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 I
 
 62d CoNGREfis ) SENATE \ ^^^^'^i^""' 
 
 Sd be^swu S (ISO. 240 
 
 REPRESENTATIVE GOVERNMENT AND THE 
 
 COMMON LAW 
 
 A STUDY OF THE INITIATIVE AND REFERENDUM 
 
 AN ADDRESS 
 
 DELIVERED AT THE ONE HUNDRED AND FORTY-THIRD ANNUAL 
 BANQUET OF THE CHAMBER OF COMMERCE OF THE 
 STATE OF NEW YORK, AT THE WALDORF- 
 ASTORIA, NOVEMBER 16, 1911 
 
 BY 
 
 HON. EMMET O^NEAL 
 
 GOVERNOR OF ALABAMA 
 
 C , "" J« 1933 
 
 PRESENTED BY MR. BAILEY 
 January 3, 1912. — Ordered to be printed 
 
 WASIilNGTON 
 
 IDIL' 
 
 8 D— 32 -2 -vol 35 4P
 
 V 
 
 REPRESENTATIVE GOVERNMENT AND THE COMMON LAW. 
 
 Mr. O'NEAL said: 
 
 Mr. President, Ladies, and Gentlemen: Permit me to express 
 my sincere appreciation of the honor conferred upon me and the State 
 I represent by your gracious courtesy in giving me this opportunity 
 to raise my provincial voice under the auspices of this ancient asso- 
 ciation. Yet the liigh comphment which your invitation conveys 
 does not prevent me from recognizing my incapacity to do justice 
 to this subject and occasion or exempt me from a sense of humility 
 in being accorded the privilege of standing in the place made memo- 
 rable by orators, soldiers, and patriots, whose great names have 
 made the roll of your guests a roster of distinguished honor. 
 
 From the far-off day when a shilling a plate supplied the meager 
 furnishings of your bancjuet board to this good hour this association 
 has stoocl for those principles of business probity and conservative 
 government upon which are based the growth and power of a Republic 
 whose institutions are founded on the rights and fortified by the 
 intelligence of the people. It is therefore consistent with all of its 
 history that in this hour of political unrest and threatened change 
 it should invite a defense of that scheme of government which has 
 in the past stoo I as a bulwark of defense against the encroachments 
 of arbitrary power and the oppressions of the inconstant numerical 
 majority. 
 
 To no enlightened people can any subject be of more vital moment 
 than the making of the laws under which they are to live and under 
 which they expect to enjoy those rights and liberties, not only neces- 
 sary to human happiness, but essential to a developing civilization. 
 
 The empiricism of political doctrinaires and the vicious experi- 
 ments of political charlatans have ever been the deadly foes of wise, 
 stable, and salutary legislation. Yet there must be a lawmaking 
 body composed either of the people themselves, acting directlv in 
 their ori^anic capacity or through chosen representatives. l^uWy 
 recognizing that fact, the wise men who framed the Constitution of 
 the United States, after mature reflection, thorough investigation, 
 and debate, unanimously discarded the system of direct legislation 
 ^ and established a representative Republic as contradistinguished from 
 ^\ A social or jjure democracy. The warning lessons of history iiad 
 ^ taught them that the so-called republics of ancient and modern 
 <V" times, tlirougli the absence of the representative principle, had ever 
 been found, as Madison declared, "spectacles of turbulence and con- 
 tention, incompatible with personal security or the rights of property, 
 I and had in general been as short in their lives as they had been 
 . violent in their deaths." 
 
