THE STATE AND THE CITIZEN.*
LORD SELBORNE has accomplished a useful work in his little book, The State and the Citizen. It is in effect a popular handbook to the Constitution, or rather to the problems arising from the disintegration of the Constitution caused by the Parliament Act. Excellent is the history of the House of Lords at the time of Cromwell, and most useful the chapters on "Foreign Second Chambers—their Origins and Composition," and on the" Origin and Composition of Colonial Second Chambers." There is also a summary of the Parlia- ment Act and a chapter on the absence of Constitutional safeguards from which we now suffer. Finally, there are three appendices, one describing the legislatures of oversee States, another the legislatures of foreign countries, and a third giving the text of the Parliament Act. In passing we may add that it would have been very useful had Lord Selborne given us in a fourth appendix the text of Lord Balfour of Burleigh's Referendum Bill.
As we trust that Lord Selborne's book will be widely read and reprinted, we may usefully notice one or two omissions which the author should have little difficulty in putting right. For example, it would have greatly strengthened Lord Selborne's argument as to the necessity of a Second Chamber had he made more of the point that when our American kinsfolk recently determined to deal with the Senate, which had provoked popular dissatisfaction, they did so not by altering or diminishing the powers of the Second Chamber, but by altering the system under which the Federal Senate is chosen. By an amendment of the Constitution passed this year, all Senators hereafter will be elected by a direct vote of all the electors of their States instead of by the indirect method. When we were dissatisfied with our Second Chamber we diminished its powers instead of altering its composition. This is surely a striking proof of how determined the American democracy is not to submit to single-chamber rule. They realize the absolute need of a strong Second Chamber. There is another direction in which Lord Selborne might have made more use of American example. It is not only in case of the National Government that the people of the United States are wedded to the two-chamber rule. There are two houses in every State Constitution.
We need hardly say how delighted we are to see Lord Selborne's thoroughgoing advocacy of the Referendum. We have preached the necessity of adding the Referendum to our Constitution for the past twenty years in season and out of
• The Slate and the Citizen. By the Earl of Selborne. London: Frederick Warne and Co. pa. net)
season, and it is naturally with no small pleasure that we welcome a recruit to the cause so distinguished as Lord Selborne. We cannot help thinking, however, that he would have strengthened his case if, while dwelling upon the example of Switzerland, he had pointed out at greater length and in more detail how the American democracy in almost every State of the Union makes use of the Referendum. In the
page and a half which is all he devotes to the Referendum in America, he deals almost wholly with Oregon, and the plain man would certainly not realize from what he writes the tremendous position held by the poll of the people in America. It is of intense interest and importance to our half of the Anglo-Saxon race to know that it was the Americans and not the Swiss who first systematized the use of the Referendum as a corrective to the possible excesses of repre-
sentative government. In a book published last year, Mr. Honey, a distinguished American lawyer, showed by means of copious references to the history of the State Constitutions that the home of the Referendum is not Switzerland but New England. The four New England States, Massachusetts, New Hampshire, Connecticut, and Rhode Island, adopted the principle of the Referendum almost directly after their severance from the British Crown. Massachusetts in 1778 submitted its first Constitution to a Referendum of the people. From that time onward the Referendum has been constantly in use in the various States, till at present polls of the people are taken on some point or other almost every year in almost every State. Indeed the States may be said to have very nearly reached the Teutonic ideal described by Tacitus—on minor matters the chiefs decide, on all greater questions the people. We must remember also that in America the Referendum is the true Referendum, that is, the opportunity given to the people of exercising a veto over legislation, and not a mere empty abstract plebiscite of the Napoleonic kind.
In showing that the Referendum is democratic and specially suited to Anglo-Saxons and Anglo-Saxon institutions, Lord Selborne might have drawn proof not merely from America, but also from those records of Puritan England
which he handles so well in regard to the House of Lords.
Just as the American States found that some veto over legislation was needed as soon as the Royal veto, which had been exercised by the provincial governors, was with- drawn, so our Puritan ancestors, when the House of Lords was abolished, at once discovered the need for some veto over the vagaries of their representatives, and found it in the poll of the people or Referendum. The version of the "Agree- ment of the People" which was put forward by the army of the Commonwealth in their representations to the Long Parliament on the need of a Constitution properly safe- guarded from the dangers of usurpation of power by the representatives of the people, distinctly demands the Refer- endum. It is true that the language in which that demand is couched is crabbed and the thought a little confused, but if the document in question is properly studied there can be no doubt as to the meaning. We have often quoted the passages in these pages during the past twenty years, and we may quote them again. It is the representatives of the Army who speak, and to the Parliament :—
"Now to prevent misunderstanding of our intentions therein, we have but this to say, that we am far front such a spirit, as positively to impose our private apprehensions upon the judg- ments of any in the kingdom, that have not forfeited their freedom, and much less upon yourselves, neither are we apt in anywise to insist upon circumstantial things, or aught that is not evidently fundamental to that public interest for which you and we have declared and engaged, but in this tender of it, we humbly desire; (1) That, whether it shall be fully approved by you and received by the people, as it now stands or not, it may yet remain on record, before you, a perpetual witness of our real intentions and utmost endeavours for a sound and equal Settlement, and as a testimony whereby all men may be assured what we are willing and ready to acquiesce in; and their jealousies satisfied or mouths stopt, who are apt to think or say, we have no bottom. (2) That, with all the expedition which the immediate and pressing great affairs admit, it may receive your most mature consideration and resolutions upon it; not that we desire either the whole, or what you shall like in it, should be by your authority imposed as a law upon the kingdom, for so it would lose the intended nature of an Agreement of the People '; but that so far as it concurs with your own judgments, it may receive your seal of approbation only. (3) That, according to the usettuod propounded therein, it may be tendered to the peopk in ail parts, to be subscribed by those that are willing, as petitions and other things of a voluntary nature are, and that, in the nwanschar, the ascertaining of these circumstances, which are referred to Connzisetoners in the several counties, may be proceeded upon in a way preparatory to the practice of it ; and if upon the account of Subscriptions (to be returned by those Commissioners in April next) there appears a general or common reception of it amongst the people, or by the well-affected of them, and such as are not obnoxious for Delinquency, it may then take place and effect, according to the tenour and substance of it."
It is obvious from the words italicized that what the framers of the Agreement meant by " Subscriptions " was a poll of those who were entitled at that time to use the Franchise. The "Appeal to the English Nation," another product of the great Constitutional controversy of the Commonwealth epoch, contains a reference, though somewhat indirect, to the
Referendum :-
"If any shall inquire why we should desire to joyne in an agreement with the people, to declare these to be our native Rights, and not rather to petition to the Parliament for them ; the reason is evident. No Act of Parliament is or can be un- alterable, and so cannot be sufficient security to save you or us harrnlesse, from what another Parliament may determine, if it should be corrupted ; and besides Parliaments are to receive the extent of their power and trust from those that betrust them ; and therefore the People are to declare what their power and trust is, which is the intent of this Agreement."
The same idea crops up in the debates at the Council of the Army. For example, we find in a speech of Colonel Ireton, in regard to the need for some restraint upon the unlimited powers of the Commons, these words : "It gives the negative voice to the people; no laws can be made without their consent." The "negative voice" secured to the people is in effect the right to veto Acts of Parliament at a Referendum. The Referendum, too, must surely have been in Cromwell's mind when he said : "If I could see a visible presence of the people either by subscriptions or number I should be satisfied with it ; for in the Government of Nations that which is to be looked after is the affections of the people." " Affections " here means the desires and will rather than the love of the people. So should it, and so may it, be.
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