I THIRD EDITION INITIAJIVE AND EFERENDU THIS BOOK TELLS YOU WHAT YOU OUGHT TO KNOW BY JAMES BOYLE Private Secretary of Governor Wm. McKinley; Former Consul of U. S. to Liverpool, Eng. Author of "Organized Labor and Court Decisions," "The New Socialism/' "What U Socialism?" (la the Press.) PRICE 30 CENTS BY MAIL 35 CENTS (Post-office Order or Stamps) A. H. SMYTHE 43 SOUTH HIGH ST.. COLUMBUS, OHIO 1912 THE INITIATIVE AND REFERENDUM: ITS FOLLY, FALLACIES, AND FAILURE BY JAMES BOYLE Private Secretary of Governor McKinley; Former Consul of the United States at Liverpool, England. Author of "Organized Labor and Court Decisions," "The New Socialism," etc. THIRD .EDITION A. H. SMYTHE 43 SOUTH HIGH STREET. COLUMBUS, OHIO 1912 COPYRIGHT, 1912 BY JAMES BOYLE Contents. PAGE WHAT SOME WISE MEN HAVE SAID 5 THE PROPOSITION STATED 7 The Propulsive Force 7 The Initiative 8 The Referendum 10 An Important Distinction 11 THE CASE AGAINST THE INITIATIVE AND REFER- ENDUM 15 Revolutionary 15 Reactionary 19 - The Undemocratic Initiative 20 *- Referendum : Theory vs. Practice 23 ^Destructive to Representative Government 25 Labor and the I. & R 28 -Means Minority Rule 32 "Serves the Majority Right !" 39 The Cities Will Dominate 40 The Gate- Way to Socialism 42 "The Madness of Democracy" 44 "Taxation Without Representation" 45 Means Crude Legislation 47 The Joseph Fels Fund Commission 49 "Mum's the Word !" 51 Money Galore 54 The Standard American Authority 57 Hon. James Bryce on Direct Legislation 63 Woodrow Wilson and the I. & R 66 Two Great Fallacies 68 SWITZERLAND'S EXPERIENCE 70 "Circumstances Alter Cases" 70 Prof. Oberholtzer's Warning 71 Why Switzerland Adopted the I. & R 72 3 241272 4 CONTENTS. SWITZERLAND'S EXPERIENCE Concluded. PAGE Prof. Lowell's Adverse Opinion 74 How Switzerland Differs From the U. S 75 Minister Swenson Points Out Drawbacks 77 Compulsory Voting in Switzerland 78 What a Belgian Economist Says 83 The Initiative a Failure 86 Ex-President Droz Condemns the Initiative 88 THE MUDDLE IN OREGON 90 A Warning to Other States 90 Single Taxers Back of it 92 State University Jeopardised 96 Crude and Conflicting Laws 97 Constitutional Muddle 98 SOUTH DAKOTA 104 The Original Initiative State 104 What the Governor Says 105 A FEW CLOSING WORDS 107 APPENDIX 109 Daniel Webster on "Constant Clamorers" 109 An Ancient Example 110 The "Fathers" Knew Their Business Ill "Pure" vs. "Representative" Democracy 112 "A Republican Form of Government" 114 "The Greatest Tragedy of Christendom" 115 Legislative "Cure-alls" 117 "Utterly and Hopelessly Undemocratic" 118 Gov. O'Neal, of Alabama, on the I. & R.. . 120 What Some Wise Men Have Said. GLADSTONE on the American Constitution: "The American Constitution is the greatest work struck off at a given time by the brain and purpose of man." THOMAS JEFFERSON on Representative Government: (Speaking of the "Rights of Man") :- "Modern times have the signal advan- tage too, of having discovered the ONLY DEVICE by which these rights can be secured, to- wit: government by the people, acting not in person, but by REPRESENTATIVES chosen by themselves." DANIEL WEBSTER on Chronic Clamorers: "There are persons who constantly clamor. * * * They carry on a mad hostility against all established institu- tions." WOODROW WILSON on the Initiative and Referendum:- A Government "can no more make laws through its voters than it can make laws through its newspapers. * * * What I mean to say is that pop- ular INITIATIVE IS AN INCON- CEIVABLE THING!" 5 Rainbow Chasing! It is the old contest between idealism and stubborn, matter- of-fact reality. It is the story of the philosopher's stone over again the dream of transmuting all the metals into gold the hunt for the master key that will open all locks, however different in size and shape the problem of fitting square pegs into round holes the puzzle of how to eat one's cake and have it the search for the chimera of perpetual motion the quest for the mythical pot of gold at the foot of the rainbow and all the other impos- sible undertakings which have vexed men's souls and turned their brains and filled the lunatic asylums since mankind was divided into those who see facts and those who see visions. [Speech of Hon. George Sutherland (of Utah} t in the U. S. Senate, July 11, 1911, on "Government by Ballot."] The Proposition Stated. The Initiative and Referendum combined, constitute what is called " Direct Legislation," as a substitute for or supplementary to our present Representative system; and it is the modern form of the so-called "Pure Democra- cy" of the ancients. THE PROPULSIVE FORCE. The "Progressives" have accepted the Initiative and Referendum as one of the cardinal articles of their creed; indeed, many of them look upon it as the foundation-stone of their Temple of Reform. As will be shown hereafter, the propulsive force in the movement comes from certain groups of minorities; particularly Single Taxers (those who favor the placing of all taxation on Land Values, as advocated by Henry George). There are "chronic clamor- ers" (as Daniel Webster calls them), who al- ways fall in line with the "latest thing out" in politics, religion, and every "cult," the principal feature of which is that it is "something new." But after a while the thing palls on them, and they cast it aside. At the same time, it is but 7 8 INITIATIVE AND REFERENDUM. fair to say that thousands of patriotic citizens favor the Initiative and Referendum because they have absorbed the belief that Direct Legis- lation will remedy the admitted evils of the times, particularly Legislative incompetency and venality. But they have not studied the matter beneath the surface; had they done so they would realize that Direct Legislation is in these days, and especially for the American people impracticable, revolutionary, and re- actionary, and that it would be followed by a train of evils greater than those of which they complain ; in fact, they would realize that these evils are not primarily or necessarily the fault and generally not the fault at all of the Rep- resentative system, imperfect as that system is, like everything else human; and they would come to the conclusion that most of these evils are the fault of the people themselves in not liv- ing up to their Civic obligations. Without en- tering into the details of suggested forms and variations and modifications of Direct Legisla- tion, the following is a fair statement of the proposition, in a broad, general way: THE INITIATIVE. \ It is proposed to change the Constitution so as to give the right to a certain percentage of the voters to originate Amendments, and also to INITIATIVE AND REFERENDUM. 9 originate general State-wide Statutory Laws, by petition.^ The proposed percentage qf voters required in a petition for a Constitutional Amendment is_ variously fixed, according to the Radicalism or Conservatism of the advocate from 5 to 12 per cent of the total number of voters in the State, it being generally but not always conceded that there should be a higher percentage re- quired for Constitutional Amendments than for Statutory Laws. For an Initiative Bill the per- centage named is generally 5, sometimes 8. There is generally also a make-believe con- cession that an Initiative Bill shall, in the first instance, be presented to the Legislature in or- der to give that body an opportunity to pass it. But neither the Legislature nor anybody else is to ,be allowed to change or amend or correct the measure in the slightest even though it may plainly be in conflict with other laws, uncon- stitutional or impracticable ; and if the Legisla- ture does not pass it exactly as presented the Secretary of State is to refer it to the people for action. It is proper to say that some advocates are willing that the Legislature shall be permit- tedas is the case in Switzerland to offer rec- ommendations ; but this concession is opposed by the Radicals ; and anyhow, as the same organized minority which secured its Initiation are not 10 INITIATIVE AND REFEKENDTTM. likely to favor any recommendation which will be important, and as that minority will be all ready for the campaign as against the unorgan- ized majority, the concession does not amount to much. THE REFERENDUM. u, Tnder the Referendum, all Constitutional Amendments and all Statutory Bills which have originated under the Initiative, as above ex- plainly, must be referred to the people direct, for passage; also, if a certain percentage of voters petition that it be done, any Legislative Bill must be referred to the people for final passage. The percentage of voters required on a Ref- erendum petition is variously named at from 5 to 8 per cent, of the total number of voters. All Constitutional Amendments and Statutory Bills shall go into passage and become the law of the State or the country at large, as the "reform" is intended in time to become National if they receive A BARE MAJORITY OF VOTES CAST THEREON even though that majority should be a DECIDED MINORITY OP ALL THE VOTES CAST at that particular election as it always is. This last t point should be kept carefully in mind, as it is one of the foundation principles of the Initiative and Referendum. INITIATIVE AND REFERENDUM. 11 While there are some slight variations, this is the prevailing form of the Referendum. It is called the OPTIONAL or FACULTATIVE Referendum. The extremists demand that ALL Bills passed by the Legislature shall be referred to the people for final passage, whether peti- tioned for or not ; this form is called the COM- PULSORY Referendum. A Under the Initiative and Referendum it is \ intended to! ABOLISH THE GOVERNOR'S VETO, that is, on all laws passed through the Referendum. Whether THE SUPREME COURT shall be allowed to pass upon the CON- STITUTIONALITY of such Laws is a hard nut for the advocates of the Initiative and Ref- erendum to crack, s AN IMPORTANT DISTINCTION. It should be clearly understood that the Ini- tiative and Referendum, as now demanded, is different entirely in principle from the existing system of referring Constitutional Amendments to the people for ratification after consideration and formulation by a Legislature or a Constitu- tional convention ; so, also, the proposed system of Direct Legislation as to general Statutory Laws is very different from the well-known principle of " Local Option," or the reference to 12 INITIATIVE AND REFERENDUM. the people in Municipalities or the State at large, as the case may be of specific, concrete propositions involving the issuance of bonds, the granting of franchises, etc., or some radical change in established policy. In the one case there is direct general legislation by the people in mass in theory at least, although experience shows that a minority of the voters practicallyl always decide the issue ; while in the other case there is Conventional or Legislative action, un-U^ der the long-established American Representa- tive principle, as a condition-precedent One system is absolutely opposed to the theory and , , practice of Representative government and this is particularly so as to the Initiative ; the other is perfectly consistent with that theory and practice. The plausible advocates of the Initia- tive and Referendum conveniently ignore this great distinction. It is quite evident, therefore, that arguments which might apply favorably to what for dis- tinction's sake we will call the Representative- Referendum practice, do not necessarily and, indeed, they generally do not apply to Direct Legislation under the proposed new Initiative and Referendum, for the passage of Constitu- tional Amendments and general Statutory Laws. It must be confessed that to the average lay mind there is some difficulty in grasping the INITIATIVE AND REFERENDUM. 13 distinction referred to ; yet there is a fundamen- tal distinction, subtle though it may appear at first. Under our present Representative systefri, Laws are passed by the Legislature, and no other power can pass them ; while under the Initiative and Referendum the people pass Laws by Direct action). Yet there is a middle ground in regard to the going into effect of certain Laws under the Representative system, as above indicated. While the Legislature under our present Con- stitution cannot delegate the power to MAKE Laws, yet, under the well-known decision of the Ohio Supreme Court, rendered by Judge Ranney (who was a stanch upholder of the Representa- tive system), the Legislature can confer an au- thority or discretion as to its execution; but it must be kept in mind that the power to pass the Law under which that authority or discretion may be exercised, remains with the Legislature. For instance, the Legislature passed the Local Option Laws under which communities can pro- hibit the liquor traffic ; so, likewise, the Legisla- ture can repeal those Laws. A failure to take note of the distinction be- tween the two forms of direct action by the peo- ple, is unquestionably the cause of a vast number of patriotic and intelligent citizens thinking that they favor the Initiative and Referendum, when really they do nothing of the kind. This fact 14 INITIATIVE AND REFERENDUM. was notorious during the recent campaign in Ohio when members of the Constitutional Con- vention were elected. The Case Against the Initiative and Referendum. .. The Case Against the Initiative and Refer- endum" is made out first by argument, and sec- ondly by giving the results of experience. To the reader the writer ventures to hope, in the words of Boswell: "I have found you an argument." But experience is better, for it is even "the teacher of fools;" and to the wise, also, accord- ing to Bacon (one of the wisest of men), "By far the best proof is experience." REVOLUTIONARY. In principle and practice the Initiative and Referendum is Revolutionary /in that it is ^op- posed to the established Representative system of our American Government. Of course it will not be disputed that the Constitution of the United States provides for the Representative system of Legislation in the Federal Govern- ment. Neither can it be disputed that the Fath- ers deliberately chose this system, after giving due consideration to other forms, including Di- rect Legislation, as was then being expounded by the brilliant but altogether unpractical French- is 16 INITIATIVE AND REFERENDUM. man, Rousseau, who believed that governments could not act "but when the people are assem- bled." With him Representative Government was only an evil ; he opposed the election of Rep- resentatives to make laws, but held that Deputies should be considered only as Commissioners, who should not be qualified to conclude upon anything definitely. "No act of theirs," said Rousseau," can be a Law unless it has been rati- fied by the people in person; and without that ratification nothing is a law." Another erratic genius who created a stir at that period was Thomas Paine that "phenomenon" and "dis- astrous meteor," as John Adams called him. Although an Englishman, Paine took a lively interest in the establishment of the independence of the American colonies. He advocated Rousseau's plan of government. At first even Benjamin Franklin seems to have been in sym- pathy with the Rosseau-Paine system, but, after a thorough exchange of opposing views, he agreed with the other framers of the Consti- tution in favor of the Representative system. The very first section of the First Article of the Federal Constitution reads: "All legisla- tive Powers herein granted shall be vested in a Congress of the United States, which shall con- sist of a Senate and House of Representatives." The late Mr. Justice Harlan, of the U- S. Su- INITIATIVE AND REFEEENDUM. 17 preme Court, in an address delivered in Decem- ber, 1907, thus explained the sort of Federal Gov- ernment under which we have the privilege of living: "The national government, it should ever be remembered, is one of limited delegated powers and is not a pure democracy in which the will of a popular majority as expressed at the polls at a particular time be- comes immediately the supreme law. It is a representative republic in which the will of the people is to be ascertained in a prescribed mode and carried into effect only by ap- pointed agents designated by the people themselves in the manner in- dicated by law." The advocates of the Initiative and Referen- dum look forward to the time when they can so amend the Constitution of the United States as to establish Direct Legislation in National af- fairs ; but for the present they are content to con- fine their energies to the constituent States. A question of great interest, and possibly of extreme importance, came to the front in Novem- ber, 1911. On a case from Oregon the Supreme Court of the United States had submitted to it the question of whether or not the establishment of the Initiative and Referendum in any State is 18 INITIATIVE AND REFERENDUM. in conflict with Section Four of Article Four of the Constitution of the United States, which de- clares that "The United States shall guarantee to every State in the Union a Republican Form of Government. " In a nutshell, the question is: What is a " Republican form of Government*?" Does the word " Republican" mean exclusively a Representative system, or is it used simply as the antithesis of a Monarchial or an Autocratic form"? The writer does not propose to enter into this discussion; for, aside from his incompe- tency as a layman, he is quite content to let the Supreme Court settle the question. As a matter of fact, moreover, in opposing the Initiative and Referendum, he accepts for argument's sake the assumption of its advocates that it is quite within the "reserved" powers of the people of any State to so amend their Constitution as to permit Direct Legislation. This does not affect one jot his contention that the Initiative and Referendum is opposed to the Representative system as now existing in the several States both in intent and effect. It may not destroy the form of the Representative system, but it certainly contracts and negatives its power as well as its dignity, as one of the three branches of the general American system of Government; ^ ,!and it also undoubtedly injuriously affects the character and spirit of both the Legislators and INITIATIVE AND REFERENDUM. 