 >L It lias been fiushionabie of late years for many who masquerade 
 
 jsf^^under the title of progressives to speak in sneering terms of the men 
 
 T who established our system of free government. Yet tho.se men had 
 
 ■i 
 
 44H'77b
 
 4 REPRESENTATIVE GOVERNJVrENT AND THE COMMON LAW. 
 
 a Junius for constitution making unequaled in any other age of the 
 world. They were not only profound students of history, but were 
 free from |)arty bias, passion, or prejudice. They had accomplished 
 successfully a revolution against the greatest military and naval 
 power of the world. They were of English stock, but bred under new 
 contlitions; they had inherited as their birthright a love of liberty 
 and a hatreil of oppression. It has been tiul/ said that no body of 
 men ever gathered together in history had a sublimer trust in the 
 wisdom and eternal capacity of the people for self-government. Yet 
 they were profoundly impressed with the conviction that there never 
 was a republic as formerly constituted which had not terminated 
 "its fugitive and turbulent existence" with the destruction of the 
 liberties of the people. They agreed with the sentiment voiced by 
 Wilson when he declared that the doctrine of representation in 
 government, which was altogether unknown to the ancients, was 
 essential to every system that can possess the qualities of freedom, 
 wistlom, and energy. They had renounced the divine right of kings, 
 but were unwilling to establish the divine rights of majorities. Direct 
 action by the people they deprecated. They were seeking to erect 
 a government to endure for all time — "a government of laws and 
 not of men." 
 
 In embodying in the Constitution the guaranty of a republican 
 form of government, they could have had no other purpose than to 
 interpose a barrier against the encroachments of such revolutionary 
 political vagaries as the initiative and referendum. I therefore 
 unhesitatingly assert that a study of the history of our Government 
 clearly establishes that those who claimed to be inspu-ed by a wise 
 spirit of progress and profess only a purpose to restore popular 
 government by the introduction of the system of initiative and 
 referendum are reactionaries, guilty of the folly of attempting to 
 revive a doctrine unanimously repudiated by the wisdom of the 
 fathers. They seek not merely a change of laws or established 
 policies, which if unwise could be readily repealed, but they undertake 
 to so alter the fundamental law of each State as to weaken or 
 overthrow the representative principle and inaugurate a radical 
 revolution of the basic principles on which the fabric of American 
 government rests. 
 
 I admit that it is seriously claimed that the initiative and referen- 
 dum would not cause an abandonment of representative government, 
 but no candid mind can doubt that a legislative body, Avith its func- 
 tions and prerogatives exercised by the people at large, would not 
 long exist except in name. The weakening of its powers and the loss 
 of its dignity and responsibility would be the inevitable precursor 
 of its decline, speedily followed by the complete prostration of the 
 representative principle. 
 
 Any constitutional provision which weakens or impairs the power 
 and efficiency of either of the three coordinate departments of govern- 
 ment must necessarily weaken and impair the efficiency and har- 
 monious action of the whole. Each acts as check upon the other, 
 anti if the power and vigor of any department be impaired or over- 
 thrown it necessarily unduly increases the power of the others, thus 
 destroying that harmonious system of checks and balances which is 
 the distinguishing feature of our constitutional system. Wise and
 
 REPRESENTATIVE GOVERNMENT AND THE COMMON LAW. 5 
 
 just legislation can not be the product of haste, passion, or immature 
 judgment. To overcome the evil effects of sudden and strong excite- 
 ment and of precipitate measures, springing from caprice, prejudice, 
 personal influence, and selfish interests, the representative system was 
 established. That deliberation, investigation, and judicial considera- 
 tion which is essential to the enactment of wise laws is secured by 
 those provisions found in every State constitution, which in manchi- 
 tor}' terms requires each bill to be submitted not alone to one delibera- 
 tive body, but in turn to each of two, and to be considered by each on 
 three successive days. 
 
 The division, therefore, of the legislative department into tvro 
 separate and independent branches constitutes one of the most 
 important features of our system of government. One is generally 
 composed of men who by reason of their short terms and frequent 
 elections are always fresh from the body of the people and are readily 
 responsive to every pressure of public opinion. The period of their 
 delegated authority is too brief for their independent judgment to 
 overcome their susceptibility to the popular will. The members of 
 the other body, selected b}^ a larger constituency, representing more 
 varied interests and further removed b}^ their longer terms from the 
 passions or follies of the hour, may justly be expected to exercise with 
 courage, independence, and judgment a corrective influence upon 
 legislation born of demagogical prejudice, inspired by unwise or 
 visionary political theorists, or based upon some Utopian dream. 
 The tendency of the one is to impulsive action, and of the other to 
 conservatism; and out of this contest of opposing forces and tliis 
 clash of conflicting thought, illumined by debate and informed by 
 investigation, comes of necessity laws into the construction of which 
 there enters not only the will of the people, but those elements of 
 moderation, justice, and wisdom, and that due regard for the rights 
 of the minority, which are inseparable from wise and just legislation. 
 
