The Online Library of Liberty

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• United States Prefatory Note
• Chapter XXXVIII: The Beginnings of Democracy In North America
• Chapter XXXIX: The Frame of Government : State, Local, and Federal Constitutions
• Chapter Xl: the Party System
• Chapter Xli: the Actual Working of the National and State Governments
• Chapter Xlii: the State Governments In Their Working
• Chapter Xliii: the Judiciary and Civil Order
• Chapter Xliv: Public Opinion
• Chapter Xlv: Recent Reforming Movements
• Australia
• Chapter Xlvi: Australian History and Frame of Government
• Chapter Xlvii: Australian Legislatures and Executives
• Chapter Xlviii: the Executive and the Civil Service
• Chapter Xlix: Australian Parties and Policies
• Chapter L: Questions Now Before the Australian People
• Chapter Li: Labour Policies and Proposals
• Chapter Lii: Characteristics of Australian Democracy
• New Zealand
• Chaptee Liii: the Country and Its First Half Century of History
• Chapter Liv: Richard Seddon and His Policies
• Chapter Lv: Compuisoby Aebiteation In Tbade Disputes
• Chapter Lvi: the Working of the Government
• Chapter Lvii: Results of Democratic Government
• Part Iii
• Chapter Lviii: the Decline of Legislatures
• Chapter Lix: the Pathology of Legislatures
• Chapter Lx: the Executive In a Democracy
• Chapter Lxi: Democracy and Foreign Policy 1
• Chapter Lxii: the Judiciary
• Chapter Lxiii: Checks and Balances
• Chapter Lxiv: Second Chambers
• Chapter Lxv: Direct Legislation By the People
• Chapter Lxvi: the Relation of Central to Local Government
• Chapter Lxvii: Comparison of the Six Democratic Governments Examined
• Chapter Lxviii: Types of Democratic Government
• Chapter Lxix: the Money Power In Politics
• Chapter Lxx: Responsibility
• Chapter Lxxi: Democracy and the Backward Races
• Chapter Lxxii: the Relation of Democracy to Letters and Arts
• Chapter Lxxiii: the Results Democratic Government Has Given
• Chapter Lxxiv: Democracy Compared With Other Forms of Government
• Chapter Lxxv: Oligarchies Within Democracies
• Chapter Lxxvi: Leadership In a Democracy
• Chapter Lxxvii: the Later Phases of Democracy
• Chapter Lxxviii: Present Tendencies In Democracies
• Chapter Lxxix: Democracy and the Communist State
• Chapter Lxxx: the Future of Democracy

CHAPTER LXV

direct legislation by the people

No feature of modern democracy better deserves study than the methods recently introduced for enabling the whole body of citizens to enact laws by their own direct action; and this for three reasons.

These methods are a return to the earliest form free government took in the Primary Assemblies of ancient nations, such as the Greek and Italic and Phoenician republics. They witness to a distrust of the representative system of government, which had been for a long while the only form employed in large countries, and was deemed to be in them not merely inevitable, but to have marked a long step forward in free government. This latest novelty, having been approved by the experience of some communities, being warmly advocated in others, and seeming to indicate the line which changes in popular government are likely to follow, well deserves to be examined.

As the chapters on Switzerland and the United States have described the working in those countries of the Referendum and Initiative, this chapter need do no more than summarize the results which these two institutions as there worked have given, and state briefly the general arguments which commend and the objections which dissuade their introduction elsewhere.

The movement of opinion towards the direct action of the whole people in legislation springs from two sources, one theoretic, the other practical.

The theoretic source is to be found in the dogma of Popular Sovereignty, very ancient in its legal form, for it goes back to the law of Rome, but in its modern garb fascinating and familiar from the days of Rousseau. It is fervently preached both on the European Continent and in the United States by enthusiasts who hold not only that all power belongs by Nature and of right to the People, but that it is truly and effectively their power only when exercised by them directly, not through persons chosen to represent them, for the so-called mandat imperatif by which the people instruct their representatives how to vote on their behalf has been found insufficient and in practice unworkable. The water must be drawn fresh from the spring among the rocks, not from the brook in its lower and perhaps polluted course.

