The referendum in America : together with some chapters on the history of the initiative and other phases of popular government in the United States

Front matter

UNITED STATES OF AMERICA.

'f

THE

Preface

The names, the initiative and the referendum, have been known, of course, to a few students of government in this country and England for many years. It is, however, within only a very short time that these terms have conveyed a meaning even to otherwise intelligent and well informed men. The governments of the Swiss cantons were little understood by foreigners and it was not until the system of referring laws to popular vote was introduced into the practice of the Confederation that the subject began to claim anything like general consideration in the English speaking world. As for myself, I cannot remember that very much that was definite was known of this interesting democratic institution prior to the appearance of a popularly written work on the Swiss Confederation in 1889 by Sir Francis O. Adams, long the British Minister at Berne, and Mr. C. D. Cunningham. This book stated discussion in this country, and it soon came to be recognized that law-making by the people was also no strange thing in the United States. Mr. James Bryce referred to the subject in a chapter in " The American Commonwealth " and during the ten years past this feature of the Swiss and American political systems has become familiar to a constantly widening circle of Americans.

Our own experience with the referendum was brought to the notice of readers in university circles by the publication in 1 89 1 of my essay on " Law Making by Popular Vote," by the American Academy of Political and Social Science, which was followed in 1893 by a somewhat more detailed treatment of the subject in a Monograph on the Referendum, included in the publications of the University of Pennsylvania, Political Economy and Public Law Series. These studies, though

VI PREFACE

appealing necessarily to a rather narrow interest were so kindl}' received by students of political institutions in this country, England and France that it has encouraged me after these seven years to return to the subject in the present work.

Although my earlier studies regarding the referendum have furnished the frame for some of the chapters of the present volume every sentence, I think, is new and. many of the facts are from sources which were then but barely tapped. I cannot flatter myself with the hope that such a recital will be interesting reading to every one, but I have made an effort to keep it from being too dry and insipid to the general taste.

In seven years very great advances have been made in the development of the direct principle in law-making not only in this but also in other lands. Mr. Bryce, Mr. W. E. H. Lecky, Prof. A. V. Dicey, Mr. A. L. Lowell, Mr. E. L. Godkin and many other writers on constitutional subjects have carefully and attentively noted these manifestations in our political life ; and indeed in all countries where representative government has been tested and its weaknesses have been revealed the system of law-making by direct popular vote has come to claim a large share of public interest.

The question of introducing the referendum into Belgium was seriously discussed during the recent constitutional controversy which preceded and accompanied the revision of the organic law of that kingdom. More recently it has engrossed public attention in Australia in connection with the movement to unite and federate the various Australian colonies.

Coincidently the subject has rapidly gained a place for itself in Socialist and Labor party platforms in Europe and America. In the United States the demand that the people should have a larger share in the making of the laws has spread over a great area and through many strata of the population. In most of the Western States the referendum has been taken up with zeal by the advocates of radical social reforms in the belief that it is only the representative system which stands between them and the realization of

PREFACE vii

their ideals. Seeing the hght first in the poHtical program of the " Farmers' AUiance " the referendum made its way into the platforms of the so-called " Peoples' Party ", which polled a very large popular vote until its principles, the referendum with the rest, were transferred almost bodily to the platforms of the Democratic party. Not a few societies and leagues exist for the purpose of advancing this reform, in the East as well as in the West, and there are not many parts of the country where the referendum is now a strange name even to the common man. That the education of the people respecting such a subject is, in a way, a gain in a democracy it is not possible to doubt, and it leads one to hope that a question so vitally afTecting our constitutional system may be still more deeply examined into so that a true idea may be secured as to the worth of the referendum in contrast with the older representative type of government which is the heritage of the Anglo-Saxon race. If, in this work, I shall succeed in doing ever so little to make the issue clearer in the minds of those to whom the book may come, I shall feel it an abundant recompense for my somewhat tedious labors among the law books of the American States.

It should be explained that the first two chapters of this work are the result of a study undertaken long ago in another connection when I had hoped that the engagements of life would permit me to complete a constitutional history of the State of Pennsylvania, in the preparation of which I had made more than a beginning. I think, however, that it can not be wholly inappropriate to incorporate these chap- ' ters in this volume since they illustrate some phases of popular government in America of which we all have need of being occasionally reminded. These initial chapters will serve, I hope, as an historical background for those which follow, and will tend, perhaps, to a better understanding of some developments in the political experience of the United States of a later time. Lest in these chapters I should be accused of partisanship against Dr. Franklin and in favor of John Adams, which is a fate that has been met by not a few viii PREFACE

writers before me, I wish in advance to disclaim any such intention of prejudice. The student who looks for his sources in regard to this subject will find many of the most valuable of them in John Adams' '' Works ", and Mr. Adams' theories have found their justification in the course of later events while Dr. Franklin's were discredited long ago. There is no desire on the part of this author to take away anything from Franklin's glory in any direction or to make his figure appear in any other than an historically correct light. The historian has accorded him a high place among his compeers and my only aim here has been to investigate the course of his life as it bears upon political science, in which respect he was, I think, a mistaken adviser of his fellow men.