 Yet we are asked, through the system of the initiative and refer- 
 endum, to abandon every safeguard with which experience and 
 wisdom have surrounded the making of our laws. We are invited to 
 substitute for those representative bodies — whose members, through 
 the usually required qualifications of a fixed period of residence and 
 the attainment of a certain age, are presumed to have some familiaiity 
 with the spirit of our institutions, and to have reached maturity of 
 judgment, and to possess at least average ability and character — the 
 system of direct legislation by the whole body of the pe )i)le. including 
 the criminnl, the adolescent, tlic indiil'erent, and the retainers of 
 special interests. 
 
 On the false and specious pretext of restoring popular rule and 
 Correcting the evils of the representative system we arc asked to 
 exchange for the deliberate examination to which legislative bills are 
 subjected, and through witich fatal defects and artfully concealed 
 dangers are so frer|nei)tly (hscoveicd. the passions. i\\(\ pi<'.ju dices, and 
 the j)artisan bias which every popular cam|)aign develops, substituting 
 for tlic information of debate the appeal of the demagogue, and 
 exchanging for the opportunity of amendment the categorical yes 
 and no with which, under the initiative, (he voter must meet tho 
 subtle and involved proposals of special interests or the wild schcmos 
 of visionary reformers. [Applause.]
 
 6 REPRESENTATIVE GOVERNMENT AND THE COMMON LAW. 
 
 We do not betray distrust of the people by heeding the unequivocal 
 language of experience, and by refusing to exchange for that delibera- 
 tion, independence, and conservatism which conies from subjecting 
 every law to the critical and jealous revision of two legislative cham- 
 bers, and by which unwise and dangerous measures are less apt to 
 proceed to the solemnities of law, the independent, unrestrained, and 
 unrestricted action of the numerical majority. 
 
 Through the oper ^ion of the init iative a further and more potent 
 check on intemperate legislation is feTPo ved by eliminating the power 
 of the executive to rnnWuLnr voto nny mnn^urr enacted by direct vote 
 of the p poplp- T ln-oii.o;h the power to propose, amend, or veto legis- 
 lation conferred by the express terms of almost every American 
 constitution, the executive is made a part of the lawmaking depart- 
 ment and placed on guard to protect the interests of the people 
 against the enactment or evil efTects of unjust, unwise, or vicious 
 legislation. Yet, under the syste m of th e initiative, both the execu- 
 tive and legislative cFepa rtments are sLcu'ii of their constitutional 
 powers. Initiated atid" E nacted by d^ ct vote of the people, however 
 unwise a law may" be, however much it may destroy the rights of 
 property, invade constitutional guaranties, or impair personal liberty, 
 the executive is powerless to intervene to protect the people against 
 the blow whirk. from the folly or madness of the hour, they might aim 
 at themselves--' The only recourse would be the courts, wliich, where 
 the system of recall prevails, destropng judicial independence, would 
 be more apt to register popular opinion than to enunciate decisions 
 based upon well-settled principles of law. [Applause.] The messages 
 of the governors of the various States, heretofore characterized by 
 boldness and independence of thought and useful suggestions, result- 
 ing in so much wise and beneficent legislation, would largely cease to 
 express their earnest and sincere convictions, but instead would 
 become merely a register of popular passion or prejudice and the 
 suggestions of impractical theorists — the transient and misdirected 
 forces of popidar opinion. 
 