The other or practical source is that disappointment with and distrust of legislative bodies which, more or less evident in all free countries, has reached its maximum in the United States. In many States the people, balked in repeated efforts to cure the faults of those bodies, have assumed the power to review their action by subjecting acts passed by the legislature to a popular vote of approval or rejection, and have also authorized a prescribed number of citizens to prepare and submit to such a vote Bills to be enacted without any intervention on the part of the legislature. It is this sense of an actual evil that has helped forward the movement beyond the Atlantic, whereas in Europe its strength has been chiefly drawn from abstract doctrine.

Decisions of the people may have their value for other purposes, also. Where a legislature consists of two Chambers, and differences of opinion arise between them, each persisting in its own view, then, unless the Constitution provides that the voice of one of the Chambers shall prevail against that of the other, a means of deciding between them may be found in submitting the law, or those parts of it on which the Chambers differ, to a vote of the whole people. This is now done in the Australian Commonwealth, is talked of in Norway and Belgium, finds a place in the new Constitution of Germany, and has been suggested as an expedient fit to be employed in Britain. There are also cases in which the nature of a law proposed makes it specially desirable that the wishes of the citizens should be so directly expressed upon it as to ensure their cordial support of its enforcement if enacted. A familiar instance is found in proposals to restrict the sale of intoxicating liquors. Legislatures have sometimes, either for the reasons just mentioned or to relieve themselves of responsibility, referred such questions to popular vote in a State or a city.

Direct Popular Legislation exists in Switzerland and in many States of the North-American Union, and that in two forms. One is the Referendum, i.e. submission to popular vote not only of amendments to the Constitution but also of ordinary laws passed by the Legislature. In some Swiss cantons all laws are required to be thus submitted — this is the Obligatory or Compulsory Referendum — in other cantons and in the Confederation, and also in the American States, the submission of a law takes place only at the demand of a prescribed number of citizens. This is the Optional Referendum.

The other form called Initiative is the proposal by a prescribed number of citizens of a Constitutional amendment, or a law, to be voted upon by the whole people. It exists in the Swiss Confederation as respects Constitutional amendments, as also in many of the Cantons and in many American States, as respects both Constitutional amendments and laws.

Let us now see (a) what use is made of each of these modes of legislation; (b) what matters can be submitted; (c) what is the proportion of citizens who vote; (d) what measures are taken to assist the citizens to vote aright; (e) what influence party spirit and party organizations exercise on the voting; (f) how far the people have shown themselves qualified for the function assigned to them; and (g) what has been the general result on the peace and welfare of the communities which have tried these new methods.

(a) Use made of the Referendum.—In the Swiss Confederation it has always been used sparingly, and in recent years less and less.1 In those Cantons where it is optional it is little resorted to, but the output of laws in Switzerland is at all times and in all cantons very small as compared with that of English-speaking communities. Zürich, where legislation is exceptionally brisk, and all laws are submitted, passed only 254 in the fifty years from 1869 to 1919, and the large majority of those were accepted.

In the United States the Referendum is much more freely used, not only because the laws passed are more numerous than in Switzerland, but also because many are passed at the instance of individuals or companies seeking benefits for themselves, and legislatures are distrusted. It is, however, now less frequently demanded than when it was first introduced, a change which may mean either that the legislatures are mending their ways or that the citizens have grown more indifferent, and less eager to deliver their judgment on enactments.

Use made of the Initiative.—This also is infrequent in the Swiss Confederation, where it is used only by way of Constitutional Amendment Between 1905 and 1919 eight proposals were submitted under it, of which only two were carried. It is more freely used in the Cantons, but even in Zurich only on twenty-eight occasions for laws and thrice for Constitutional amendments between 1866 and 1908, both years inclusive.

In the American States many bills are proposed by Initiative, because there is a more active spirit of discontent or aspiration which desires to effect sweeping reforms by popular impulse, believing these to be retarded by sordid influences playing secretly on the legislatures. If the need for an institution is to be judged by the use made of it, that need was great in many States. The Initiative proposals accepted are, roughly speaking, about as numerous as those rejected, whereas in Switzerland the majority are rejected.

