Any constitutional instrument is subject to strains and stresses by reason of demonstrated inadequacy or omission at some times, and of failure to reflect the current state of mind of its constituents at others. The Covenant of the League of Nations, which is by way of a constitutional instrument in the hitherto unoccupied field between independent states, has had reputations as diverse as that of a straight-jacket and an empty sack. In the end, most of the waves of sentiment arrive at the customary human dilemma, that the trouble is not so much with the mechanism as with its human operators.

The League of Nations has had a hectic existence for an institution just emerging from its teens. Its first ten years were a series of easy successes, but the eight years just past have confronted it with problems too tough for the morale of its members; or problems have been kept away from it because, if it cut at all, it would likely come too close to the quick.

After this period of confusion, the members of the League, at the 19th session of the Assembly, took a series of actions to make the Covenant more useful to them. Resolutions of September 30, 1938, dealt with the question of the so-called separation of the Covenant from the peace treaties by approving amendments in the Preamble and Annex and Articles 1, 4, and 5 of the Covenant; and by interpretation with the procedure under Article 11, par. 1; the obligations under Article 16; and collaboration of the League and non-member states. Whether or not these decisions make any actual change from recent practice, the meaning of the Covenant is the clearer because of them, and its application will be more certain when the occasion arises.

We moderns attack no new problem when we set out again on the quest for responsibility. We merely use new terms for old ideas. Hundreds of generations have tried to reconcile liberty and law, authority and freedom. These same problems are posed on the oldest Egyptian tablets. Recall also that requirement in an old Greek city that whosoever desired to propose a new law should come into the place of assembly with a rope about his neck. Responsibility, you see! Justinian declared that the affairs which concern all should be decided by all. Such illustrations may be found throughout the pages of history. Calvin and Arminius posed the problem in theological language, using the terms “sovereignty of God” and “free will.” Plantagenets, Tudors, and Stuarts all grappled with the implications of the responsible crown, and with the difficulties of getting taxes without debate in Parliament. Magna Carta, the Declaration of Right, ship money, the Instrument of Government of Cromwell's day, habeas corpus, the Bill of Rights—these are all tokens of a long English struggle for responsibility in government.

It is a well-known fact that the writings of John C. Calhoun were read and admired by German political theorists in the latter part of the nineteenth century. When the problems of federalism became predominant in the German Empire, it was found natural to turn to American experience and to study the works of the leaders of contending factions in the United States before the Civil War.

There may, however, be another reason why Calhoun, in particular, proved such a valuable source for the German authors. His theory of the concurrent majority, in many parts, presents a striking resemblance to the arguments advanced on the continent of Europe in defense of legislatures built on representation, not of individuals, but of groups, interests, or estates. It can be assumed that Calhoun, when speaking of the safeguards necessary against the despotism of the numerical majority, was thinking primarily of the federal system and states' rights. On the other hand, he can hardly have regarded this arrangement as the only possible solution to his problem. He defines the government of the concurrent majority as one “where the organism is perfect, excludes the possibility of oppression, by giving to each interest, or portion, or order,—where there are established classes,—the means of protecting itself, by its negative, against all measures calculated to advance the peculiar interests of others at its expense.” Especially in view of the expression “where there are established classes,” it seems safe to say that Calhoun probably knew of the existence of representation by estates of the realm in European countries, and regarded such systems with favor.

Varied tasks throughout the vast field of activities of the executive branch of the federal government can be performed only by persons with training in one of more branches of law. The tasks run all the way from the administration of locally established rules and regulations of the several government agencies to the argument of fundamentally important constitutional questions before the Supreme Court. Down through the years of American history there has been conflict of opinion as to the proper mode of organizing the legal work of the government. It is contended, on the one hand, that functions of a highly specialized and highly professionalized character such as those of law ought, in the interest of symmetry and efficiency, to be integrated under centralized management. To a limited extent, such integration has been brought about in the Department of Justice. On the other hand, it is contended that the work of lawyers merely aids in the performance of more fundamental classifications of work done by the government, and that organization should be in terms of such topics as finance, foreign affairs, commerce, agriculture, and labor, with legal tasks grouped in subordinate categories and subject to control only by the respective heads of the major organizations. In line with this contention, all major departments and most other agencies have staffs of lawyers not directly connected with the Department of Justice.