 It is established by the experience of ever}^ section that until 
 abuses become intolerable the demands of personal affairs are too 
 absorbing and the burdens of that pubhc dut}'' which citizenship 
 imposes upon the individual are too heavy or exacting to permit 
 more than a mere perfunctoiy interest in public matters. In my 
 judgment, therefore, the efficient cause for tlie larger part'T5r"our 
 political ills and of the misgovernment that we may endure, or the 
 treason that may develop in legislative bodies, lies in the indifference 
 of the people themselves and not in their failure to directly participate 
 in the making of the laws. 
 
 ^Mienever the people^e aroused and demand a just relief, legisla- 
 tors are quick to hear and ready to obe3\ It is not through direct 
 legislation but in rn aroused public conscience, the growth of a 
 stronger sense of civic duty, a more diligent and watchful interest by 
 the people over their own affairs, that we must rest our ultimate hope 
 of permanent political reform. The forces of reform are too often 
 short-lived, wliile the evil influences tliey may overcome generally 
 arise from defeat with renewed vigor. 
 
 An antidote to this indifference of the people and a safeguard 
 almost sufficient in itself to overcome the existence of a venal or
 
 REPRESENTATIVE GOVERNMENT AND THE COMMON LAW. 7 
 
 corrupt legislature can be found in the high sense of official obliga- 
 tion and the independent exercise by the great majority of American 
 executives of the legislative functions vested in them by the constitu- 
 tions of the States. 
 
 It_seems to be assumed that under the system of the initiative 
 onlvThose laws would be proposed which a legislature under the con- 
 trol or domination of special or selfish interests would refuse to pass, 
 and that all such rejected laws would be in the interest of tl>3 people. 
 I can not bring myself to the adoption of this pleasing thought. I 
 fear that with the advent of this political millennium there will still 
 remain here and there some unre^enerated interests, some seeker for 
 special privilege, whose desires, in imitation of the practices that 
 prevailed in the older days, could still be concealed under the guise 
 of some fair-seeming bill. It would be evervbodv's business to act 
 as a committee to examine it, to expose its fallacies, or to warn the 
 public against its insidious purposes. The necessary result would be 
 that nobody would give it careful scrutiny or supervision. It would 
 not be subject to such amendment as wisdom or experience might 
 suggest. It must be accepted or rejected in the exact form and terms 
 in which it is proposed. It would not even be read aloud once in the 
 
 Ercsence of all whose duty it would be to vote upon it, and it might 
 ecome a law by the vote of a single individual who had never read 
 it until he cast his ballot. It is not improbable that there might be 
 an astute or unscrupulous interest behind it, giving it secret aid and 
 comfort, and although, with a greedy legislature looking on from afar 
 off, there would not be even any Adams County votes for sale, neither 
 would there be anvone, as was the governor in former times, before 
 his power had been overt lu*own by tliis modern political reform, 
 charged with the duty of protecting the public against its own indif- 
 ference or checking the misguided career of public opinion. There 
 would be no magic, from the destruction or overthrow of the legisla- 
 ture, by which the ordinary citizen, to whom political duty is but an 
 incident, couJd be converted into an alert, vigilant, and well-informed 
 legislator. To quaJif}' a citizen to vote intelligently upon a law 
 involves a degree of investigation and attention to detail and a quality 
 of thouglit that will be voluntarily assumed onl}^ b}'' the elector who 
 appreciates to an extraordinary degree the dut}"" which his citizen- 
 ship imposes, or an individual who has in the measure a personal 
 interest not consistent with the public good. 
 
 With the initiative in operation it would be the sheerest folly to 
 suppose that the number of laws would come within the compass of 
 ihe ordinary man's serious and considerate examination, and in the 
 ronsidcration of matters wliicli furnish opportiuiity for demagogical 
 appeals and class or racial prejudice the very purpose for which gov- 
 ernment exists would often be defeated, and the rights of a licljiless 
 minority, no longer protected by the safeguards now secured by every 
 American constitution, would be ruthlessly sacrificed. [A|)j)lausc.) 
 
 I assume that no one will controvert the proposition tliat la\vs 
 ought to be made in a sjjirit ns im[)ersonuI, with a sense (A duly as 
 high, with a conscience as much bound by the solcnuiity of an oath, 
 with a mind as much informed by argument and debate, and sur- 
 rounrled by an atmosphere a.s much removed from l>ins nnd passion 
 as that in uhirli thev are ef)nsfriiefl and enforced .
 
