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 ?d Session \ bJ^NATE ^ ^^ 273 
 
 REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT 
 
 JF 493 
 I .U6 T116 
 Icopy 1 
 
 ADDRESS 
 
 BY 
 
 HON. SAMUEL ^Y. McCALL 
 
 MEMBER OF CONGRESS FROM 
 MASSACHUSETTS 
 
 BEFORE THE OHIO STATE BAR ASSOCIATION 
 
 AT THE ANNUAL MEETING HELD AT 
 
 CEDAR POINT, OHIO, JULY 12, 1911 
 
 
 PRESENTED BY MR. SMITH OF MICHIGAN 
 January 23, 1912. — Ordered to be printed 
 
 WASHINGTON 
 1912 
 
 >!.- iDZ'^ 
 

 
REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 
 
 Mr. McCall said : 
 
 The subject I have chosen to talk about to-day is one peculiarly 
 worthy to engage the attention of a profession which has been 
 •especially identified with that long struggle for a regulated freedom 
 which may be seen in the history of what is called the Anglo-Saxon 
 race. Wliether we consider the heroic battles fought m the law 
 courts of England in favor of human rights and agamst autocracy 
 or the proceedings of constitutional conventions in our own country 
 where those organic laws were framed that were to govern and 
 restrain the governments we estabhshed, the legal profession has 
 held the place of high honor. When it is proposed to do no less than 
 radically to change our uistitutions there can be no more fittmg place 
 to discuss the proposal than before the representative lawyers of a 
 State whose bar has given the country some of the brightest ornaments 
 of its jurisprudence as weU as some of its greatest statesmen, a bar 
 whose' general strength and virility are shown by its fine flowering 
 out in advocates like Corwin and Ewitig and Grosbeck and Hoadley, 
 and in jurists like Chase and Waite and Matthews and Taft 
 
 The proposals to which I am to direct your attention have for 
 their object, or would be likely to have for their result, the changmg 
 of our n*ethod of government from that of a representative to that 
 of a direct government where we shall have the direct action of the 
 people not merely in selecting their agents but in frammg and 
 administering their laws. „ „ „ ■,, " i -^ • 
 
 To most of us these proposals are full of novelty, and it is not too 
 much to say that as a people we have given them no consideration 
 worthy of the name. Have we explored the past to learn whether 
 similar experiments have been tried; and if tried, what has been the 
 effect? Have we reflected upon the obvious limitations upon the 
 utterance by great masses of men of final and definite regulations 
 for the conduct of a complex societv ? Have we considered to what 
 extent the most doubtful results under our present structure of gov- 
 ernment are due to the overzeal of representatives to respond to 
 the transient and noisy and often misleading manifestations of 
 popular opinion, and to their failure to act bravely as the mstru- 
 ments not of the people's passions but of their mterests, and to 
 require them to select other agents if they shall insist upon the doing 
 
 of wrong? . , ,1 1 -iu 4. 
 
 At the threshold of the discussion we encounter the usual epithets. 
 The advocates of change are apt to seek popular favor by decorating 
 themselves and their proposed innovation with some lofty adjective, 
 and in a similar fashion to cover their opponents with obloquy. _ The 
 quality assumed bv the proponents of one or all of this trinity of 
 reforms they express in the word progressive. They are advocating 
 "progressive" methods of government, while those who disagree 
 
 3 
 
4 EEPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 
 
 with them stand for reactionary methods. "Progressive" is an 
 alluring word. Everybody believes in progress if it be of the proper 
 kind, and a due amount of vociferation on the part of those claiming 
 a monopoly of the virtue may serve to banish skepticism as to the 
 kind. But if the question were to be settled by epithets there is 
 some ground at least for asserting that they should be transposed in 
 their application. Representative government is comparatively 
 modern; direct government of the democratic kind is ancient; and 
 the latter was deliberately discarded for the former by the founders 
 of our Govermiient. I will not cite such a statesman as ]\fadison, 
 not because the heavy debt which the cause of free and regulated 
 popular government owes him can ever be discharged, but because in 
 the passionate rhetoric of the self-styled Progressives he is set down 
 as a reactionar}'. I will choose an authority who still remains above 
 suspicion and will select the author of the Declaration of Independ- 
 ence, which even to-day is considered radical in its democracy. In 
 speaking of "the equal rights of man," Thomas JefTerson declared 
 that- 
 Modern times have the signal advantage, too, of having discovered the only device 
 by which these rights can be secured, to wit, government by the people, acting not in 
 pei-son, but by representatives chosen by themselves. 
 
