In the United States, which I need hardly say has in this matter been nowise affected by France or Switzerland or England, but has developed on its own lines, the conception that the people (ie. the citizens at large) are and ought of right to be the supreme legislators, has taken the form of legislation by enacting or amending a Constitution. Instead of, like the Swiss, submitting ordinary laws to the voters after they have passed the legislature, the Americans take subjects which belong to ordinary legislation out of the category of statutes, place them in the Constitution, and then handle them as parts of this fundamental instrument. They are not called laws; but laws they are to all intents and purposes, differing from statutes only in being enacted by an authority which is not a constant but an occasional body, called into action only when a Convention or a legislature lays propositions before it.

I have already explained the historical origin of this system, how it sprang from the fact that the Constitutions of the colonies having been given to them by an external authority superior to the colonial legislature, the people of each State, seeing that they could no longer obtain changes in their Constitution from Britain, assumed to themselves the right and duty of remodelling it; putting the collective citizendom of the State into the place of the British Crown as sovereign. The business of creating or remodelling an independent commonwealth was to their thinking too great a matter to be left to the ordinary organs of State life. This feeling, which had begun to grow from 1776 onwards, was much strengthened by the manner in which the Federal Constitution was enacted in 1788 by State conventions. It seemed to have thus received a specially solemn ratification; and even the Federal legislature, which henceforth was the centre of national politics, was placed far beneath the document which expressed the will of the people as a whole.

As the republic went on working out both in theory and in practice those conceptions of democracy and popular sovereignty which had been only vaguely apprehended when enunciated at the Revolution, the faith of the average man in himself became elections occurring when any important measure is before Parliament, because such an election is taken to indicate the attitude of the people generally towards the measure, and by consequence the judgment they would pronounce were a general election held. There have been instances in which a measure or part of a measure pending in Parliament has been dropped, because the result of the "by-election" was taken to indicate that it displeased the people.

stronger, his love of equality greater, his desire, not only to rule, but to rule directly in his own proper person, more constant. These sentiments would have told still further upon State governments had they not found large scope in local government. However, even in State affairs they made it an article of faith that no Constitution could be enacted save by the direct vote of the citizens; and they inclined the citizens to seize such chances as occurred of making laws for themselves in their own way. Concurrently with the growth of these tendencies there had been a decline in the quality of the State legislatures, and of the legis lation which they turned out. They were regarded with less respect; they inspired less confidence. Hence the people had the further excuse for superseding the legislature, that they might reasonably fear it would neglect or spoil the work they desired to

Instead of being stimulated by this distrust to mend their ways and recover their former powers, the State legislatures fell in with the tendency, and promoted their own supersession. The chief interest of their members, as will be explained later, is in the passing of special or local Acts, not of general public legislation. They are extremely timid, easily swayed by any active section of opinion, and afraid to stir when placed between the opposite fires of two such sections, as for instance, between the Prohibitionists and the liquor-sellers. Hence they welcomed the direct intervention of the people as relieving them of embarrassing problems. They began to refer to the decision of a popular vote matters clearly within their own proper competence, such as the question of liquor traffic, or the creation of a system of gratuitous schools. This happened as far back as thirty years ago. in New York, the legislature having been long distracted and perplexed by the question whether articles made by convicts in the State prisons should be allowed to be sold, and so to compete with articles made by private manufacturers, recently resolved to invite the opinion of the multitude; and accordingly passed an Act under which the question was voted on over the whole State. They could not (except of course by proposing a constitutional amendment) enable the people to legislate on the point; for it has been often held by American courts that the legislature, having received a delegated power of law-making, cannot delegate that power to any other person or body. But they could ask

And

1 According to the maxim Delegata potestas non delegatur, a maxim which

the people to advise them how they should legislate; and having obtained its view in this manner, could pass a statute in conformity with its wishes.

It is, however, chiefly in the form of an amendment to the Constitution that we find the American voters exercising direct legislative power. And this method comes very near to the Swiss referendum, because the amendment is first discussed and approved by the legislature, a majority greater than a simple majority being required in some States, and then goes before the citizens voting at the polls. Sometimes the State Constitution provides that a particular question shall be submitted by the legislature to the voters; thus creating a referendum for that particular case. Thus Wisconsin refers it to the voters to decide whether or no banks shall be chartered.1 Minnesota declares that a certain class of railway laws shall not take effect unless submitted to and ratified by a majority of the electors. And she

would not apply in England, because there rarliament has an original and not a delegated authority.