19 their legislation, and inflicts upon the State, to a I greater or less extent, the evils of the historic! Pure Democracy. REACTIONARY. The principles and practical effects of the Initiative and Referendum are Reactionary as well as Revolutionary. , Those who advocate Direct Legislation are "Retrogressives," not "Progressives." They have their faces and feet turned not to the future, but to the past, and that past is strewn with the wrecks and failures of Pure Democracy. It is admitted that the "moot" of Old England and the town-meeting of New England are equally unsuited to the con- ditions of to-day. | So the Retrogressives have adopted the Swiss system of making laws by bal- lot, entirely ignoring the great differences in the government and the political, social, and geo- graphical conditions of Switzerland as compared with those of the United States. The Hon. Samuel W. M^CaU, Member of Congress from Massachusetts, in an address, "Representative as Against Direct Govern- ment," before the Ohio Bar Association at the Annual Meeting held at Cedar Point, Ohio, July 12, 1911, said: "The framers of the Constitution were entirely familiar with the fail- 20 INITIATIVE AND REFERENDUM. ure of direct democracy in the gov- 'ernment of numerous populations, and they were influenced by their knowledge of that failure in devising our own structure of republican gov- ernment. It is now proposed to abandon the discovery of modern times, to which Jefferson referred, and which he declared to be the only method by which rights can be secured, and to put in its stead the discarded device of the ancients. Who, then, are the reactionaries: those who are opposed to the substi- tution of direct for representative government and are in favor of the progressive principles of the Ameri- can Constitution, or the supporters of direct government who advocate the return to the reactionary policies which thousands of years ago demon- strated their destructive effect upon the government of any considerable populations?" THE UNDEMOCRATIC INITIATIVE. The Initiative and the Referendum are really two distinct propositions, founded on antago- nistic principles. ftThe Initiative is based on the principle that a minority of voters generally 8 per cent shall be given the right not only to initiate Constitutional Amendments or Statutory INITIATIVE AND REFERENDUM. 21 Laws, but to decide the exact form in which they" shall be presented for passage, I without giving, the vast majority of the voters^ 92 per cent either directly or through their representatives any opportunity to amend them. /In this respec the modern Initiative is far inferior in principle to the ancient Pure Democracy, for the latter, theoretically anyhow, possessed the principle of majority rule.| No law can formulate itself; the authority to formulate a law is equal to the power to pass it if the latter power does not in- clude the right to change it or amend it before it is passed. Therefore, under the Initiative and Referendum, the majority 92 or 95 per cent- find themselves in this predicament: they must either accept the bill which the 8 per cent has drafted for them, on its own motion, and with- out consulting any other authority or proportion of citizens, the majority must either do this, or they must succumb to Philosophic Anarchism -the absence of any Law except that of the indi- ~ vidual will. Quite apart from the advantage of having, 'received careful scrutiny and the safe- guard of having to pass through several Commit- tees, a Legislative Law has this immense supe- riority over an Initiative Law: it is formulated by a majority of the voters of the State in a Rep- resentative sense; that is, the Committees which recommend it are selected directly or in- 22 INITIATIVE AND REFERENDUM. directly by a majority of the Legislature, which practically, in a numerical idea, represent a majority of the voters; then, if a majority of the members of the Legislature who represent the majority of the voters of the State want to do so, they can amend or change the Bill to meet their views. But an Initiative Bill represents the views of nobody but the signers of the peti- tiona small minority of the total number of the voters, and, human nature being what it is, probably a large proportion of the signers have not got the slightest knowledge of what they signed. It is notorious that men can be easily persuaded to sign petitions for almost anything. */ The objections to the Initiative are so ob- vious to every student of political economy from the standpoint of both logic and experience, that its advocates are hard driven to produce authori- ties to back up their oratorical claims. A careful reading of some accepted National and Interna- tional authorities quoted as supporting the Ini- tiative and Referendum, shows that, as a rule, they do not refer to or include the Initiative at all, but only cover the Referendum, and in some cases they only refer to the Referendum of Legislative Bills or Constitutional Amendments drafted by the Legislature or by a Convention called for that purpose. This is largely true of Prof. Bryce ; and particularly of such economists. INITIATIVE AND REFERENDUM. 23 as Prof. Oberholtzer (the author of the one thor- ough standard book on the Initiative and Refer- endum in America), Prof. Lowell (probably the greatest American authority on foreign govern- ment and politics), Prof. Deploige, the eminent Belgian economist, and also of M. Numa Droz, the leading Swiss writer on the subject, who was for twenty years a member of the Swiss Federal Council (the highest Federal power) and an ex- President of the Republic. The proof of this is demonstrated by extracts quoted herein ; and it will be seen that some of them, while they give a qualified endorsement to the Referendum in Switzerland, are absolutely opposed to the Ini- tiative. But the Initiative and Referendum, as now proposed, in this country, must be taken as one system. If the mild and qualified approval sometimes given to the Swiss Referendum is to be applied to the Initiative, as it is by the American apologists of the system then, by the same token, the emphatic condemnation of the Initiative by the same writers, should be applied to the Referendum, when the two are combined in one system. REFERENDUM: THEORY VS. PRACTICE. The theory of the Referendum must be con- ceded to be that the people that is, a majority of the people shall rule, in the final passage of 14 INITIATIVE AND REFEKENDTJM. Laws. Tet in its universal application there is recognized the absolute right of a small minority from 5 to 8 per cent of the total number of voters -to suspend Legislative Laws duly passed by the representatives of a majority of the peo- ple ; and in practice it results in another minority finally passing these Laws, for the history of the Referendum is that only a minority of the electors vote for the propositions. Therefore, while in its outward form it expresses the will of the people, yet in substance it has the same un- democratic defect possessed by the Initiative- Minority Rule. It is true that some economists contend that " silence gives consent" and that if a majority permit a minority to pass a Law, the majority have no right to complain. But the same argu- ment holds good as to the Representative sys- tem : for undoubtedly most of the political evils of the day arise from the neglect of a large pro- portion of the people to avail themselves of their civic privileges and obligations. It is to be fur- ther remarked, also, that it is an experience sel- dom with an exception, in Switzerland as in America, that citizens take far greater interest in the election of men than they do in the passage of Laws. All observers, native and foreign, are im- pressed with the apathy of voters to the proposi- tions submitted to them ; and it has been demon- INITIATIVE AND REFERENDUM. 25 strated in Switzerland that compulsory voting is no remedy, as from 20 to 30 per cent of the voters cast blank ballots. What is the remedy? Cer- tainly not giving people more of what they plain- ly show they do not want. DESTRUCTIVE TO REPRESENTATIVE GOVERNMENT. The plea that the Initiative and Referendum is merely supplementary to the Representative system, to make it more effective, is opposed to both logic and experience. | Tl^omas^ Jefferson, knew what he was talking about when he^ de- clared that the REPRESENTATIVE SYS- TEM was "the ONLY DEVICE" by which the rights of man could be assured. 1 Legislators will assuredly have their sense of responsibility dulled by the Initiative land Referendum. / The people can initiate laws; the people can pass Laws: therefore let the people be responsible; and the argument is sound. But who will "Ref- erendum" or "Recall" the people? Yet the peo- ple sometimes make mistakes, though it is almost rank treason in these days of cheap fawn- ing demagogy to say so God's truth though it be!/ Mr. Bryce and there is no better outside au- thoritysays in his "American Common- wealth," that Direct Legislation "tends to lower the authority and sense of responsibility in the 26 ^/ INITIATIVE AND REFERENDUM. Legislature." In his last edition (1910) he de- clares that "the Initiative is a supersession of the Legislature which tends even more, (l^haiAthie Referendum) to reduce its authority." (p. 479.) Originally the Portland "Oregonian" was in favor of the Initiative and Referendum ; but af- ter observing its operations for several years it came out emphatically in opposition to it. In one of its articles denunciatory of the Initiative and Referendum, it said, "It was not intended that representative government should be abolished by the new system ; but it has been abolished by it ; " and it predicts that ' ' Oregon will yet return to it." The greatest of our American authorities, Prof. Oberholtzer, says in the new edition (1911) of "The Referendum in America," that it will make officials "timid, shambling, ineffective men," and that "it is in conflict with the spirit and traditions of our political system." A leading candidate for the Presidential nom- ination, Grov. Woodrow Wilson, one of our most learned University educators, says that "it has dulled the sense of responsibility among legisla- tors, without, in fact, quickening the people to; the exercise of any real control of affairs." Still another great American educator, Prof. Lowell, President of Harvard, after showing that the Initiative and Referendum was estab- INITIATIVE AND REFERENDUM. 27 listed in Switzerland because of the inexperience of that country with Representative government, affirms that, applied to ordinary Statutes as is proposed it is inconsistent with our polity, and could not be engrafted without altering its very nature. Our American Minister to Switzerland, Hon. L. S. Swenson, in an impartial statement of the working of the system in that country, reports that "it lessens the sense of responsibility on the part of the legislator." As Prof. Oberholtzer says in the addendum to the new edition of his work on the subject, the Initiative and Referendum is not only "un- American," but it is "un-English," meaning that it is- opposed to the English representative system, on which our system is so largely based. A comparison of the English Representative sys- tem and the Initiative and Referendum plan will show this : (1) Under the Initiative and Referendum, any proposition, though concocted in secret by a cabal, club, or caucus, and no matter how crude or vicious, or how little understood by the major- ity, or how new in principle, can be forced to pop- ular vote by an insignificant minority. Under the British Representative system, an "appeal to the country" (as it is called) is al- ways on a measure when the appeal is on a 28 INITIATIVE AND REFERENDUM. measure which has been formulated, scrutin- ized and presented under Parliamentary rules, by the Party which at least when elected repre- sented the majority of the people. And, under the British system, it is men who are elected, not measures which are passed, when an " appeal to the country" is made. (2) Under the Initiative and Referendum, cold, bare, abstract propositions are submitted, which by themselves never elicit enough public interest to draw out a majority affirmative vote. \ Under the British system, the appeal is not only as to a measure, but as to men as well ; with- out the latter, the former is often simply aca- demic, if not lifeless ; with it, there is the vital- ization given by the touch of human interest. It is the lack of the vitalizing touch of human interest which accounts for the deadening indif- ference to Initiative and Referendum proposi- tions, resulting in only minority action so uni- versally noted by observers of the system the world over. LABOR AND THE I. & R. The Initiative and Referendum is not only al menace to honest and reform government, but is a false friend to Labor. It provides a device through which unscrupulous " special interests" can secure their ends with far greater ease than INITIATIVE AND REFERENDUM. 29 they can under the Representative system, when they have familiarized themselves with its tricks and when the general public have become wearied of the numerous petitions and elections peculiar to the system. In the first place, while it is not popular to tell the truth about the matter, yet it is the truth, whole communities can sometimes be polit- ically debauched. This has been demonstrated in the two most democratic countries in the world the United States and England. But, without the Initiative and Referendum, there has been established civic righteousness and electoral hon- esty in England, and under the Representative system the Democracy of Great Britain are now making greater strides than are being made in any other country. American politicians freely concede that, in the past, groups of voters in the different States have been bought up not only in " blocks of five" but in droves like sheep. Within the past year the proud State of Ohio has been humiliated by exposures of wholesale political venality in several of her counties. The Repre- sentative system was surely not responsible for that condition of affairs ; on the contrary, it was a showing of what are the possibilities of Direct Democracy. And all this is true in spite of the undoubted fact, that at heart the great mass of the common people are honest. 30 INITIATIVE AND REFERENDUM. American Trade Unionists have generally en- dorsed the Initiative and Referendum for the reason that they believe that through it they can secure certain reforms they demand. Possibly they might do so; and probably also, they can in due time by the exercise of patience and intelligent agitation, secure the same reforms through the Representative system, should their demands appeal to the sense of reason and fair-play of the people of the State. But in advocating the Initiative and Ref- erendum the Trade Unionists are short-sighted. If they, as an organized minority, and that they are a decided minority of the total electorate must be conceded can secure their demands through the Initiative and Referendum, so, like- wise, can other minorities use the scheme for purposes that are altogether selfish. Because Switzerland has the Initiative and Referendum it is often spoken of as "the most democratic country in the world. " As a matter of fact, how- ever, so far as the wage-earners the "proleta- riat" are concerned, the United States, Eng- land, Australia, New Zealand, and Canada all under the Representative system are far more democratic and far more responsive to Labor's demands for reform, than is Switzerland. The reason is that, as explained elsewhere, the major- ity of the people of Switzerland are naturally INITIATIVE AND REFERENDUM. 31 conservative and anti-Socialist, they being small peasant proprietors. No Labor man or Socialist will dispute the authority of Robert Hunter. In his " Socialists at Work" (1908) he says (speak- ing of Switzerland) : . . The electoral system is open to much fraud, which is unscrupulously practised by the capitalist parties to keep the workers from representa- tion in the National Council. At the last election the socialists assembled 70,000 votes, by which they claim to have won 25 seats, but they were only allowed six. Recent inquiries have been made into the extent of exploi- tation of child-labor, with the appal- ling revelation that 53 per cent of the children attending school are also employed in laborious daily work. The school teachers complain that the mentality is now very low, and that 40 per cent of the children are stunted. Capitalism has become in- tense, and with it an almost savage system of oppression has been insti- tuted by the government. * * * Swit- zerland has become notorious for the frequency with which the soldiery is used against striking workmen." And all this in the model Initiative-Referen- dum Republic! 32 INITIATIVE AND BKFEKENDUM. An estimate has been made that under the Initiative and Referendum as operated in Ore- gon, 10 per cent of the electorate practically make the Constitution and the Laws, that is, that they control, that percentage being the dif- ference between the affirmative and the negative vote on propositions submitted; and it should always be remembered that the combined affirm- ative and negative vote under the system is only from 50 to 75 per cent of the votes cast for candi- dates at the same election. To those familiar with practical politics it is apparent that un- scrupulous men, with money back of them, can so use the Initiative and Referendum as to be able to "throw" this 10 per cent as desired, for "special interests," or for partisan, class or even personal ends. In fact, the Initiative and Referendum is a perfect Pandora's Box of political evils to tor- ment the State. MEANS MINORITY RULE. An overwhelming objection to the. system is that wherever it has been tried it has resulted in minority rule. Even in Switzerland the most favorable State possible for the system Direct Legislation is always by minorities. This is so as to important as well as to comparatively trifling matters. The vote on the prohibition of absinthe INITIATIVE AND REFERENDUM. 33 a question of great interest in Switzerland- only reached 370,470, out of a total voting strength of over 800,000. Prof. Oberholtzer says in his book, "The Ini- tiative and Referendum in America:" "There is but a fraction equal to about half of all those who know their own minds respecting candidates who seem to care anything about measures."