 The framers of the Constitution were entirely familiar with the 
 failure of direct democracy in the government of numerous popula- 
 tions, and they were influenced by their knowledge of that failure in 
 devising our own structure of republican government. It is now pro- 
 posed 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 substitution of direct for representative government and are 
 in favor of the progressive principles of the American Constitution, 
 or the supporters of direct government who advocate the return to 
 the reactionary policies which thousands of years ago demonstrated 
 their destructive effect upon the government of any considerable 
 populations? It does not follow that to be a reactionary is to be 
 wrong. The wise reactionary may sometimes preserve the govern- 
 ment of a state, and even its civilization. Whether the initiative, 
 referendum, and recall embody sound political principles must be 
 determined by other tests. But their advocates should not masquer- 
 ade. If they choose to attach to themselves any label, they should 
 frankly spread upon their banner the word "reactionary." 
 
 The framers of our Constitution were endeavoring 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, bemg 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 established 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 govern- 
 
REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 5 
 
 mental energy became too much diluted and dissolved, the evils of 
 anarchy would result, and that there would follow a reaction to the 
 other 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 government 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 per- 
 mit 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. 
 
 We are in danger of forgetting the essential purpose of government ; 
 that it is not an end but a means; that the people do not exist for 
 the government, but that government exists for the people. The 
 idolatry of government, or of its institutions, has been as debasing 
 and injurious as any idolatry that has ever afflicted mankind. It 
 has often been. the agent of gross and wholesale oppression; it fre- 
 quently has been the means by which the many have been kept in 
 servitude and subjection; and, until the establishment of our own 
 system, the governments have been few which have had for their chief 
 purpose to safeguard and protect the individual, and hold over him 
 the shield of law, so that he might be secure in his life, his liberty, the 
 fruits of his labor, and in his right as an equal member of the state. 
 
 And when I speak of the individual, I mean the chief thing that is 
 essential in the meaning of the term "the people." I do not accept 
 the latter term in the sense in which it is so often sweetly used by 
 those who desire our votes. I am unable to see how any good coni- 
 ing to a mass of men can be felt in any other way than by the indi- 
 viduals in the mass. And until somebody shall point out a higher 
 consciousness than that of the individual man or vv-oman or child, he 
 can hardly be heard to deny that the individual man or woman or 
 child is the ultimate concern of the state. 
 
 And then we run into difficulties which, although psychological 
 in their character, are likely to become intensely practical. Philoso- 
 pliers have written upon the psychology of great crowds. Under 
 the influence of some strong emotion the will and the reason of each 
 individual seem to be paralyzed, and some of the worst things done 
 by mobs are often not approved afterwards by a single member of 
 them, but are regarded with horror. The moment comes when 
 enkindled passion merges into action and the blended impulses of 
 thousands of men overcome all human restraint and an abhorrent 
 action is taken with not the shghtest mark of human reason. Wlien 
 reason shall act as quickly as impulse and passion, instead of in the 
 cold gray dawn of the morning after, possibly we may do away with 
 restraints and temporary delegations of authority, and we may then 
 directly frame and enact our laws and execute them without the 
 intervention of any agents and ma}^ hold the delicate scales of justice. 
 
 The notion that there is a collective personality called " the people," 
 separated from the individuals who compose it, and which may be used 
 to oppress each one and all of its component parts in turn, may well 
 have been a conception of the Greek demagogues b}' whom it was so 
 fittingly .illustrated in practice. I can not understand how there can 
 be any freedom that is not in the last analysis individual freedom. 
 However great a mass of men you may have in a nation, however 
 
6 EEPEESETSTTATIVE AS AGAINST DIRECT GOVERNMENT. 
 
 powerful physically it may be, if each individual is the victim of 
 oppression, if he is denied rights, if there is no forum open to Mm 
 where he can be heard to say against the majority, "This is mine^ 
 then "the people" have no such thing as liberty, they have no such 
 thing as popular rights. As to the "composite citizen," he obviously 
 is nobody who ever has existed or ever will exist. When the advo- 
 cates of a reform, ignoring the man of flesh and blood in the street, are 
 conducting their operations with reference to this mythical person, 
 they should emigrate to Utopia. 
 
 It is for the interest of the individual members of our society to 
 have the great mass of us pass upon the intricate details of legislation, 
 to execute our laws, and to administer justice between man and man ? 
 That I believe to be in substance the question raised by the initiative, 
 the referendum, and the recall, as they are now practically applied in 
 at least one of the States of the Union, the example of which is held 
 up as a model to the other States. With an infinitesimal responsi- 
 bility, with only one vote in a million, how seriously would each one 
 of us feel called upon to withdraw from his own private pursuits and 
 to explore in all their details the complicated questions of govern- 
 ment ? It would be imposing an impossible task, scattered as we 
 are and unable to take common counsel, to require us in the mass to 
 direct the work of government. 
 
 First, with regard to the initiative. In our legislation the work of 
 investigation and of perfecting details is of such great difficulty that 
 proposed laws are distributed among various committees, which are 
 charged with the duty of considering their exact terms. The legisla- 
 tive body as a whole, although its members are paid for doing the 
 work, can not safely assume to pass upon the intricate questions of 
 legislation without investigation by committees selected with refer- 
 ence to their fitness for the task. The proposed law as perfected by a 
 committee is brought before the representative assembly and it is 
 -there again discussed and subjected to criticism, both as to policy and 
 form, and in this open discussion defects often appear which require 
 amendment and sometimes the defeat of the bill. And even with 
 these safeguards, laws often find their way upon the statute books 
 which are not best adapted to secure the purposes even of their 
 authors. 
 