I wish sincerely to thank my preceptors and friends at the University of Pennsylvania, under whose inspiration this work was begun, while I was still a student in that institution, for their interest and advice during the progress of these studies. I desire particularly to name Prof. Edmund J. James, the President of the American Academy of Political and Social Science, earlier of the University of Pennsylvania, but now of the University of Chicago ; Prof. Simon N. Patten, of the University of Pennsylvania, and Prof. John Bach McMaster, of the University of Pennsylvania.

I wish, too, to acknowledge the great courtesy of the officers of the Pennsylvania Historical Society and of the Law Association of Philadelphia, whose valuable collections I have constantly referred to while engaged in the preparation

of these chapters.

ELLIS P. OBERHOLTZER.

Philadelphia^ August, 1900.

Chapter I Page

The Interplay of French and American Thought in the Eighteenth Century I

CHAPTER H The Downfall of Franklin's Government in Pennsylvania 45

CHAPTER HI

The Rise of the Constitutional Convention and the Decline of

the Legislature 69

CHAPTER IV The Referendum on Entire Constitutions 99

CHAPTER V The Amendment of Constitutions by Conventions 128

CHAPTER VI The Amendment of Constitutions by the Legislative Method.... 142

CHAPTER VII

The Referendum on Statutes of General Operation within the State when the Vote of the People is Authorized by the State Constitution 173

CHAPTER VIII

The Referendum on Statutes of General Operation within the State when no Authorization for the Vote is Contained in the Constitution 200

CHAPTER IX

The Local Referendum — Bills Affecting the Scope and Form of

the Local Governments 218

ix

^ CONTENTS

CHAPTER X

PAGE

The Local Referendum — Loan Bills and Financial Proposals 241

CHAPTER XI

The Local Referendum — Loan Bills and Financial Proposals ( Continued) 279

CHAPTER XH

The Local Referendum — Local Option Liquor Laws and Vexed

Questions 286

CHAPTER Xni The Local Referendum — Is It Constitutional ? 311

CHAPTER XIV The Referendum on City Charters 335

CHAPTER XV The Initiative in America 368

CHAPTER XVI The Referendum vs. the Representative System 390

THE

REFERENDUM IN AMERICA

CHAPTER I

THE INTERPLAY OF FRENCH AND AMERICAN THOUGHT IN THE EIGHTEENTH CENTURY

The leaven of political unrest which pervaded the populations of both Europe and America in the latter half of the eighteenth century, was responsible for a number of peculiar results. In all the forms, suggested and actual, at this time, however, popular government does not seem to have passed through the phase of allowing the people to vote directly by yeas and nays upon their laws, or even upon their constitutions, though we find evidences of this in respect of the latter case, in two of the New England States, and somewhat later in France in the Revolutionary Constitutions ^ of that fateful period when institutions and traditions in that country were being swept from their moorings in a storm of revolt from which the whole of Europe barely made its escape.

The influence which J. J. Rousseau exerted upon th.e progress of political events in America, has lately been made the subject of an interesting examination by Prof. Jellinek, of Heidelberg, and the results arrived at have the effect of reversing some pretty well-grounded opinions on this point.^

He attempts to show that the tendency, at this time, was

^ Adoption and Amendment of Constitutions in Europe and America, by Chas. Borgeaud, Hazen's translation, New York, 1895, pp. 199, 200; Lecky, Democracy and Liberty, 1896, Vol. I, p. 277.

from America to France, rather than in the other direction. In so far as the Bills of Rights in the various State Constitutions^ are concerned, beginning with Virginia's, the case is probably well made out, and it would appear, quite a long time ago. There is not a particle of doubt that the French Declaration of the Rights of Man was helped to its concrete form by the American Declarations of Rights, but it would be a serious mistake were we altogether to disregard Rousseau's influence in this connection. Certainly the play of ideas of one country upon those of the other was at least mutual, and knowing this, as we do, it becomes an interesting field of historical study. It is a period of the highest importance in the constitutional experience of America and France.