/ At special elections, "it is impossible to get out even half the vote, unless it be on a proposition to deprive a citizen of his beer or gin. . . . Even a proposal to enfranchise an entire new half of the race, and to double the electorate, or to ally the State openly with lottery men and gam- blers." What is true of Switzerland and the United States is true of Canada. In no country in the world are politics keener than in the Dominion, and public questions are discussed there as a rule with a fervor rare even in the United States. But the Canadians will not go to the polls to vote sim- ply on propositions; there must be "the human touch" of candidates to bring out the vote. On September 29, 1898, a National "plebiscite" on the question of prohibition was taken in Canada -that being a burning issue at the time, and Premier Laurier was strenuously importuned by the temperance element to pass a prohibitory Law covering the entire Dominion. So, in order 34 INITIATIVE AND KEFEKENDTJM. to test public sentiment, he referred the question to the people or took a " plebiscite " on it, as it is called in that country. The num- ber of registered voters was 1,236,423; the total number who voted on the proposition was 543,013 less than 44 per cent of the registered number of voters; while those who voted for prohibition were only 278,380; those against, 264,633; a majority for prohibition of 13,747. Now, take careful note of this: Al- though the votes cast for Prohibition were only 22 1-2 per cent of the total number of voters, yet, under the undemocratic Referendum plan, that number of voters being a majority although a small one of the votes cast upon the propo- sition, prohibition would have been declared passed in Canada. But Canadian statesmen are reared in the British school of Representative government, and Premier Laurier very properly declined to accept the result as sufficiently de- cisive to warrant Parliamentary action; and even Prohibitionists conceded that he was right. In an article by Phillip A. Allen in the Bos- ton " Evening Transcript," May 23, 1906, figures were given showing the total vote upon various Laws and Constitutional Amendments, 17 in number. The percentage ranged from 78 to 19. In eight instances the vote was less than 50 per INITIATIVE AND EEFEEENDTJM. 35 cent; in only six instances did it exceed 60 per cent. It is true that in Oregon the percentages on Initiative and Referendum propositions have been comparatively high; but there are three special reasons for this fact: (1) the novelty o the thing: -- the Oregon people play with direct , legislation as children do with a new toy ; (2) the ^ interest aroused by the woman's suffrage cam- paign; and in Oregon, strange to say, there are women's organizations strongly opposed to fe- male suffrage, as well as in favor of it; (3) the fact that Oregon is the home of some of the ablest and most fanatical of the National leaders of the Initiative and Referendum movement, men who have devoted their lives to it, and who have become political potentialities through the organ- ized minority forces which the system enables them to establish and control. But the day will come when the novelty will have gone, when the woman's suffrage movement will have settled itself, one way or another, and when the people will have tired of the leadership of the astute gentlemen who now "run things;" indeed, there are evidences that that day is approaching. Walter F. Brown, Chairman of the Ohio Re- publican State Central Committee, is in favor of the principle of the Initiative and Referendum. 36 INITIATIVE AND REFERENDUM. But lie feels constrained to confess, after person- ally investigating it in Oregon, that "the system in force there is far from perfect, and that it opens wide the door to the very abuses against which it is aimed, to-wit : legislation in the inter- est of a selfish minority." (See chapter on Ore- gon.) The complaint is made in Switzerland that only about 43 per cent of the people vote (alto- gether) on propositions, under the Referendum. (See chapter on Switzerland.) Less than 27 per cent of the voters, and only 6 per cent of the total population of the Territory of Arizona, voted for the Initiative-Referendum- Recall Constitution. In October, 1911, California adopted a new, * Constitution including a number of radical amendments, among them being the Initiative, Referendum, Recall and Woman's Suffrage. These amendments were adopted by a minority of the qualified voters of the State, that is, less than half of the voters of the State voted on the propositions, including affirmative and negative. There were 23 amendments submitted, and the official statement of the amendments filled 12 square feet of small solid print. It was simply a physical impossibility for the majority of the average voters to read and intelligently pass upon such a mass of matters ; so they simply INITIATIVE AND REFERENDUM. 37 stayed away from the polls. The New York "Times" (Indep. Dem.), of October 18, 1911, speaking of the amendments apart from the I. & R., Recall, and Woman's Suffrage says edito- rially, under the heading "Anti-Democracy in California:" "Most of them are not fit for con- stitutional enactment at all, but should be within the scope of the powers of the Legislature. * * * This new method of handling the basic law of the State is advocated in the name of democracy. In reality it is utterly and hopelessly undemocratic. While pretending to give greater rights to the voters, it deprives them of the opportunity effectively and in- telligently to use their powers. * * * When the machine managers get familiar with the working of the new method, they will work it for their own ends far more readily than they work the present method. The aver- age voter, muddled and puzzled and tired by the impossible task of really understanding and deciding on a mass of matters, will give it up, and then the politicians will get in their fine work. * * * It would be as easy to run the business of a big railroad by leaving every detail of its manage- ment to a vote of the shareholders 38 INITIATIVE AND REFERENDUM. as it will be to run the business of a State under the new system." The New York "Sun" says: "Out of 43 of the 64 measures submitted in Oregon since 1904, only 75, or less than 75 out of 100 men who went to the polls, voted yes or no. In only 14 out of 32 cases in the last election did the percentage rise to 70 or more than 70. When the percen- tage is 70, 36 per cent of the voters can enact a law. * * * In the decade from 1899 to 1908 out of 472 consti- tutional questions submitted to the people of various states as many as 240 received less than half the vote cast for candidates. Only 8 reached or exceeded 90 per cent. In Cali- fornia in 1904, when 6 amendments were submitted to the people, none received more than 40 per cent of the vote; in 1906 when 14 amendments were submitted, the lowest percen- tage was 30, the highest 33. In Colo- rado in 1900 one amendment received 19 per cent. In Connecticut 3 amend- menis in 1905 varied from 18 to 22 per cent; 4 in Florida in 1900, from 24 to 32 per cent ; 7 in the same state in 1904 from 22 to 30 per cent ; 8 in New Jersey in 1903 from 11 to 12 per cent; 7 in New York in 1905 from 25 to 30 per cent; 3 in Pennsylvania in INITIATIVE AND REFERENDUM. 39 1901 from 27 to 30 per cent ; 2 in Vir- ginia in 1901 from 10 to 11 per cent ; 1 in Indiana in 1906 about 8 per cent ; 1 in Ohio in 1903 only 6 per cent." "SERVES THE MAJORITY RIGHT!" It is sometimes argued that if the majority fail to vote it is their own fault if the minority carry the day, and that the majority then have no right to complain. It is not a matter of com- plaining, it's a matter of adopting a system the universal experience with which is that it elicits the interest of only a minority of the voters. The argument referred to cuts both ways, it can be used in favor of the Eepre- sentative system with just as much force: for if the majority of the electors took sufficient inter- est to elect honest and capable men, there would, admittedly, be no need of the Initiative and Referendum ; and if this is not done, then the electors have no right to complain ; the remedy is in the people's own hands, and if they don't use it it is their own fault. But human nature must be accepted as it is, and the wise statesman tries to utilize it to the best advantage. He cer- tainly, however, will not make it easy for the minority to enforce its will against the majority, even though the majority is to blame, unless such a system is absolutely unavoidable. That is the best system of popular government which ap- 40 INITIATIVE AND REFERENDUM. peals to the largest number of the electors in an intelligent manner, not in a mere transitory fashion, but continuously. There is something radically wrong with a system the inevitable and universal tendency of which is to cause a ma- jority of the electors to practically disfranchise themselves. The Initiative and Referendum as an effective instrument of popular government is opposed to human nature and human experi- ence ; that of itself absolutely condemns it. THE CITIES WILL DOMINATE. Already 17 counties in which the large cities are situated can outvote the remaining 77 coun- ties of Ohio. The report of the Secretary of State for 1908 shows that the vote of these 17 counties was in that year 571,545, while that of the other 77 counties was but 564,980. That difference keeps on increasing. The U. S. Cen- sus returns for 1910 show that in that year 60 per cent of the population of Ohio were in urban dstricts, leaving only 40 per cent in the country districts, a change of 12 per cent in 10 years in increase of the urban population. |Not only are native Americans flocking more and more into the cities,fbut the cities are yearly receiving vast multitudes of immigrants who do not speak our language, and who have not been reared in self-government as we understand it in America. INITIATIVE AND REFERENDUM. 41 / Is it not plain that the country folk are in im- minent danger of being swamped as to legislation by the ever-growing multitudes of our cities ? A sure way to bring that about would be by en- grafting the Initiative and Referendum onto our Constitution./ Is that desirable ? The advocates of the Initiative and Refer- endum clearly understand this ; in fact, it looks as if this is what they want, they want to enforce their rule on the country districts, even though it will be by the monstrous injustice of Minority Rule, which is always the effect of the Initiative and Referendum. They know that this can be done not only through the increase of population of the cities over the country, but because experience with the Initiative and Refer- endum has demonstrated that the various classes, groups and special interests of the cities can be effectively organized through underhand and corrupt methods, if that be necessary, as the ex- perience of Oregon, South Dakota, and even Switzerland, shows. Brand Whitlock, the fourth-term Mayor of Toledo, and the President of the Progressive Constitution League of Ohio, and who is being constantly heralded as an up- to-date Reformer, is reported to have said to a group of working men: I" Under representative form of government the counties hold the balance of power. Under direct legislation the city will 42 INITIATIVE AND REFERENDUM. control. | The farmers have always been dead weight about the necks of the laboring men. We will get the Initiative and Referendum and will then give them a taste of the same kind of legis- lation they have been giving us." (Address of Mrs. Mary E. Lee, at Fairview, Ohio, Aug. 23, 1911.) Is that a statesmanlike utterance? . THE GATE-WAY TO SOCIALISM. The old " International" Socialists were the first organized political group to fully appreciate the stupendous use which can be made of the In- itiative and Referendum to enable a minority to grasp the power of government. Unquestion- ably it is the realization of this fact which is giving such uneasiness to the more thoughtful and statesmanlike of the Swiss public men and political economists. So long as Switzerland was purely an agricultural and a pastoral coun- try, with the small peasant proprietors in com- plete control, the Referendum (not the Initia- tive) was fairly successful, under the unique political system and social conditions of that country. But of recent years a change has com- menced to come over the character of the popu- lation and in their social conditions; the pro- letariat has arrived. As far back as 1869 the "International" ap- INITIATIVE AND REFERENDUM. 43 proved the Referendum, at the Convention at Basle. It has since then along with the In- itiative been one of the most prominent of the " immediate demands" of International Social- ism. It appeared in the Program of Gotha, in 1895, and again in the Program of the Erfurt Congress. |The Initiative, Referendum and the Recall are always included in the National and State platforms of the American Socialist Party.] The Socialists, while they are in a dream as to the establishment of the Marxian " Co-operative Commonwealth," know what they want as to " immediate demands," and especially as to the Initiative, Referendum and the Recall. I If Socalism is ever established in the United States so far as it can be established it will be through the Initiative and Referendum,] should this glorious land of true liberty ever/ forget itself sufficiently as to adopt that suicidal policy. Following is an extract from an article in the " Contemporary Review" (London, Eng.), Jan- uary, 1911, by a well-known American writer on political economy, Mr. Frank Foxcroft (Bos- ton) : "It is to be observed, too, that under this system (Initiative and Referendum) the conservatives are always at a disadvantage. The dice are loaded against them. The vari- 44 INITIATIVE AND REFEKENDUM. ous groups, the Socialists, the single- taxers, the woman suffragists and the rest will sign each other's petitions and get their different propositions before the people. When the cam- paign opens the radicals are already organized. They know what they want, and they will co-operate ener- getically to secure it. But the con- servatives are handicapped. It is al- ways harder to organize the negative than the affirmative." There is a tremendous political truth in the latter observation. Not only is the Initiative and Referendum a game of " Loaded dice" against the unorganized majority, but it is a cruel handicap and an eternal danger to un- organized minorities, who are dumb and helpless against others of their fellow-citizens who are organized, and are possibly not as considerate of the rights of others as they ought to be. One of the glorious advantages of the Representa- tive system is that it tends to protect the rights of the otherwise helpless minorities. No system of government is truly democratic which does not do that. "THE MADNESS OF DEMOCRACY." At the Dinner of the Army of the Tennessee, at Council Bluffs, Iowa, October 11, 1911, Arch- INITIATIVE AND REFERENDUM. 45 bishop Ireland severely condemned the Initia- tive, Referendum and Recall. Among other things he said: "The clamor now is heard that the organization of American Demo- cracy, such as the Republic has known for a century and a quarter, must be altered, torn asunder, under the pretense that with it the people do not govern with sufficient direct- ness. Let us hope that the clamor is but a passing ebullition of feel- ing. ' ' Democracy, yes ; Mobocracy, never. And toward Mobocracy we are now bidden to wend our way. The shibboleths of the clamor, the In- itiative, the Referendum, the Recall, put into general practice, as the evan- gelists of the new social gospel would fain have them, are nothing more nor less than the madness of Democracy." Cardinal Gibbons is equally emphatic. In a sermon delivered at Baltimore, Sunday, Octo- ber 1, 1911, he said: "To give to the masses the right of annulling the Acts of the Legislature is to substitute Mob Law for established Law." "TAXATION WITHOUT REPRESENTATION." Writing from Prance, to Madison, December 20, 1787, Thomas Jefferson spoke of "the good 46 INITIATIVE AND REFEKENDUM. of preserving inviolate the fundamental princi- ple that the people are not to be taxed, but by representatives chosen immediately by them- selves." The Initiative and Referendum would abolish this " fundamental principle," and would place the tremendous power of taxation the highest power any State can exercise, next only to that of imprisonment or inflicting the death penalty in the hands of selfish groups and classes of organized minorities. While it is right and proper that communities should vote upon specific propositions imposing special taxation, after they have been thrashed out and formu- lated by some representative body, the case is immensely different under the purpose of the proposed State-wide Initiative and Referendum. In practical effect the latter would be " taxation without representation," because the tax would be formulated in secret by some minority group, and then possibly included with a number of other befuddling propositions submitted on a Referendum, which experience shows would only arouse the interest of a minority. The property of the tax-paying citizens would thus be at the mercy of any minority who desired to " shift" the burden of taxes on shoulders other than their own. This consideration alone ought to be suffi- cient to bury the Initiative and Referendum be- neath an avalanche of votes when the people of t > INITIATIVE AND BEFEKENDTJM. 