(b) Nature of the Matters submitted.—In the Swiss Confederation the Legislature has under the Constitution the right of withdrawing from the operation of the Referendum any Decrees or Resolutions (being of general application, and not including the annual Budget) which it may deem urgent, and this right is frequently used, sometimes even when the urgency of the measure was far from apparent.1 A like power is allowed to the Legislature in American States, and has there also been occasionally employed under circumstances raising suspicion, so that Governors have vetoed Bills declared “Urgent” where the declaration seemed to have been made for the purpose of preventing the people from delivering their judgment.

In the American States Initative proposals made in the form of a Constitutional amendment are subject to no restriction imposed by the State Constitution, because any such restriction would be overridden by a change in the Constitution itself; and in point of fact both there and in Switzerland matters which ought to be dealt with by Laws and find no place in a Fundamental Instrument of Government, are now constantly made the subject of a Constitutional amendment proposed either by a Legislature or by Popular Initiative.1

(c) Proportion of the Citizens who vote.—In Switzerland the proportion of persons voting to the whole number of qualified citizens is, both at Referendum and at Initiative votings, almost always lower than at elections of representatives to Legislatures. In the Confederation it has risen as high as 79 and sunk as low as 34 per cent. In rural Cantons it has occasionally sunk to 21 per cent Abstentions are, of course, more frequent where there is no organization to bring up voters to the poll, and are in the United States often explicable by the fact that some Bills refer to purely local matters, out of the range of the average voter's knowledge or interest. One may say that the number voting, while varying with the interest felt in the particular question at issue, seldom exceeds half the total number of electors. This is true also of the American States, in which, however, the proportion voting is usually smaller.2 Cases have occurred in which measures have been carried by a minority, even a small minority, of the registered voters. Where this happens, can it be said that the will of the people has been expressed? It is argued that those who do not oppose must be taken to assent, but abstention may be due to ignorance of the importance of the issue or to a modest consciousness of incapacity to express any opinion whatever.

(d) Methods adopted to enable the Citizens to understand the Issues submitted.— Both in Switzerland and in America copies of the Constitutional amendments, laws, and proposals made by Initiative, sometimes accompanied by a statement of the arguments commending or attacking the law or proposal submitted are circulated officially, while supporters and opponents start their respective campaigns in the press and by public meetings.

(e) Influence on the Votings of Parties and Party Spirit.—In Switzerland, since party organizations are rarely active in discussing the issue submitted or in bringing up voters to the polls, the voting tends to convey the real judgment of the people unbiassed by party feeling. In the American States this is so far true that the party organizations, which exist rather for offices than for principles, seldom step openly into the arena, so the merits of the question submitted have a better chance of being fairly considered than an election would afford.

(f) How far have the People shown themselves qualified for Direct Legislation?—No nation has ever been better prepared for this task than the Swiss, for among them ignorance of and indifference to politics are least common. Every political issue to be voted on is abundantly discussed at public meetings and in the press; and the echoes of the discussion are heard far up in the secluded Alpine valleys. No one need want the means for forming some sort of opinion. The Swiss, shrewd, cautious, and inclined to conservatism, think before they vote. The minds of the peasants are slow working, somewhat narrow, as might be expected from rural folk living by tillage and dairying, thrifty and parsimonious, little influenced by abstract notions or plausible catchwords, but intelligent, willing to ponder any arguments within the range of their knowledge. The average citizen is withal independent and cool-headed, not surrendering himself to party leaders, and with a patriotism that qualifies the tendency to approve or condemn a proposal solely with a view to his personal interests. It was the right sort of people in which to try the experiment of the Referendum, and the success of the experiment has proved the people's competence. The fact that popular voting has been less and less used in the Confederation, though it has through the growth of population become easier than it was in 1874 to collect the signatures needed to bring a law before the people, is a further evidence of the good sense which confines the use of this power to cases in which there is a body of adverse opinion sufficiently large to make it worth while to put the country to the trouble and expense of a general voting.

