fundamental constitution, being content to vest in its representatives and governor the plenitude of its own powers. This, however, no American State does, or has ever done, or is likely to do. And the question why it does not suggests a point of interest for Europeans as well as for Americans.

In the republics of the ancient world, where representative assemblies were unknown, legislative power rested with the citizens, meeting in what we should now call primary assemblies, such as the Ecclesia of Syracuse or the Comitia of Rome. The same plan prevailed in the early Teutonic tribes, where the assembly of the freemen exercised all such powers as did not belong to the king. The laws of the kings of the Angles and Saxons, the capitularies of Charlemagne, were promulgated in assemblies of the nation, and may be said, though emanating from the prince, to have been enacted by the people. During the Middle Ages, the ancient assemblies died out, and the right of making laws passed either to the sovereign or to a body of magnates and representatives surrounding the sovereign, such as the English Parliament, the older scheme surviving only in such primitive communities as some of the Swiss cantons. The first reappearance in modern Europe of the method of direct legislation by the people is, so far as I know, the provision of the French Constitution framed by the National Convention in 1793, which directs that any law proposed by the legislative body shall be published and sent to all the communes of the Republic, whose primary assemblies shall be convoked to vote upon it, in case objections to it have been raised by one-tenth of these primary assemblies in a majority of the departments. In recent times the plan has become familiar by its introduction, not only into most of the cantons of Switzerland, but into the Swiss Federal Republic, which constantly applies it, under the name of Referendum, by submitting to the vote of the people for approval or rejection laws passed by the Federal legislature.1

1 The Swiss Federal Constitution provides that any Federal law and Federal resolution of general application and not of an urgent character, must on the demand of eight cantons or of 30,000 voters be submitted to popular vote for acceptance or rejection. This vote is frequently in the negative. See Swiss Federal Constitution, Art. 89; and the remarks of Ex-President Numa Droz in his Instruction civique, § 172. In nine cantons the submission of laws to popular vote was in 1907 compulsory and in eight facultatif. A referendum exists in every canton except Fribourg, Valais and the four which retain a Landesgemeinde. See S. Deploige, Le Referendum en Suisse, Brussels, 1892. In

In Britain the influence of the same idea may be discovered in two phenomena of recent years. One is the proposal frequently made to refer to the direct vote of the inhabitants of a town or other local area the enactment of some ordinance affecting that district: as, for instance, one determining whether a rate shall be levied for a free library, or whether licences shall be granted for the sale, within the district, of intoxicating liquors. This method of deciding an issue, commonly known as Local Option, is a species of referendum. It differs from the Swiss form, not merely in being locally restricted, but rather in the fact that it is put to the people, not for the sake of confirming an Act of the legislature, but of deciding whether a certain general Act shall or shall not be operative in a given area. But the principle is the same; it is a transference of legislative authority from a representative body, whether the parliament of the nation or the parish vestry or municipal council of the town (as the case may be), to the voters at the polls.

The other English illustration may seem far fetched, but on examination will be seen to involve the same idea. It is now beginning to be maintained as a constitutional doctrine, that when any large measure of change is carried through the House of Commons, the House of Lords has a right to reject it for the purpose of compelling a dissolution of Parliament, that is, an appeal to the voters. The doctrine is as warmly denied as it is asserted; but the material point is that many educated men contend that the House of Commons is not morally, though of course it is legally, entitled to pass a bill seriously changing the Constitution, which was not submitted to the electors at the preceding general election. A general election, although in form a choice of particular persons as members, has now practically become an expression of popular opinion on the two or three leading measures then propounded and discussed by the party leaders, as well as a vote of confidence or no confidence in the Ministry of the day. It is in substance a vote upon those measures; although, of course, a vote only on their general principles, and not, like the Swiss Referendum, upon the statute which the legislature has passed. Even therefore in a country which clings to and founds itself upon the absolute supremacy of

1891 the Federal Constitution was amended by introducing the provision called the Initiative, which enables 50,000 voters to demand the submission of a proposition to popular vote.

its representative chamber, the notion of a direct appeal to the people has made progress.1

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

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

1 Much importance has come to be attached in England to casual parliamentary elections occurring when any important measure is before Parliament, because such an election is taken to indicate the attitude of the people generally towards the measure, and by consequence the judgment they would pronounce were a general election held. There have been instances in which a measure pending in Parliament was dropped, because the result of the "byelection" was taken to indicate that it displeased the people.