47 the State get a chance at the system in concrete form. MEANS CRUDE LEGISLATION. Advocates of the Initiative and Referendum are compelled to recognize! the force of the ob- jection that crude measures are sure to be sub- mitted to the people under their system./ It is now suggested that the Legislature should have power to amend crude measures adopted by the people under the Initiative. This certainly would be desirable should the Initiative unfor- tunately become established in our system of legislation; but it is a confession that Direct Legislation, while possibly all right as an abstract theory, is impracticable as a system of actual legislation. There is also this serious ob- jection to the suggested compromise : jfln its very essence Direct Legislation is a proclamation that the people do not trust the Legislature; it is therefore reasonable to assume that Legislators would take but little interest in bills submitted to them under the Initiative, particularly when they would have to be referred back to the peo- ple for adoption; the probable consequence, therefore, would be that the Legislators would be inclined to wash their hands of the entire mat- ter, and let the bills pass even with conceded defects. First, there would be general indiffer- 48 INITIATIVE AND REFERENDUM. ence because of lack of direct responsibility ; and secondly the Legislators would take rather a cynical pleasure in demonstrating that the people en masse are incapable of legislating properly. While these governing influences are not to be commended, they are quite in line with the in- fluences controlling human nature ; and no leg- islation or system of government in the world has yet succeeded in killing human nature. One of the strongest objections is that under the Initiative, measures must be accepted or re- jected in their entirety. Under the Representa- tive system, it is very seldom that a bill is passed in the exact form in which it is introduced, even though it be drawn up by an experienced legislator. It is scrutinized by a committee in each branch, and then has to be read and debated by the members of both branches. Finally, it has to run the gauntlet of the Governor's veto. But under the Oregon plan every measure must be submitted exactly in the form in which it is on the petition. Even though the substance of the bill might be worthy, yet the form of the bill might be defective ; or it is quite likely that while part of the bill might be advisable to enact, other portions might be highly objectionable. But the genuine Initiative bill must go to the people with- out the change of a word, and be voted upon with all its original imperfections. "Let the people INITIATIVE AND REFERENDUM. 49 rule ! ' ' To give opportunities for needed amend- ments is an interference with that divine right ! The New York "Nation," one of the ablest and most independent journals in America said September 21, 1911 : s "The heart of the issue lies in the question whether in the long run the initiative-referendum system will sap the vitality of representative govern- ment ; whether it will result in turn- ing over all really vital questions to the decision of a mere numerical ma- jority at the polls in a state of things in which a momentous change like the introduction of prohibition or the free coinage of silver may be effected in a moment, without the in- terposition of any chance for the as- sertion, by representative men, of those intellectual and moral powers which have hitherto been regarded as an essential part of the forces that shape our political destinies." THE JOSEPH PELS FUND COMMISSION. NOTE. The writer wishes it dis- tinctly understood that in giving the following facts he does not intend to cast any personal reflection upon Mr. Joseph Fels or upon the gentlemen who compose the Commission which manages the fund established for the purpose of "putting the Land Value 50 INITIATIVE AND REFERENDUM. Tax into effect somewhere in the United States within five years;" - and as to the talented corps of polit- ical organizers and orators working under the instructions of the Com- mission, they cannot be criticised for the part they play. Neither does the writer take any position for or against with regard to the Henry George theory of Land Tax Value. He believes, however, that the people of the country should clearly under- stand what has put new life into the Single-Tax movement in America, and what is the propulsive force back of the agitation for the Initiative and Referendum, and the reasons there- for. Some of the facts given below have been denied in public debate by one of the leading Single-Tax en- thusiasts, who was largely instru- mental in securing delegates to the Ohio State Constitutional Convention pledged to the Initiative and Refer- endum. Hence the preciseness of detail in quotations from an official authoritative source which cannot be challenged. The pages indicated be- low refer to the Report of the Single Tax Conference, held at New York, November 19-20, 1910, under the auspices of the Fels Fund Commis- sion.) INITIATIVE AND REFERENDUM. 51 While Socialism, ever since the days of the old European " International," has always frankly declared for the Initiative and Refer- endum, as a means to accomplish its purposes, the propulsive force back of the present move- ment in the United States is that which is fur- nished by the Single Taxers, with the financial backing of a rather unique character, Mr. Joseph Fels, a millionaire soap maker, of London, Eng- land. It is a matter of common knowledge that the Single Tax movement was as dead as a salt mackerel until the last few years ; but a remark- able resurrection and revivification of the almost forgotten cult has taken place ; and the miracle has been effected by the stream of gold the foun- tain head of which is the rather blunt and frank, but very generous millionaire soap maker, Mr. Joseph Fels, of London. And " Eureka I" -the way has been discovered by which the erstwhile academic doctrines of Henry George, held by but a handful of devotees, can be forced on the ma- jority, namely, through the Initiative and Ref- erendum. "MUM'S THE WORD!" There is an organization of National scope called the Fels Fund Commission, the officially declared object of which is "not to propagandize the country, but to put the Land Value Tax into 52 INITIATIVE AND REFERENDUM. effect somewhere in the United States within five years and that requires votes, which cannot be got without political action." (Page 13, Report of Single Tax Conference, held in New York, Nov. 19 and 20, 1910.) A careful reading of the official Report of the Fels Fund Commission and of the speeches made at the small but important Conference of Single Taxers held in 1910, clearly shows that there is much significance to be at- tached to the declaration that the Commission's activities lay not in propagandizing the country, but in political work. The political work referred to is aiding the movement for the Initiative and . Referendum throughout the country, as the best means of securing the Single Tax. Mr. Jackson, H. Ralston, of Washington, D. C., said at the Conference : " As for Direct Legislation, it bears to Single Tax as close a relation as a lock does to the door." (P. 17.) Mr. Lincoln Steffens, the well-known writer and Single Taxer, was frank enough to confess: "They knew what they wanted and went to work to get it without mak- ing any unnecessary noise about it." (P. 21.) Mr. W. S. U'Ren, the man who won Oregon for, the Initiative and Referendum, and through it has "cleared the way" for the Single Tax, in- cidentally against the will of the majority of the people of Oregon is also delightfully frank, in the privacy of the Conference. (P. 21.) INITIATIVE AND REFERENDUM. 53 Some of the old-line orthodox Single Tax- ers those who believe in a straight-out fight for principles do not approve of the methods of the Fels Fund Commission. The Report of the Conference says (P. 10): "Some criticism has been made of the Commission's expenditure of money for the Initiative and Referendum. 77 A number of letters of criticism were read, but the late Tom L. Johnson, of Cleveland, "endorsed the work done and the expenditures made outside of i straight Single Tax propaganda.' " (P. 17.) One critic, Mr. E. L. Heydecker, of New York, was bold enough to openly oppose the Initiative and Referendum. (P. 19.) The editor of the "Single Tax Review", feared "entangling alli- ances, also the danger of diverting our own prop- agandists to Direct Legislation rather than to our own great principle." He quoted Mr. Fels in support of his contention that the clear agita- tion for the taxation of land values would bring about Direct Legislation quicker than anything else." (P. 19-20.) Mr. Fels admitted this, but he was willing to leave the matter of methods to the Commission; and he said: "I now offer to duplicate every dollar that these gentlemen will raise for any work they want to do in their own way, and I don't expect any takers on that propo- sition." (P. 20.) (This offer, it should be borne 64 INITIATIVE AND REFERENDUM. in mind, was in addition to his other munificent contributions to the Commission.) The "Public" of Chicago is an official organ of the Single Taxers, and is subsidized by the Fels Fund Commission. There are three items recorded in the Report of monies received by and in behalf of the "Public" from the Fels Fund :- one of $2,437.80, by Emil Schmied, for "exploita- tion of 'Public,' " Jan. 1 to October 31, 1910 (p. 31); the second, of $1,494.10 to "sustention fund," (p. 34) ; the third, of $1,434.73 (p. 34) ; - making a total of $5,366.63 for 1909-10. On July -.28, 1911, the "Public" confessed that Single Taxers "realize that it is by means of the Initia- tive and Referendum, and only so, that the work of Henry George can be consummated." MONEY GALORE. In the Initiative - Referendum - Single - Tax campaign in Oregon up to December 1, 1910, the Fels Fund Commission spent $16,775. (P. 3.) "It was unanimously agreed that the appropria- tion for the work in Oregon from December 1, 1910, to November 30, 1911, be $12,000." (P. 26.) In 1910 the Initiative and Referendum cam- paign in Missouri was "assisted" to the extent of $800. (P. 3.) "The cost of the Rhode Island campaign to December 1, 1910," under Mr. John Z, White, INITIATIVE AND REFERENDUM. 55 of Chicago, (the same gentleman who has been in Ohio), was $1,514.93. (P. 4.) Mr. White was in New Mexico, "with a successful result;" also in Arizona and Colorado. "Arrangements were made with John Z. White by which his contract with the Commission is extended at least another year from July 1, 1911, with the hope that the contract may be made permanent, co-equal with the life of the Commission." (P. 27.) On page 27 there is also this significant item: "Fred C. Howe and Bolton Hall were appointed to take up with Mr. Byron Holt a suggestion he made to Mr. Joseph Fels to furnish speakers for Granges on Land Value Taxation, and if their enquiry should prompt a recommendation of Mr. Holt's plan, their advice was to be considered the advice of the Commission." In this connection it is worth recalling that at the National Convention of Granges held at Columbus, O., in November, 1911, although several enthusiasts were present from the West in behalf of the Initiative and Referendum and the Single Tax, neither of these propositions was endorsed. Contributions totalling $1,391.28 were made to the work in Arizona, Colorado and New Mex- ico ; and $282.32 to that in Arkansas. (P. 4.) Among the receipts by the Commission in 1909-10 was a donation of $5,000 from Mr. Joseph Fels to Bolton Hall, of New York ; and 56 INITIATIVE AND REFEKENDTJM. another of $30,000 from the same gentleman to the late Mr. Tom L. Johnson, of Cleveland, O. (P. 30.) Under the head of "general activities," there is an item of the disbursement by Mr. Johnson of $3,295.42 to the "Ohio Direct Legislation League." (P. 31.) There is a paragraph on page 4 which explains that this amount was spent for the Initiative and Referendum movement in Ohio in 1909, "with barren results as far as legislative action was concerned." Who got this money? For what purpose was it used? These are legitimate questions. Referring to his munificent contributions to the Single Tax movement, Mr. Fels spoke indif- ferently of them, as if it was only a small matter to him, and with magnificent contempt he ex- claimedso reads the official report "Damn the money!" (P. 13) It seems, according to Mr. Fels' admission, that it was Mr. Daniel Kiefer, of Cincinnati, who first interested him in the Sin- gle-Tax movement. Mr. Fels tells with simple naivete that it was Mr. Kiefer's "knowledge of what we wanted and how to get it that brought Mr. Fels under his influence." (P. 16.) Mr. Kiefer is Chairman of the Commission. During the Conference he was praised as "a national money raiser." (P. 16.) INITIATIVE AND REFEKENDUM. 57 In a supplementary statement issued by the Commission (undated) to subscribers, the in- 'f ormation is given that Mr. Joseph Pels is giv- ing $25,000 a year to the Commission and that he " offers to give $50,000 or $100,000 a year, and even more, if the Single Taxers of the United States will contribute that amount." The condition has been met. On November 25, 1911, the Cincinnati " Enquirer" published a tele- graphic news item from Chicago, in reference to a meeting of the Single Tax advocates and the Fels Fund Commission; and it said: " Accord- ing to the terms of the Joseph Fels Fund, all money raised for five years for the purpose of testing the Single Tax plan will be duplicated from the fund. Chairman Daniel Kiefer, of Cincinnati, announced that about $100,000 already had been raised." As Mr. Fels has agreed to duplicate the contributions, dollar for dollar, he will give another $100,000, making a total of at least $200,000 available for the Initia- tive-Referendum-Single-Tax campaign of 1912. THE STANDARD AMERICAN AUTHORITY. "The Referendum in America" is the stan- dard work on the subject. Its author is Prof. Ellis Paxson Oberholtzer, of the University of Pennsylvania. After giving an exhaustive his- tory of Direct Legislation in America, and critic- 58 INITIATIVE AND REFERENDUM. ally examining its operations and effects, lie comes to this conclusion (Edition of 1900) : " * * * Though the evils of the representative system are admittedly great the fact must be kept in mind that direct legislation by the people is also attended by abuses of a very serious kind. So far as our experi- ence has already gone in the United States a number of glaring defects have been exhibited by the people in their role as law-makers. The most impressive of these is their strange apathy even in the face of great is- sues. They as a mass have so little interest in legislative subjects that only a small percentage will attend the polls for special elections and at general elections when individual candidates are to be chosen, though the propositions be printed on the same ballots with the names of the candidates, a large proportion of the voters will not put themselves to the slight trouble of placing a pencil mark under the word "yes" or "no." The conclusion is unavoidable that the people considered as a body do not know anything, nor do they care anything about the merits or demerits of a particular law. They may know little in the opinion of most of us about the respective merits of candi- INITIATIVE AND REFERENDUM. 59 dates for representative offices. For one reason or another, the people still have enough interest in this subject to record their preferences. It is true that the largest possible vote is never polled for candidates, but, speaking roughly, twice as many electors vote for individuals as vote for measures. Furthermore, very strange popular idiosyncrasies are developed at elec- tions on propositions. When several are submitted at the same time all are likely to be defeated, or else all adopted. There seems to be little capacity for discrimination. Again very radical measures and many in- deed of dangerous tendencies are not always rejected by the people, or if they are there are not a few cases in which this result seems to have been brought about by accident rather than by serious moral purpose. It is easy to see on a most cursory exami- nation that under such circumstances the people are very far from being an ideal body of law-makers. " There has been issued a new and revised edition of "The Referendum in America, " by Dr. Oberholtzer, dated August, 1911. In the preface to this edition, the author makes a dig- nified protest against his work being ' ' quoted as favorable to a system of direct government in 60 INITIATIVE AND REFEKENDUM. America." In supplementary chapters covering the years from 1900 to 1911 he makes himself clear that he is decidedly opposed to the new- fangled Initiative, Referendum and Recall, as the following excerpts will show : He speaks of the movement in Oregon as a " current of folly/' a checking of which, he notes, is indicated by the vote on the 32 propositions in 1910. In introducing his statement of the Re- call he says : "To complete the work of destruc- tion which the direct government agitators have in hand, nothing was needed but the right to organize a party to turn duly designated officials out of place and to set up others in their stead. * * * If the legislature is to go, then, why not the Governor and the courts also?" "In Oregon," he says, further on, "where all is fluid and the perfectionists are at work endeavoring to make themselves the citizens of a new Arcadia, the use of the recall is becoming frequent." Again referring to Oregon, Prof. Oberholtzer directs attention to the fact that "any charlatan, if he can obtain enough signers to his petition, can bring forward a plan for changing the Con- stitution. * * * The tinker is always busy, and the fruit of his activity is a deranged body of provisions a confused, inconsistent code which bears no relation, except in the extremes of its INITIATIVE AND REFERENDUM. 61 variance, to the Constitution of a more estima- ble period in American history." In South Dakota according to the statement of the Governor of that State ten cents a name are paid to signers to a Referendum Petition, but it seems, that "in Portland (Ore.) there is an organization which contracts to provide sig- natures to initiative and referendum petitions at regular published rates three to five cents per name." Minority Rule under the Initiative and Referendum is thus stated by Prof. Oberholtzer : "The defence is properly set up for a representative form of govern- ment with a division of powers, that it protects the rights of minorities. The majority of the people may not directly attack the interests of the minority. Yet in the use of the in- itiative, the referendum and the recall what is seen ? The minority often ab- solutely controls the majority. In- deed it seems to be assumed that this is their right." As to the effect of the Initiative and Refer- endum and the Recall on public officers, and the Legislature, as contrasted with the results of our Representative system, he says : 62 INITIATIVE AND REFERENDUM. "Men like Washington and Lin- coln, Daniel Webster, Henry Clay and John C. Calhoun, were not the products of any political system in which bodies of mediocre men with hobbies robbed the legislature of its dignity and authority, and subjected executive, legislative and judicial of- ficers to the fear of recall when they pursued a course distasteful to some fraction of the electorate. Only timid, shambling, ineffective men can come out of a system which strips public office of character and author- ity and makes it directly subservient to popular whim." And the concluding sentences of this new edi- tion of the "Referendum in America " are a com- bined condemnation and prophecy: "It (direct legislation) is in con- flict with the spirit and traditions of our political system, as will soon be perceived by growing numbers of men. While the people are subject to sudden impulse and at times commit the most serious mistakes they have seldom erred through years in the long run on the question of great fundamental principles. When they come to understand the purposes of these * reforms', and can see beyond the present to the end, it is safe to INITIATIVE AND REFERENDUM. 