 But what would be the procedure under the initiative ? In Oregon 
 a law may be initiated upon a petition of 8 per cent of the voters, 
 and it then goes to the people upon the question of its final enactment 
 without the intervention of any legislature. Some man has a beau- 
 tiful general idea for the advancement of mankind, but beautiful gen- 
 eral ideas are exceedingly difficult to put into statutory form so that 
 they may become the rule of conduct for a multitude of men. An- 
 other man may have some selfish project which, like most selfish 
 projects, may be concealed under specious words. The beautiful 
 idea or the selfish scheme is written by its author in the form of law, 
 and he proceeds to get the requisite number of signers to a petition. 
 With a due amount of energy and the payment of canvassers, these 
 signatures can be secured by the carload, and the proposed law then 
 goes to the people for enactment, and the great mass of us, upon the 
 farm, on the hillside, and in the city, proceed to take the last step in 
 making a law which nine out of ten of us have never read. And this 
 
REPRESENTATIVE AS AGAINST DIRECT GOVERNMETNT. 7 
 
 is called securing popular rights and giving the people a larger share 
 in their government ! 
 
 The people at the election in Oregon held in 1910 passed upon 
 proposed laws which filled a volume of 200 pages, and they passed 
 upon them all in a single day, each voter recording his verdict at the 
 polling booth upon both the candidates and the proposed laws. In 
 the ordinary legislative body, made up of no different material from 
 that of which the people are composed, an important question may 
 be considered for a day, or even for a week; and then, with the 
 arguments fresh in their minds, the legislators record their votes 
 upon the single measure. What a delightful jumble we should have 
 if 40 different statutes were voted upon in the space of a half hour 
 by the members of a humdrum legislature. 
 
 Of course one must be cautious about expressing a doubt that the 
 people in their collective capacity can accomplish impossibilities. 
 You may say of an individual that he should have some special 
 preparation before he attempts to set a broken arm or perform a 
 delicate operation upon the eye. But if you say that of all of as in a 
 lump, some popular tribune mil denounce you. And yet there is 
 ground for the heretical suspicion, admitting that each one of the 
 people may have in him the making of a great legislator, that there 
 should be one simple prerequisite which he should observe in order 
 to be any sort of a legislator at all. He should first read or attempt 
 to understand the provisions of a bill before solemnly enacting it into 
 law. One can scarcely be accused of begging the question to say 
 that the voters would not read a whole volume of laws before voting 
 upon them. The slightest knowledge of human nature would war- 
 rant that assertion. 
 
 How many even of the most intelligent of our people, of college 
 professors, of ministers, read the statutes that have already been 
 passed and are to govern their conduct? Even lawyers are not apt 
 to read them generally, but in connection with particular cases. But 
 if some proof were necessary, one has only to cite some of the Oregon 
 laws. For example, there are two methods of pursuing the salmon 
 fisheries in the Columbia River. In the lower and sluggish waters of 
 the stream fishing is done by the net, and in the upper waters by the 
 wheel. The net fishermen desired to prohibit fishing by the wheel, 
 and they procured sufficient signatures and initiated a law having that 
 object in view. On the other hand, the wheel fishermen at the same 
 time wished to restrict fishing by the net, and they initiated a law 
 for that purpose. Both laws went before the people at the same 
 election and they generously passed them both, and thus, so far as 
 the action of the people was concerned, the great salmon fisheries of 
 the Columbia were practically stopped. 
 
 A law was "initiated'' by signatures and was enacted by the 
 people at the election in November, 1910, providing for the election 
 of delegates to the national political conventions by popular vote. 
 The law forbade each voter to vote for more than one candidate. 
 But upon the usual basis of apportionment Oregon is entitled to 10 
 delegates in a national convention. If some candidate should be 
 preeminently fitted above all others for the place and should receive 
 all the votes, the State would have only a single delegate in the con- 
 vention. If the voter has the right to vote for all the candidates for 
 
'8 REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 
 
 the whole representation of Ms State in the electoral college, what 
 semblance of a reason can there be why he should not have the same 
 participation in the preliminary election when the candidate, who 
 may finally be elected President, is to be chosen? The same law 
 forbids a voter from voting for the nomination of more than one can- 
 didate for presidential elector. Thus a minority of a party in the 
 State may nominate candidates for electors hostile to its presidential 
 candidate. 
 
 If the vote of the preside*ntial electors of Oregon shall not some 
 time be divided, even though the popular vote ma}^ have been 
 strongly in favor of a given candidate, it will not be the fault of this 
 law. 
 