Judge Cooley says: "One of the settled maxims of constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional authority alone the laws must be made until the Constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved" (Constit. Limit., p. 141). He quotes from Locke (Civil Government, § 142) the remark that "The legislature neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." This is one of Locke's "bounds set to the legislative power of every commonwealth in every form of government;" but it has not precluded the British Parliament from delegating large, and in many cases truly legislative, powers to particular persons or authorities, such as the Crown in Council.

There has been much difference of opinion among American courts as to the extent to which a legislature may refer the operation of a general law to popular vote in a locality, but "the clear weight of authority is in support of legislation of the nature commonly known as local option laws."-Cooley, ut supra, p. 152; and see the cases collected in his notes.

1 Constitution of 1843, Art. xi. § 5.-"The legislature may submit to the voters at any general election the question of 'Bank or no bank? and if at any such election a number of votes equal to a majority of all the votes cast at such election on that subject shall be in favour of banks, then the legislature shall have power to grant bank charters, or to pass a general banking law, with such restrictions and under such regulations as they may deem expedient for the protection of the bill-holders: Provided, that no such grant or law shall have any force or effect until the same shall have been submitted to a vote of the electors of the State at some general election, and been approved by a majority of the votes cast on that subject at such election."

provides, by a later amendment to her Constitution, that "the moneys belonging to the internal improvement land fund shall never be appropriated for any purpose till the enactment for that purpose shall have been approved by a majority of the electors of the State, voting at the annual general election following the passage of the Act." In this last instance the referendum goes the length of constituting the voters the financial authority for the State, withdrawing from the legislature what might seem the oldest and most essential of its functions.

It is not uncommon for proposals submitted by the legislature in the form of constitutional amendments to be rejected by the people. Thus in Indiana, Nebraska, Ohio, and Oregon, the legislature submitted amendments extending the suffrage to women, and the people in all four States refused the extension. In Colorado, where the Constitution of 1876 had provided a special referendum on the point, the legislature passed its woman franchise law, and submitted it to popular vote in October 1877, when it was rejected by 14,000 votes to 7400.

What are the practical advantages of this plan of direct legis. lation by the people? Its demerits are obvious. Besides those I have already stated, it tends to lower the authority and sense of responsibility in the legislature; and it refers matters needing .much elucidation by debate to the determination of those who cannot, on account of their numbers, meet together for discussion, and many of whom may have never thought about the matter.2 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 1 Amendments of 1871 and 1874 to the Constitution of 1857.

A Scotch local option bill proposing to refer to the vote of the ratepayers the decision of the question whether licences for the sale of intoxicating liquors in any town shall be granted has called forth much discussion as to the merits of popular voting. It is urged by some that this provision, by taking away from the representative local authority the determination of an important question, will lower the position of that authority, and make leading residents less eager to be elected members of it. It is replied that the local authorities cannot always be trusted in such a question, that the ratepayers will be satisfied with no decision but their own, and that to make the opinion of a candidate on this one question the test of his fitness to be elected a member of the local authority will really injure the election, by excluding men who might possibly be the best in point of personal capacity.

cannot.

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 The personal interest of the individual legislator in passing a measure for chartering banks or spending the internal improvement fund may be greater than his interest as one of the community in preventing bad laws. It will be otherwise with the bulk of the citizens. The legislator may be subjected by the advocates of women's suffrage or liquor prohibition to a pressure irresistible by ordinary mortals; but the citizens are too numerous to be all wheedled or threatened. Hence they can and do reject proposals which the legislature has assented to. 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.

A brilliant, though severe, critic of Canadian institutions deplores the want of some similar arrangement in the several Provinces of the Dominion. Having remarked that the veto of the lieutenant-governor on the Acts of a Provincial legislature is in practice a nullity, and that the central government never vetoes such Acts except where they are held to exceed the constitutional competence of the legislature, he urges that what is needed to cure the faults of Provincial legislation is to borrow the American plan of submitting constitutional amendments (and, he might add, laws) to popular vote. "The people cannot be lobbied, wheedled, or bull-dozed; the people is not in fear of its re-election if it throws out something supported by the Irish, the Prohibitionist, the Catholic, or the Methodist vote."

If the practice of recasting or amending State Constitutions were to grow common, one of the advantages of direct legislation by the people would disappear, for the sense of permanence would be gone, and the same mutability which is now possible in ordinary statutes would become possible in the provisions of 1 Mr. Goldwin Smith in the Contemporary Review.