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If the legislature can refer one subject, it can refer another to popular legislation. There is scarcely a case, where much diversity of sentiment exists and the people are excited and agitated by the acts and influence of demagogues, that will not be referred to a popular vote. The frequent and unnecessary recurrence of popular elections, always demoralizing in their effects, are among the worst evils that can befall a republican government; and the legislation depending upon them must be as variable as the passions of the multitude. Each county will have a code of laws different from the others; murder may be punished with death in one, by imprisonment in another, and by fine in a third. Slavery may exist in one and be abolished in another. The law of to-day will be repealed or altered to-morrow and everything be involved in chaos and confusion. The general assembly will become a body merely to digest and prepare legislative propositions, and their journals a register of bills to be submitted to the people for their enactment.

Finally, the people themselves will be overwhelmed by the very ills and dangers against which the founders of our government so anxiously intended to protect them: all the barriers so carefully erected by the constitution around civil liberty to guard it against legislative encroachment and against the assaults of vindictive, arbitrary, and excited majorities will be thrown down, and a pure democracy, the worst of all evils, will hold its sway under the hollow and lifeless form of a republican government.1

Justice Willard in his opinion says: "If this mode of legislation is permitted and becomes general, it will soon bring to a close the whole system of representative government which has been so justly our pride. The legislature will become an irresponsible cabal, too timid to assume the responsibility of lawgivers, and with just wisdom enough to devise subtle schemes of imposture to mislead the people. All the checks against improvident legislation will be swept away, and the character of the constitution will be radically changed."

Mr. Lowell also refers to the quantity of our legislation. In Zurich in Switzerland the yearly average of laws submitted to the people was only ten, in Berne only four.3 Our legislators pass four or five hundred statutes in a single session. Of course they cannot all be submitted. How and by what influences should the selection be made?

112.

1 Rice v. Foster, 4 Harr. (Del.) 479.

2 Barto v. Himrod, 4 Seld. N.Y. 483. Quoted by Oberholzer, pp. 108, 8 Atlantic Monthly, April, 1894.

It needs hardly to be said that the whole theory is in exact opposition to the principles advocated in this work. The object of these principles is to improve the character of the legislatures by concentrating executive power and bringing it to bear in discipline and system in the legislature, in clearing up and making public the whole course of procedure both legislative and administrative, and thus arousing and concentrating the mass of public opinion through the development of personality. The referendum does exactly the reverse of this, destroying personality and diffusing responsibility even more than it is now. Upon this point we may quote Mr. Lowell:

Moreover, the referendum is contrary to our ideas, our habits, and our traditions, and hence could not be expected to work successfully. We are accustomed to depute all ordinary legislation to our representatives and to charge them with the duty and responsibility of making the laws. Our people are not in the habit of weighing the particular merits of particular statutes, or of debating the necessity for the various appropriations. Their experience has been confined to passing judgment upon men and general lines of policy.1

Mr. Commons says:

Unquestionably direct legislation in the form of the referendum would serve an important purpose in the present condition of American politics. It would promptly bring all legislative assemblies to a standstill. But, as in Switzerland, it would make them no more attractive than now to the ability and statesmanship of the country. They would be simply advisory committees on legislation, with no responsibility, attracting neither the political leaders, nor enlisting the popular vote at elections.2

And Mr. Bryce :

What are the practical advantages of this plan of direct legislation by the people? Its demerits are obvious. It tends to lower the authority and sense of responsibility in the legislature; and it refers matters needing much elucidation by debate to the determining of those who cannot, on account of their numbers, meet together for dis

1 Ibid.

2 "Proportional Representation," p. 192.

cussion, and many of whom may have never thought about the matter. These considerations will, to most Europeans, appear decisive against it. The proper course, they will say, is to improve the legislatures. The less you trust them, the worse they will be. They may be ignorant; yet not so ignorant as the masses.

But the improvement of the legislatures is just what the Americans despair of, or, as they would prefer to say, have not time to attend to. Hence, they fall back on the referendum as the best course available under the circumstances of the case, and in such a world as the present. They do not claim that it has any great educative effect on the people. But they remark with truth that the mass of the people are equal in intelligence and character to the average State legislator, and are exposed to fewer temptations. The legislator can be "got at," the people cannot. Nor should it be forgotten that in a country where law depends for its force on the consent of the governed, it is eminently desirable that law should not outrun popular sentiment, but have the whole weight of the people's deliverance behind it.1

But this is just what it does not do, as the vote on the referendum is almost always small in proportion.