 It seems rather superfluous to cite instances to prove that, where 
 the filial legislative body is denied the power of meeting and discuss- 
 ing the provisions of a proposed law, there will be loose and freakish 
 legislation of the worst kind. Mr. Woodrow Wilson, before he 
 essayed the exacting role of the practical politician, declared before 
 the students of Columbia University that a government ''can not act 
 inorganically by masses; it must have a law-maldng body. It can 
 no more make laws through its voters than it can make laws through 
 its newspapers." And in the same course of lectures he declared 
 that : 
 
 We sometimes allow ourselves to assume that the ' ' initiative ' 'and the ' ' referendum, ' ' 
 now so much talked of and so imperfectly understood, are a more thorough means of 
 getting at public opinion than the processes of our legislative assemblies. Many a 
 radical program may get what will seem to be almost general approval if you Usten 
 only to those who know they will not have to handle the perilous matter of action, and 
 to those who have merely formed an independent — that is, an isolated opinion — and 
 have not entered into common counsel; but you will seldom find a deliberative assem- 
 bly acting half so radically as its several members have professed themselves ready 
 to act before they came together into one place and talked the matter over and con- 
 trived statutes. 
 
 After Mr. Wilson entered upon his political career he changed his 
 mind, but his recantation in no degree affects the weight of the argu- 
 ment to which I have referred. The "common counsel," of which he 
 speaks is an indispensable process in the making of law^s, and when- 
 ever our legislative bodies impose serious limitations upon the process 
 it is usually" to the detriment of the character of the laws passed; and 
 the more grave and statesman-like the deliberations of those charged 
 with the responsibility, the better it will be for the State. For this 
 vital process there would be substituted the enthusiasm of somebody 
 who believes he has devised some statutory cure-all for the ills that 
 afflict the body politic, and embodies his enthusiasm in a bill. He 
 seconds himself, as anyone may, with the necessary signatures to a 
 petition; and then without coming together and taking common 
 counsel, and often without reading what has been written, the great 
 mass of us solemnly proceed to vote. Such a procedure would put a 
 test upon the people under which no nation could long endure. 
 
 The referendum is somewhat better than the initiative, but as a 
 settled policy in the making of ordinary statutes it is indefensible. 
 It can be used upon concrete propositions that are not complex in 
 character, and especially upon constitutional propositions which ordi- 
 narily enunciate general principles. In the case of constitutional 
 changes, hovv^ever, they should never take effect without the support 
 of a clear majority of the voters, and in advance of their action they 
 
REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 9 
 
 should have the support of a large majority of the legislative body, 
 such as is provided in Massachusetts, so that our constitutions should 
 have more stability than mere statutes, and should not be subject to 
 change with every passing breeze. 
 
 I may illustrate again from the example of Oregon, which is pointed 
 out by the friends of these reforms as a model and whose people are 
 heroically subjecting themselves to political vivisection in the testing 
 of governmental experiments. An amendment may be made to the 
 constitution of that State by a majority of those who vote upon the 
 proposition in question. An amendment was passed in one election, 
 by barelj^ one-third of the legal voters, which provided that in civil 
 cases three-fourths of a jury might render a verdict, that no new trial 
 should be had where there was any evidence at all to sustai>n the ver- 
 dict, and makmg other important changes in the method of adminis- 
 tering justice. Constitutional changes should not be made, except in 
 deference to a pronounced and settled public opinion, which can not 
 better be determined under our system than to require the action of 
 successive legislatures and afterwards a direct vote of the people. 
 
 The referendum may sometimes profitably be used in connection 
 with questions affecting municipalities, where each voter has an ap- 
 preciable interest in the solution of the question and is famihar with 
 the conditions upon which the solution depends ; but as a step in the 
 process of passing statutes of the usual character, statutes which cre- 
 ate crimes and provide penalties for their violation, or which have 
 complicated regulations of a business character, the use of the refer- 
 endum would be vicious. We are not in the mass adapted to pass 
 upon questions of detail, just as the thousands of stockholders of a 
 great corporation are not in a position directly to manage its business 
 affairs. The function that we can best exercise is that of selecting 
 agents for that purpose and of holding them responsible for results. 
 Upon the questions relating to the character of representatives, who 
 are usually loiown personally to the people, they have excel^nt means 
 for forming a judgment. But if they so often make a mistake in their 
 judgments of the men they select, as we must infer from the arguments 
 in favor of direct legislation, how much more would they be apt to 
 make mistakes in dealing with the complicated questions involved in 
 practical legislation ? 
 