The attempt to give international society a minimum of government and order through the establishment of a League of Nations has proved only moderately successful. It is true that states have begun to play politics in Geneva, but they have not ceased the older and grimmer struggle for power in the world at large. The state is still today, as far as its international relations are concerned, primarily a military organization. Its specific aims in its struggle for power may be many, but among them the geographic objectives, the attainment of which will increase the state's relative military strength, are the oldest and the most persistent.

There are several types of geographic objectives, but in this analysis we shall concern ourselves with the strategic geographic objectives of foreign policy. Before we attempt to analyze these specific objectives, however, it is essential to consider briefly the phenomenon of expansion as such, which may be defined as a mere advancement of frontier in contrast to the conquest of a particular bit of territory for strategic reasons.

He who hungers for an easy formula, resolving all doubts as to “What is law?,” is advised to lay aside this article. I deal in no such magic. For law, even though it is the great principle of order in life, must inevitably share in the uncertainties and paradoxes of the fluid reality it partially canalizes. Indeed—and perhaps better stated—law is merely a specially differentiated phase of life, a type of group activity. The problem of law's nature is tremendously complex, and if a few categories and definitions are here hesitatingly advanced, that is because no analysis is possible otherwise. They are not improvised to avoid examination of the tangled tissue of relationships they attempt to describe. Law I define as those rules of conduct which are generally obeyed. General obedience is a consensus within a given community in support of its rules. In Bentley's terms, the phrase “general obedience” looks at the phenomena as group activity, the phrase “consensus” as opinion activity. Despite the obvious ambiguity of these terms, the reader is requested to quiet his impatience. I may succeed in partially elucidating their meaning.

Thus far, reference has been made, not to the great mass of the civil servants, but only to the higher officials. The work of more than ninety-seven per cent of the members of the service has no significance for this study. The laborers, clerks, writing assistants, and a large majority of the members of the professional class make only incidental contributions to policy, and while their importance is occasionally to be noted, we are not concerned here with a detailed examination of their work. Suffice it to say that the 150,000 who are usually referred to by the term “civil service” possess a certain esprit that links the members together. Within this number, however, there are marked divisions: there is the foreign, diplomatic, and consular service, the colonial service, the defense services, and the home service, all with their peculiarities, often of outlook and sometimes of mode of recruitment, salary, or promotion. Outside of this group fall such diverse units as the local government service, the large judicial service, and the employees of such semi-independent agencies as the British Broadcasting Corporation and the Central Electricity Board. Our interest here is centered on the more important members of the professional or specialist class of some 14,000 members, the higher officials of the executive grade numbering between 4,000 and 5,000, and the administrative class with its small but highly important membership of 1,200 to 1,300.

This is a study of the factors that are at work in the determination of British legislative policy. With a tendency to generalize and over-simplify, various authorities have located this function in Parliament, in the cabinet, or in the civil service. Occasionally, mention is made also of the influence of the king or of pressure groups. Each authority is able to cite examples in support of his views, at least when his views have been challenged and mere assertions fail to satisfy. As a matter of law, it is easy to determine where the function lies; but the British constitution has never found in law the measure of its reality.

Contemptuous critics of democracy have been no less confused in properly locating this function than have been many of its supporters. Some defenders of the “democratic process” see the parliamentarian as one who translates the will of the electorate into public policy; and they see Parliament in turn delegating to technicians the duty of preparing the detailed rules that will effectuate that policy.