In the Contrat Social, Rousseau brought to expression sentiments that millions of men w^ere beginning to feel. As the philosopher of equality, of a social system in which age, sex. property, knowledge, were of little weight in comparison with the demands of nature, fantastically worked out and catalogued in an a priori way, he was the spokesman for great numbers of people. " Taking men such as they are, and laws such as they may be made,''^ Rousseau planned his scheme of government, and yet to a degree beyond any other writer of his time, he it was, perhaps, who took men not as they were, but as they were not.

In the state in which the system of the NaHtrrecht was exemplified in its perfect form, the people were to assemble and sanction their own laws. Jean Jacques gives us his views on this point in terms not to be mistaken :^ '* The sovereign having no other force but the legislative power, acts only by the laws ; and the laws being only the authentic act of the general will (volonfe generate), the sovereign can never act but when the people are assembled. Some will perhaps think that the idea of the people assembling is a mere chimera, but if it is so now, it was not so two thousand years ago ; and I should be glad to know whether men have changed in their

^ Borgeaud, op. cit., pp. 15 et seq. ^ Op. cit., p. 156.

* OeMvres, Geneva, 1782, Tome II, p. 3.

nature." He tells us that the people of Rome assembled in the Capitol, and here exercised their sovereign authority, and that at remoter times the Greeks, the Macedonians and the ancient Franks held councils of the people. He seems not to have known of the survival of the folk-mote in some of the Swiss cantons, where the Lands gemeinde was still a prevailing institution, as it is to-day, nor of the town-meeting in the New England Colonies, his philosophy needing little support drawn from the world about him.

Representative government with him was an evil, necessary sometimes no doubt, but only to be tolerated, — never to be cordially admired. Legislatures were a mark of political degeneracy. They resulted from a declination of patriotism, in this sense — that the people had become unwilling or indisposed longer to attend to their own affairs. There was bred an activity of private interest, the people refusing to give of their time to society, and their direct participation in law m.aking was made difficult also by the immense extent of dominions, a tendency to be deplored since the government thus became undemocratic. The representative system was brought on by the abuse of government generally; it was not the outgrowth or expression of the natural political condition.^ Deputies were not the representatives of the people. They could only be regarded as their commissioners. They were not qualified to conclude upon anything definitively. " No act of theirs," said Jean Jacques, " can be a law unless it has been ratified by the people in person ; and without that ratification nothing is a law."^

One cannot conceive of Rousseau being other than a rather passionate advocate of the system of submitting laws to popular vote, were he with us to-day, though without a ballot system, which has been a development of more recent years, the possibility of a plebiscite that could serve as a substitute for a council of the people does not seem to have suggested itself to the French philosopher. He did not hesitate to declare that the happiest people in the world, in his own view, were

^Op. cit., p. 165. nbid.

" a company of peasants sitting under the shade of an oak ", conducting the affairs of the nation '' with a degree of wisdom and equity that do honor to human nature ".® To say that a writing of jthis kind passed without its influence in America in the years prior to and during the Revolution, is, it would appear, a grave historical error. In America as well as in Europe, these theories ( if' ma:y be admitted that they were not Rousseau's in particular, he being but the writer who expressed them earliest and most pleasingly) soon struck deep root. The Contrat Social was well known to the Americans, or at any rate, to the pamphleteers and newspaper writers among them, who were busily engaged with the subject of government, arousing a popular interest in this branch of knowledge, which would do great credit to the American democracy in this later time.

Although British tendencies in respect of government were strong in the colonies, there was a conviction among the masses everywhere that men were little better for their 'wealth, their birth or even for their training and education. These democratic sentiments were held more obstinately in the frontier districts than in the large cities, and more strongly too in parts where the holdings in land were small, than where they were of larger size, ^he idea was spread far afield, and the belief took an intenser form as the breach between England and America widened, and the seeds of discord were sown, men aligning themselves in increasing numbers in favor of resistance, independence and the war. If inequality were English, then it was the more unsuitable for the American patriots. It must be discarded. A new political scheme must be sought out. There must be a turning toward France where was held a more liberal philosophy, which would afford the people sympathy in their struggles accompanied by an affiliation in sentiment, which was the more to be cultivated a little later, when French volunteers enlisted in the Continental army, and a political alliance between the nations was definitively established.

It was a question which the leaders of the Revolution in America had early to discuss, — with the abolition of the colonial governments what should come next ? What should follow the old political order ? Should independence from England, the declared equality of men which we find in that famous writing bearing the date of July 4, 1776, and in the Bills of Rights of the various State Constitutions, be followed by government most like or most divergent from that to which the colonists had been earlier accustomed ? It was not unnatural for the man of simplest mind, of the least foresight, to declare that what would be in the highest sense satisfactory to the Americans was a government in many essential points quite different from that which they had had hitherto.