 8 BEPRESENTATIVE GOVERNMENT AND THE COMMON LAW. 
 
 To discard wcll-cstablishod methods of procedure by which truth is 
 ascertained and ji'stice administered in our criminal courts and to 
 submit the question of the guiJt or innocence of a person charged 
 with crime to the ballot of the electorate would shock the public 
 conscience. Yet to say that men without any more responsibility 
 than is imposed by their own sense of duty, influenced possibly by 
 malice, prejudice, or self-interest, without legal check or constitu- 
 tional limitation, could by the mere brutal power cf a numerical 
 majority take away the most sacred rights or impose the most intoler- 
 able burdens upon a helpless minority would be equally as shocking 
 to every man whose sense of ji stice was not blunted by the poison of 
 false and vicious political theories. 
 
 If the claim that opposition to the initiative discloses a distrust of 
 the people be true, then there is no constitutional limitation by 
 which the people restrain themselves which can not be regarded as 
 a reproach. Kot a criminal statute has ever been adopted which 
 does not in effect affirm the possible existence of a class of people 
 wlio may prove unworthy of public trust and who might by their 
 ballots, after the commission of a crime but before conviction, fasten 
 upon their fellowmen an unjust and onerous law. 
 
 Opposition to the initiative, then, is not a declaration of distrust of 
 the people, but a recognition of that sound political truth that in the 
 multitudinous interest and varied activities that go to make up the 
 sum of a great people's life, there must be to a qualified extent dele- 
 gations of public duties and well-considered di\4sions of public power 
 and public responsibility. To combat this political heresy is not to 
 distrust the people. We would ignore the unmistakable teaching of 
 history if we failed to recognize that every nation which has achieved 
 political and orderly liberty has done so through the representative 
 system and that every Government which has abandoned it for the 
 despotism, of a monarchy, or for the turbulence, tyranny, or uncer- 
 tainty of an unlimited democracy has fallen into decay and sufl'ered 
 the loss of its animating and sustaining principle. [Applause.] Eng- 
 land's Parhament has never yielded its prerogative nor have her peo- 
 ple ever established a commune. When the first gleam of political and 
 civil hberty that ever lightened the darkness in which the Russian 
 peasant moved made its appearance it was contemporaneous with 
 the establishment of a Duma. 
 
 Unless this political heresy is checked the hosts of socialism, reen- 
 forced by selfish and time-serving politicians and recruited by all the 
 elements of discontent, will soon direct their attacks against the Fed- 
 eral Government itself and gradually sap and undermine the founda- 
 tions of our free institutions. 
 
 It is claimed by the advocates of the initiative that that system is 
 necessary, because representatives in the legislature can not be 
 elected who are possessed of that capacity and fidelity to duty which 
 fits them to properl}'" perform the high functions of their great office. 
 Such a position, it occurs to me, not only plainly evidences a distrust 
 of the people, but is based on the assumption that the people are inca- 
 pable of self-government. If it be true that the people are so sunk 
 m abject subservience to political bosses, so tied to the wheels of the 
 political machines, that unworthy legislators can alone be elected, 
 where would be the limitation on the power of those bosses or of that 
 political machine to force through the same electorate the passage of
 
 EEPRESENTATIVE GOVERNMENT AND THE COMMON LAW. 9 
 
 any law's that their selfish interests might dictate when every safe- 
 guard which now surrounds their enactment is removed? 
 