Nationalism as we understand it is not older than the second half of the eighteenth century. Its first great manifestation was the French Revolution, which gave the new movement an increased dynamic force. Nationalism had, however, become manifest at the end of the eighteenth century almost simultaneously in a number of widely separated European countries. Its time in the evolution of mankind had arrived, and although the French Revolution was one of the most powerful factors in its intensification and spread, it was not its date of birth. Like all historical movements, nationalism has its roots deep in the past. The conditions which made its emergence possible had matured during centuries before they converged at its formation. These political, economic, and intellectual developments took a long time for their growth and proceeded in the various European countries at different pace. It is impossible to grade them according to their importance or to make one dependent upon the other. All are closely interconnected, each reacting upon the other; and although their growth can be traced separately, their effects and consequences cannot be separated otherwise than in the analysis of the scholar; in life, they are indissolubly intertwined.

When Congress convened in January, 1939, the neutrality legislation of 1935, 1936, and 1937 had been weighed in the balance and found wanting. Ethiopia, Spain, and China had proved unsatisfactory testing grounds, and the President, in his annual message to Congress, hinted that certain changes would be designed (1) to enable the United States to act less favorably vis-à-vis aggressor nations, (2) by means of giving the executive more discretion in the conduct of foreign affairs under the neutrality laws.

The virulent disease which has been attacking and crippling international trade, particularly since 1929, has manifested itself in two different forms. The one is mounting trade barriers, which tend to fence off nation from nation and thus effectively to check the flow of world trade. The other is the practice of discrimination, which nations are using in increasing degree to force markets out of the hands of their competitors or to gain political advantage of one kind or another. If economic stability is to be won and the peace of the world to be made secure, it is just as necessary to overcome the one as the other.

The Trade Agreements Act was passed by Congress for the purpose “of expanding foreign markets for the products of the United States.” It is clear that the accomplishment of this purpose necessitates a program with a two-fold objective. The program must seek, first, the reduction or elimination of excessive trade barriers; and second, the elimination of trade discriminations.

In the first part of this study it was suggested that it is possible to distinguish certain forms or patterns of expansion which recur constantly. We have noted that rivers served as effective boundaries only during a very early stage of economic and technical development and soon became routes of communication instead of barriers. We have noted, too, that expansion tends to follow the line of least resistance. It is not surprising, then, to find, almost as soon as states secure access to a river, a strong tendency to expand up and down the river valley. Movement downstream is the natural flow to the sea, and movement upstream is necessary for purposes of defense, since whoever controls the upper valley has a distinct strategic advantage. Control of the upper valley is necessary also in order to control and regulate the water supply. The next step is to push the frontier to the watershed on the other side of the river, since there, if anywhere, is to be found the first natural geographic and economic limit to expansion. With this movement up and down stream and across the stream to the watershed, we have the evolution of the river valley as an economic unit. The unifying influence of the river is responsible for the fact that practically all early civilizations grew up in river basins–Mesopotamia on the Tigris and Euphrates, Egypt on the Nile, the Punjab on the Indus, and China along the Hoang-ho.

The proposal in 1937 to “pack” the Supreme Court may have been an adventitious attempt directed at particular persons under displeasure, open to every criticism based upon principle. But it at least skirted part of the border of a serious problem which did not disappear when that particular scheme was repulsed. No matter whether one held with the President in his contention, or abhorred the device—no matter how little one thought the ages of the justices then sitting had to do with the complaints lodged against them—one knows that senility has in the past overtaken and may again overtake justices of that Court and impair their faculties, and that it may do so before they reach the age of seventyfive, by the same token as one knows that it has failed to overtake others who sat on the Court long past the age of four score.

The continued growth of administrative agencies exercising legislative and judicial (or, if one prefers, “quasi-legislative” and “quasi-judicial”) powers furnishes a constant inducement to reevaluate the separation of powers theory. In a general way, the theory is admittedly hostile to this development as involving an inordinate concentration of power in the executive. Accordingly, we are presented with the problem of whether governmental practice should be accomodated to the theory or the theory revised to fit practice.