63 predict that there will be a read- justment of opinion as radical as the movement by which our standards have been so ruthlessly deranged/' HON. JAMES BRYCE ON DIRECT LEGISLATION. Hon. James Bryce, the British Ambassador to the United States, has a very interesting chap- ter in his incomparable work, "The American Commonwealth/' on Direct Legislation. He notes the tendencies of the American people to distrust their Legislatures, and "to seize such chances as occurred of making laws for them- selves in their own way;" and he adds: "Con- currently with the growth of these tendencies there had been a decline in the quality of the State legislature, and of the legislation which they turned out." According to Mr. Bryce, each of these tendencies re-acted upon the other. He proceeds to say : "What are the practical advan- tages of this plan of direct legislation by the people? Its demerits are obvious. Besides those I have al- ready stated, it tends to lower the au- thority 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, 64 INITIATIVE AND REFERENDUM. meet together for discussion, and many of whom have never thought about the matter. These considera- tions 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." - (P. 453, 2nd ed. Am. Com.) Mr. Bryce goes on to say that he regards the Referendum as it then existed " as being rather a bit and bridle than a spur" on the Legis- lature ; and he concludes by saying that the sys- tem, " liable as it doubtless is to abuse, causes in the present condition of the States, fewer evils than it prevents." Because of these conclusions by Mr. Bryce as to the operation of a very qualified form of the Referendum, it is sometimes claimed by reck- less enthusiasts that he has given the authority of his great name in favor of the Initiative and Referendum as now operated, say in Oregon. This claim has no warrant. What Mr. Bryce was referring to was not the new Initiative and Ref- erendum at all, but the historic American system of referring to the people Constitutional Amend- ments and Statutory Acts which had been duly scrutinized, debated and passed with all the tra- INITIATIVE AND REFERENDUM. 65 ditionary safeguards, either by a Convention or a Legislature. He could not have referred to the Initiative in any way. The second edition of the " American Commonwealth," from which the above extracts are taken was pub- lished in 1889. The first State to adopt the Ini- tiative was South Dakota; that was not until 1898, and it only applied to Statute Laws. The first State to apply the Initiative to Constitution- al Amendments was Oregon, and that was not until 1902. In the new edition (1910) of the " American Commonwealth," Mr. Bryce maintains his for- mer cautiousness as to expressing any definite opinion on the subject, but what he does say must be considered adverse. After remarking upon the inconclusiveness of the results of the American experiments, he goes on to say: "Nor does the experience of Switzerland furnish much guidance, so dissimilar are the social conditions and the political habits of the two nations." Of the Referendum, he says that it is "troublesome and costly to take the votes of millions of peo- ple." Speaking of the lack of responsibility and authority on the part of American State Legislatures, he observes, in this last edition: "The Initiative is a supersession of the Legis- lature which tends even more to reduce its au- thority." (P. 479.) He urges that further 66 INITIATIVE AND REFERENDUM. time and tests must be had before judgment can be pronounced as to the working of these new expedients ; and he prints prominently this very significant special Note to the Edition of 1910 on " Recent Tendencies in State Politics," he referring to the disposition of Americans to blame and to be impatient with their Legisla- tures: "Such impatience is not always justified, for the masses sometimes expect from legislation benefits which no legislation can give and blame their representatives when the fault lies not in the latter but in the nature of things. But the people will in try- ing to do themselves the work they desire to have done doubtless come to learn in time how much harder that work is than they had believed, and how much more skill it needs than either they or their legislators have yet acquired." WOODROW WILSON AND THE I. & R.* Prof. Woodrow Wilson, speaking as Presi- dent of Princeton University, at the annual meeting of the Civic League of St. Louis, Mo.> March 9, 1909, said: "You know we have heard a great deal recently about the government of * It is fair to Professor Wilson to say tha.t the newspapers re- port that he has recently changed his opinion, INITIATIVE AND REFERENDUM. 67 the country by the people of the coun- try, and I must say that it seems to me we have been talking a great deal of nonsense. A government can be democratic only in the sense that it is a government restrained, controlled by public opinion. It can never be a government conducted by public opinion. What I mean to say is this : that POPULAR INITIATIVE IS AN INCONCEIVABLE THING! " * * * You say that your legis- latures do not represent you and sometimes, I dare say, they do not, though I think they are generally just as good as you deserve and there- fore, you say, let us directly vote upon the measures which they vote upon. Do you not see that this is simply adding another piece of machinery which, after you cease to be interested in it, is going to be used by the same set of persons for the same objects? If you do not see it, you will see it after you have tried it awhile." (The above speech is reprinted in full in Cong. Record, August 19, 1911.) Prof. Woodrow Wilson has also committed himself unequivocally in writing to condemna- tion of the Initiative and Referendum. In "The State" (Rev. ed,, 1898, pp. 311, 313) and in 68 INITIATIVE AND REFERENDUM. " Constitutional Government in the United States" (pp. 104, 188-191) this learned author- ity said : "The vote upon most measures submitted to the ballot is usually very light ; there is not popular discussion, and the referendum by no means creates that quick interest in affairs which its originators had hoped to see it excite. It has dulled the sense of responsibility among legislators with- out, in fact, quickening the people to the exercise of any real control in affairs. * V * Where it (the Initia- tive) has been employed it has not promised either progress or enlight- enment, leading rather to doubtful experiments and to reactionary dis- plays of prejudice than to really use- ful legislation. * * * A government must have organs; it cannot act in- organically by masses. It must have a law-making body; it can no more make laws through its voters than it can make law through its news- papers. ' ' ( Quoted in the 1911 edition of Oberholtzer's "Referendum in America.") JWO GREAT FALLACIES. There are two great fallacies underlying the theory of the Initiative and Referendum: (1) That a community which, through in- INITIATIVE AND REFERENDUM. 69 difference, incompetency, or corruption, fails to elect honest and capable Legislative Representa- tives, will wisely perform the infinitely more complex and delicate function of passing Laws directly. (2) That the necessity for Laws being skill- fully drawn, carefully scrutinized, and thorough- ly debated, considered and formulated, before being presented for passage, can be ignored. From these fallacies follow the inevitable evils which condemn the system as being un- sound and even vicious, both logically and as the results of actual experience. Switzerland's Experience. "CIRCUMSTANCES ALTER CASES." Another fallacy of the advocates of Direct Legislation is the assumption that what might suit one community under certain conditions and surrounded by certain environments, would necessarily suit all other communities. "Sam Slick's" Old Judge never gave utterance to a more profound dictum than that "circum- stances alter cases." But the Initiative-Refer- endumites ignore this universal judicial and political experience. They say: The Initiative and Referendum is a success in Switzerland; atlhough (speaking in a merely incidental man- ner), it is not therefore it would be a success in America. That does not necessarily follow. But- In the first place, the alleged success of the Initiative and Referendum in Switzerland is a very open question at the best. In the past, the simple Referendum, under conditions which then existed, and in the absence of any historic train- ing in the Representative system as we under- stand it in America, has undoubtedly served a satisfactory purpose in securing a popular demo- 70 INITIATIVE AND REFERENDUM. 71 cratic government. But social and economic conditions are now changing in Switzerland, as elsewhere, and it is now being found that the Referendum is no longer as beneficially effective as it was when the simple-minded graziers and small peasant proprietors held the government of the Republic in the hollow of their hands. As to the Initiative nothing good can be said of it. The experience with the Federal Initiative during the score of years it has been in operation has not only been disappointing and unsatisfactory, but it has caused grave fears in the minds of some of the most enlightened and patriotic statesmen of Switzerland that it may cause the destruction of the Republic as a well-governed and orderly democracy. But even though the Initiative and Refer- endum were a success in Switzerland, which it is not that would not be proof that it is adapted to America, with its entirely different history and traditions, its different geograph- ical, social, economic, commercial and political conditions, and also its very different system of government, notwithstanding the fact that both countries are Republics. PROF. OBERHOLTZER'S WARNING. In concluding his masterly work, "The Referendum in America," Prof. Oberholtzer 72 INITIATIVE AND REFERENDUM. utters this warning against looking to Switzer- land or any other foreign country for political experiments, instead of to our own history and experience, and he is speaking with special reference to the Initiative and Referendum: * * * j^ until we are convinced that the evils which have developed in our political life, and which are putting the virtue of our civil insti- tutions to so sore a test, are induced by the system rather than by the in- herent shortcomings of men in democ- racies, should we be willing to turn from the course which history and ex- perience have marked out for us. To inject into our heritage to-day, prin- ciples and political forms which trace another lineage, would result no more happily than the French effort at the end of the eighteenth century to dis- card history, and lay the foundations of the future on strange lines. Every empirical sentiment, and all the teachings of modern science, combine to bring home to reasoning men this one great fact which will live as long as the world lasts and human govern- ment endures." WHY SWITZERLAND ADOPTED THE I. & R. Prof. A. Lawrence Lowell, President of Harvard University, is recognized in Europe as INITIATIVE AND REFERENDUM. 73 in this country as one of the leading and most trustworthy of American authorities on for- eign governments and political parties. In his "Governments and Parties in Continental Europe " he explains how the Initiative and Referendum became fixed in the governmental system of Switzerland. He says it was because of the lack of a native representative system. It is curious that in Switzerland, almost alone among the countries north of the Alps, repre- sentative government did not rise spontaneously. The delegates to the Diet of the Old Confedera- tion were not representatives, but were like ambassadors, and they could not finally decide questions, but had to report to their States. The delegates were commissioned simply to hear propositions, and to take them "ad referendum," that is, they had to refer them to their Cantonal authorities, and report the opinion of the latter on the matter to the next session of the Diet, unless the Canton instructed its deputies to take it again "ad referendum." The modern form is different, but Prof. Lowell says that the real foundation of the belief in the right of the people to take a direct part in legislation, lay in the defective condition of the representa- tive system. Nor is this surprising. Up to the end of the last century the Swiss had no experi- ence of representative government. The result 74 INITIATIVE AND REFERENDUM. was that when representative institutions were copied from other countries after the French Revolution, the Swiss were not accustomed to them, and met with two difficulties. In the first place, they did not know how to provide the necessary checks and balances, and they set up single chambers with absolute powers; and, in the second place, they had not learned to make those chambers reflect public opinion. PROF. LOWELL'S ADVERSE OPINION. While Prof. Lowell gives a guarded approval of the Referendum under Swiss conditions, he emphatically condemns the Initiative even in that country. He says: "The Initiative has not been established in the Confederation a sufficient length of time to test its real impor- tance, but it has not been found effective even for ordinary laws, in the Cantons where it has long existed. * * * It is certain that the new Federal Initiative in its actual form has been the cause of great anxiety." After a most exhaustive study and examina- tion, Prof. Lowell comes to the conclusion that the Initiative in practice "has not proved of value. * * * The conception is bold, but it is not likely to be of any great use to mankind; if in- deed, it does not prove to be merely a happy hunting-ground for extremists and fanatics." AND REFERENDUM. 75 As to the use of the Referendum and Initia- tive in America, Prof. Lowell says that the Referendum applied to ordinary statutes is in- consistent with our polity, and could not be en- grafted without altering its very nature. "The Referendum in America would impose on the voters a far more difficult task than it does in Switzerland. * * * The Initiative has not been a success even in Switzerland, and there is no rea- son to suppose it would work better elsewhere/' HOW SWITZERLAND DIFFERS FROM THE U. S. On April 14, 1911, the American Minister to Switzerland, Hon. Lauritz S. Swenson, wrote a most informative letter to the Hon. James A. Tawney, of Minnesota, descriptive of the condi- tions in Switzerland, and explanatory o f the workings of the Initiative and Referendum in that country. (Republished in the Cong. Rec- ord, Aug. 19, 1911.) He thus shows the great difference between the Swiss and the American systems of government: "It is important to bear in mind that the national legislature elects the Federal Executive (the President) as well as the Federal judiciary, and that no veto power can be exercised by the Executive, nor can any judic- ial power question the constitution- 76 INITIATIVE AND REFERENDUM of its statutes. The Executive, not being elected by the people, can- not as their direct representative be expected to counterbalance the power of the legislature, which elects him. Only by means of the referendum, or ' people's veto, 7 can a negative be in- terposed. This is the situation also in the Cantons." " Conditions in Switzerland differ widely from ours socially, commer- cially, industrially, politically, and geographically. Here is an estab- lished society extending back over hundreds of years. Institutions are more stable, and the people are more conservative and cautious by training and tradition. The population is largely composed of rural freehold- ers, and there is not a continuous in- flux of immigrants of all kinds who in short order become voters. Natur- alization is not easily acquired in Switzerland. To become a citizen of the Confederation a foreigner must be admitted to citizenship ip the com- mune and the Canton. The com- munes possess property, the proceeds from which are distributed in some way or other among its citizens. An applicant for the privilege of becom- ing a i burger 7 must accordingly pay for it in most cases quite a respect- able amount. He then feels that he INITIATIVE AND REFERENDUM. 77 has a property interest in the com- munity, and will naturally help to safe-guard it against any radical in- terference. * * * Political questions are less complex, and the voters have closer personal knowledge of the con- ditions under discussion, owing to the smallness of the country. The voters are, as a rule, more conservative than their legislators. " Switzerland has a government for a simple people and a small coun- try. The population of Switzerland is ca. 3,800,000. Its area is about 16,000 square miles; that of Minne- sota ca. 83,000 square miles." MINISTER SWENSON POINTS OUT DRAWBACKS. Minister Swenson points out the serious drawbacks to the Initiative and Referendum in 4 the most democratic country in Europe " and the one country in the world where it ought to be a success if it could be anywhere. He goes on to say : " Notwithstanding the apparently favorable conditions under which the Swiss initiative and referendum have operated, the practical workings of the system have brought out many drawbacks. "It is said to be the weapon in the hands of the minority to keep up a 78 INITIATIVE AND REFERENDUM. constant political agitation; and ow- ing to the large abstention from vot- ing, it is not the people, but a relative- ly small part of the electoral body that rejects or enacts a law. A ma- jority of the legislature, representing a majority of the electors, may pass a law, and a minority of the voters may, on a referendum, defeat the expressed will of the majority. And the people will time and again reelect the law- makers whose measures they have thus rejected and repeat the per- formance of setting their work aside by a decided minority vote. In some communes it has happened that only 19, 14, and as low as 10 per cent of the voters have participated in a referen- dum election. * * * * * * jf. i s nr g e( i against the sys- tem under discussion that it is an ap- peal from calm deliberation to preju- dice, and spasmodic, artificial senti- ment. Also that the people have not the facilities, leisure, or will to study legislation as a legislative body of competent persons does. Then, too, it lessens the sense of responsibility on the part of the legislator." COMPULSORY VOTING IN SWITZERLAND. As everywhere else, the Initiative and Refer- endum means in Switzerland the Rule of the INITIATIVE AND REFERENDUM. 