 As an American citizen, I am indeed proud to say that it is not true 
 that the men who have represented the sovereignty of the States, 
 who make the laws wliich protect us in our lives and property, who 
 levy anfl disburse our taxes and frame our civil and criminal laws, are 
 unworthy and corrupt. There may be isolated instances where mem- 
 bers of the legislatures have betrayed the interests of the people, just 
 as there have been isolated instances of wholesale corruption among 
 the people in some localities, but the fault lies not in the system but 
 in the frailties of human nature. The legislators of the various States 
 of the Union have been, as a general rule, the picked and chosen men 
 of the communities from which they have come and have been honest, 
 wise, and patriotic. From whose hands have come, during the cen- 
 tury or more of our existence, those laws under which we have grown 
 and prospered and held a higher measure of freedom than has ever 
 come to the lot of any people? The statute books of the American 
 States are filled with wise and beneficent laws, through the operation 
 of which they have grown into great and powerful Commonwealths. 
 It was a great statesman, from whose lips words of idle or extrava- 
 gant praise never fell, who said: 
 
 The statute books of these Commonwealths can be read by the patriotic without a 
 blush. 1 am not afraid to compare them with the 200 parliaments through which for 
 800 years the freedom of Encjland has broadened down from precedent to precedent. 
 
 Mem bers of the legislatures of the different States are the agents 
 and direct representatives of the people, and if it be true that as a 
 whole they are incompetent, unworthy, and corrupt it would follow 
 necessarily that the masses of the people from whom they spring 
 and from whom they are selected were also either corrupt or crimi- 
 nally indifferent to their interests or -liberties ^- They possess the 
 same characteristics as the people from whom they have come, and if, 
 after repeated trials and selections, the community can not secure an 
 intelligent and honest man to represent it, I would not like to live 
 under laws initiated or adopted by the sovereignty of that people. 
 [Applause.] 
 
 it is a sound governmental principle that political power shoidd 
 always be accompanied with responsibility located and identified. 
 Where responsibility can not be placed it does not exist, and an 
 irresponsible j)owcr in government inevitably leads to oppression or 
 the loss of liberty. That this responsibility shall not be evaded 
 under our representative system of government, the constitution of 
 every State recpiires that the legislative record shall disclose the 
 presence or tlie absence of each legislator, his vote, and his position 
 on every bill. Where in the system of the initiative would this 
 sobering knowledge of responsibility rest? What right would one 
 citizen have to call another to account? Kach would represent only 
 hinisclf, and with the utter lack of responsibility on the part of the 
 lawmaking body arbitrary and iiTCsponsible power would be enthroned 
 and the reign of anarchy commence. 
 
 We should not overlook the fjict that untler the initiative, wherever 
 introduced, the State constitutions can ho altered or amended with 
 greater case and facility than even an ordinary statute under the 
 present representative system. No submission of the |ir()|)()s(>(l 
 amendment by a two-thirds vote of the legi.slaturo is required. A 
 
 448?75
 
 10 RPiPBESENTAlTVE GOVEKNMENT AKD THE COMMON LAW. 
 
 small per cent of the voters can at any time propose the most radical 
 or far-reacliing constitutional changes and the fundamental law which 
 our people have ever been taught to regard as a shield of defense 
 agiiinst the attacks of irresponsible power, which has ever been hedged 
 around with those difficulties of approach so essential to stable govern- 
 ment, would become — 
 
 As variable as the shade 
 
 By the light quivering aspen made. 
 
 We all recognize the truth of Madison's declaration that too much 
 legislation is one of the evils of republican government, and hence 
 every recent constitution has wisely adopted numerous restrictions 
 and limitations on legislative power. Yet we know that, notwith- 
 standing all these limitations, every State has been burdened with 
 too much legislation — an ever-increasing flood of local and private 
 and general law — destroying all uniformity and harmony in the law 
 itself, till in the multiplicity of statutes the citizen is vexed, harassed, 
 and confused. Yet this wise tendency, so cleaily manifested in all 
 modern constitutions, to check the ever-increasing volume of laws on 
 every conceivable subject is now to be denounced as a political 
 blunder, and pernicious legislative activit}'' is to be supplemented by 
 laws enacted by the direct vote of the people. If hasty, ill-advised, 
 and ill-considered legislation still remains as one of the vices of our 
 representative system, notwithstanding all the checl« and limitations 
 on legislative action found in our State constitutions, is it not the 
 madness of folly to undertake to supplement the present legislative 
 activity by authorizing the making of additional laws by a direct 
 vote of the people and without any of the safeguards secured by 
 deliberation, investigation, amendment, debate, or constitutional 
 restrictions ? 
 
