Twenty years ago the author of “Congressional Government” declared that all the checks and balances of our political system had failed to preserve the balance of power between the three departments of government, and that the result was Congressional supremacy. To-day we must admit that these checks and balances are still unavailing but that we now live under a system of executive supremacy. Is this change due chiefly to factors of personality or does it correspond to new conditions in the social and economic life of the people? Is executive supremacy to be explained away by reciting the names—Cleveland, Harrison, McKinley, Roosevelt—or has something far more fundamental than a mere growth of personal influence taken place? Certainly the latter is true.

Aside from the element of personality, four important causes have tended to produce the changed relations between executive and legislature:

I. The growth in volume of government business.

II. The rise of new public questions of a technical character.

III. The popular demand for greater speed in government action.

IV. The growing unwieldiness of large legislative bodies.

The topic for discussion given me by our Executive Committee was originally, as printed in our programme, “What Constitutes a Declaration of War,” suggested doubtless by the early stages of the present war in the East. But as full liberty was granted to alter this subject, I shall somewhat broaden my title and ask your attention to those steps, diplomatic and then forcible, which close negotiations and begin hostilities and which may perhaps properly be summed up under the caption “The Beginnings of War.” Of these steps a Declaration of War may or may not be one.

Here lie two main topics or lines of inquiry:

(1) At what point in the discussion of a serious international question will a resort to violence be the natural next step and not a treacherous act?

(2) From what moment does a war date?

If it were necessary, or even customary that a formal declaration of intent to make war beginning at a set time, should precede hostilities, neither of these inquiries would be needful. Perhaps such a rule is desirable. The whistle of the referee is at once a fair warning and marks a fixed moment. It legalizes the beginning of violence. But although war is called a game and has highly conventionalized rules, it is a game without a referee. The whistle must be blown by the disputants, not by a third party.

It is now generally admitted that the rights and duties of neutrals in time of war are correlative. It was formerly claimed that the denial or grant of the same privileges to both belligerents constituted neutrality. Such a doctrine of neutrality might make it possible for a state to deny all the privileges which the first party to the war would especially need and which the second might not need, and to grant those privileges which the second might need and which the first might not need. It was seen that such a position was not neutral in fact, if sometimes so called. Gradually a more equitable view has come to prevail. Neutrality is at present held to demand “an entire absence of participation, direct or indirect, however impartial it may be.”

The state is responsible for the observance of neutrality within its sphere of competence. The state is responsible for its own action or failure to act where its jurisdiction can reasonably be exercised. The neutral state cannot be required to assume the burdens of prosecuting the war, however. If certain articles are declared contraband of war, the belligerent making the declaration cannot claim that the neutral state is under obligation to prevent its merchants from shipping such articles from neutral ports in the way of ordinary trade. To demand that the neutral prevent the sale of many articles included within the lists of contraband would be to put the burden of enforcing a belligerent's declaration upon the neutral, and this at the expense of the neutral's trade.

The law of contraband has had no material development for a hundred years past. Now, as in the days of Lord Stowell, merchandise with reference to contraband falls into three classes,—that which is always contraband, that which is contraband on occasion, and that which is never contraband. Now, as then, articles primarily intended for use in war belong in the first class, and articles which may have military or naval use, but which may also be employed in the ordinary avocations of peace, are in the second class. To be sure there are now specific articles unknown to the prize-courts of the early nineteenth century which may be found in either class. The Russian proclamation of the current year includes in contraband “Material and all kinds of substances for making explosives, such as torpedoes, dynamite, pyroxylin, various fulminating substances, conductors, and all articles used for exploding mines and torpedoes;” also, “Telegraph, telephone and railway material.” Of course none of these things were known in the wars of Napoleon. The principle, however, does not differ. The Russians in 1904 make no mention of tar, oakum, cordage, masts, and ship-timber, which played so conspicuous a part in admiralty cases a century since. But here again it is by no means a change in principle, but only in the conditions of naval warfare. Wooden sailing-ships are as obsolete as the archers of the Black Prince, and in lieu of material for their construction or repair we find enumerated “armor plate, and all kinds of ship's machinery or boilers, whether mounted or in parts.” Methods of warfare have changed. The question of contraband, however, involves no new departure in law, but merely the application of old rules to new conditions.