Of the eighteen American States it is more difficult to speak in general terms, for though in most of them the population is agricultural, it is in others mixed with manufacturing or mining elements, and in some the recent immigrants from the backward parts of Europe are numerous. Hence both the proportion of educated and thoughtful men, capable of giving good leadership, and the average level of intelligence in the voters, differ greatly from State to State. The Western Americans take as intelligent an interest in public affairs as do Frenchmen or Englishmen, or Belgians, have had more political experience than Germans, are less impulsive and passionate than Spaniards or Italians or the Slav peoples.1 They are more restless and rather more inconstant and decidedly less conservative than the Swiss, but taken all in all they seem quite as fit as any European people, and probably fitter than the races of Central and Southern Europe, to apply the methods of Direct Legislation. Thus their example, if the experiment succeeds, will not suffice to prove that peoples like those of Lithuania and Poland, Serbia and Rumania, destitute of the experience Western Americans have enjoyed, can expect results equally good.

(g) What have these Methods of Legislation done for the Welfare of the Communities that use them?—The test of the success of the system is to be found partly in the approval it has found and the satisfaction it has created in the peoples which employ it, partly in a scrutiny of the merits or demerits of the enactments which it has accepted or rejected.

For Switzerland the former question is readily answered. The people are so entirely content with the Referendum that while no one proposes to abandon or restrict it, some propose to extend it. Regarding the laws passed or rejected a stranger must speak with diffidence, but the instances given in a previous chapter2 go to show that legislation has advanced on sound lines, and that under it the country and all classes therein have attained an unusual measure of material well-being and domestic concord. The spirit of conservatism and the spirit which seeks betterment by change have tempered each the other. Some good enactments have been delayed by the Referendum, but the loss has been slight, and possibly compensated by the more general support which the law obtained when ultimately passed. The results of the Initiative are less easy to estimate, but it receives a more general approval from the wise than it did thirty or even fifteen years ago. No one suggests that it has done any serious harm; many believe that it has accelerated several needed reforms. That its immense power is not abused appears from the fact that it has been invoked, in the Confederation, only thrice within the last fifteen years.

In the United States there is no such general consensus of opinion in the States which have experience of the Referendum: but it deserves notice that the number of States which have adopted it since S. Dakota led the way goes on increasing, and that in none where it exists do the people seem disposed to drop the power of direct law-making. Many observers, especially among lawyers, continue to dwell on the defects of the plan, pointing to the occasional rejection of Bills whose merits the people had not understood, to the confusion brought into administration by haphazard decisions, and to inconsistencies in policy, as for instance in the voting or rejecting of appropriations for educational purposes. Though the malign influence of the “money interests” has not been entirely eliminated nor the tone of the legislatures raised, many of such jobbing Bills as these bodies were wont to pass have been killed by Referendum or prevented from reaching that stage at which it would have killed them. The working of the Initiative has proved more-faulty, because rejection of the bad is easier than construction of the good, a task especially difficult when essayed by isolated groups of citizens, each group anxious to push forward its own projects. Many proposals submitted are not only ill-drafted, but calculated to confuse the existing law; many embody “fads,” or contain schemes with a kernel of sound principle, but presented in an unworkable form. Although therefore no serious harm has resulted, for the common sense of the people rejects most of the “freak bills,” the merits of the Initiative need to be tested by longer experience. Defects might be reduced by requiring all proposals to be put into a technically correct form by an official draftsman, and by limiting the number of issues to be placed before the citizens at the same voting.

In Oregon in 1912 there were submitted together at one fell swoop thirty-seven laws and Initiative proposals, while at the same time a number of officials had to be elected. The citizen on entering the voting compartment had to make up his mind on between forty and fifty distinct issues, merits of measures and merits of men. The best-informed and most experienced could hardly have an opinion on even one-fourth of the questions his vote was to decide.

This review of the working of Direct Popular Legislation in the countries where it has had a fair trial suggests some general reflections on its value for other democracies.