Of course the pressure of circumstance has already made a considerable impression on doctrinal exposition. Thus it is not seriously contended that the delegation of any rule-making power to administrative agencies is necessarily a delegation of legislative power within the meaning of the doctrine. Nor is it seriously contended that the right of such agencies to conduct a trial and come to a formal judgment thereupon is necessarily a delegation of judicial power—again within the meaning of the doctrine.

The years 1936–38 were remarkable for the vigorous manner in which the courts attempted to preserve “the American system” from the return of the guild. The right to engage in a normal trade or calling without passing too rigorous an examination as to one's capabilities and training, to charge such prices for services as one sees fit regardless of the wishes of a dominant majority of those engaged in a particular trade or calling, and to close when one wishes rather than when a “code authority” commands, were given judicial protection. The past year has witnessed a partial change of heart. Apparently, opponents of the new economy of control are about to be told to “go to the polls, not to the courts.” Even more remarkable has been the increasing tendency on the part of the legal profession, under an expanding doctrine of “inherent” powers, to take back from the legislature and from the people the right to control that profession. This tendency continued unabated during the past year. In most fields, the cases were merely typical of the normal run of decisions on state constitutional questions.

When the first session of the 76th Congress convened, demands for economy and a curtailment of presidential power and influence were rather prevalent in all parts of the country. The activities of the session were influenced by the 1940 election, coalition of parties to act on particular issues, fights between the Executive and Congress, partisan action, and many other political contrivances. In the face of all this, the National Legislature, according to many political observers, made a somewhat unpredictable record.

During the 1937 term, the Supreme Court underwent the first changes in its personnel since Mr. Justice Cardozo succeeded Mr. Justice Holmes in March, 1932. On June 1, 1937, Mr. Justice Van Devanter retired and was succeeded at the opening of the new term in October by Mr. Justice Black. On January 18, 1938, Mr. Justice Sutherland retired and was succeeded on January 31 by Mr. Justice Reed. During a substantial part of the term, Mr. Justice Cardozo was absent on account of illness, and his death occurred July 9, 1938. Mr. Justice Black, whose appointment had attracted much public comment, threw himself into the work of the Court with unusual vigor. During the term, he wrote the opinion of the Court in fifteen cases. He dissented in fourteen cases, in nine of which he wrote dissenting opinions. He concurred without substantial opinion in eleven cases, and wrote a concurring opinion in one other case. Mr. Justice Reed participated less actively, first because of the lateness of his appointment, and second because his prior service as Solicitor-General of the United States disqualified him from sitting in a considerable number of cases. These changes in the membership of the Court have altered the almost even division on the bench between the so-called conservatives and the so-called liberals. Without attempting to speculate as to the course of future decisions, it is significant that the irreconcilably conservative block of justices, consisting of Justices Van Devanter, Sutherland, McReynolds, and Butler, has been broken up.

The most significant development of recent years in the field of public personnel administration in the United States is the rapid spread of the merit system. After receiving lip service for decades, the merit system has made more gains in the last three years than at any previous time since the passage of the Pendleton Act by Congress in 1883. Tangible proofs of this progress are to be found in the state and municipal civil service systems which have been established and in the personnel developments of 1938 and 1939 in the federal government.

The constitutional clause governing the approval of bills after the adjournment of Congress is as follows: “If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.” The power of the President to sign after adjournment was not specifically established until 1932, in the case of Edwards v. United States (286 U. S. 482), and the failure of a bill unless signed within ten days after adjournment was not finally passed upon until 1929, in the Pocket Veto Case (279 U. S. 655).

On March 15, 1937, the United States Civil Service Commission, in a forward-looking attempt to keep pace with the increasing demand for trained social scientists in the federal service, announced an examination for “social science analysts”—six grades in all—as follows