The character of Spain's policy with reference to the Philippines as well as with reference to her other colonies was to a very great extent determined by her long crusade against the Moors. This struggle was part of the war of the Christians against the Mohammedans. The other part of it was carried on by the other European nations in Palestine. In the East the Crusades came to an end by reason of the waning interest of France, Italy, and Germany. These nations might cease from the conflict whenever they were weary of it without loss of territory or diminution of national honor. But the western wing of the Mohammedan force was within the borders of Spain. Therefore, although the struggle was ended in the East, Spain was obliged to carry it on single-handed in the West. For two hundred years after the last half-hearted crusaders of France had retired, Spain continued the war with unabated zeal, not merely to defend Western Europe from the Mohammedan conqueror, but to preserve her honor, to defend her territory, to maintain her religion, and to perpetuate her national existence.

The historical conditions surrounding the acquisition of the Philippine Islands by the American government were of such a nature as to give rise to a very definite and peculiar legislative policy. The colonial expansion of other nations has usually followed up commercial or other economic enterprises, and therefore has generally been dominated only in a secondary manner by political considerations. In the imperial expansion of France, it is true, political motives predominated to a larger extent, and we shall therefore be prepared to find a certain similarity between American and French colonial methods. It was a political motive,—the desire to weaken the prestige of Spain,—that led the American government to make an attack upon Spanish dominion in the Philippine Islands, at a time when the American nation had as yet no economic interests in the archipelago, the foreign commerce of which was in the hands of Chinese and Europeans. It was also primarily for a political purpose that the islands were ultimately retained, as it was felt that they would assure the United States a position of leadership in the settlement of the Oriental and Pacific questions. Another motive was the desire to exclude any other power which might wish to take advantage of a renunciation on the part of the United States. When the islands had thus been acquired, the public conscience was somewhat disturbed, especially as a stubborn and far-spread native opposition had to be put down by force of arms.

In our colonial history, and also in the early part of our national existence, public sanitation was almost exclusively a function of local government. As occasion arose from the presence of epidemics, the towns through their regular officers, or more often through special committees, would take such preventive measures as in each case seemed to them best. It was not until the close of the eighteenth century that permanent boards of health were established, and for three quarters of a century such boards were confined almost exclusively to the larger cities.

If we except Louisiana, where a state board of health was established in 1855, almost exclusively for the purpose of maintaining quarantine at New Orleans, the first state to establish a state board of health was Massachusetts in 1869. This marks the beginning of the states' activity in sanitary affairs. The idea of a central control in such matters has grown so rapidly that during the 35 years that have since elapsed, central boards of health have been established in all the states and territories except Idaho, and also in Hawaii, Porto Rico and the Philippine Islands.

Mr. Bryce cites as one of the merits of our federal system of government, that the separate states can try experiments in legislation and administration; and that other states profit by the experience of those who first introduce new methods. Both of these statements can be supported by important evidence; but the benefits derived in this way have been much less than they might have been, owing to the lack of means for bringing the results of experiments in one state to the attention of other states. This Association can in some measure supply this need, and reduce the enormous waste in experimental legislation, by furnishing a clearing house for the interchange of notes on the work of the various states. And this paper is a small contribution in that direction, calling attention to some significant legislation in a number of states, and showing the correlation of measures apparently unconnected.

Local administration in the United States during the first half of the nineteenth century developed steadily in the direction of a completely decentralized regime. Our constitutional system inevitably made the local authorities subject to the state legislatures; and there was always a large amount of legislative control limiting the scope of local action. But within the limits of powers conferred by the legislature there came to be no administrative supervision over the acts of the local officials.

The staunchest partisans of Cuban independence viewed with some misgiving the withdrawal of American control over the internal affairs of the Island. Thirty-five years of insurrection were not calculated to develop those civic qualities which lie at the basis of a stable, orderly and efficient government, especially when we keep in mind the fact that under Spanish rule the native population was systematically removed from contact with public affairs. During the period of American military occupation no branch of the public administration presented greater difficulties than the management of municipal matters. The people expected that the intervention of the United States would soon be followed by the grant of a wide measure of autonomy to the municipalities. It is a curious fact that all the Latin American peoples regard municipal autonomy as the principle upon which the political system of the United States rests, and it is therefore taken for granted that the extension of American influence means the emancipation of local government from central control. Even the more conservative Cubans felt that the centralization of the Spanish system was at an end. The Secretary of State under the American military government gave expression to this sentiment in his report for the fiscal year 1899-1900, when he said: “It is not meet that in a liberal and decentralizing régime, which is to acknowledge the personality of municipalities as one of the organs of the State, the municipal corporations, even though they are of popular and elective origin, should become agents of the central government.”