There were at least three propositions in respect of the new governments. First, the very conservative view which made itself felt in every part of the country, but which was most influential in the South.® This faction would have made the States monarchies or aristocracies, with magistrates serving for life. Second, the moderate republican view of which John Adams was the ablest and most distinguished representative ; and third, the ultra-democratic view, which got its chief support from France, and of which Benjamin Franklin was a friend and defender.

Dr. Franklin, who had been in London in the interest of the colonies, met there a young Englishman named Thomas Paine. He was a writer, it was thought, of some ability, and although not professing to be this when he got to America, but instead, one who had just found a voice, as if inspired, in this great contest against British power and aggression now about to ensue, he did not disappoint his patron, Dr. Franklin. "In the course of this winter" (1775-76), John Adams writes in his autobiography,^^ '' appeared a phenomenon in Philadelphia, a disastrous meteor, I mean Thomas Paine ". Hfe almost immediately published a pamphlet which he called Common Sense, and he continued to

^ Cf. John Adams' Works, Vol. IV, p. 201. ^° Works, Vol. II, p. 507.

write under this name throughout the war, being employed for a time by Congress, winning some admirers, but not a few acquaintances, who regarded him with no more respect than did Mr. Adams. He afterwards returned to Europe, offered his services to the French democrats/^ repHed to Burke's aspersions against the French nation in respect of the Revolution in a book that he called the Rights of Man, was elected a " citoyen de France ", and was finally chosen to the Convention where he sat among the members who took the nickname of '' the Mountain ".^^ He was an international firebrand in very truth, a kind of American Mirabeau without the power of declamation, who, however, wrote English savagely and unscrupulously, and somehow met with many attentive readers. Flis Common Sense passed through several editions, and appearing as it did when the people were undecided whether or not to sever their relations with England, not knowing, if they should do so, what would follow, his pamphlet won a degree of popularity beyond any intrinsic worth, so far as we are able to perceive upon a perusal of it at the present day.

This pamphlet was an appeal " addressed to the inhabitants of America ". The author revealed himself a revolutionist in every part and member. " We have it in our power ", he said, " to begin the world over again. A situation similar to the present hath not happened since the days of Noah until now." ^^ He traced the origins of government in a manner clearly pointing to his familiarity with the Contraf Social, since Rousseau's happy peasants under the oak were not dif-

" Cf. Letter to the authors of the Republican which was published by Condorcet, in Political Wj-itings of Thomas Paine, Albany, 1794.

^^ Cf. Borgeaud, op. cit., p. 206.

" Political Writings — Common Sense, p. 58 ; cf . Burke's words addressed to the revolutionists in France : " You chose to act as if you had never been moulded into civil society, and had everything to begin anew. You began ill because you began by despising everything that belonged to you. You set up your trade without a capital. If the last generations of your country appeared without much lustre in your eyes, you might have passed them by, and derived your claim from a more early race of ancestors. Under a pious predilection for those ancestors.

ferent from those Paine called to mind, when he wrote^* that when the people of a community were ready for government " some convenient tree will afford them a state house imder the branches of which the whole colony may assemble to deliberate on public matters ". And he continued : " In this first parliament every man by natural right will have a seat." As the colony increased in size, it would be necessary for them to agree together '' to leave the legislative part to be managed by a select number chosen from the whole body, who are supposed to have the same concerns at stake, which those have who appointed them, and who will act in the same manner as the whole body would act were they present ".^^ He indicated that frequent elections would be necessary, and that the system of government should be " simple ". By this he meant that he should favor an assembly of a single chamber, which he, with his friend Franklin, and the other leaders of the Franco-Pennsylvanian Democracy would soon Introduce into the fundamental law of the State of Pennsylvania. He found the weakness of the English Constitution to be its complexity, while Montesquieu and John Adams regarded this thing as the chief source of its strength. The three branches of government, the executive, legislative and judicial, checking each other, in their result he declared to be contradictions, and the whole system of balances considered in the light of his philosophy, was reduced to " a mere absurdity ". It is true that Adams himself expresses the opinion that the influence of Paine's pamphlet was not so great as many had considered it;^^ but it was doubtless difficult

your imagination would have realized in them a standard of virtue and wisdom beyond the vulgar practice of the hour's, and you would have risen with the example to whose imitation you aspired. Respecting your forefathers, you would have been taught to respect yourselves. You would not have chosen to consider the French as a people of yesterday, as a nation of low-born servile wretches, until the emancipating year of 1789". — Works, London, 1815, Vol. V, pp. 82-83.