 The referendmu takes away from the legislature the responsibility 
 k)r the final passage of laws and permits it to shift the burden upon 
 the people. Legislators will be asked: "Are you not willing to trust 
 the people to say in their wisdom whether a given bill should be 
 enacted?'' The prevailing vice of members of lawmaking bodies in 
 our country is not venality, it is political cowardice; and they will be 
 ready to take refuge in that invitation to trust the people. A witty 
 Member of Congress from Mississippi once said that he usually found 
 it easier to do wrong than to explain why he did right. There will 
 be no such difficulty under the referendum. The legislator may dodge 
 the responsibility of voting upon some bad but specious law where 
 his political interests would lead him to vote one way and his sense 
 of duty another way. He would only need to say that he believed in 
 the people, and would vote to refer it to that supreme court of appeal. 
 Even under the present system fl legislator is quite too mucli influ- 
 enced by the noisy demonstrations that may be made in favor of one 
 side or the other of a pending proposition, and some of the worst laws 
 
10 EEPEESENTATIVE AS AGAINST DIRECT GOVERNMENT. 
 
 that find their way upon the statute books get there, not because they 
 are approved by the judgment of the legislator, but in response to 
 what he thinks may be the wishes of the people. And instead of 
 voting for what he honestly believes to be just and for the public 
 interests, even against what may appear at the moment to be popu- 
 lar sentiment, and then bravely going before his constituents and 
 attempting to educate them upon the question, he quite too often 
 tacks and goes before the wind. 
 
 IVhile the prevailing fault of legislative bodies is, as I have said, 
 pohtical cowardice, the fault of the voter is poHtical indifference. 
 There are far too few of us who carefully study public questions and 
 try to secure exact information about them. We are attracted by 
 sensational charges, by lurid headlines in the newspapers, and by gen- 
 eralities. We too often complacently accept the estimate that is 
 placed Upon our profound and exact pohtical knowledge by the men 
 who are asking us to vote for them, and we are far from giving that 
 serious attention to the pohtical issues which we bestow upon our 
 own private affairs. 
 
 There is a lawyer of very high standing at the bar of his State who 
 was astonished to be told that the House of Representatives had an 
 estabhshed order of business which consumed the greater part of its 
 time. He imagined that the Speaker had practically unhmited dis- 
 cretion in recognition. Another intelhgent man who was president 
 of a great railroad could not give the name of his Member of Congress, 
 although he had probably voted for him for 10 years, if he had voted 
 at all. Such instances are by no means rare, and mtelligent people of 
 that sort who neglect their pubhc duties often become the easy victims 
 of every "ism" and ''dum." 
 
 We are so engrosed in our private business that many of us give 
 no attention to public questions, or we too frequently bestow upon 
 the latter such superficial study that our action becomes the danger- 
 ous thing that is based upon little knowledge. This condition of 
 indifference, even under our present system, produces nothing but an 
 evil effect upon the character of laws; and this evil effect would be 
 greatly intensified under the initiative and referendum. Legislation 
 may be expected to represent in the long run the fair average of the 
 information and the study of the body which enacts it, whether that 
 body be composed of four hundred legislators or one hundred millions 
 of people. 
 
 A reform that is most needed is one that will make difficult the 
 passage of laws, unless they repeal existing statutes. The mania 
 of the time is too much legislation and the tendency to regulate every- 
 body and everything by artificial enactments. The referendum 
 would not be likely to furnish the cure for this evil, but would tend 
 to increase the number of questionable statutes that would be referred 
 to the people ; and some of them would doubtless be enacted. If those 
 who are chosen and paid to do the work, and upon whom the respon- 
 sibility is placed, are sometimes found to enact vicious laws, what 
 would be the result if legislation were "enacted by all of us when we 
 had made no special investigation of details, when we should be quite 
 too prone to accept the declamatory recommendations of the advo- 
 cates of legislative schemes, and submissively swallow the quack nos- 
 trums that might be offered for the diseases afflicting the body politic ? 
 
 The most dangerous statutes are those which deal with admitted 
 
EEPEESENTATIVE AS AGAINST DIRECT GOVEKNMENT. H 
 
 evils, and, in order to repress them, are so brjoadly drawn as to include 
 great numbers of cases whicli should not fairly come within their scope, 
 or to create a borderland of doubt where the great mass of us may 
 not clearly know how to regulate our conduct in order that we may 
 comply with their proliibitions. Just such statutes, with a basis of 
 justice but with imperfectly constructed details, would be most likely 
 to prevail upon a popular vote. If the 46 States of the Union and the 
 National Government which is the aggregate of them all should have 
 this system of direct legislation, our statute books would very likely 
 soon become a medley of ill-considered reforms, of aspirations sought 
 to be expressed in the cold prose of statutes, of emotional enactments 
 perpetuating some passing popular whim and maldng it a rule of con- 
 duct for the future; and the strict enforcement of our laws would 
 mean the destruction of our civilization. 
 
 And then, in order to perfect this scheme of popular government 
 and to safeguard the rights of a helpless people, in addition to all this, 
 they offer us the recall. Not merely are the laws to be directly en- 
 acted by the people, but the execution of the laws is to be conducted 
 in the same way. There would be temporary agents for the pm-pose 
 of governing, but the people would have ropes about their necks, and 
 at any momxcnt they would be subject to political extinction. This 
 power involves the supposition that the people are omniscient and 
 ever watchful. 
 
