The main purpose of this paper is not so much to measure the impact of utilitarianism on American political thought as to explain why utilitarian influence was so slight. The question I am seeking to answer may be phrased as follows: How did it come about that utilitarianism, the main current in English thought for two or three generations, was little more than a series of ripples, or at most a weak cross-current, on this side of the Atlantic? The problem becomes more puzzling when one reflects that the period of the rise and growth of utilitarianism in England (the first three or four decades of the nineteenth century) was an era in which intellectual relations between the two countries were especially close and one in which movements of political and social reform ran parallel courses. Quite reasonably, too, one might suppose that the qualities of Bentham's thought which contributed to its spread in England would have insured its enthusiastic reception here. A doctrine which contemptuously rejected tradition, preached hard-headed, calculating practicality, conceived of the individual as an isolated atomistic unit, and which in all its aspects and phases appealed to the virtues and limitations of the middle-class man of affairs—such a doctrine, one might think, would have flourished on nineteenth-century American soil.

As preliminary to a direct attack on the problem, some definitions or distinctions are in order. “When I mention religion,” said Parson Thwackum, “I mean the Christian religion; and not only the Christian religion, but the Protestant religion; and not only the Protestant religion, but the Church of England.”

Since officers who conduct hearings in benefit procedures are given so much latitude and are so free from any leading-strings of a court process, it is of the essence not only that they possess a judicial attitude of mind but that they be keenly alive to the social implications of their work. In 1929, the New York Industrial Survey Commission wrote: “Referees are in every essential judicial officers; and they should be, so far as is humanly possible, above suspicion of improper practices, political or otherwise. They should be persons of mature judgment and be skilled in law—not alone the Compensation law—for they touch many and various points of law not comprehended within the language of the Compensation law. They should be trained in the value of evidence, and they should know the rules of evidence even though they are not obliged to apply them in compensation hearings.”

It is safe to speculate that if the above had been written in 1941, it would have contained more emphasis on the social viewpoint needed by referees. They must realize that on them depends to a large extent the difficulties accompanying denial of benefits which not only may cause serious hardship to individuals but may even have repercussions of the utmost importance in the community at large. Thus referees conducting hearings are supposed to have a kind of partisanship toward the law, in that they must constantly remember that its aim is to secure payments to all qualified claimants, not merely to decide the merits of a dispute between two opposing parties. Nevertheless, an attitude which is supposed to resolve doubts in favor of a claimant as required by the compensation law does not negate a judicial frame of mind in deciding the merits of a disputed claim.

Much has been said and written in recent years concerning executive usurpation of congressional powers. Little attention seems to have been given to encroachment by Congress on the President's right to give or withhold his approval of “every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment).”

“We are under a Constitution,” said Charles Evans Hughes when he was governor of New York, “but the Constitution is what the judges say it is …” Several theories of jurisprudence have arisen which attempt to take into account this personal element in the judicial interpretation and making of law. The so-called “realistic” school has argued that law is simply the behavior of the judge, that law is secreted by judges as pearls are secreted by oysters. A less extreme position was taken by the late Justice Holmes, who said: “What I mean by law is nothing more or less than the prediction of what a court will do.” While these views go rather far in eliminating any idea of law as a “normative, conceptual system of rules,” no one doubts that many judicial determinations are made on some basis other than the application of settled rules to the facts, or that justices of the United States Supreme Court, in deciding controversial cases involving important issues of public policy, are influenced by biases and philosophies of government, by “inarticulate major premises,” which to a large degree predetermine the position they will take on a given question. Private attitudes, in other words, become public law.

This study is concerned with certain phases of the operation of the power of the courts to declare legislative enactments unconstitutional. It is concerned with the exercise of this power rather than with the rules governing or applicable to the exercise of the power itself. For this reason, it might be thought of as a fact-study in the field of unconstitutional legislation. This does not mean that the rules and principles of law applicable to the subject are ignored, but it means that they are assumed as a background against which the study is to be placed.