79 Minority. It has been suggested in America that to make the people vote on propositions, voting should be made compulsory. This has been tried in Switzerland, but it has not been successful: from 20 to 30 per cent of the voters cast blank ballots. The following is from an official report to the State Department from the American Vice-Consul at Berne (Switzerland), Leo. J. Frankenthal, in 1908, and presented to the Senate by Mr. La Follette, and printed as Sen. Doc. 126, 61st Cong., 1st Sess. : " Voting is obligatory on Cantonal matters in the Cantons Zurich, Schaffhausen, St. Gallen, Aargan, and Thurgau. These Cantons show average votes of from 70 to 80 per cent; but the obligatory measure is not rigorously enforced. Small fines are imposed upon people failing to vote unless an adequate excuse is made. This includes illness in the family, mourning for a relative, ab- sence, birth in the family, etc. St. Gallen goes further than its neighbors and excuses the parent and god-par- ent from the duty of voting if their presence is necessary at a Christen- ing. * * * There is considerable objec- tion in many parts of Switzerland to obligatory voting. * * * You may force a voter to the polling place, 80 INITIATIVE AND EEFERENDUM. but you cannot prevent him from casting ! a blank or a mutilated ballot. This refers, naturally, to referendum measures and not to the election of persons. Let us refer to the statistics of the Canton of Zurich, which is the most populous of those in which ob- ligatory voting is in force. Of recent laws voted upon in this Canton in the last few years the following figures are taken at random: 1906, law con- cerning a change in certain communal boundaries, 10,744 blank or mutilated ballots out of 59,538 ; law concerning the right of voting, number of inhab- itants in electoral districts, etc., 11,380 blank or mutilated ballots out of 75,- 504; law concerning protection of game, 5,374 blank or mutilated bal- lots out of 71,933. . . . There is no question but what the Swiss in general are fatigued by the frequency with which they are called to vote." \ E. V. Raynolds, in an article in the "Yale Review," November, 1895, on "Referendum and Other Forms of Direct Democracy in Swit- zerland," says: "Many cantons declare voting a , duty, and some back up the declara- tion by fining those who fail in this duty. In Zurich this is regulated by the Oornmunes, so that some of the INITIATIVE AND REFERENDUM. 81 citizens are free to remain away from the polls, while others abstain at their peril. One result of the compulsory law is seen in the large proportion of blank ballots cast. In Zurich it is often the case that more than twenty per cent., and sometimes more than thirty per cent., of the ballots are blank. " The truth is that the Swiss people are weary of their many elections under the Initiative and Referendum. There is a saying in Switzerland that the polling-booths are open as often as the churches. Were it not f o^ the smallness of the country and the peculiar social and economic conditions, demoralization or the dry-rot would result from the Direct system of government. The London " Spectator, " of August 25, 1894, in an article on " Swiss Referendum and the People's Will," said: " Weighed by its results, the 'right of initiative' has still to justify its ex- istence. True, it enables fifty thou- sand well meaning voters to propose a new law for the consideration of their fellow-citizens; it also enables fad- dists and fanatics who by hook or crook can collect the neediul signa- tures, to advertise their schemes and theories at the public expense. . . . 82 INITIATIVE AND REFERENDUM. Moreover, the multiplication of elec- tions and dotations' is a serious evil. * * * The oftener people are re- quired to vote the less disposed they seem to profit by the privilege." Compulsory voting failing to bring out the people, a new scheme is being tried. M. W. Hazeltine, in an article in the "North American Review", May 17, 1907, says: "In two of the cantons an effort has been made to bring about serious discussion by providing that, when citizens meet at the polls, a debate shall take place before the voting be- gins. It is noticed, however, that when the presiding officer asks if any one wishes to speak, no one ever re- sponds. In other words, you can bring a horse to the water, but you can't make him drink." * * * j] ven j n ^Q cantons, where it has long existed, and is applicable even to ordinary laws, it has not been found effective. " * * * Certainly it has not yet developed much efficiency in Switzer- land. * * * The conception of the initiative may be bold, but those who have observed the institution longest INITIATIVE AND REFERENDUM. 83 and studied it most carefully pro- nounce it unlikely to be of any great use to mankind. " WHAT A BELGIAN ECONOMIST SAYS. Twenty years ago the Belgian Chamber (Parliament) considered the advisability of es- tablishing the Swiss Initiative and Referendum, but, after investigation and deliberation, de- clined to adopt it. The most authoritative Bel- gian work on the subject is by Prof. Simon Deploige, who in 1892 published the results of his personal observations of the working of the Referendum in Switzerland. He states it as a fact that it is the Parliamentary Opposition which wants the Referendum in Switzerland; "the Majority, on the contrary, whatever its political complexion, wishes to be rid of it." He quotes a prominent member of the Swiss Parlia- ment, M. Zemp, as saying: "I should like to see the Referendum completely suppressed, and above all, I want no compulsory Referendum. As to the popular Initiative, I dread it as a sort of legislative dynamite. In a word, the so-called rights of the people seem to me to be nothing more than democratic clap-trap. " In giving this quotation, Prof. Deploige says: "In less picturesque terms, most of the speakers of the majority (of the Swiss Parlia- ment) expressed the same sentiments ; and some 84 INITIATIVE AND REFERENDUM. months after the discussion, M. Numas Droz (Ex-President of the Swiss Republic) re-echoed them in a long article in the " Revue Swisse." And further on the Belgian observer adds: "Droz -is a most inveterate opponent of the popular Initiative. " Summing the matter up, Prof. Deploige says: " It is a little ridiculous to talk of legislation by the people when more than one-half the citizens refuse to exercise their legislative rights. " Commenting on the compulsory vot- ing system, and the consequent great number of blank ballots, M. Deploige says: "The experiment of the demo- crats cannot be said to have met with success. If they wish to avoid com- plete failure, they must do two things, and do them quickly. They must find a better method of direct legislation, and secondly they must confine the Referendum to a small number of votes" (measures). (P. 290.) The final conclusion of M. Deploige as to the Swiss Referendum is that "its method is defect- ive and its results questionable." As to the Initiative, M. Deploige quotes a Swiss statesman, M. Borgeaud: "The evil is that in this case a law proceeds from powers that INITIATIVE AND REFEKENDTJM. 85 are anonymous and irresponsible. * * * This law may be drawn up behind closed doors, or around the council board of some committee, who are then of as much importance as the regu- lar government." M. Droz gives exactly the same objection to the Initiative. Hon. Arthur Sherburne Hardy, ex-Minister of the United States to Switzerland, says, that "the experience of Switzerland cannot be made the argument for the adoption of the Refer- endum or Initiative in the United States is generally admitted by Continental students of the system." M. Naville, a Swiss publicist, says that "the large number of abstentions proves that it is not the people, but a relatively small part of the electoral body which accepts or rejects a Law; and that it is ridiculous to suppose that each citizen can form a just and accurate opinion upon the Laws submitted to him." In Switzerland if a measure is rejected it is sometimes initiated again; this is sometimes re- peated by the partisans of the measure ; then the people, becoming tired of resisting, will allow the measure to become a Law by default. One writer says that "the independent and con- scientious voters of Switzerland who have not had time to examine the Laws usually refrain from voting." Yet the far-fetched claim is 86 INITIATIVE AND REFERENDUM. made by the advocates of the Initiative and Referendum that non-voters are to be classed as having acquiesced in the result of the vote. THE INITIATIVE A FAILURE. As to the working of the Initiative in Swit- zerland, we here give the testimony of Prof. W. Oechsli, of Zurich, Switzerland. This evidence is recent, it being taken from an article in the "Quarterly Review" (London), April, 1911. Prof. Oechsli confines his study to his own coun- try, with its unique social, economic and polit- ical institutions, and he frankly speaks well of the Referendum as an instrument of popular government there. But he stoutly opposes the Initiative even for Switzerland. He says: "If our judgment of the Referen- dum is, on the whole, distinctly in its favor, practical experience of the pop- ular Initiative, which is usually, though wrongly, coupled with it, points to a different conclusion. The Referendum is a right enjoyed by the whole people ; the Initiative is a right of individuals or minorities. And it goes beyond mere liberty, for it en- ables a minority to put compulsion on a whole people, forcing it to occupy itself with proposals for which it has given no mandate. It is in the nature INITIATIVE AND REFERENDUM. 87 of things that the Initiative is chiefly used by persons who are either con- sumed by a passion for reforming the world or consider themselves inade- quately represented by the Govern- ment." Prof. Oechsli gives a number of Initiative measures, and he says that "most of the pro- posals thus submitted to the popular vote were of questionable utility." And he concludes with this emphatic indictment of the Initiative: "These meagre results of twenty years of Initiative were surely not worth the constant disturbance in which the would-be benefactors of both parties have kept the country. The really dangerous proposals have failed. But the fact that an institution has not as yet been able to do much damage is no reason for praising it. It has been rightly said that the Ref- erendum signifies democracy, the Ini- tiative demagogy. Fortunately, the Initiative finds its corrective in the Referendum, the individual will of groups in the common will of the peo- ple. If Switzerland is threatened by internal dangers, they will not come from the Referendum, but rather from the extravagant right of com- pulsion which the Initiative confers 88 INITIATIVE AND REFERENDUM. on the extremest minorities as against the majority of the nation." EX-PRESIDENT DROZ CONDEMNS THE INITIATIVE. Probably the best-known public man of Switzerland is M. Numa Droz, ex-President of the Republic, and for twenty years a member of the Federal Council, the highest branch in the Swiss system of government. M. Droz is often quoted in favor of the Referendum; but those favorable views appear to have been consider- ably modified, and he has grave doubts as to the applicability of the Swiss system to countries under different conditions. As to the Initiative, he utterly condemns it. In the " Contemporary Review" (London), of November, 1895, M. Droz said: "It is now generally agreed that the popular initiative might at any time place the country in very consid- erable danger. From the moment that the regular representatives of the people have no more to say in the matter than an irresponsible commit- tee drawing up articles in a bar par- lor, it is clear that the limits of sound democracy have been passed and that the reign of demagogy has begun. The shaping of a wise constitution must always be a matter of weighing and balancing. It cannot be permit- INITIATIVE AND BEFERENDTJM. 89 ted that the gravest decisions should be the work of impulse or surprise. The generally adopted system of two chambers and of two or three read- ings for every bill, is a recognition of this fact. It cannot be denied that the Swiss people have shown a want of wisdom in adopting a system of ini- tiative which places all our institu- tions at the mercy of any daring at- tempt instigated by the demagogue, and favored by precisely such circum- stances as should rather incline us to take time for reflection." The Muddle in Oregon. A WARNING TO OTHER STATES. Of course the Referendum as applied to Constitutions and certain Legislative Acts is a very old system in America ; but Oregon has the doubtful distinction of being the first State to provide for the amendment of its Constitution through the Initiative. That was in 1902. Eight per cent of the voters can propose not only a Law but a Constitutional Amendment, and 5 per cent can demand a Referendum. In eight t years the small clique of Single Taxers in com- bination with the Socialists and other bands of extremists and faddists, have succeeded in tying the Constitution of Oregon into a knot, neces- sitating the use of a judicial but autocratic knife to cut it. In other words, the Supreme Court itself has, it is claimed, been compelled to practically legislate, and to render dicta which are logically at variance with the doctrine of the " sovereignty of the people," so as to bring order out of chaos. The combined vote yea and nay on the proposition to incorporate the Initiative and 90 INITIATIVE AND EEFEKENDUM. 91 Referendum into the Constitution was only 67.692 72 per cent of the total vote of the State. Owing to agitation on the Woman's Suffrage question and there were organiza- tions opposed to as well as in favor of female votes and as to the liquor traffic, the vote was then and generally has been larger in Oregon on Initiative and Referendum propositions than in other States; but there are now indications that the people of Oregon are tiring of their political toy, and the tendency is to cast a smaller vote. It is sometimes said that the people would rarely use the Initiative and Referendum. That all depends. In a State like South Dakota that might be true ; in a State like Oregon, which is the paradise of organized cranks, intent on en- forcing their crude minority ideas on an unap- preciative majority, the experience is the other way. Oregon "went the whole hog" on the In- itiative and Referendum in 1902; in 1904 only two propositions were submitted under it; in 1906 there were 11; in 1908 there were 19; in 1910 there were 32, besides 131 candidates for the unfortunate people of Oregon to vote for! It took a booklet of 202 pages, not counting the index to officially set forth the 32 propo- sitions. It is said that some of the voters of Oregon have become so expert that they voted 92 INITIATIVE AND REFEKENDUM. ^ on all the 32 propositions and the 131 candidates in exactly 2 1-2 minutes, by the watch ! SINGLE TAXERS BACK OF IT. The Single Taxers, led by that remarkable enthusiast, Mr. W. S. U'Ren, were the original promoters and are now the mainstay of the In- itiative and Referendum in Oregon. The story of how Mr. U'Ren got the Initiative and Refer- endum engrafted onto the Constitution of Oregon has been often told by magazine writers. Fol- lowing is his own account, taken from the official Report of the Single Tax Conference, held at New York, November 19-20, 1910, under the auspices of the Joseph Fels Commission, pages 21 and 22 : "Mr. W. S. U'Ren told of his ex- perience as a Single Tax propagan- dist before he learned that mere prop- aganda is not the line of least resist- ance. 'I read "Progess and Pover- ty" in 1882,' he said, 'and I went just as crazy over the Single Tax idea as any one else ever did. I knew I want- ed the Single Tax, and that was about all I did know. I thought I could get it by agitation, and was often dis- gusted with a world that refused to be agitated for what I wanted. In 1882 (sic) I learned what the Initiative and Referendum is, and then I saw INITIATIVE AND REFERENDUM. 93 the way to the Single Tax. SO I QUIT TALKING SINGLE TAX, not because I was any the less in favor of it but because I saw that the first job was to get the Initiative and Ref- erendum, so that the people, indepen- dently of the Legislature, may get what they want rather than take what the Legislature will let them have. We have laid the foundation in Ore- gon, and our Legislature can not draw a dead line against the people. " 'We have cleared the way for a straight Single Tax fight in Oregon. All the work we have done for Direct Legislation has been done with the Single Tax in view, but we have not talked Single Tax because that was not the question before the house.' In another speech at the Conference, Mr. U'Ren said, in explaining the methods adopted in Oregon by the Single Taxers: "We do not make speaking campaigns." In endorsing the work of the Fels Fund Commission for Direct Legislation, Mr. U'Ren "exhibited the Oregon ballot used at the November election (1910), on which were printed the names of more than one hundred candidates and 32 measures, and said that the time taken by the voters in voting on candidates and measures was from 2 1-2 to six minutes." (P. 14.) 