an humbler task. It deals only with a particular class of these phenomena. Its significance is limited to a single branch of politics.

Such a philosophy as the analytical philosophy is here argued to represent must by its very nature be a subordinate one. It finds its viewpoint already fixed for it, leaving in question only the width of its angle of vision. That fixed viewpoint defines the essential nature of all things political. Hence the analytical philosophy must accept many fundamental concepts as already defined for it by the broader general philosophy of politics. It may add new concepts of its own, or may join new elements to old ones. From independent determination of all of its own concepts, as if it were a distinct science, it is debarred. It cannot erect any concept inconsistent with a sound general theory of politics. Its whole erection is a superstructure which can rest only on a predetermined basis established by a more general philosophy.

Dr. Willoughby has said of the analytical philosophy that "it takes political institutions as it finds them." Again he says of this philosophy that it does not "seek substantive truth;" but that it "is a purely formalistic inquiry." It attempts, that is, only to explain how a particular rule of conduct acquires the peculiar form which it denominates legal. It does not attempt to explain how that rule acquires its substance.

The analytical philosophy, then, is only (in Dr. Willoughby's phrase) "an apparatus of thought" for creating an internal consistency within a group of formal rules. It relates these formal rules to the source of their form and hence to each other. This apparatus works only within a closed circuit. It moves only from the form to the source of the form and back again. The source of the form is the sovereign; the giving of the form is the peculiar faculty of the sovereign which is called sovereignty; the rule to which the form is given is law; the human beings affected by such formal rules are the collective people; and the unit of which these concepts are the elements is the state. These are all formal concepts. The analytical philosophy is concerned throughout with aspects of form, not of substance.

This formalism of the analytical school is unacceptable to many minds. It is objected that its theories do not square with the actual facts of political life. The ground on which this objection is based could not be more clearly stated than by Dr. Willoughby. He has deduced with inexorable logic from the analytical theory the corollary that the human individuals who are the subjects of a state are determined by a mere exercise of the lawmaking power. Any state may by a simple fiat of the sovereign make every inhabitant of the globe its subject. With equal logic it follows that in precisely the same territory and over precisely the same individuals there may exist two or more sovereignties or states.

A sover

Such conclusions seem repugnant to common sense. eignty that rests upon a mere formal assertion seems totally lacking in reality. It is an empty form, a form without substance. If logic leads to the deduction from the analytical theory that the entire population of the world can be embraced in the people of a state by a mere fiat of the sovereign, that theory can hardly be said to square with a sound general theory of politics.

This objection appears to rest on solid ground, and calls for some amendment of the analytical theory. The particular request of the program committee that this discussion should offer a substitute for the analytical theory, must be the excuse for suggesting a modification of that theory to obviate the objection just stated.

The analytical school has always treated law as a kind of "command." It has said a law is a command from the sovereign to the subject. Apparently because it is conceived that a command can proceed only from volition, this theory therefore predicates a "will" in the state. Since will is an element of personality, the state must necessarily be a "person." As a person, it differs from other persons in that its will is supreme. Hence it may make of whomsoever it chooses its subject.

This whole structure rests upon the assumption that a law is a command to subjects. Is this conception necessary to the analytical theory? Is it not possible, on the contrary, to regard law (in the analytical sense) as not addressed to subjects at all? The

supremacy of the law considered as commands to subjects would seem impaired, despite the denials of the analytical school, by the fact of constant disobedience, by the fact that it is often actually unknown to the subjects, and by the fact that it may logically be extended to persons who have never heard, and perhaps never will hear, even of the existence of the exercising state.

Is it not correct to consider law in the analytical sense, not as a command to a subject, but as a mere statement of cause and effect, somewhat like a natural physical law? The Mosaic law said "Thou shalt do no murder." But this was conceived as a command from a personal God. A law in the political sense does not usually enjoin one to refrain from anything. It is more apt to run: "Every person convicted of murder shall suffer the penalty of death." This is not a command to refrain from murder. It is a statement of a consequence which will follow murder like the operation of a physical law. It will follow, like such a law, whether or not its existence is known to him who incurs the consequences. Like such a physical law, again, its operation may be nullified by the employment of counteracting forces. It treats human individuals as the subject matter within which it operates, not as subject intelligences to which it is addressed.

Such a conception of law does not take from it the character of a command. Only the command is now not to the subjects. It is a command to the agents of the sovereign. It still proceeds from a will. But there is no necessity of predicating a will of the state. It is a command from one concrete individual or group to another. It is a mere expression of the internal organization of the government.

Law, as thus conceived, is addressed by the sovereign to its own agents. To these it is, as a matter of actual fact, supreme. In so far as they fail to observe the provisions of the law, they are not acting as agents. Nor can any one else violate the law in this formal sense any more than it is possible to violate a physical law of nature; simply because the law is not addressed to any one else but is a mere formulation of conditions and consequences.

Only by shifting the incidence of the command from the subjects to the governmental agencies, can the assertion of the analytical school that the whole world may be made subject to any state by the mere fiat of its law be reconciled with fact. Only with such an alteration of the incidence of the command, does it seem possible to agree with Dr. Willoughby when he says: all persons, whatever their other political relations and affiliations, are potentially subject to the legal control of a given state. That is, it is possible by a mere exercise of its sovereign will to bring them within a control, the legal validity of which its own courts cannot question." That seems to be a statement of the very conception here contended for-that the essence of law in the formal sense of the analytical school is that it is binding upon the courts (and other agencies) established by the sovereign.

The conclusions to which this argument leads are that the analytical theory has been carried far beyond any legitimate scope, that it needs critical restatement, but that it unquestionably has a legitimate sphere of validity and utility.

THE BACKGROUND OF AMERICAN FEDERALISM

ANDREW C. MCLAUGHLIN

University of Chicago

The purpose of this paper is to make plain two facts: first, that the essential qualities of American federal organization were largely the product of the practices of the old British empire as it existed before 1764; second, that the discussions of the generation from the French and Indian war to the adoption of the federal Constitution, and, more particularly, the discussions in the ten or twelve years before independence, were over the problem of imperial organization. The center of this problem was the difficulty of recognizing federalism; and, though there was great difficulty in grasping the principle, the idea of federalism went over from the old empire, through discussion into the Constitution of the United States. By federalism is meant, of course, that system of political order in which powers of government are separated and distinguished and in which these powers are distributed among governments, each government having its quota of authority and each its distinct sphere of activity.1 We all remember very well that, until about thirty years ago, it was common to think of the United States Constitution as if it were "stricken off in a given time by the brain and purpose of man." About that time there began a careful study of the background of constitutional provisions and especially of the specific make-up of the institutions provided for by the instrument.2 It is probably fair to say that the net result of this investigation was the discovery that the Constitution was in marked degree

This paper is limited to the subject stated above. It does not pretend to assert or deny economic influences. It confines itself to the intellectual problem of imperial order. Only one other subject vies with this in importance-the problem of making real the rights of the individual under government.

2 The first of these studies, as far as I know, was Alexander Johnston's "First Century of the Constitution" in the New Princeton Review, IV, (1887), 175.