 The constitution of Arizona seems to be in line with the most 
 advanced thought upon this subject. That constitution provides 
 that 25 per cent of the voters may institute a proceeding for the recall; 
 and when it is invoked the man whom they have elected to an office 
 is permitted either to resign in five days or to defend himself in 200 
 words, upon a proceeding to throw him out in disgrace. It very 
 rarely happens that there is an election in which the defeated candi- 
 date does not receive 25 per cent of the vote, and not infrequently 
 he receives nearly one-half of it. It would be a matter of no difficulty 
 for him to initiate a recall and practically to have the election over 
 again, and so we should have perpetual warfare over the holding of 
 office. That result has already clearly developed where the recall is 
 in force. 
 
 A public officer could not take the long view; he could not patiently 
 study the problems that confronted him and carefully look into the 
 conditions, with which his office had placed liim in close contact, but 
 of which as a private citizen he could have only the most general 
 knowledge. But he would need to be careful to do only those things 
 which might be justified, not by close inspection, but upon the most 
 superficial view. The office to which he has been elected gives him 
 an elevated point of view which he did not have before, but he can not 
 avail himself of his wider range, because if he is no sooner in office than 
 he must justify himself or retire in disgrace, he will be hkely to do the 
 thing most pleasing to the prevailing fancy and which will adapt itself 
 most easily to the momentary condition of the public mind. His 
 pohtical interests will lead him to do the plausible and easily adver- 
 tised thing, and it may be the thing that will really injure the people. 
 
 Whether such a government may be called popular or not we should 
 be likely always to have under it government of the politician rather 
 than government of the statesman. I have been criticised for using 
 an expression similar to this, as if I had implied the converse; that we 
 
12 REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 
 
 now always have government by the statesman; but such an inference 
 can be drawn only by a careless or an unscrupulous thinker. That we 
 sometimes have government by the statesman is undeniable; but 
 that our government is perfect, nobody would pretend. Edmund 
 Burke asserted in effect the same thing at a time in liis career when 
 he was the most liberal, as he was always the most philosophical, of 
 British statesmen. In appealing to his constituents for the right of a 
 representative "to act upon a very enlarged view of things," and not 
 to look merely to the "flash of the day," he declared: 
 
 When the popular member is narrowed in his ideas, and rendered timid in his pro- 
 ceedings, the service of the Crown will be the sole nursery of statesmen. 
 
 According to Burke's view the constant response to the popular 
 mood would at least banish statesmen from the service of the people, 
 if it did not limit it to the politicians. 
 
 It is not difficult to turn back to the supreme crises in American 
 history, when its greatest figures were heroically struggling for what 
 they saw to be for the interests of their country, and, if the policy of 
 the recall had been in force, to see how the whole course of history 
 might have been changed, and how ambition and envy might have 
 utilized a temporary unpopularity to terminate some splendid career. 
 
 As an illustration, take Lincoln in the earlier days of his administra- 
 tion. The disastrous ctefeats that the Union arms had suffered had 
 been relieved only by slight successes. Lincoln scarcely had a friend 
 even in his own Cabinet. Seward was willing to take him under 
 guardianship and run the country for him ; Stanton had written of the 
 "imbecility" of the administration; Chase was quite ready to be a 
 candidate or the Presidency himself; the abolitionists were unsparing 
 in their criticism; the great organs of public opinion were hostile to 
 him; and there can be little doubt that, if a proceeding for recall could 
 have been had against him at the moment when he was enveloped in 
 the clouds of unpopularity, the career of the greatest of Americans 
 would have been brought to a disgraceful ending, with results to 
 civilization which it is melancholy to contemplate. 
 
 And then we are to have the recall of judges. The enforcement of 
 laws by judges subject to popular recall would be likely to be quite in 
 keeping with the character of the laws, if they had been enacted under 
 the initiative and referendum. If we are to have all the other things, 
 the initiative, the referendum, the recall of political officers, there 
 would be this reason for having the judicial recall. It would complete 
 and make exquisite the harmony of this destructive system. The two 
 fundamental things in the development of English liberty were the 
 free Parliament chosen by the people and independent of the Crown, 
 and the independence of the judiciary, which had held its tenure only 
 at the royal pleasure. The first great step for the independence of 
 Parliament was won at Runnymede, and the most signal result of the 
 Revolution of 1688 was the establishment of the independence of the 
 judiciary. 
 
 Every schoolboy knows the story of the bloody assizes, the black 
 Judicial murders, the gross travesties of justice which were seen under 
 the old system, when the judges held their office subject to the favor 
 of the Crown. It was onl}^ after the Revolution that English courts 
 became the real theaters of justice, and the weight of the law and the 
 evidence and not the fear of a master determined the decree. But 
 
REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 13 
 
 the recall of judges would make them on the instant subject to another 
 master. The judge, in order to feel secure in his office, would have to 
 consult the popular omens rather than the sources of the law. Instead 
 of looking to the drift of the authorities, he would be likely to study 
 the dkection of the popular winds. If in some judicial district a 
 strong labor union or a great corporation should hold the balance of 
 political power, the courts in that district would be likely to become 
 mere instruments of oppression. 
 