In New York, in 1894, the vote on the revised constitution was only fifty-seven per cent. of the vote cast for governor at the same election; the vote on apportionment (gerrymander) was fifty-nine per cent., and the vote on canal improvement was sixty per cent.

In California, in 1892, the vote on five amendments to the constitution and four propositions ranged from fifty-three per cent. to eighty per cent. of the votes cast at the same election for members of the assembly.

In Ohio a constitutional amendment to tax franchises of corporations was lost three times, although the majorities in its favor were large, simply because the total vote on the question was less than seventy-five per cent. of the total vote cast at the same election for State officers, as required by the constitution.

In Texas, in the summer of 1897, a popular decision was called for on three amendments to the constitution. Though 535,000 persons had voted for a President in the autumn before, less than 100,000 then came to the polls; a striking illustration of the relative force of personality and abstract propositions in assuring public interest.2

In Boston the vote on the rapid transit question in 1894 was less than one-third of all the voters and the 1 "American Commonwealth," Vol. I., Chap. XXXIX., p. 453. 2" Proportional Representation," p. 187.

question was settled by only one-sixth. There is a constant danger that the most radical and subversive measures may, through a cowardly shirking of duty on the part of executive and legislature and the intrigues of interested parties, be made law by a small minority of the people.

In a former chapter,1 in illustrating the effect of the executive veto, we have supposed the case of a railway manager, who was obliged to wait passively until the directors, without any intervention on his part, had come to an agreement among themselves as to the running of trains, the rates of passenger and freight traffic, the kind of cars and engines to be used, the number and location of stations, etc., and should then be limited to simple acceptance or rejection of plans thus made and submitted to him in writing. We may now carry this illustration further and suppose that, before these plans of the directors were sent to the manager or put into operation, they should be submitted for approval to a majority vote of the stockholders at meetings called for the purpose. It seems not unfair to adduce this as an example of the referendum.2

It is worth noting that in Great Britain, with its strong executive power, its effective parliamentary control, its wide suffrage, and its responsive public opinion, the referendum has never obtained any foothold. Mr. Bryce quotes two instances which do not fairly come within the category. One is as to local option, that is, whether each town or other local area will grant licenses for the sale of liquor, which, though it has been several times proposed, has not yet been made a law; and the other, that the rejection of a bill by the House of Lords, after it has passed the House of Commons, may be regarded as compelling a

1 Chap. III.

2 See Appendix C, for a practical experiment in the referendum.

dissolution of Parliament, that is, an appeal to the voters. As to the first point we will leave the word to Mr. Lowell.

There remains to be considered the use of the popular vote for local questions. This depends upon quite a different principle. The referendum means an appeal from the legislature to the whole body of constituents who elected the representatives, but in the practice of leaving local affairs to be decided by the voters of the city, town, or county, there is no appeal of this kind. The people of the State, in such a case, are not asked to ratify the act of the legislature, nor can they veto it, for although the vast majority may be strongly opposed to a local option bill, for example, they cannot prevent its becoming a law. The statute acquires a complete validity from the enactment by the legislature, and the only question on which a popular vote is taken is that of the local application of its provisions. With this, the people of the State as a whole have nothing to do, for it is decided in each particular town solely by the voters of that town. Local popular voting is in reality only a method of self-government, whereby additional powers are given to the city, town, or county, and their exercise is intrusted to the whole body of its inhabitants.1

The argument, of course, applies to many other cases where the voters accept, not the law itself, but its local application.

As to the action of the House of Lords it means, what a dissolution of Parliament has always meant, an appeal with regard to an executive ministry, and even though it may turn, as it often has done, upon single measures, it is still with the great mass of voters a question of persons, and behind them, of parties.

It seems to me also clear that, in a country like England, the referendum could never become an habitual agent in legislation. Perpetual popular votes would be an intolerable nuisance. It should be restricted to constitutional questions altering the disposition of power in the State, with, perhaps, the addition of important questions on which during more than one Parliament the two houses of the legislature had differed.2

1 Lowell, op. cit.

2 W. E. H. Lecky, "Democracy and Liberty," Vol. I., p. 242.

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