The arguments used to recommend it may be concisely stated as follows:

The Referendum corrects the faults of legislatures. Where those bodies act under the influence of corrupt motives or of class motives, or of purely party motives, an appeal from them to the whole people may prevent mischief. Legislative issues of permanent significance are disjoined from those transient party and personal issues which dominate legislatures. Where one party brings in a Bill from which it hopes to gain credit at an approaching election, its own fortunes, and especially those of its majority in the legislature, are bound up with the success of the measure, and the party in opposition has a motive for resisting it, because they will improve their chance of office by defeating the Bills of the party in power. Thus the merits of the case recede into the background. But if the Bill has to go to a popular vote, the decisive fight over it takes place before the people, for its enactment or rejection is their act. They may reject it without censuring the officials who prepared or the parliamentary majority which passed it. If the officials continue to be personally respected and trusted they may remain in office, though their Bill has failed, and the nation is spared the trouble of those general elections resorted to under the British Parliamentary system whenever a first-class Ministerial Bill has been defeated.

Take another case. In a legislature divided into groups one group specially anxious to carry a particular measure may by a “deal” with another group which dislikes that measure but is willing to accept it in order to carry some pet measure of its own, succeed in passing a Bill which the real mind of the majority of representatives, and still more the bulk of the electors, condemns. Or a section of the dominant ministerial majority may threaten to withdraw their support unless the Ministry consent to pass some Bill which it dislikes. The Ministry, in order to escape defeat, yields to the threat, so the Bill goes through, and in this case also against the real wishes of the majority. In both these cases a reference to the popular vote will checkmate the manœuvres of politicians.

An election is an Election, a choice between candidates as well as between policies, an occasion when so many issues of policy are simultaneously presented, that it is seldom possible to treat any one as having been really decided. After the election one party claims that the electors gave a “mandate” on one particular issue: another party or section makes a like claim, and there is no means of telling which is right. Only a consultation of the people can decide.

The Referendum helps the legislature to keep in touch with the people at other times than a general election, and in some respects in better touch, for it gives the voters an opportunity of declaring their views on serious issues apart from the distracting or distorting influence of party spirit. Thus representatives get to understand better the real mind of the electors as a whole, including those who are not their political supporters and therefore less known to £ personally.

The Referendum gives security that no law £ passed which is opposed to popular feeling. Legislatures may mistake the will of the people, or may, from party motives or class interests, take the risk of transgressing that will in the hope of doing so with impunity. An appeal to the people is the proper remedy.

Popular voting reduces Sectionalism in a nation, because men of different classes and parties find themselves working and voting together on issues which are outside the sphere either of class sentiments or of party programs.

A law receives strength from the approval which the people by their direct vote have stamped upon it. Because it is their own work they feel a fuller obligation to obey it and to make it obeyed.

The judgment of the whole people is a final judgment, from which there is no appeal. Roma locuta est. The ultimate authority having given its decision, controversy is stilled, at least until such time has passed and such new circumstances have arisen as may encourage a belief that the people will change its mind.

The three last-mentioned arguments recommend the Initiative also, but as it supersedes the legislature by enabling the people to pass a law without the participation of the latter, some further reasons must be advanced for introducing it. These reasons are in substance all one and the same, viz. that legislatures do not adequately express the people's will, so that the Referendum, which is confined to an expression of that will upon matters previously dealt with by the legislature, confers on the people only a part of their rights, giving no free scope for their action independent of the Legislature. Why should a body of persons chosen by the people close the door against the people themselves, allowing only such proposals of reform as take their fancy to pass through so that the people can deal with them? A party majority, perhaps corrupt, probably selfish, may for its own purposes hold back the people from getting what they desire, and the people must stand and wait, helpless till a general election arrives; and even then a new legislature may fail to carry out properly such wishes as the people have expressed. Thus while needed reforms are delayed, a sense of injustice is created which may break out in violence. Finally, if the people are fit to negative a Bill presented by the legislature, why are they not fit to frame one themselves?

In the American States — and wherever a Rigid Constitution limits the powers of legislatures — there is this further technical reason for employing the Initiative, that when employed by way of amending the Constitution, it overleaps all restrictions placed on the legislatures, because what the people put into the Constitution annuls those restrictions which their predecessors had imposed. This argument rejoices those who, desiring a free, swift unhampered course for the people's will, condemn the restrictions which Rigid Constitutions impose, while it repels those who value the restrictions just because they fear that swift unhampered course.

