties [it is written in this document] they should be considered as a whole. Each one contributes its part in combination with the others towards the establishment of conditions in which peaceful security will take the place of competitive preparation for war. … Competitive armament, however, is the result of a state of mind in which a national expectation of attack by some other country causes preparation to meet the attack.

The purpose of this article is to indicate how the competent authorities of the League of Nations came to accept the view that Iraq should be considered ready for the termination of the mandate, and how they worked out for the case of Iraq the detailed application of the general principles of mandate termination. The development of the general principles here applied for the first time is the subject of a separate study.

The Iraq Mandate. Iraq was placed within the provisions of Article 22 of the League Covenant by the Council “decision” of September 27, 1924. By that decision, the Council adopted the treaty of alliance between Great Britain and Iraq, of October 10, 1922, and certain subsidiary agreements, as defining the relations of the mandatory and the mandated territory, and as giving effect to Article 22 of the Covenant. The decision provided that the British government should assume responsibility, toward all members of the League accepting the arrangement, for the fulfillment by Iraq of the terms of the treaty of alliance. Steps would be taken for the negotiation of such special extradition agreements as should be necessary. An annual report to the satisfaction of the Council should be made as to the measures taken during the year to carry out the provisions of the treaty of alliance, and copies of all laws and regulations promulgated during the year should be attached thereto. The British government undertook not to agree to any modification of the treaty of alliance without the consent of the Council. Disputes with members of the League not settled by negotiation should be referred to the Permanent Court of International Justice.

Representative government, as every student of political science well knows, is now under fire. While it is not necessary to take too seriously the statements made by delirious purveyors of new remedies for old discontents, we cannot fail to take note of the fact that a strong tide of opinion has set in against this famous institution of democracy. On the continent of Europe, dictators either reject it entirely or seek to reduce it to purely advisory functions. In England, rumblings are heard to the effect that the Mother of Parliaments is not well herself; propositions for drastic changes come from members of the House of Commons; and if economic depression and unemployment continue for another ten years it is highly probable that some radical experiments will be made in the direction of concentrating economic powers. The United States is not without its troubles. When in the summer of 1931, with the deepening of the industrial crisis, it was urged that a special session of Congress be called to deal with national distress, President Hoover rather tartly rejected the petition and indicated that our great representative body was more likely to retard than to help “the process of recovery.”

The executive powers of the Emperor include: (1) appointments and general administration, (2) pardons, (3) organization of the army and navy, (4) declaration of war, (5) conclusion of peace and treaty-making, and (6) establishment of martial law.

Article X of the constitution defines the appointing power of the Emperor. His competence is not confined to mere selection of officials, since the constitution provides that “the Emperor determines the organization of the different branches of the administration, and the salaries of all civil and military officers, and appoints and dismisses the same.” Clearly, the appointing power of the Emperor is unlimited. There is no necessity for securing the consent of any confirming body. The Emperor is thus unhampered by the restrictions that bind the president of the United States. This prerogative also extends to the power of dismissal—a potent instrument for the promotion of executive efficiency as well as autocracy.

Ever since 1889, when the Emperor Meiji granted his people a constitution, Japan may be called a constitutional monarchy. But these simple words do not tell the whole story. The designation used by the Almanach de Gotha in referring to Czarist Russia—a “constitutional autocracy”—may be as appropriately applied to modern Japan. Japan has a constitution and a monarch, but in the eyes of both the people and the statesmen of the Restoration Period, the monarch comes before the constitution.

In the early days of factory management, when the problems and conditions were relatively simple, it fell to the lot of all sorts of human folk to manage the various jobs involved. Each used his own peculiar method and, naturally enough, it came into general belief that ability in management was an instinctive knack, that managers were born, not made, that few if any rules could be laid down, and that little could be learned by one from another. Even in the earliest days, a small handful of men called attention to the fact that management measures and forms of organization could be better or worse adapted to their uses; but for generations the suggestion passed unheeded.

As the problems and conditions of factory management grew more complex and exacting, more men came to believe that the art of management was something more than an intuitive and highly personal knack. Before the Great War, a fair nucleus was beginning to study the art from the point of view of the forces involved, and with an eye to causes and effects. And the war experience of manufacturing strange materials, shifting conditions upside down, built up this nucleus into a very fair working minority.