94 INITIATIVE AND REFERENDUM. ^ The majority of the people of Oregon are op- 1 posed to the Single Tax. They have shown that by their votes. The first time was in 1908. -Wn order to make the medicine agreeable to the tax- payers, wholesale exemptions were declared for, but the printed official affirmative argument con- fessed that "the proposed Amendment is a step in the direction of the Single Tax." For the Amendment there were cast 32,066 votes, and against it 60,871 almost two to one against it. But the Single Taxers were not discouraged; they knew the potentialities of the Initiative and Referendum in enforcing the will of a deter- mined, persistent, well-organized, and splendidly financed minority, on an unalert, unorganized majority, weary with constant political turmoil, and unwilling to bother about studying and dis- criminating between the numerous propositions submitted 32 in this case, along with 131 can- didates^ What is known as the Amendment for "County Home Rule in Taxation," under which the Single Taxers expect to reach their goal, is the proposition on which the Single Taxers of Oregon united, under the adroit work of the Fels Fund Commission. The real object of this Amendment was obscured by dextrous phrase- ology a recourse to which the Initiative and Referendum peculiarly lends itself. This Amendment was so drawn that it appeared as INITIATIVE AND REFERENDUM. 95 if its primary object was to prohibit the imposi- tion of a "poll or head tax." The first sentence read: "No poll or head tax shall be levied or collected in Oregon." As a matter of fact, there was no poll or head tax in the State, that having been abolished by the Legislature in 1907^* At the end of the Amendment were these words: * * *'"But the people of the several counties are hereby empowered and authorized to regu- late taxation and exemptions within their sev- eral counties, subject to any general law which may be hereafter enacted," - of course, through the same old dodge of the Initiative and Refer- endum." 1 ]^ should be observed that there is not a word specifically about the Single Tax. Al- ready one County or rather a small minority of the voters has initiated proceedings for the Single Tax under it ; but here comes in one of the beautiful features of the Direct Legis- lation system : The Secretary of State of Oregon has felt it to be his sworn duty to refuse to file the Initiative petition on the ground that owing to legal defects the Amendment is not self- executing. The petitioners have brought man- damus proceedings to require this Initiative proposition to be placed on the ballot at the State election of 1912. This radical change in the taxing system of the State was fastened upon Oregon by a vote of 44,171 for, to 42,127 96 INITIATIVE AND REFERENDUM. against the majority being only 2,044. The total vote for and against was 72 per cent of the total vote of the State, and the affirmative vote was only 37 1-2 per cent of the vote cast for Governor at that election. STATE UNIVERSITY JEOPARDIZED. I In the last six years there have been three Referendum petitions filed against appropria- tions by the Legislature of Oregon for the State University. The first two petitions were de- feated by a small majority at the election, but in each case the appropriations were held up for more than a year and a half, and the University would have been compelled to close its doors had not the professors agreed for the last six months preceding each of the elections to work without salary unless and until the appropria- tions became available. The amounts appropri- ated for the University were not large, in the first instance only $62,500 a year for two years, and in the second case $125,000 a year for two years. At the time of writing this booklet, legal proceedings are pending contesting the validity of the third Referendum petition against the legislative appropriation. This petition was in- stituted by citizens of rival towns to that in which the institution is placed. These people are said to have employed a professional agitator INITIATIVE AND REFERENDUM. 97 and circulator of Initiative and Referendum petitions at a price per name! The legal pro- ceedings referred to are an equity suit, and a large amount of evidence lias been taken by tlie court. It is asserted that it has been disclosed that there have been comparatively but few genuine signatures on the Referendum petitions ; that it has been shown that the circulators of the petitions filled in several thousand names in their own handwriting, in some cases taking the names from old directories, and even signing the names of people who had been dead for sev- eral years ! CRUDE AND CONFLICTING LAWS. That legislation under the Initiative and Referendum will be crude and conflicting is not only obvious on its face, but is the demonstration of experience. One measure had to be rejected by the Oregon authorities because of the absence of an enacting clause and the same difficulty is cropping out in other propositions. Two ab- solutely conflicting Laws were passed under the Initiative and Referendum at the same time in regard to catching salmon in the Columbia One of these Laws prohibited catching fish wheels, and the other by nets. One way was the custom in one part of the River, and the other way in a different part, and the followers of each 98 INITIATIVE AND REFERENDUM. desired to have a monopoly of the business. The result was that the entire important industry of salmon fishing on the Columbia was prohibited. Fortunately, the despised Legislature came to the rescue. CONSTITUTIONAL MUDDLE. It is impossible in the space available to even enumerate the instances and phases of the seri- ous Constitutional entanglements caused by the Initiative and Referendum in Oregon, both as regards Statutory Law and as to the Constitu- tion itself. In 1910 an Amendment was adopted by a vote of only 69 per cent of the total vote of the State and by only 5,139 majority of the votes cast on the proposition making certain changes in the judicial system and in the pro- cedure of the Supreme Court./Such a high legal authority as Mr. Frederick V. Holman, of Port- land (ex-President of the State Bar Association and a Regent of the State University), claims that this Amendment was so crudely drawn that there is a serious question whether trial by iury ' 'has not been abolished in Oregon by it. A only so, but the Supreme Court has been given power to determine what verdict shall be given in a criminal trial ; under the same section there is also a provision in effect that no judg- ment, however unjust, can be re-examined by any INITIATIVE AND REFERENDUM. 99 court ; and the same amendment also allows the Supreme Court to find a defendant guilty of an offense for which he had not been indicted ! This muddling Amendment was placed in the Consti- tution of Oregon by less than 38 per cent of the total number of men who voted the same day for Governor. The Supreme Court of Oregon has expe- rienced some difficulty in construing Initiative Amendments, and it has found it necessary to practically amend some of these Amendments by its decisions, by supplying omissions and by in- terpolating provisions not contained in the Amendments themselves! Mr. Frank Foxcroft, in an article " Consti- tution Mending and the Initiative/' in the " At- lantic Monthly", June, 1906, cites the case of Kadderly vs. Portland (44th vol. Oregon Re- ports.) The Supreme Court of Oregon said in that case: * * First, that laws pro- posed and enacted by the people un- der the initiative clause of the amend- ment 'are subject to the same consti- tutional limitations as other statutes, and may be amended or repealed by the Legislature at will'; and, second, that the provision in the amendment to the effect that 'the veto power of the governor shall not extend to 100 INITIATIVE AND REFEBENDTJM. measures referred to the people' must necessarily 'be confined to the measures which the legislature may refer, and cannot apply to acts upon which the referendum may be invok- ed by petition.' " The Court went on to say : "Unless the governor has the right to veto any act submitted to him, except such as the legislature may specially refer to the people, 'one of the safeguards against hasty or ill-advised legislation which is everywhere regarded as essential is removed.' " After citing a number of unsatisfactory re- sults under the Initiative Amendments of the Oregon Constitution, Mr. Frederick V. Holman said, in his speech as the President of the Ore- gon Bar Association, November 15, 1910: * * * T]ie cru( uty of these popular amendments of the Constitu- tion and other enactments have been such that they have been amended by the Courts practically legislating amendments by decisions to make these enactments workable. For- tunately, perhaps, these initiative amendments of the Constitution do INITIATIVE AND REFERENDUM. 101 not provide against their amendment by judicial decisions." "* * * Having no established precedents in these innovations by the initiative and referendum powers in the Constitution, it is difficult to make them workable. It is somewhat like navigating a ship in the open sea without chart, compass or chronome- ter." In the case of Straw v. Harris, 54 Oregon, 424, decided August 24, 1909, one of the main points decided was -- That under the initiative and referendum amendments of the Constitution there are two separate and distinct law-making bodies, each equal, viz. : The Legislature and the people. The Court said: "By the adoption of the initiative and referendum into our Constitu- tion, the legislative department of the State is divided into two separate and distinct law-making bodies. There remains, however, as formerly, but one legislative department of the State. * * * The powers thus re- served to the people merely took from the Legislature the exclusive right to enact laws, at the same time, leaving it a co-ordinate legislative body with them. 102 INITIATIVE AND REFERENDUM. "* * * Subject to the excep- tions enumerated in the Constitution, as amended, either branch of the leg- islative department, whether the peo- ple, or their representatives, may enact any law, and may even repeal any act passed by the other." With irresistible logic Mr. Holman argues that the situation in Oregon under the Initiative and Referendum Constitution as the Supreme Court has felt compelled to construe it, is a dan- gerous one. He points out that the Legislature can repeal an Initiative Law, and vice versa; and that the Legislature might pass one law and the people under the Initiative and Refer- endum might pass another directly in conflict; and he enquires : What would be the result? - for the Supreme Court has decided that each is equal as a law-making power. "It would be like the celebrated case of an irresistible force meet- ing an immovable body. Will not the Legisla- ture become as useless as a vermiform append- age is to a human being? It may have some functions, but it is apparently a menace. Would it not be well to cut it out before it becomes dangerous?" In a masterly speech against the Initiative and Referendum delivered in the Ohio House INITIATIVE AND REFERENDUM. 103 of Representatives b}^ the Hon. Carl P. Shuler, March 19, 1908, that gentleman said: "Some time ago I wrote to the mayors of ten towns in Oregon, and I received answers from six. Of the six, only one spoke in favor of the scheme, the other five being unfavor- able. Some were less severe in their denunciation, but all believed that it is not accomplishing what was ex- pected of it ; that it is not so popular as it was; and that it is impossible for all the people to vote intelligently on all the questions to be submitted." Originally the Portland "Oregonian," - which is one of the leading papers on the Pacific Coast was in favor of the Initiative and Ref- erendum ; but after observing its operations for several years it has come out in opposition. It declares that the system has "the effect prac- tically of abolishing Constitution and laws al- together. * * * The whole of this modern scheme of setting aside Constitution and laws, and of forcing legislation without debate or opportu- nity of amendment turns out badly, because it gives the cranks of the country an opportunity which they have not self-restraint enough to forego. It was not intended that representative 104 INITIATIVE AND REFERENDUM. government should be abolished by the new sys- tem ; but it has been abolished by it. The situa- tion is the crank's paradise/' Prof. Oberholtzer does not hesitate to say in the new edition of his work that the real in- tention of the " inventors" of the Oregon plan of the Initiative, Referendum and the Recall, is the establishment of Socialism. South Dakota. THE ORIGINAL INITIATIVE STATE. While Oregon was the first State to make the Initiative applicable to Constitutional Amend- ments, South Dakota was the first State to give its citizens the power to initiate Laws. This was done in 1898, and, as Prof. Oberholtzer observes ("The Referendum in America") this change was "one of the most important that has ever been made in the American system of govern- ment. ' ' In South Dakota the people may initiate Laws for submission to popular vote upon the petition of five per cent of the "qualified electors of the State," and they may require a vote upon a Legislative Act upon the application of the same number of electors. Like most of the other claims in favor of the Initiative and Referendum, the assertion that it INITIATIVE AND REFERENDUM. 105 has proved satisfactory in South Dakota is to be received with a i ' big bag of salt. ' ' But even were it true, it would only illustrate what ex-Presi- dent Roosevelt said in a speech at Phoenix, Arizona, March 20, 1911: "The principles of the Initiative and Referendum may or may not be adapted to the needs of a given State under given conditions; I believe they are useful in some communities and not in others." For in- stance : South Dakota is a purely agricultural State, with a very conservative population - naturally so for the reason that a large propor- tion of the people own the land on which they live, and are mainly native American or thrifty Teutonic. The Initiative and Referendum might be fairly successful in South Dakota but might be very harmful in a State like Ohio, or New York, or Illinois, where the conditions are altogether different. WHAT THE GOVERNOR SAYS. But, as a matter of fact, there is reason for grave doubt whether even South Dakota has; done a wise thing in extending the Initiative' and Referendum as far as it has done. In a speech to the citizens of Kansas, October, 1911, Gov. Vessey of South Dakota, uttered these warning words: "If Kansas adopts the Initiative and Referendum you must not expect 106 INITIATIVE AND REFERENDUM. that the millennium will be ushered in. Don't think for a minute that this system is a cure for all evils. It may cure some old evils, but certain I am that it brings on new evils which are very harmful to /the State and its people. In the first place, it helps the scalawag as often as the good citizen, if not oftener. Every time a Law is passed to improve moral conditions, it is ref erended back to the people by the rag-tag element, and eighteen months must elapse before it goes into effect, even if by reason of the delay its opponents are not able to bring about its defeat. Also, it is ex- pensive. An unscrupulous politician in my State who wanted to get a cer- tain bill on the Statute books, started initiative petitions, and by paying ten cents for each signature got enough of them to compel the submis- sion of the measure at an election. He was defeated, but at a cost to the State of $150,000. The Initiative and Eeferendum doesn't work as smooth- i ly as those who believe in it think it will." When Gov. Vessey was elected, in 1910, his name was on a seven-foot ballot, one foot being devoted to the candidates and six feet to Initia- tive and Referendum propositions. A Few Closing Words. What the American people need is not more Laws and a new Constitution so much as a broader and deeper realization of their privi- leges and obligations as citizens of the Republic. The most flagrant crime in America today a crime more harmful than even "graft" is the apathy and indifference of the average voter in regard to his duties as a citizen of the grandest, the freest, and the altogether most glorious coun- try under the sun. What we need is not a mere baptism, but a very flood of Civic Patriotism! More Laws and a new Constitution however much they may be required will not give that. As it is, most Americans are content to let politics be the exclusive vocation of the "poli- ticians." They do not "see anything in it" for themselves, and so they let the bosses and "the interests" run things ; and then they wonder why things go wrong! Conditions are bad enough under the Representative plan; under the Ini- tiative and Referendum, as an established and universal system in the Constitutions of the States, and particularly in the Federal Constitu- 107 108 INITIATIVE AND REFERENDUM. tion, there would be a grave likelihood that the French Commune would be a Sunday-school in comparison. We do not need any more of the Initiative and Referendum. The samples we have had are enough. They have demonstrated that the sys- tem is not only a failure as an effective and satis- 1 factory instrument of Democratic government, but that it is full of vicious possibilities. The' day that the Initiative and Referendum is en- grafted on the Federal Constitution which God forbid will be recorded in history as the begin- ning of the end of the American Republic. But the Initiative and Referendum will in due time be relegated to the limbo of discarded political nostrums ; and the Republic will live ; and it will continue to grow in grandeur and to become more and more splendid as the land of ordered Liberty and true Democracy. Appendix. DANIEL WEBSTER ON "CONSTANT CLAMORERS." In 1833, Daniel Webster, in a speech in the United States Senate, gave utterance to the following outburst against "constant clamorers." The conditions to-day are so similar to those described by Webster as existing seventy- eight years ago, that the speech would be opportune if made at the present session of Congress : "There are persons who constantly clamor. They complain of oppression, speculation and the pernicious influence of accumulated wealth. They cry out loudly against all banks and cor- porations and all the means by which small capitals become united in order to produce im- portant and beneficial results. They carry on a mad hostility against all established institu- tions. They would choke up the fountains of industry and dry all its streams. In a country of unbounded liberty they clamor against op- pression. In a country of perfect equality they would move heaven and earth against privilege and monopoly. In a country where property is more equally divided than anywhere else they rend the air with shouting of agrarian doctrines. In a country where the wages of labor are high beyond all parallel they would teach the laborer that he is but an oppressed slave. Sir, what can such men want? What