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 ali 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 the 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.2 He attempts to show that the tendency, at this time, was 1Adoption 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. 2 See Jellinek, Die Erklärung der Menschen-und Buergerrechte, Leipzig, 1895. 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 were beginning to feel. 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 Naturrecht 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 (volonté generale), 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 Op. cit., p. 156. Borgeaud, op. cit., pp. 15 et seq. 'Oeuvres, Geneva, 1782, Tome II, p. 3. 5 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 Landsgemeinde 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 making 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."7 the 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, 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. 'Ibid. |