The term “majority rule” is as impossible to escape as it is apparently difficult to define with precision. Aristotle generally employed it to designate the conduct of government by the poor citizens, who were more numerous than the rich, in the Greek city states. In canon law, it meant the verdict of the maior and sanior pars of a small group. Frederic Harrison wrote about the “rule” of the “effective majority”—that section of any community or social aggregate, which, for the matter in hand, practically outweighs the remainder. He explains that it may do so “by virtue of its preponderance in numbers, or in influence, or in force of conviction, or in external resources, or in many other ways.” Sir George Cornewall Lewis thought that where the ultimate decision is vested in a body there is no alternative other than to count numbers, and to abide by the opinion of a majority. But in alleging that “no historian, in discussing the justice or propriety of any decision of a legislative body, or of a court of justice, thinks of defending the decision of the majority by saying that it was the decision of the majority,” he did not anticipate the view of the English historian Hearnshaw. According to the latter, “The faith of a democrat requires him to believe that in the long run the majority of the people finds its way to the truth, and that in the long run it tries to do the right.”

The bombardment of Mukden by Japanese forces on September 18, 1931, followed by the occupation of a large part of the three eastern provinces of China, i.e., Manchuria, by the Japanese, followed by the expulsion of the Chinese authorities, has brought to a head the long-standing disagreement between China and Japan in regard to their respective rights and policies in that territory, and has presented the League of Nations, the signatories of the Nine-Power Washington Treaty, and the signatories of the Kellogg Peace Pact with an opportunity to illustrate the meaning of these instruments.

While hundreds of “hunger-marchers” milled about outside, the first session of the Seventy-second Congress convened on the first Monday of last December. The mob outside lent a tone that was recurrent in a Congress given over to the consideration of national need and budget-balancing. Often lacking either in leadership or in the will to follow, Congress went its muddled way working against great odds and confronted with tasks of great complexity. The delicacy of the party balance as much as the spur of emergency pointed to the desirability of forgetting partisanship in the presence of national distress. Whether this pious attitude rendered less frequent actions dictated by political expediency remains open to question. In fact, special interests were particularly clamorous during this session.

In November, 1930, Judge William Clark of the United States district court in New Jersey achieved nation-wide notoriety by a decision holding that the Eighteenth Amendment was not properly ratified and is therefore not a part of the Constitution. A prosecution had been brought against one Sprague, under an indictment charging unlawful transportation and possession of liquor in violation of the Volstead Act. This indictment Judge Clark quashed on the ground that the Eighteenth Amendment upon which the Volstead Act rests should have been ratified by conventions called for that purpose in three-fourths of the states, rather than by the legislatures of those states. This conclusion he supported by a long argument emphasizing the fundamental character of the constitutional change effected and the importance and necessity of having such a change accomplished by the agency of representatives elected by the people of the several states for that specific purpose. An appeal from Judge Clark's decision was at once taken by the government under the provisions of the Criminal Appeals Act of 1907. In fact, it was to meet just such situations as this that the act of 1907 was passed; for without the possibility of such appeal a decision of a lower federal court adverse to the constitutionality of a federal criminal statute might be final within the district concerned. No question of double jeopardy is raised by this procedure, since the accused is not placed in jeopardy until the trial jury is sworn and the quashing of the indictment occurs long before that point is reached.

Law as it is made by the courts, interstitially as suggested by Mr. Justice Holmes, and interpreted in the cases that arise during a year, covers only a portion of the law-making process of the American states. Judicial interpretation and judicial legislation are determined largely by the types of controversies which arise involving the interpretation and application of constitutions and laws, and by the personnel of the courts before whom the issues are litigated. It is difficult to discover the tendencies or trends which are in the molding during a decade or more of legal history; for such a short term as a year, generalizations or conclusions may be attempted only with great caution and with well understood reservations.

The significant decisions affecting state constitutional law in 1931-32 in the state supreme courts or courts of appeal and in the inferior federal courts may conveniently be grouped under the following headings: (1) the separation and delegation of powers; (2) the protection of civil rights; (3) due process of law and equal protection of the laws; (4) due process and public utility regulations; (5) due process and the police power; (6) taxation; and (7) miscellaneous decisions.

“In the large city of today, there are thousands of lawyers, but there is no bar.” With this remark, Roscoe Pound five years ago called attention to the situation which had resulted in the United States from the absence of a corporate profession equipped to administer discipline and govern itself. The presence in all communities of lawyers whose character or equipment rendered them unfit to practice had brought the entire profession into disrepute and had contributed largely to the encroachment of banks, trust companies, and other lay agencies upon the legal field.