After two years of effort, the Committee on State Government of the National Municipal League has completed its work on the new fourth edition of the Model State Constitution. This constitution was originally published in 1921, and revisions were made in 1928 and 1933. The form of the constitution has been improved, and the text itself subjected to a thoroughgoing revision, resulting in many important changes. Whereas the third edition had ninety-eight sections, the new one has 116 sections grouped under thirteen articles, dealing respectively with the bill of rights, suffrage and elections, the legislature, initiative and referendum, the executive, the judiciary, finance, local government, the civil service, public welfare, intergovernmental relations, constitutional revision, and the schedule. The explanatory comments have been thoroughly revised and rewritten.

As in previous lists, mention is here confined generally to units specifically authorized by law or established by the President by executive order or reorganization plans under general authority vested in him. Changes in units created by heads of departments or independent establishments are excluded unless of major importance.

Procedure is the most difficult and the least satisfactory part of the law. It is the delay, expense, and uncertainty of litigation that has always aroused popular complaint; and these are mostly matters of procedure.

Our substantive law, regulating rights and duties, is intricate enough, but on the whole it has been worked out by the courts and laid down in statutes in a way which seems to meet the general needs of society. The principles of property law, contracts, torts, trusts, agency, partnership, corporations, negotiable instruments, sales, and of all the other titles in the substantive field, are quite acceptable to the public. But when the machinery of the courts is invoked to administer these principles, interminable trouble results. Process must be issued and served to bring persons and property under the jurisdiction of the court, the parties must file their claims and defenses, objections must be heard and amendments made, evidence must be collected by various devices.

The Judicial Council and Its Objectives. My assignment is to implement Professor Sunderland's brilliant primer on judicial councils by a more specific presentation utilizing the experiences of the New York State Judicial Council. Of the three elements that enter into a consideration of the judicial branch of government, the first—the substantive law, the law of rights and duties—is not within the province of the judicial council either in New York or elsewhere. The second element—the machinery of justice—is the principal field of the judicial council. If the council does its work well in that field, attention cannot fail to be focused upon the third and most important element—also part of a judicial council's problems—the judicial personnel.

The origin of the English committee of the whole has evoked much conjecture from historian and political scientist alike, but no conscientious scholar has as yet found the subject worthy of exhaustive study. A scrutiny of the parliamentary sources for the period by the present writer shows, however, what the difficulties are. The meagreness of the records, especially for the sessions of 1604 and 1610, render a thorough examination of the problem almost impossible. In Professor Notestein's The Winning of the Initiative by the House of Commons, we find the best treatment of the committee of the whole house. But the discussion is short and fails to satisfy the more curious student of parliamentary procedure. Professor Notestein tells us that, about 1607, “there appeared, rather accidentally, the Committee of the Whole House, a Committee at its beginnings so little different from the ‘General Committee’ of late Elizabethan days that its appearance excited little comment…. By 1610 it was becoming customary to refer many matters to it; by 1614 the House went into such a Committee on the least occasion; by 1621 there were four several Committees of the Whole House, which met on different afternoons, and the House went often into Committee in the afternoon about any matter in hand.” All this is undoubtedly true, but that authority is unable to assign any definite reason for the development of this practice and spends most of his time discussing the effects, which are undoubtedly more important to the historian. The problem of origins remains, however, unanswered.

It is almost as difficult to read the thoughts of the past from the scattered dicta of the sixteenth century law books as to reconstruct a dinosaur from the fragments of a skeleton; yet many of these early cases illuminate important changes in legal and political affairs. The case of Wimbish v. Taillebois is one of particular interest because of Chief Justice Montague's opinion, which casts some light upon a little known phase of the constitutional development by which the property rights of the individual were brought under the control of the state. In the early Middle Ages, the power of the king over private rights was weak; the notion that the subject's rights were inviolate was strong. During the Middle Ages, royal authority and parliamentary authority grew extensively, and by the sixteenth century king in parliament was able to seize church lands and transfer property rights by statute. Montague justified such transfers of property from one individual to another by applying the mediaeval theory of taxation by consent to out-and-out transfers of property by Parliament. Such a doctrine increased the power of Parliament greatly by placing property rights directly under its legislative authority. It therefore marks an important step in the growth of the theory of parliamentary sovereignty.