The objections urged against the Direct Intervention of the people can be even more briefly stated.

It reduces the authority and status of the legislature, lessens its responsibility to the people, and may induce it, yielding to a temporary and possibly factitious demand, to pass measures it does not approve in the hope that a voting by Referendum will reject them. It places matters that have been carefully considered and debated in a legislature — matters often beyond the comprehension of the average citizen — at the mercy of the voter's ignorance or prejudice. It is an appeal from responsibility to irresponsibility, from knowledge to ignorance. Not these objections only, but others of graver import apply to the Initiative. It brings before the people Bills that have never run the gauntlet of parliamentary criticism, which, if they have been carelessly or clumsily drafted, will, if enacted, confuse the law, creating uncertainty and inviting litigation. Citizens summoned by Referendum to vote on a Bill have at least the advantage of knowing that it has been scrutinized and amended by a competent legislative body, but an Initiative proposal has not had this advantage. It may contain many provisions, some which please, others which displease the voter, but he cannot amend it; and must either reject it as a whole or accept it as a whole, whatever its faults.

The Initiative offers a strong temptation to an excited faction or an unscrupulous leader to bring forward some scheme of sweeping change, promising to a section of the people benefits so alluring as to carry the law through on the top of the wave before its dangers can have been brought home to the nation. The fact that such attempts have failed when made in Switzerland because the good sense of the people repelled them, does not show that they might not succeed in some less intelligent and less cautious population. Once a revolutionary step has been taken by Initiative, repentance comes too late. It is far harder to agitate for its repeal, even if there is time to do so before it takes effect, than to rouse the people to compel by Referendum the reversal of a decision given by a legislature.

The reader can weigh for himself the pros and cons of the case. Were I to express my own opinion it would be that the Referendum has worked well in Switzerland, and if less well in the American States, yet not fatally ill, for no conspicuous mischiefs have followed and some good may have been done. The Initiative was not really needed in Switzerland, but neither in the Confederation or in the Cantons has positive harm resulted. In the American States the reformers would have done better to improve the methods of their legislatures and raise the quality of their members rather than try to supersede them by the Initiative, but of this they seem to have despaired. In experimenting with it, they have given it not quite a fair chance, for it has been employed not only far more frequently than in Switzerland but with a neglect of obvious precautions which would have reduced the defects it has shown. American experience has, however, been too short to enable a final judgment to be pronounced.

Before proceeding to enquire what light the data supplied by Switzerland and America throw upon the general value and applicability to other countries of Direct Popular Legislation, let me enumerate certain provisions which might, if attached to the use of the Referendum and Initiative, tend to cure or mitigate the risks incident to the employment of either.

