ing process is good for pupils of any grade, as proven by actual trial. But in order to make the work in institutional, and so in constitutional History, a success, we must require that the teacher be much interested in his subject, well read, acquainted with the fundamentals of political science, jurisprudence, sociology, finance, etc.; and a good thinker. The History of governments and institutions must be familiar. Clarity of exposition must be had; the language of the text must be brought to the pupil's level; trivial facts must be excluded. Text writers and teachers must concentrate on fundamentals generally the history of some institution: the teacher can best do this and that on the review. The review in History has a new and important function,- -a new treatment of old material. On the review the teacher determines what conditions in the history of a people are fundamental, and then isolates in the text all information bearing on that history, and combines it in such a way as to show institutional growth and decay. Series of questions with page references to the text may be prepared for the review, which, if the pupils follow closely, will greatly simplify for them the work in History; for these questions present a definite task, not beyond the pupil's power; and in employing only such information as bears on the answer of the question (which is usually on the history of an institution), the pupil is saved from a bewildering and over-whelming mass of detail. Samples of questions used are: "Show how the government of Athens changed from a monarchy, through a democracy, to an oligarchy." "Discuss the history of the Roman Senate." "Show by what process the Roman Empire was finally and definitely established." "Discuss the history of the Christian church." "Show how the rule of one man was substituted for the nominal · rule of the Roman citizens." "Show how the King's Council in England changed into a Parliament." "Discuss the organization of industry in the United States." Information contained in the text bearing on such problems as these, and many others, is isolated, collected and combined so as to show institutional development. All information not helping to this end is rigorously excluded. The pupil readily works out such definite problems, which, as experience proves, are not beyond his grasp. And in doing this work on the review, collateral reading may be employed, better than elsewhere, to fill in deficiencies in the text and to present the history of a given institution with such fulness of information as to make a large and definite impression on his mind.

THE LEGAL BASIS OF AMERICAN HISTORY.

PROFESSOR FREDERIC L. PAXSON, UNIVERSITY OF MICHIGAN.

There are few tasks more difficult than that of classifying the acts of men according as they are done because of the existence of law, or in conformity with some unwritten but authoritative custom. Even men of intelligence and learning, men trained in the law and its limitations, are often confused in this matter; much more are men of little knowledge at loss. Not long since, an old negro in one of the southern states, where the franchise is exercised by those only who know and understand our constitution, was applying for registration as a voter. The examining officer asked him, "Well, Uncle Ned, what part of the constitution is derived from Magna Charta?" The old negro scratched his head and a look of despair came into his face. "I don't know, Boss," he responded, "unless it's the part that says a nigger can't vote." "Right. Register him," was the immediate answer of the judge. There are many of our customs which have no sanction whatever in the written law, but which are observed by all without hesitation. On the other hand, it was only a few weeks ago that Judge Taft and the eminent constitutional lawyer who has since become his Secretary of State, completely forgot that the constitution explicitly forbids members of Congress to accept, during the time for which they have been elected, any office whose emoluments have been increased during the same time. When common men make the constitution include the whole unwritten law, and jurists forget its express mandates, there is much excuse for teachers who are a little uncertain as to the bearing of law upon history.

The student of constitutional history in America can scarcely escape the conviction that either the constitution has meant widely different things at different periods, or that the public cannot comprehend more than one of its passages at a time. During the first forty years of its life nearly the whole concern of the legal profession and the politicians was centered upon the small group of clauses which define the relation of the central machine to the local governments. The vexed question of state sovereignty was in the air. That an immutable law existed to cover the subject was frequently denied, and state after state, as they had grievances against the government, joined the long list of malcontents in protesting that a law obnoxious to a single state could not be enforced. South Carolina has long held an unenviable prominence among the deniers of federal authority because of the vigor of Andrew Jackson and his defiant attitude which was summed up in his apocryphal remark that if anyone resisted the operation of the law, he would "hang the first South Carolinian he could catch, to the first tree he could reach." But today we know that Jackson's zeal for the Union was fed by his hatred for John C. Calhoun; and he may have hoped that the latter might be the first South Carolinian to be caught. South

Carolina was little more obstinate than many other states, north and south; she was merely better advertised. Jackson had no exceptional desire to enforce federal law against the states, and where the policy of other nullifying states happened to coincide with his own whim he let them go unchecked. Since the civil war, and more especially in the past twenty years, there have been only occasional outcroppings of the relation of the state to the United States. Instead, the center of interest has been in the problem whether the written constitution, framed more than a century ago, contains warrant sufficient to enable the federal government to place under national control the national economic organizations which have appeared out of the developments in transportation and communication. It is reasonably certain that these national organizations must be controlled by some national authority; with a proper regard for tradition the task of finding the authority has been left to the courts, in full conviction that the written document was wisely framed, and is sufficiently elastic to justify the interpretation.

It is impossible to understand the meaning of many of our political struggles without an exact knowledge of the legal relations underlying them. Again and again it has happened that topics of interest, while new, have been treated without partisanship; as when Calhoun supported, in his early years, a tariff and internal improvements. After long periods of indifference the country has often discovered a need to settle the constitutional relations of the problems, and party politicians have had to reshape themselves to meet the need. Most of the men who in the twenties of the last century fought the policies of internal improvement had formerly supported individual measures of the sort without realizing whither such acts would lead them. And later they had turned over, almost without exception, and supported the legal view which best suited the needs of their localities. Rarely have there been statesmen loyal enough or sturdy enough to solve problems uninfluenced by considerations of local interest.