 We may be impatient with our State legislatures, but the remedy 
 is not to sap or weaken their powers but to elevate their tone and 
 standard, to reorganize them along simpler lines, and to make them 
 the real organs of public opinion, checking the evil eflects of hasty 
 and ill-considered legislation, and giving expression to the cool, 
 deliberate, and mature judgment of the people. 
 
 Much has been heard in late years of big business. The biggest 
 business conducted m this country is that involved m the government 
 of the various States, Is it not wise to apply sound business princi- 
 ples in administering the affairs of these great public organizations ? 
 What would be the fate of any of the great private corporations if their 
 directors, elected by the stockholders, representing and legislating for 
 them and responsible to them, were discliarged and the whole mass 
 of stockholders as a body, some wise, some foolish, some mere children, 
 many entirely ignorant of business principles, few moved by the 
 common good, most animated by the desire to secure personal gain, 
 should undertake to direct their policies ? In the management of 
 the corporation good government, with the highest returns and best 
 results, is the object sought to be achieved. There can be no differ- 
 ence in kind in the principles applicable to each, and experimental 
 policies dangerous in their tendencies ought to be as carefully avoided 
 m the one as in the other. 
 
 That doubtful political pohcies ought not to be pursued except in 
 the most extreme cases is a sound rule of conduct that 1 would be 
 happy to bring home to every thoughtful and patriotic American 
 citizen, for there is abroad in the land a dangerous tendency which
 
 EEPEESENTATIVE GOVEENMENI AND THE COMMON LAW. U 
 
 would seek to convert eveiy governmental agency into a political 
 experimental station. Unfoi tunately, tliere is too evident among our 
 people a love of novelty and "passion for changing customs and 
 destroying old institutions," which would exchange our proved and 
 tried system for one which, however alluring to the political theorist, 
 has always preceded the fall of stable government and the loss of 
 political liberty. Were we without any other remedy and our 
 condition was as deplorable as the propagandists of this new specific 
 for all our political ills declare, for my own part I would still hold fast 
 to the faith of the fathers, rather than attempt "to upset an ancient 
 system hallowed by long use and deep devotion." 
 
 If any proposed reform seeks to weaken or overthrow a system 
 whose introduction has been coincident with popular liberty, let us 
 not hesitate to give it the stamp of our stern disapproval. If free 
 institutions are to continue, ours must be a representative govern- 
 ment. As declared by your distmguished guest, Hon. James Bryce, 
 government by representation is a prmciple derived from the oldest 
 customs of the Anglo-Saxon race. Students of English constitutional 
 history can trace the existence of representative assemblies to every 
 period of its national existence, even to remote antiquity. From the 
 earliest forms of tribal government down to the present day there 
 was some form of legislative assembly representing the people, 
 framing their laws, and assisting in their government. With all its 
 defects, a representative system is the best the wisdom and experience 
 of man has yet devised. [Applause.] 
 
 But assuming that venal legislators, intrenched in power, deny the 
 statutes they should enact, and refuse to give expression to the calm 
 and deliberate judgment of the people, there is and will always h& 
 found in the flexibility of the common law, in its adaptation of old 
 principles to meet changing conditions, a source of power with which 
 the courts are amply armed to curb the aggressions of special interests. 
 The common law I may define to be that code of fundamental prin- 
 ciples essential to civil liberty and political freedom, growing out of 
 common custom and natural equity, wliich were brought by our 
 English ancestors to these shores, and out of which the civil rights 
 and the political liberty of the English people was wrought and in 
 which they are securely rooted, and whoso harshness has been 
 ameliorated in the progress of an advancing civilization. 
 
 It has been truly said: 
 
 One of the great merits of this great system is that it docs not consist in a series of 
 detailed practical rules established by positive provisions and adapted to the pre- 
 cise circumstances of particular cases, which would become obsolete and fail when 
 the practice and course of business to which they ajjply should cease or change, but^ 
 instead, of a few broad and comprehensive principles, founded on reason, natural 
 justice, and eidit,'htcned public policy, modified and adapted to the circumstances 
 of all the particular cases which full within it. 
 