• 1. The number of signatures required to support the demand for a Referendum should be determined with regard not only to the total number of voting citizens, but also to the distribution of population, for signatures are more easily collected in densely populated areas. It would seem desirable that the percentage of persons signing required to the total number of qualified citizens should be not less than 8 to 10 per cent for a Referendum, and nearly twice that number, say 16 to 18 per cent, for an Initiative.1
• 2. The practical evil most complained of in the working of the Initiative is the obscurity and confusion, due to bad drafting, of the Bills proposed. This might be remedied in one of two ways. The proposers might be required to have their Bill prepared for them by a skilled official draftsman, or, seeing that the special object of the Initiative is to bring before the people some proposed enactment which the legislature refuses to embody in a law, this object might be attained by giving to the Initiative proposal the form not of an English or American statute drawn out in full, but of a concise statement of the object to be attained, with a command to the legislature to prepare a Bill dealing with the matter which would be in due course submitted to a popular voting.
• 3. When any Bill is to be submitted, every voter should be officially supplied not only with the text of the measure to be voted on, but also with an explanation of its purpose and a summary, concise and impartial, of its provisions.
• 4. In the case of an Initiative, the proposed law should be submitted to the Legislature for examination, and that body should be required to prepare a statement of its views upon the proposal, which statement should be officially circulated with the text of the Bill,1 the legislature being also further entitled to draft and circulate an alternative Bill, calculated to effect such of the aims of the Initiative proposal as it approves. Another plan would be to entrust this function to a standing non-partisan Board.2
• 5. Some matters should be excluded from the operation of the Referendum, as for instance certain kinds of financial laws, and those which need immediate application. To these some would add all treaties with foreign countries. Whether Initiative proposals ought to be allowed to include Bills for imposing taxes and for granting money seems more than doubtful. The danger is obvious.
• 6. The number of propositions to be submitted at the same voting ought not to be larger than a citizen of average knowledge and intelligence can fit himself to vote upon.
• 7. To prevent the frequent repetition of an Initiative proposal, a time might be fixed within which a proposal substantially the same as one rejected should not be resubmitted.1
• 8. Inasmuch as the object of the Referendum is to elicit the opinion — if he has one — of the individual citizen, the influence of party organizations upon popular votings ought, so far as possible, to be reduced; and it would conduce to this if the votings were fixed for a time when no important election of a party character, such as the election of members of a Legislature, or of a President or other high official, is to take place.
• 9. To prevent important decisions from being determined by a minority of the whole people it might be provided that no Initiative should be carried at a voting in which less than a prescribed percentage, say three-fifths, of the qualified citizens took part.
• 10. Since in countries so large as France or Great Britain votings cannot be frequent, for the expenditure of time and money would be prohibitive, it would seem desirable to define the class of Bills on which a Referendum might be demanded. But can any definition be devised? In countries which, like Britain, have no constitution embodied in one instrument, there is no means of deciding what is a Fundamental Law; and in case it were thought proper to determine by a popular vote differences of opinion between two legislative Chambers, who shall say what differences are sufficiently important to warrant recourse to this solution? Some mechanical method, such as that of requiring a prescribed number of citizens, or of members of the Legislature, to demand a Referendum might be adopted, but such a provision would be open to abuse, for it may be assumed that nine politicians out of ten will resort to any device for embarrassing an antagonist or delaying a defeat.

Two serious difficulties stand in the way of the use of the Referendum in large populations such as those of France, Italy, and Great Britain. One is that of determining the cases in which a Referendum may be demanded. In France, if the Swiss precedent were to be followed, the number of signatures required to support a demand for Referendum would exceed 300,000, so the verification of signatures would be an almost impossible task, yet a necessary one, if the plan were to be properly worked. The other is that as nothing but the activity of organizations could bring up the voters to the poll, the campaigns for and against a measure would fall into the hands of party or class organizations, and a large percentage of the vote3 given would come from persons who took little real interest in the matter; which means that the best-organized party would usually win, and the chief aim of a Referendum, that of eliciting the genuine judgment of the citizens themselves, rather than opinions imposed on them by their would-be guides and by the pressure of numbers, would not be attained.

A nation which, encouraged by Swiss and American experience in Popular Legislation, desires to follow in the same path, must begin by considering the conditions favourable or unfavourable to the experiment.1

The first of these is the size and population of the country. The larger these are, the more costly and less satisfactory will popular votings be, for the influence of party or class organizations will be greater since without them it is hard to “get out the vote.”2 Swiss success has been largely due to the comparatively small voting areas.

In a country where the citizens are divided by sharp antagonisms of race or religion, voting will tend to follow the lines of those divisions and the citizens be less likely to deliver an independent and well-considered opinion on the merits of a proposal.

Where classes stand opposed to one another by social antagonism or conflict of economic interests, and where each class reads only the newspapers that make it their business to state its case and support its claims, the tendency to class solidarity in voting may be strong enough to make a popular vote, especially where the voting masses are large, grow into a menacing crisis. In a legislative body each side has to listen to the arguments of the other, and bitterness is mitigated by friendly personal relations between opposing politicians; but a struggle in which the whole nation directly takes part knows no such mitigations.