The student who shall in another generation come to study our problems of today may well be worried over the apparent inconsistency of our national government. He may see economic institutions of national scope working their whims almost unchecked, and may learn of the desire equally national to regulate them. Yet he will probably ask, "Why didn't they do it?" It will take careful examination and analysis for him to learn the truth, which does not appear in the contemporary discussions, that the United States maintained a central government to which it had not expressly given powers fully adequate to the task before it. The intelligent European observer may see the same thing even now. Abroad many of our problems are unknown because there is no check upon the central authority, which is thus left free to adapt itself to new conditions as they arise. It may be that benefits more than compensating for the things that are denied flow from our American arrangement; yet it remains true that the constitution was framed in a day of economic localism, whereas it has now to be applied in an era of economic consolidation, integration, and nationalization. The

student of our period must convict the United States of incapacity or insanity unless he be well grounded in the nature and theory of our constitutional limitations.

Contrariwise, there has been at least one period in American history in which a knowledge of and adherence to these constitutional principles tends to disqualify the historian. The crisis of the civil war found no machinery prepared to meet the problem of disunion. The legal doctrine of union was pretty well established, but in the event of armed rebellion there was no advice in the formal law. Yet Congress showed here a willingness to go its own gait regardless of the constitution. Despite the protestations of constitutionality made by the republican leaders, many of the reconstruction measures were clearly unconstitutional and several of them were actually declared so by the Supreme Court in later years. Yet they were enforced. It came out in the struggle that when the United States is sufficiently interested and impassioned, all the restrictive measures of the constitution cease to restrict, and the acts of Congress are to be limited only by its inclinations. From 1866 to 1869 more than two-thirds in both houses were opposed to the President and it became possible to pass anything over his veto. One of the constitutional checks was thus silenced. The courts remained, but when a test case, in re McArdle, was appealed from the Circuit Court and it was rumored that the Supreme Court was likely to decide it adversely to Congress, this body rose transcendent to the danger. Under its admitted power to regulate the appellate jurisdiction of the Supreme Court it passed a law denying to the court jurisdiction over cases of this class, including cases then on the docket. Since the Circuit Court opinion sustained the law, Congress thus prevented a reversal of its act. The student must bear in mind that in some matters the United States permits the written constitution to rule; but when passion is aroused in a dominent majority, with two-thirds of Congress behind it, Congress may assume a dictatorship which goes beyond all law.

Failure to understand legal foundations prevented the United States from realizing the true meaning of the American Revolution for three generations, and there are many even today who speak and think loosely on the subject. The careful historian who should now assert that the colonies were justified in their rebellion because of the unconstitutionality of British acts would be hooted out of court. The colonies themselves believed that the obnoxious acts of Parliament were unconstitutional, but passion such as theirs is fuller of heat for burning down than of light for the illuminating of abstruse points of law. It is clear today that the British constitution gave full justification to the Amercan statutes, however impolitic they may have been.

At the same time, while showing how little the revolutionary fathers understood the causes which justified their acts, legal research has brought forth a valid explanation of the inevitable split. Self-government in America, and the frontier environment, had developed a political life different

from that of Great Britain, though using the same terminology. Representation had come to mean one thing in America while it retained a different meaning in England; yet England and America each believed honestly enough that its definition was universal, and that the other was treacherously trying to evade it. Far from being oppressive and tyrannical, the English colonial system in 1775 was the most liberal in the world. None of the colonies of continental Europe had the privileges and independence of the English colonies. Yet this very independence which England permitted worked her undoing because of its tendency to educate America to demand more and more. An unsound colonial system, real misapprehension, and a family stubbornness on both sides of the Atlantic, account for the American Revolution and have replaced the tyranny and unconstitutionality theories of our fathers and grandfathers.

The case and fame of Daniel Webster well illustrate the desirability of founding historic teaching upon legal knowledge. The glowing peroration of his reply to Hayne has placed him among the great leaders of American thought. The supremacy of the Union he placed upon that clause of the constitution which makes it the supreme law of the land. "The people so will it," he insisted. "No state law is to be valid which comes in conflict with the constitution or any law of the United States passed in pursuance of it." And the interpretation of this conflict, he maintained, had been left not to state legislatures but to the judicial power of the United States.

Says Lodge, the biographer of Webster, "His fame grew and extended in the years which followed, he won ample distinction in other fields, he made many other splendid speeches, but he never went beyond the reply which he made to the Senator from South Carolina." Channing adds, "Webster and Hayne between them had stated the two ideas of the Constitution around which the history of the United States was to center for the next thirty years." McLaughlin declares, "He pointed out that nullification must be only interstate anarchy." Macdonald thinks, "No one was so well fitted for the task as Webster. He was the foremost New England statesman, the ablest American constitutional lawyer, and incomparably the greatest American orator that the country had yet produced; and he now, with little direct preparation, summoned all his magnificent powers to expound, once for all, the nature of the Union he loved." It would be easy to add to these citations dozens of others, all magnifying the importance of the debate and the service of Webster, and all of them, equally, ignoring the fact that an eminent Virginia jurist had stated every one of these arguments, and quite as well, nearly fifteen years before.

John Marshall it was, and not Daniel Webster, who deserved the credit of formulating a positive theory of the Union. At the beginning, when even Washington was not sanguine about the success of the new plan, everyone believed that if the new government should not work well it might be abandoned, and most of the original states expressed that belief. But