 The common law grew with society, not ahead of it. As society became more com- 
 plex anrl new demands were made upon the law by reason of new circumstances, the 
 courts, originally in England, out of the storehouses of reason and good sense declared 
 the common law. 
 
 As was said by a groat judge: 
 
 The common law Is a beautiful system conUiining the wisdom and experience of 
 ages. Like the people it ruled and jirolcctijd, it wiw HiMij)le and grew in Us infancy, 
 and became enlarged, imjirovcd, and [xilih^hcd as llu; nalion advanced in civilization, 
 virtue, and intelligence. Adapting itself to the conditions and circumHtanccs of the 
 people and relying upon them lor its admini.-tlralion, it neccr<sarily improved as the 
 condition of the people wa." elevated
 
 12 REPRESENTATIVE GOVERNMENT AND THE COMMON LAW. 
 
 As the principles of natural justice and a sound public policy do not 
 change, the common law, which springs from them, is not subject to 
 decay, nor does it become obsolete with changing circumstances and 
 dili'ering conditions. It is to-day "fresh m the vigor of immortal 
 youth," as potent a living principle as it was when administered by 
 ^lansfield or by Hale, and in its ample powers the courts will alwaj^s 
 find abundant authority to meet every need of government or society. 
 
 However reluctant legislators may be to act it will be a strange 
 case indeed in which the common law principles to fit and to protect 
 may not be found. 
 
 As a coroUar}^ to the initiative, the referendum is proposed to com- 
 plete the wreck of representative government, and as a fitting device 
 to securely accomplish the atrophy of the legislative functions and to 
 reduce legislatures from coordinate departments of government to a 
 body of mere clerks engaged in performing ministerial duties. When 
 legislatures are compelled to submit their work to the approval of the 
 electorate, there would no longer rest on the electors the duty of 
 selecting men of character and capacity to represent them; nor will 
 the members of such bodies feel the weight of that responsibility 
 whicii ought to follow public office. That the character of legislation 
 produced bv such a body would lack both wisdom, strength, and vigor 
 seems too evident to discuss. 
 
 It is no argument in favor of the referendum to say that it is the 
 course followed with reference to constitutions. A constitutional con- 
 vention is under no necessity to submit the product of its labors to the 
 people for ratification. While it usually does.so as a matter of choice, 
 m doing so from its own free will it takes more pride in presenting to 
 the people work well done, and is wholly lacking in that sense of 
 inferiority whicli under a compulsory submission can but result m 
 indifferent service. 
 
 It is m\ earnest hope that the far-reaching and disastrous effects of 
 these proi)osed changes will be fully understood by all my countrymen 
 before they give them the sanction of their approval. 
 
 I am deeply impressed with the conviction that their adoption would 
 so fundamentally change the entire structure of our political system as 
 to amount to revolution and destroy the whole theory upon which our 
 Government rests and upon which the permanence and vitality of our 
 institutions depend. 
 
 Let us a,ll here to-night, inspired by the patriotic memories of this 
 ancient association, consecrate ourselves anew to the service of our 
 States and the Nation, and here firmly resolve that that splendid struc- 
 ture of constitutional government builded by the wisdom and loving 
 care of the fathers, and under whose fostering shelter we have enjoyed 
 the greatest measure of freedom, happiness, and prosperity known to 
 man, shall not be defaced or impaired by the attacks of sincere but 
 misguided men — of time-serving politicians or of political charlatans. 
 [Applause.] 
 
 That the Providence whose guidmg hand has been so manifest in all 
 the course of our national existence will still lead us safely through 
 these days of doubt and uncertainty I confidently believe. In the 
 genius of the race, I have an abiding conviction that there is and 
 always will be found a redeeming and protecting spirit to walk beside 
 us and through all trials and from all shadows bring us unharmed 
 into that fidler light, to which in the speedy progress of our national 
 evolution we are surely tending. [Applause.] 
 
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