" Common Sense, p. 7 ; cf. Plain Truth, the pamphlet written in reply to Common Sense, in defence of the English Constitution with its systems of checks and balances, as expounded by Montesquieu.

^^ Common Sense, p. 7. ^^ Adams' Works, Vol. II, p. 509.

then, as it would be to-day, to determine how great or little may be the effect of such a publication at an opportune moment. Its publication at any rate, alarmed the Massachusetts leader, as he is free to admit in his review of this period of his life.^^ He took immediate steps to counteract the hurtful tendency, as he thought it to be, and we shall now see with what success, and as a result of how much pains and effort.

John Adams while attending the sessions of the Continental Congress, conferred with the members from the other colonies whom he met there regarding the various problems of government which would arise in case of a severance of relations with Great Britain, and he soon came to be regarded as a leader in American constitutional discussion. Richard Henry Lee, a delegate from Virginia, upon Avhose support in Congress Mr. Adams, as a rule, could certainly rely, was so much impressed by the views of his Massachusetts colleague, that he asked the latter to reduce his plan to writing, which he did in the form of a letter addressed to Mr. Lee from Philadelphia, under date of November 15, 1775.^^ " Taking nature and experience for my guide 'V^ he said, " I have made the following sketch " ; whereupon he proceeded to state with great lucidity that *' a legislative, an executive and a judicial power comprehend the whole of what is meant and understood by government ". " It is balancing each of these three powers against the other two," he added, *' that the efforts in human nature towards tyranny can alone be

" Mr. Adams says that he considered Paine's plan for an assembly of one chamber, " as flowing from simple ignorance and a mere desire to please the Democratic party in Philadelphia, at whose head were Mr. Matlack, Mr. Cannon and Dr. Young. I regretted, however, to see so foolish a plan recommended to the people of the United States, who were waiting only for the countenance of Congress to institute their State governments. I dreaded the effect so popular a pamphlet might have among the people, and determined to do all in my power to counteract the effect of it ". — Works, Vol. II, pp. 507-8.

" Cf. Rousseau's introduction to his Contrat Social alluded to in this chapter, ante, p. 2.

checked and restrained, and any degree of freedom preserved in the constitution."

The legislature, he said, should consist of a *' house of commons ", which would represent the people, and a " council " elected by the house, either from its own members or the citizens at large, to consist of twelve, sixteen, twenty-four or twenty-eight persons. Each chamber should have a negative on the bills passed by the other. The executive power should be exercised by a governor chosen annually, triennially or septennially, as might be preferred, by joint ballot of the house of commons and the council. The governor should possess the power of vetoing bills which the legislature had passed. He should appoint civil and military officers, with the advice and consent of the council, and have command of the army. The judicial power was to be exercised by judges appointed by the governor, not elected by the people.

Mr. Adams' plan in the main, was for a government such as has to-day, with slight modification, everywhere come to be the prevailing form in this country. Virginia at that time was perhaps the most important colony among the thirteen, and naturally much concern was felt as to the result of the convention which was soon to meet there to arrange for a transition from a royal, that is the colonial, to an independent republican government. Adams, in response to a request for a fuller statement of his views on this subject, wrote his " Thoughts on Government ", also in the form of a letter to a Virginian, which was published early in 1776,^^ and was widely circulated in Virginia, exerting a very considerable influence upon the members of the convention. ^^ There was in Virginia among most of the " opulent families " of the

20 Works, Vol. IV, pp. 193 et seq.

^^ Works, Vol. I, p. 208. See also Letter of Patrick Henry to John Adams, May 20, 1776, Works, Vol. IV, p. 201. Adams' pamphlet led to the publication of another by an unknown author, which was entitled " An address to the convention of the colony and ancient Dominion of Virginia on the subject of government in general, and recommending a particular form to their consideration by a native of the colony ". This was designed to counteract the popvilar influence of Adams'

to THE REFERENDUM IN AMERICA

State, "a strong bias to aristocracy ".^^ Adams, in the " Thoughts on Government ", which he offered to the Virginians, advanced his opinion, against that of the ** meteor " Paine, that '' the happiness of society is the end of government ". Paine, following Rousseau, had said that " government even in its best state is a necessary evil '' P '' There is no good government ", Mr. Adams continued, '' but what is republican ", and he pointed to the writings of Sidney, Harrington, Locke, Nedham, Neville, Burnet and Hoadly, thus indicating the breadth of his reading upon political subjects. 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 ", and here we have a well-summarized statement of the representative principle, which he desired should not be departed from.