 But if we, the people, are so perfect that we can do no wrong even 
 though we are guilty of no investigation, and can with wisdom assume 
 directly to enact and enforce our laws, what reason is there why there 
 should be any constitutional restraint upon our action, and why 
 should we be hampered with, statutes or constitutions even of our 
 own maldng ? Why not have the present entirely free from restraints 
 imposed by the past ? Why not permit us in our omnipotent wisdom 
 to decide each case upon its own merits, considering only the inherent 
 principles of abstract justice, which in our collective capacity, accord- 
 ing to our flatterers, we must of course thoroughly understand? 
 
 The democracy of Athens at last attained to this altitude, where 
 the sublimated "composite citizen" stood forth unfettered and 
 showed what he could really do. In the latter days of that city the 
 action of her people became so direct that in a single abhorrent decree, 
 disregarding what was left of their constitution, they ordered- six of 
 their generals, among them the son of Pericles, to be executed; 
 because, although victorious over their enemies in the days when 
 Athenian victories were few, the success had not been achieved with- 
 out cost. 
 
 Those who advocate the direct action of our great democracy 
 might study with a good deal of profit the history of the little state to 
 which I have just been referring. No more brilliant people ever 
 existed than the Athenian people. They had a genius for govern- 
 ment. 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 literature and 
 art which probably has never since been reached. They could boast 
 of orators and philosophers 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 tyrami}^ 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 
 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 mainsprmgs 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. 
 
 But we are told that the crime of our age is the inordinate love of 
 wealth, and that to protect ourselves from its evils we must set aside 
 
14 REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT, 
 
 our existing institutions. But is the love of wealth, any new thing? 
 The greatest of ancient statesmen were accused of the grossest forms 
 of bribery. Thousands of years ago the love of money was declared 
 to be the root of all evil. It is not the fault of an age to be satisfied 
 with itself. Poets have always been singuig of a golden age, and they 
 have placed it sometimes in the past, sometimes m the future, but 
 never in the present. We may go back almost to the oldest of poets, 
 Hesiod, and we shall find him placing the golden age far back of his 
 own day, while his own time he pictured as one stained with plunder- 
 ing, with envy, brawling, and perjury. Horace, in a lively ode, sought 
 a poet's escape, and called upon the Koman citizens to abandon their 
 wicked country and set sail for the mythical islands where the honey 
 flows from the oak trees and the she goats, mibidden, brought their 
 full udders to the milking pails — islands which Jupiter had set aside 
 when he stained the golden age with brass and hardened the brazen 
 ages into iron. And those islands were no more mythical than the 
 refuge from our own crimes which the inventors of the initiative, the 
 referendum, and the recall have pointed out to us. 
 
 In what respect would we have been better if, during the amazing 
 physical development of the last two generations, we had had direct 
 democratic government ? It can not be contended that our legislators 
 did not represent the people. If they had attempted by their votes 
 to repress the universal sentiment for industrial expansion, they 
 could not have remained in office. The people of the towns even of 
 New England were found voting bonds as bonuses for the building of 
 railroads, and exemptions from taxation in order to secure manu- 
 facturing plants. And in the growing West the sentiment for empire 
 and expansion was so strong that cities and towns were bidding 
 against each other in the offer of gratuities, and if it had not been for 
 the occasional conservatism of legislatures, and for the issuing of 
 injunctions by judges, who under the recall would quite hkely have 
 been thrown out of office, our western country would have been 
 covered with communities which had made themselves bankrupt by 
 the gratuitous issue of bonds in aid of factories and railroads; and 
 we should probably not have attained anything approaching our 
 present development, because of the check that would inevitably 
 have come through the gross corruption of the system. 
 
 But our representatives are corrupt and they can not be trusted. 
 Undoubtedly you will sometimes find a corrupt legislator or a corrupt 
 ring of legislators. But unfortunately you will sometimes find a 
 corrupt voter and even a community of corrupt voters. Notwith- 
 standmg this latter circumstance the ballots of the great mass of the 
 American people are pure and without taint, and at the same time I 
 believe that the great mass of the legislators both at the State capitols 
 and at Washington are honest men. It is a singular reflection which 
 these self-anointed champions of the people make upon their purity 
 when they assert that the people generallj^ or often choose corrupt 
 men to represent them. Such an assertion is at least hardly compat- 
 ible with the uniform perfection of popular action. 
 