There are now those in England who advocate the introduction of a Referendum as a method to be applied to certain classes of Acts.

As the republic went on working out both in theory and in practice those conceptions of democracy and popular sovereignty which had been only vaguely apprehended when enunciated at the Revolution, the faith of the average man in himself became stronger, his love of equality greater, his desire, not only to rule, but to rule directly in his own proper person, more constant. These sentiments would have told still further upon State governments had they not found large scope in local government. However, even in State affairs they made it (in the northern States) an article of faith that no Constitution could be enacted save by the direct vote of the citizens; and they inclined the citizens to seize such chances as occurred of making laws for themselves in their own way. Concurrently with the growth of these tendencies there had been a decline in the quality of the State legislatures, and of the legislation which they turned out. They were regarded with less respect; they inspired less confidence. Hence the people had the further excuse for superseding the legislature, that they might reasonably fear it would neglect or spoil the work they desired to see done.

Instead of being stimulated by this distrust to mend their ways and recover their former powers, the State legislatures fell in with the tendency, and promoted their own supersession. The chief interest of their members, as will be explained later, is in the passing of special or local Acts, not of general public legislation. They are extremely timid, easily swayed by any active section of opinion, and afraid to stir when placed between the opposite fires of two such sections, as for instance, between the Prohibitionists and the liquor-sellers. Hence they welcomed the direct intervention of the people as relieving them of embarrassing problems. They began to refer to the decision of a popular vote matters clearly within their own proper competence, such as the question of liquor traffic, or the creation of a system of gratuitous schools. This happened as far back as 1850-60. Presently they began to wash their hands by the same device of the troublesome and jealousyprovoking question where the capital of the State, or its leading public institutions, should be "located." In New York,

This is now the general rule in new constitutions. Washington provides that though a bare majority may settle where the seat of State government shall be, a majority of two-thirds shall be required to change it.

the legislature having been long distracted and perplexed by the question whether articles made by convicts in the State prisons should be allowed to be sold, and so to compete with articles made by private manufacturers, recently resolved to invite the opinion of the multitude, and accordingly passed an Act under which the question was voted on over the whole State. They could not (except of course by proposing a constitutional amendment) enable the people to legislate on the point; for it has been often held by American courts that the legislature, having received a delegated power of law-making, cannot delegate that power to any other person or body.1 But they could ask the people to advise them how they should legislate; and having obtained its view in this manner, could pass a statute in conformity with its wishes.

The methods by which legislative power is directly vested in the American voters are four. The first is the enactment or amendment by them of a Constitution. Here the likeness to the Swiss Referendum is close, because the particular provision to be enacted is first drafted and passed by the Convention or legislature (as the case may be) and then submitted to the people. How wide the scope of this method is will be realized by one who has followed the account already given of the number and variety of the topics dealt with by State Constitutions.

1 According to the maxim Delegata potestas non delegatur, a maxim which would not apply in England, because there Parliament has an original and not a delegated authority.

Judge Cooley says: "One of the settled maxims of constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional authority alone the laws must be made until the Constitution itself is changed. The power to whose judgment, wisdom, and patriotism, his high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved" (Constit. Limit., p. 141). He quotes from Locke (Civil Government, § 142) the remark that "The legislature neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." This is one of Locke's "bounds set to the legislative power of every commonwealth in every form of government"; but it has not precluded the British Parliament from delegating large, and in many cases truly legislative, powers to particular persons or authorities, such as the Crown in Council, or the Council of Judges. There has been much difference of opinion among American courts as to the extent to which a legislature may refer the operation of a general law to popular vote in a locality, but "the clear weight of authority in support of legislation of the nature commonly known as local option laws." —- Cooley, ut supra, p. 152; and see the cases collected in his notes.