do they mean? They can want nothing, sir, but to enjoy the fruits of other men's labor. They can mean nothing but disturbance and disorder, the dif- fusion of corrupt principles and the destruction 109 110 INITIATIVE AND REFEKENDUM. of the moral sentiments and moral habits of society. A licentiousness of feeling and of ac- tion is sometimes produced by prosperity itself. Men cannot always resist the temptation to which they are exposed by the very abundance of the bounties of Providence and the very hap- piness of their own condition." AN ANCIENT EXAMPLE. In an article entitled "Representative as Against Direct Government" in the "Atlantic Monthly" (October, 1911) the Hon. Samuel W. McCall says: "Those who advocate the direct action of our great democracy might study with a good deal of profit the history of the little state (Athens) to which I have just been referring. No more brilliant people ever existed than the Athenian people. They had a genius for gov- ernment. The common man was able to 'think imperially.' Their great philosopher, Aristotle, could well speak of the Athenian as a political animal. They achieved a development in litera- ture and art which probably has never since been reached. They could boast of orators and phil- osophers to which those of no other nation can be compared. We marvel when we consider the surviving proofs of their civilization. But when they did away with all restraints upon their direct action in the making and enforcement of laws, in administering justice and in regulating foreign affairs, their greatness was soon brought to an end, and they became the victims of the most odious tyranny to which any people can be subjected, the tyranny that results from their own unrestrained and unbridled action. "It is said that the history of those distant times can present no useful precedent for our own guidance; but in what respect is human INITIATIVE AND REFEKENDUM. Ill nature different to-day? Whatever new stars our telescopes may have discovered, whatever new inventions may have been brought to light, and whatever advances may have been made in scientific knowledge, the mainsprings of human action are substantially the same to-day that they were in the time of the Greeks. We should be rash indeed to assume that we shall succeed where they failed, and that we can disregard their experience with impunity." THE "FATHERS" KNEW THEIR BUSINESS. Discussing the deliberate choice by the framers of the Federal Constitution of the Representative over the Direct system of government, the Hon. Samuel W. McCall says ("Atlantic Monthly," October, 1911) : "The framers of our Constitution were en- deavoring to establish a government which should have sway over a great territory and a population already large and which they knew would rapidly increase. They were about to consummate the most democratic movement that had ever occurred on a grand scale in the history of the world. They well knew from the experiments of the past the inevitable limitations upon direct democratic government, and, being statesmen as well as democrats, they sought to make their government enduring by guarding against the excesses which had so often brought popular governments to destruction. They es- tablished a government which Lincoln called 'of the people, by the people, for the people,' and in order effectively to create it they adopted limitations which would make its continued existence possible. They knew that, if the gov- ernmental energy became too much diluted and dissolved, the evils of anarchy would result, and that there would follow a reaction to the other 112 INITIATIVE AND REFERENDUM. extreme, with the resulting overthrow of popular rights. They saw clearly the line over which they might not pass in pretended devotion to the democratic idea without establishing govern- ment of the demagogue, by the demagogue, and for the demagogue, with the recoil in favor of autocracy sure speedily to follow; for they knew that the men of the race from which they sprang would not long permit themselves to be the victims of misgovernment, and that they would prefer even autocracy to a system under which the great ends of government should not be secured, or should be perverted." "PURE" VS. "REPRESENTATIVE" DEMOCRACY. Prof. Garner, in his work "Introduction to Political Science," thus differentiates between "Pure" and "Repre- sentative" Democracy: "Democracies are of two kinds pure, or direct, and representative, or indirect. A pure democracy is one in which the will of the state is formulated and expressed directly and imme- diately through the people acting in their pri- mary capacity. A representative democracy is one in which the state will is ascertained and expressed through the agency of a small and select number, who act as the representatives of the people. A pure democracy is practicable only in small states, where the voting popula- tion may be assembled for purposes of legisla- tion and where the collective needs of the people are few and simple. In large and complex so- cieties, where the legislative wants of the people are numerous, the very necessities of the situa- tion make government by the whole body of ^ns a physical impossibility," INITIATIVE AND EEFERENDUM. 113 Tucker, in his ''Constitution of the United States" (p. 87), says that the Representative system "is the only practicable way by which a large country can give expres- sion to its will in deliberate legislation." In "Black's Constitutional Law," p. 28, the following distinction is drawn: "The system of government in the United States and in the several states is distinguished from a pure democracy in this respect, that the will of the people is made manifest through representatives chosen by them to administer their affairs and make their laws, and who are intrusted with defined and limited powers in that regard, whereas the idea of a democracy, non- representative in character, implies that the laws are made by the entire people acting in a mass-meeting or at least by universal and direct vote. "Representation is one of the very essentials of a republican form of government." In No. 48 of the "Federalist" (XII "Hamilton's Works," p. 28) Madison refers to a Democracy as * * * "where a multitude of people exercise in person the legislative functions, and are continually eoxpsed, by their incapacity for regular, delib- erate and concerted measures, to =he intrigues of their executive magistrates;" ai-d to a repub- lic "where the executive magistracy is carefully limited both in the extent and in the duration of its power, and where the legislative power is exercised by an assembly * * * ." 114 INITIATIVE AND REFERENDUM. In the debates in the convention held in New York on the adoption of the Constitution, Hamilton said: "It has been observed by an honorable gentleman that a pure democracy, if it were practicable, would be the most perfect govern- ment. Experience has proved that no position in politics is more false than this. The ancient democracies in which the people themselves deliberated never possessed one feature of good government. Their very character was tyranny ; their figure deformity. When they assembled the field of debate presented an ungovernable mob not only incapable of deliberation, but pre- pared for every enormity." John Marshall, in the Virginia Convention, said: "I shall ask the worthy member only, if the people at large, and they alone, ought to make laws and treaties? Has any man this in con- templation? You cannot exercise the powers of government personally yourselves. You must trust to agents. * * * "Can the whole aggregate community act personally? I apprehend that every gentleman will see the impossibility of this. Must they, then, not trust them to others? To whom are they to trust them but to their representatives, who are accountable for their conduct?" "A REPUBLICAN FORM OF GOVERNMENT." The late Chief Justice Fuller, of the U. S. Supreme Court, in delivering the opinion in re Duncan, 139 U. S. 449, stated that: "By the Constitution, a republican form of government is guaranteed to every State in the Union, and the distinguishing feature of that INITIATIVE AND REFERENDUM. 115 form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legisla- tive power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves ; but, while the people are thus the source of political power, their govern- ments, National and "State, have been limited by written constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulses of mere majorities." In his "Thoughts on Government," which he addressed to the Virginians, John Adams said: "There is no good government but what is republican." * * * "The only valuable part of the British Constitution at the time he wrote was, he declared, republican." * * * "In a large society inhabiting an extensive country, it is impossible that the whole should assemble to make laws. The first necessary step then, is to depute power from the many to a few of the most wise and good." "THE GREATEST TRAGEDY OF CHRISTENDOM." On April 19, 1911, the Cincinnati "Enquirer" con- tained the following remarkable editorial: "A pertinent illustration of the dangerous possibilities lying in the establishment and en- forcement of the referendum has been dug out of the pages of the long ago by a prominent Cin- cinnati attorney. Imbued with a modesty by no means in keeping with his attainments, he has plead for anonymity. Commenting upon an editorial which recently appeared in The En- quirer, which discussed at length, and freely, the modern tendencies of legislative ttodies to- 116 INITIATIVE AND REFERENDUM. wards isms of all kinds, and notably those of popular election of United States Senators, the initiative and referendum and the heretical and viciously dangerous recall of Judges idea, the writer invites attention to the twenty-third chapter of St. Luke, the eighteenth chapter of St. John, as well as the co-ordinate chapters in the other of the four Gospels bearing upon the trial and crucifixion of the Nazarene. "The picture of the Galilean before the Roman Governor in the hall of judgment is one familiar to most of the civilized world. Flanked by the panoply and gorgeousness with which Rome surrounded her colonial Governors, and imbued with a sense of justice and a knowledge of the law, the mighty Pilate could find no fault with the humble Teacher who stood before him. But with the same cringing subservience and fear that would control and dominate Judges to- day if they were subject to the recall, he put the matter up to the surging mob that sur- rounded the helpless and inoffensive prisoner. "The referendum accomplished its ghastly purpose with a celerity and avidity that as- tonished even the martial and warlike represen- tative of the Caesars. One of the greatest tragedies of Christendom was the product of one of the earliest employments of the referendum. The Man of Peace had practiced no sedition, was guilty of no felony, but had simply taught a philosophy and gospel not in accordance with the practices and lives of the people among whom He lived. "Human nature changes not. Ochlocracy as established to-day, would demand the same sacrifice of life or principle. Reason and judg- ment are quickly swept to the four winds when passion or greed is inflamed. The fate of the Nazarene would be the fate of men and prin- ciples to-day were the tenets of representative INITIATIVE AND REFEKENDUM. 117 government broken down and discarded. The foundation upon which the fathers built this republic are still stanch and sound. The super- structure erected thereon has brought happiness and prosperity to a great people. Tampering with their splendid legacy will be but to invite unrest, distrust and possible disaster." LEGISLATIVE "CURE-ALLS." In an address delivered before the Chicago Civic Fed- eration, February 4, 1911, Prof. J. Laurence Laughlin, head of the Department of Political Economy of the Univ- "Tsity of Chicago, said: "Is there not an unfortunate passion for trying to cure the ills of society by legislation? That is, we are asked to think it possible by legislation to change the character and nature of man. To change the external envelope of government by which we are surrounded is theoretically taken as a feasible means of chang- ing the nature, desires, and purposes of the in- dividual voter within the limits of a country. You might as well try to change iron into steel by changing the governors of the states contain- ing the iron-mines. Somehow or other we must get down to the causes which affect human na- ture itself; we should spend less time on the scenery of the stage than on the men who are moving on it. This is the fundamental weak- ness of Socialism; that it hopes to recreate the world by changing the social system without changing the qualities of dear old human nature itself. It is the sign of a superficial man to put forward a nostrum sure to cure all the ills of body and soul. We have too many quacks in politics and social reform; we have too many persons proposing infallible remedies for all p'otitical and economic abuses we might call 118 INITIATIVE AND REFERENDUM. them the 'Lydia Pinkhams of the social system/ To many, this might seem to be a sufficient rea- son for hesitancy in opening the door wide for rash legislation by the Initiative and Referen- dum. "No doubt all of us agree with the purposes of those who favor the Initiative and Referen- dum; but we wish in all candor to be sure that the means to carry out these purposes the special laws are sufficient for the desired end. Let me illustrate: The voters of Illinois have sent to Springfield some legislators so lacking in honesty, honor and loyalty to the people that we are a stench in the nostrils of the whole na- tion ; and honest men hang their heads in shame whenever Illinois politics are mentioned. Now every man here would like to wipe out this dis- grace. Can it be done by the Initiative and Referendum? Are we not compelled to answer that it can be done only if we assume that cor- rupt voters can be made honest by legislation? Such a result. I submit, cannot be accomplished by any act of laws ; you might as well try by law to require every man in Illinois to have blue eyes. Water will not rise higher than its source." "UTTERLY AND HOPELESSLY UNDEMOCRATIC." Criticizing the new Initiative Referendum Recall Constitution of Calif omit, and the method of its adoption, the New York "Times" (independent Democratic), of October 18, 1911, said: "This new method of handling the basic law of the State is advocated in the name of democracy. In reality it is utterly and hopeless- ly undemocratic. While pretending to give greater rights to the voters, it deprives them of the opportunity effectively and intelligently to INITIATIVE AND REFERENDUM. 119 use their powers. They receive the right to vote much oftener and on a larger number of mat- ters than before, but the number and variety of the votes they are called on to cast does away with all chance of really using sense and dis- cretion as to all of them. The new method is proposed as a check on the machines. But the strength of the machines lies in the inattention and indifference of the voters, and the voters are sure in the long run to be more inattentive and indifferent in proportion to the number of the questions forced upon them at one time. When the machine managers get familiar with the working of the new method, they will work it for their own ends far more readily than they work the present method. The average voter, muddled and puzzled and tired by the impos- sible task of really understanding and deciding on a mass of matters, will give it up, and then the politicians will get in their fine work. "The remedy for the undoubted evils of machine politics is not in multiplying, confusing, and making more troublesome the duties of the voter, but in simplifying and restricting them and making the discharge of .each of them more effective. So long as we make our political business so difficult that common men cannot, will not, and ought not to give to it the time and labor absolutely needed for success in it, so long there will be professionals to attend to it. It would be as easy to run the business of a big railway by leaving every detail of its managment to a vote of the shareholders as it will be to run the business of a State under the new system. And the results in the latter case will be as a mischievous as those in the former would be sure to be." 120 INITIATIVE AND REFERENDUM. GOV. O'NEAL, OF ALABAMA, ON THE I. & R. The following is taken from the Cincinnati "Enquirer" of December 8, 1911 : "Denouncing the initiative, referendum and recall as 'dangerous innovations offered as a panacea for all our social and political ills' and suggesting that there is already too much law in this country and the greatest service that legis- lators could give the people would be to spend two years in repealing laws instead of creating more, Governor Emmet O'Neal, of Alabama, discussed 'Representative Government' before the members of the Cincinnati Metal Trades Association at the Business Men's Club last night. "The Governor did not mince words in his attack upon the three principles which are now prominently before the people of Ohio. He declared that the wisdom of our forefathers, who made the constitution, was exemplified when they discarded the theories of direct legis- lation or a pure Democracy and established the country upon the basis of representative gov- ernment. Any constitutional provision that weakens or impairs the power and efficiency of either of the three co-ordinate departments of government, he holds, must necessarily weaken and impair the efficiency and harmony of the whole. " 'Unless this political heresy is checked/ he continued, 'the hosts of Socialism, re-enforced by selfish and time-serving politicians and re- cruited by all the elements of discontent, will soon direct their attacks against the Federal Government itself and gradually sap and under- mine the foundations of our free institutions/ " RETURN TO the circulation desk of any University of California Library or to the NORTHERN REGIONAL LIBRARY FACILITY Bldg. 400, Richmond Field Station University of California Richmond, CA 94804-4698 ALL BOOKS MAY BE RECALLED AFTER 7 DAYS 2-month loans may be renewed by calling (510)642-6753 1-year loans may be recharged by bringing books to NRLF Renewals and recharges may be made 4 days prior to due date DUE AS STAMPED BELOW SENT ON ILL OCT 20 2003 U. C. BERKELEY DD20 15M 4-02 B