 The advocates of direct government cite the examples of Oregon 
 and Switzerland, where they point to results with an eloquence 
 nowhere else to be found outside of a mining prospectus. Perhaps I 
 have already referred sufficiently to Oregon. One must be easily 
 
EEPKESENTATIVE AS AGAINST DIEECT GOVERNMENT. 15 
 
 satisfied who can be convinced by a careful scrutiny of results in that 
 State, even though the experiment has been tried among her intelli- 
 gent people. Switzerland is a small country, scarcely equal in area 
 to some of our American counties, and a large proportion even of that 
 small area is covered by uninliabitable mountains. The population 
 is thrifty and conservative, and largely devoted to the work of caring 
 for the vast numbers of tf)urists who annually ^dsit the country. The 
 conditions as to complexity of industry are radically different from 
 those existing in America. But while Switzerland is one of the 
 countries best adapted, as we certainly are one of the least adapted, 
 to the operation of the initiative and the referendum, the results 
 there are not such as to justify their adoption in any other country, 
 if we may credit the report made to the State Department by our 
 vice consul at Berne, and presented to the Senate by Mr. La Follette 
 on July 13, 1909. This report says: 
 
 The great questions of centralization, civil status, laws of marriage and divorce, 
 bankruptcy laws, the customs tariffs, the railroad purchase, employers' liability, 
 factory laws, unity of the conflicting cantonal civil and criminal laws into a federal 
 code, the military organization, the pure-food law, etc., all of which are things of the 
 past, were congressional measures. It may safely be said that the initiative can be 
 of decided and positive value only in districts small enough to enable the average 
 citizen to form a conscientious opinion upon projects of such local significance as to 
 be well within his practical knowledge, but, in addition, he must exercise his duty 
 as he sees it at the polls. With a comparatively small number of signatures requisite 
 for an initiative measure, its danger lies in the fact that it may easily be prostituted 
 by factions, cliques, malcontents, and demagogues to force upon the people projects 
 of partisan, freak, or unnecessary legislation. 
 
 As to the referendum, there is no other veto power in Switzerland. 
 While it not so intelligently exercised as it would be b}^ an upright 
 executive, yet it has occasionally proved an important check. The 
 most striking general result is seen in the relatively small number of 
 voters who ^vill vote upon laws, and while statutes have been passed 
 to compel voting, their provisions have simply increased the great 
 number of blank votes. 
 
 The most serious tendency under our present system is seen in the 
 multiphcation of statutes which threatens to destroy liberty and even 
 to engulf our civilization. But much of this legislative rubbish is the 
 product of those who are given to exploiting themselves as the especial 
 champions of the people, or is the result of the readiness of the legis- 
 lator to respond to what he thinks is the popular demand. The 
 member who is most disposed to cast a negative vote is stigmatized 
 as a reactionary. It is not difficult to place the most immature, 
 visionary, and apparently popular schemes upon the statute books 
 of some of the oldest and, until recently, most conservative States 
 of the Union. 
 
 We should not experiment lightly with the fundamental principles 
 of our Government and trust to our good fortune to escape danger. 
 It is well to be an optimist, at least so far as faith is concerned in the 
 final triumph of good in the universe, but we should be careful not 
 to follow too willingly those professional optimists and political 
 Micawbers who are always sure, in whatever condition of danger we 
 put ourselves, that something will turn up to our advantage. One 
 of the most radical mistakes our Nation has ever made was contributed 
 to in large measure by well-meaning people who employed eulogiums 
 upon their own optimism instead of arguments, and denounced as 
 
16 REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 
 
 pessimists those who did not cheerily agree with them. Faith that 
 things will ultimately come out well does not mean that we may 
 recklessly take the next step. 
 
 It should be remembered that civilization has sometimes moved 
 backward for a time, that liberty has been submerged, and that great 
 and powerful nations have been brought to naught. Instead of 
 changing our system of government because of the existence of evils 
 which have existed since the beginning of time, and instead of attempt- 
 ing to seek refuge in a demagogue's paradise, our people should be 
 incited to study closely the problems of government, to set higher 
 standards for their own conduct, with the result that higher stand- 
 ards will be followed by their chosen agents; and there is no evil for 
 which the initiative, the referendum, and the recall are proposed as a 
 remedy that can not effectively be dealt with under our republican 
 institutions without the disintegration, the demoralization, and the 
 ultimate destruction of regulated liberty and of individual rights 
 likely to follow from the application of those reactionary policies, 
 just as they have followed them when applied upon a large scale in 
 history. 
 
 We look back upon the heroic periods of our history with admira- 
 .-tion, but with something like envy also that the opportunities for 
 groat service do not now appear so inevitable and clear as in those 
 times. But if it was a great achievement for Washington and those 
 who were with him to fashion a Nation of 3,000,000 people and estab- 
 lish free mstitutions for them, is the work of preservation less than 
 that of founding, now that that Nation numbers 100,000,000 ? There 
 is set before us a task as noble as that of Wasliington when he laid the 
 foundations of our State, as vital as that of Webster when he armed 
 us with those irresistible arguments for the Union, as necessary asj 
 that of Lincoln who perfected the work of those who had preceded 
 him and made our country at last really free. It is for us to see that 
 we do not weakly abandon in the indifference of peace all that has been 
 won by the sacrifices of war. It is for us to hold our course by the 
 steady lights of our history and not follow the leadings of a coterie of 
 political mystics who see wondrous visions and point out to us strange 
 paths. It is as great a work to save the ship from shipwreck as it 
 was to build it. 
 
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