The value of Direct Legislation in its working depends largely upon the amount of power party organization and party spirit exert. If they are weak, or do not interfere when the voting is on Laws, there is a good chance of getting the real and independent judgment of the citizens; otherwise not. In Switzerland and the American States aforesaid these favouring conditions arc present. They are, of course, most likely to be present in times of comparative quiet, when no vital issues rouse excitement, and men are less disposed to blindly follow a party leader.

Thus it may be said that Direct Legislation is most likely to give good results in a small country, with a homogeneous population, intelligent and unemotional, not dominated by party organizations or inflamed by party bitterness. These are the conditions under which all democratic governments, great and small, have the best chance to flourish. As the function of direct law-making carries the citizens of a democracy a step further than that of choosing representatives who shall act on their behalf, the best proof of their civic competence is found in the successful discharge of this function. So far Switzerland alone has given that proof, her advantages having been such as few countries possess, and few can hope to acquire.

I have not dwelt, because it is obvious, on what is, if not the greatest, the most incontestable merit claimable for Direct Legislation. It is unequalled as an instrument of practical instruction in politics. Every voting compels the citizen who has a sense of civic duty to try to understand the question submitted, and reach a conclusion thereon. Many, sometimes even a half, fail to come to the polls, yet even these may derive some benefit from the public discussion that goes on. Everybody can listlessly read articles in the press or listen to speeches in a meeting, but thinking is strengthened and clarified and concentrated when it leads up to a plain issue. It is a good thing for the citizen to be relieved from the pressure of those personal or party predilections which draw him to one candidate or another and to be taken out of the realm of abstract ideology to face concrete proposals. Here is a plan which throws on him the responsibility of declaring a definite opinion on a specific proposition, forcing him to ask himself, Is it sound in principle? Will it work? Shall I vote for it or against it?

[1]Between 1905 and 1919 a total number of 62 laws and decrees were passed by the National Assembly. In only three cases was a Referendum asked for, and in all three the law was accepted by the people.

[1]See Vol. I. Chap. XXIX. p. 420.

[1]This practice has almost effaced the distinction between Constitutional provisions and ordinary laws. See Vol. I. p. 427, and Vol. II. p. 156.

[2]President Lowell (Public Opinion and Popular Government, published in 1913) estimated the average percentage, in American States, of voters at Referenda and Initiatives to the whole number of qualified voters at about 60 per cent. It seems to be practically the same in Switzerland.

[1]The difference between the average citizen and the average member of a legislature is of course slighter in the United States than in European countries, so a law passed by a legislature carries a slighter presumption of being the product of superior intelligence and knowledge.

[2]See Vol. I. Chap. XXIX.

[1]The number of 30,000 was fixed in 1874 as required by a Referendum in the Swiss Confederation and 50,000 (in 1891) for an Initiative, but the population has so much increased since those dates (from 2,700,000 and 3,100,000 to over 4,000,000), that the collection of signatures has become much easier. Nevertheless Referenda have been fewer in recent years.

[1]This is provided by the Constitution of Oklahoma, which restricts every statement to two thousand words, divided between supporters and opponents.

[2]Another reason for having Bills proposed by Initiative carefully scrutinized is that in some of the American States attempts have been made to improve the prospects of the measure by putting in its forefront certain catching proposals, while hiding away, sometimes in words carefully chosen to conceal the effect, other proposals likely to rouse opposition, being of the kind called colloquially “jokers.”

[1]It has been objected to this suggestion that the opponents of a proposal intended to be submitted might, when they heard it was coming, hurry on ahead of it a number of other proposals which would take precedence and jostle it out of the way. There are, however, methods of preventing this artifice, for the discussion of which I cannot here find space.

[1]The interesting and well-drawn Constitution of the Republic of Czecho-Slovakia (a Rigid Constitution, since it can be altered only by a majority of three-fifths in each Chamber) enables (section 46) the Government, if unanimous, to submit to a Referendum a Bill presented by the Government which the Parliament has rejected.

[2]It may be thought in a popular voting many citizens of moderate views will, since they can do so safely because secretly, break away from their class and party. This would happen in Switzerland and America, but be less probable in most European countries. In Australia the strong organization of the Labour Unions has given the Labour Party no small advantage for the purpose of a popular vote.